Bombay High Court
The State Of Maharashtra vs Mirza Himayat Inayat Baig @ Ahmed ... on 17 March, 2016
Bench: Naresh H. Patil
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CONFIRMATION CASE NO. 4 OF 2013
The State of Maharashtra .. Appellant
(Org. Complainant)
Vs.
Mirza Himayat Baig @ Ahmed Baig Inayat
Mirza @ Hasan .. Respondent
(Org. Accused )
ig WITH
CRIMINAL APPEAL NO. 755 OF 2013
Mirza Himayat Baig @ Ahmed Baig Inayat
Mirza @ Hasan
Aged 32 years,
R/o Kamwada Galli,
Junna Bazar, Tal. Beed,
District Beed, Maharashtra .. Appellant
(Org. Accused)
Vs.
The State of Maharashtra .. Respondent
Mr. Raja Thakare, Spl. P. P. a/w Smt. V. R. Bhonsale, APP, a/w Mr.
Sagar Kumbhar a/w Mr. Bharat Manghani for State.
Ms. Mansi Mahida for ATS.
Mr. Mehmood Pracha a/w Mr. T. W. Pathan a/w Mr. I. A. Khan a/w
Mr. V. A. Shaikh i/by Legal Axis for accused.
::: Uploaded on - 18/03/2016 ::: Downloaded on - 31/07/2016 09:16:56 :::
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CORAM: NARESH H. PATIL &
S. B. SHUKRE, JJ.
RESERVED ON : DECEMBER 21, 2015.
PRONOUNCED ON : MARCH 17, 2016
JUDGMENT [ Per Naresh H. Patil, J.] :
1. The Confirmation Case No. 4 of 2013 arises out of the
Reference made by the learned Additional Sessions Judge, Pune in
Sessions Case No. 771 of 2010 for confirmation of the death sentence
awarded to accused Mirza Himayat Baig @ Ahmed Baig Inayat Mirza @
Hasan. By judgment and order dated 15th and 18th April, 2013 in Sessions
Case No. 771 of 2010, the learned Additional Sessions Judge, Pune
convicted and sentenced accused - Mirza Himayat Baig @ Ahmed Baig
Inayat Mirza @ Hasan as under:-
Convicted under Section Sentenced to
U/s 16(1)(a) of the Unlawful Death and to pay fine of Rs.500/-, in default
Activities (Prevention) Act, to pay fine, to undergo imprisonment for
1967. one month. The accused be hanged by the
neck till he is dead.
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U/s. 10(b) of the Unlawful Death and to pay fine of Rs.500, in default
Activities (Prevention) Act, to pay fine, to undergo imprisonment for
1967. one month. The Accused be hanged by the
neck till he is dead.
U/s. 10(a) of the Unlawful Suffer Imprisonment for two years and to
Activities (Prevention) Act, pay fine of Rs.500/-, in default to pay fine,
1967 to undergo imprisonment for one month.
U/s.18 of the Unlawful Suffer Imprisonment for life and to pay fine
Activities (Prevention) Act, of Rs.500/-, in default to pay fine, to
1967. undergo imprisonment for one month.
U/s. 20 of the Unlawful Suffer imprisonment for life and to pay
Activities (Prevention) Act, fine of Rs.500/-, in default to pay fine, to
1967. igundergo imprisonment for one month.
U/s. 13(1)(b) of the Unlawful Suffer imprisonment for seven years and to
Activities (Prevention) Act, pay fine of Rs.500/-, in default to pay fine,
1967. to undergo imprisonment for one month.
U/s. 13(2) of the Unlawful Suffer imprisonment for five years.
Activities (Prevention) Act,
1967.
U/s. 120B of the Indian Penal Death and to pay fine of Rs.500/-, in default
Code. to pay fine, to undergo imprisonment for
one month. The accused be hanged by the
neck till he is dead.
U/s. 302 read with 120B of Death and to pay fine of Rs.500/-, in default
Indian Penal Code.. to pay fine, to undergo imprisonment for
one month. The accused be hanged by the
neck till he is dead.
U/s.307 read with 120B of Suffer imprisonment for life and to pay fine
Indian Penal Code. of Rs.500/-, in default to pay fine, to
undergo imprisonment for one month.
U/s. 435 read with 120B of Suffer imprisonment for seven years and to
Indian Penal Code. pay fine of Rs.500/-, in default to pay fine,
to undergo imprisonment for one month.
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U/s.153A of Indian Penal Suffer imprisonment for three years.
Code.
U/s. 474 of Indian Penal Suffer imprisonment for seven years and to
Code. pay fine of Rs.500/-, in default to pay fine,
to undergo imprisonment for one month.
U/s. 3(b) of Explosive Death and to pay fine of Rs.500/-, in default
Substances Act, 1908 read to pay fine, to undergo imprisonment for
with Section 120B of Indian one month. The Accused be hanged by the
Penal Code. neck till he is dead.
U/s. 4(a) & (b) of Explosive Suffer rigorous imprisonment for life and to
Substances Act, 1908. pay fine of Rs.500/-, in default to pay fine,
to undergo imprisonment for one month.
U/s. 5 of
Explosive Suffer rigorous imprisonment for life and to
Substances Act, 1908. pay fine of Rs.500/-, in default to pay fine,
to undergo imprisonment for one month.
However, the accused is acquitted for offence punishable under Sections
465, 467 and 468 of the Indian Penal Code. The accused being aggrieved
by the very same judgment and order, preferred Criminal Appeal No. 755 of
2013. As both, the Confirmation Case and Appeal, are directed against the
same judgment and order, both these appeals were heard together and are
being decided by this common judgment.
2. Prosecution case is that, on 13/2/2010 bomb blast had taken
place at German Bakery, Koregaon Park, Pune. PW 103 - Vinod Damodar
Satav is the Investigating Officer, who was working as an Assistant
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Commissioner of Police, Anti Terrorist Squad, Pune Unit at the relevant
time. While he was in office, he received information at 19.20 hrs. (7.20
p.m.) about the bomb blast. He proceeded to the spot of incident with the
police staff. Police Inspector of Bandgarden Police Station Shri Nadgauda
was present on the spot along with staff. The German Bakery is situated
on the North Main Road at Koregaon Park, Pune. When the Investigating
Officer reached the spot, he saw several articles in the Bakery lying
scattered. The glass panels and the counter of the Bakery were destroyed.
Many persons, who were in and around the German Bakery, were seen
lying in pool of blood. They had received serious injuries. The
Investigating Officer informed Police Inspector of Bandgarden Police
Station Shri Nadgauda to cordon off the spot. He found gas cylinders,
used in the German Bakery, in intact condition. The eastern side wall of the
German Bakery was collapsed and one big crator was noticed. While
describing the location of the German Bakery, it was mentioned that near
the Bakery, there is a place for persons belonging to Jew community to
offer prayer, which is called as "Chabad House". The Osho Ashram is at a
near distance from the German Bakery. Due to peculiar location of the
German Bakery, number of foreigners used to visit the Bakery. The
Investigating Officer's initial impression was, that it was a bomb blast
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caused involving terrorist activity. The Investigating Officer informed
Additional Director General and Director General of Police, Anti Terrorist
Squad of the said incident.
3. It is the prosecution case that the injured were taken and
admitted to the different hospitals like Jahangir Hospital, Ruby Hall,
Sassoon Hospital, Budhrani Hospital and Surya Hospital. The several
teams of police officers were formed for the purposes of investigation of
crime. The teams were assigned specific job of investigation, spot
assessment, viewing of CCTV footage, analyzing technical data etc.
4. Police Inspector Shri Pravin Pant gave report, based on which
Police Inspector Shri Nadgauda registered C.R. No. 83 of 2010 in the
Bandgarden Police Station (Complaint Exh. 309). The Director General of
Police issued order to the effect that the investigation shall be conducted by
the Anti Terrorist Squad. Said order dated 13/2/2010 is at Exh. 408. The
Investigating Officer PW 103 - Shri Satav took over the investigation. An
offence came to be registered in the office of Anti Terrorist Squad, Kala
Chowki, Mumbai. A copy of the same was sent to the Special Court of
Anti Terrorist Squad (Report dated 15/2/2010 is marked as Exhibit 409).
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Thereafter, Investigating Officer drew panchanama of spot of incident on
the same day from 8 a.m. to 3.30 p.m. A team of experts from Delhi
reached the spot, which included the experts from Forensic Science
Laboratory and CBI. The experts had visited the spot and had collected
certain samples from the spot of incident. It is the prosecution case that
around 20 samples were collected. The experts from the CBI, Forensic
Science Laboratory, Pune and Delhi had collected the samples. All the
samples collected from the spot were packed in different packets and were
sealed with the signatures of panchas. The prosecution case is that video-
graphy of the spot of incident was done, certain photographs were taken by
the police photographers, namely, Shri Pardeshi and Shri Mhetre.
5. Thereafter the investigating agency sent 7 samples, out of 20,
to Pune's Forensic Science Laboratory. 7 samples collected by experts
from Forensic Science Laboratory, Delhi were sent to Laboratory at Delhi
(Spot Panchanama Exh. 166). The report from the Forensic Science
Laboratory, Pune was received. Exh. 343 is a forwarding letter addressed
to Laboratory, Pune and the report is at Exh. 22. As per the report of
Laboratory at Pune, traces of Cyclonites (RDX), Ammonium Nitrate and
Nitrate Ions along with petroleum Hydrocarbon oil were found in the
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samples, thereby indicating that RDX was used in causing the bomb blast.
6. The CCTV footages of Hotel "O", which is next to the
Gernman Bakery, was seized by Police Inspector Shri Joshi. Two hard-
disks under a panchanama were seized, copies of which were prepared and
system generated data of CCTV footage from Hotel "O" was also collected
(Exh. 163 is a spot panchanama of seizure of CCTV footage and Exh. 164
is the system generated data). From the German Bakery, one V.C.R., one
V.C.D. and one remote control were seized under panchanama. A C.D.
was prepared for operational purposes (Exh. 242 is the said panchanama).
The inquest panchanamas were drawn (Exhs. 69 to 85). There were 42
injured persons, who submitted their affidavits in lieu of examination-in-
chief (Exhs. 113 to 153). Their medical certificates were brought in
evidence (Exhs. 200 to 205A and Exhs. 206 to 234). According to the
police, 17 persons succumbed to the injuries and were declared dead. The
clothes of the deceased persons were sent to laboratory along with sample
of hair, skin and blood. The clothes were seized under a panchanama (Exh.
86). The splinters collected by the doctor from dead bodies and the injured
persons were sent to laboratory (Exhs. 314 to 320 are the panchanamas).
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7. It is the prosecution case that on 18/2/2010, Colonel Mann
from the National Security Guards and one Shri Gopinath from Hyderabad
Forensic Science Laboratory had visited the spot of incident. Police
Inspector Shri Nadgauda was instructed to show them the spot of incident
and the articles seized. Colonel Mann and Shri Gopinath opined that the
incident was caused due to bomb blast by using mobile phone as triggering
device. They also opined that 9 volt battery was used. The articles, which
were collected by Colonel Mann and Shri Gopinath, were also sent to
Chemical Laboratory. The forwarding letter dated 24/2/2010 is marked as
Exh. 410. Two experts, namely, Suresh Padwalkar and Ashish Shinde,
who were said to have knowledge in respect of mobile phones, were
contacted and then taken to Forensic Science Laboratory to show the
articles, which were collected by Colonel Mann and Shri Gopinath. The
letter in this respect was written on 26/2/2010 (Exh. 411). The experts'
opined that back side part of Nokia mobile model 1100 was seen in the said
articles, lying with the laboratory. The statements of these persons were
also recorded. During the course of investigation, Police Inspector Shri
Joshi was instructed to collect the record of CCTV footages of the date of
incident from the German Bakery and prepare copies for operational
purposes. 7 video cassettes were made (Exh. 269) (Article 33). This work
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was done in the system installed on the second floor of German Bakery.
The police suspected that the bomb blast could have been triggered by
banned organizations Lashkar-E-Taiba and Indian Mujahiddin. It was
noticed that in the month of May, 2006, the Anti Terrorist Squad had seized
16 AK 47 riffles, 3200 live cartilages, 43 Kg. RDX, 50 hand-grenades etc.
in the city of Aurangabad, State of Maharashtra. The Investigating Officer
Shri Satav - PW 103 had done part of investigation of the said case. A
person named Samad Khan was accused in that case. It is stated that he had
made confessional statement under the Maharashtra Control of Organised
Crime Act, 1999 (for short "MCOC Act). In the said statement, he had
referred to the name of present accused - Mirza Himayat Baig, which
probably gave clue to the investigating team to investigate the case
regarding the role of the present accused - Mirza Himayat Baig. The
certified copy of the said confessional statement is at Exh. 412.
8. It is the prosecution case that the present accused - Mirza
Himayat Baig was wanted accused in one case, which was registered by
Anti Terrorist Squad. The said offence was registered under the provisions
of the Unlawful Activities (Prevention) Act, 1967 (C.R. No. 17/2008).
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9. During the course of screening of the CCTV footages, it was
noticed that one person had entered the German Bakery with two bags and
he left German Bakery only with one bag. That person was wearing a cap.
The investigating agency had viewed the footage of CCTV installed in the
German Bakery and Hotel "O". The relevant clipping of the C.D. is
Article 61. This was done by Police Inspector Shri Hasabnis. The CCTV
footages were shared with all the investigating agencies and during the
course of investigation, it was revealed that
ig in the clipping a person
wearing a cap was noticed as Ahemad Siddi Bappa @ Yasin Bhatkal.
Police Inspector Dinesh Kadam, who was working in the Anti Terrorist
Squad, had also worked in Crime Branch, Mumbai and played a major role
in apprehending accused involved in Ahemdabad and Surat bomb blasts.
He had certain photographs with him. He was shown CCTV footages.
10. On 27/5/2010, an auto-rickshaw driver came to the office of
Anti Terrorist Squad, Pune. The Investigating officer was informed by the
auto-rickshaw driver that he had dropped a person from Pune Railway
Station to Central Mall, Pune, whose look was identical as was appearing in
the photograph published in the newspaper on 25/5/2010. The Investigating
Officer recorded the statement of the said auto-rickshaw driver, who
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deposed before the court as PW 93.
11. It is the prosecution case that on 7/9/2010, when the
Investigating Officer was present in his office, information was received
from D.I.G. that accused Mirza Himayat Baig was coming at the Pool Gate
Bus Stop at Pune. The Investigating Officer reached the spot by laying a
trap. Mirza Himayat Baig was seen at platform No.3 at 14.00 hrs. He was
apprehended and brought to Anti Terrorist Squad office.
ig Preliminary
inquiry was made with him. After holding preliminary inquiry, the
investigating team was convinced that he was involved in the present case.
Two panchas were called for taking his personal search (Exh. 252). They
found two mobile phones, one of silver gray and one of black colour, a
piece of ATM card, election card, a piece of newspaper and pocket diary
written in Urdu language and his photographs (Articles 13 to 22). Exh. 252
is the panchanama of personal search. The Investigating Officer arrested
present accused - Mirza Himayat Baig. His arrest was informed to his
brother and accordingly Bandgarden Police Station was intimated of his
arrest by forwarding the report dated 7/9/2010 (Exh. 413).
12. It is the prosecution case that during the interrogation of
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accused Mirza Himayat Baig, it was revealed that he himself, alongwith
other accused persons Mohsin Choudhari and Yasin Bhatkal, had assembled
the bomb in the Global Internet Cafe at Udgir and the remaining explosives
and other material were kept at his residence at Udgir. Two panchas were
called and in whose presence the statement of accused Mirza Himayat Baig
was recorded between 16.45 p.m. to 17.00 p.m. Immediately thereafter the
Investigating Officer along with panchas, accused and the staff left for
Udgir in Government vehicle and two private vehicles. The team reached
Udgir via Solapur road at 1.30 a.m. in the early hours of 8/9/2010.
Thereafter, it is the prosecution case that accused Mirza Himayat Baig
asked the vehicle to be taken to Jalkot Road. On the say of the accused, the
vehicles were stopped. The team contacted the BDDS and called them on
the spot. The accused came out of the vehicle. The Bomb Disposal Squad
reached. The team proceeded towards the directions given by accused
Himayat Baig.
13. It is the prosecution case that accused Mirza Himayat Baig
accompanied them to a bungalow, which was having compound wall on all
sides. The gate of the compound wall was locked. Accused Himayat Baig
called one Abdul. One boy came outside, who disclosed his name as Abdul
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Rahim Sayyad. Accused Mirza Himayat Baig showed his face to the boy
and gave our introduction to the said boy. Thereafter the boy opened the
lock of the gate. It is the prosecution case that the investigating team asked
the said boy to take their search but he refused to take such search.
Thereafter, investigating team along with the accused entered the bungalow.
14. It is the prosecution case that there was a hall in the said
bungalow, which was having one staircase on the right side of the hall. The
accused took them from the said staircase to the first floor of the house.
One wooden double bed was lying there. Accused Mirza Himayat Baig
opened the panel of storage box of the said bed. He removed one nylon
bag. It is the prosecution case that accused Mirza Himayat Baig told that
the explosives were kept in the said bag, covered in a plastic bag. The
BDDS officers were asked to verify the explosives with the help of sniffer
dog. Sniffer dog named "Janjeer" was made to sniff the explosives. Said
sniffer dog barked and wagged it's tail and gave indication that it was
explosive. The BDDS officers informed that the bag was containing
explosives. Thereafter the said bag was opened. There were five pieces of
some substance, all black in colour, one soldering gun, soldering wire and
one wire cutter in the said bag. The five pieces of black coloured substance
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were weighed on the weighing machine, which weighed 1200 grams in
total. From that, samples of 50-50 grams were made. The seized articles
were kept in separate bags and were sealed with the lakh seal and
thereafter panchanamas were drawn, labels were put with the signatures of
the panchas. A detailed panchanama was prepared (Exhs. 341 and 341A).
The articles seized were numbered as 54 to 60, which were seized under
panchanama (Exh. 341A).
15.
It is the prosecution case that a station diary entry was made
before leaving the office. The said entry is at Exh. 414. During the course
of inquiry, it was informed that one person, namely, Gaus had taken two
bags of accused Mirza Himayat Baig. The Investigating Officer directed to
inquire into the same. The investigating team thereafter returned to Pune.
After coming back to Pune, an entry was accordingly taken in the station
diary on 8/9/2010. Said entry is at Exh. 415. The prosecution placed
reliance on the log-book entry of the Government vehicle, which was used
at the time of aforesaid panchanamas at Exhs.341 and 341A.
16. Accused Mirza Himayat Baig was produced before Pune court
on 8/9/2010. He was remanded to custody till 20/9/2010. He was taken to
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Anti Terrorist Squad office at Pune so that he could be kept safe and
investigation could be carried out properly. Police Inspector Dinesh
Kadam was asked to interrogate accused Mirza Himayat Baig and in the
meanwhile PI Gaikwad conducted investigation in respect of two bags
belonging to accused Mirza Himayat Baig, which were made available to
police by Gaus. One of the bags contained clothes of accused Himayat
Baig and another contained documents and reports. The report was
submitted regarding seizure of two bags (Exh. 417). The panchanama of
the seizure of two bags is at Exh. 264. There were 59 documents in one
bag. They were kept in different envelopes. They contained election card,
certificate pertaining to disability, educational certificates and one passport.
In panchanama at Exh. 264, there was a reference to an endorsement in the
passport that accused Mirza Himayat Baig had visited Colombo via
Chennai on 7/3/2008 and had returned on 24/3/2008.
17. It is the prosecution case that the explosive substance, which
was seized at the instance of accused, was sent to Forensic Science
Laboratory. The C. A. report is at Exh. 24 which says that "explosive
substance was RDX, petroleum Hydro Carbon oil and Charcoal". Sample
of the said material was also referred to Forensic Science Laboratory at
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Pune and Delhi. Exhs. 22 and 23 are reports received from Pune and Delhi
Forensic Science Laboratories. Prosecution case further suggests that
accused Mirza Himayat Baig was in contact with other accused persons,
who were involved in the case of Arms Haul of Aurangabad, State of
Maharashtra, in the year 2006. It was further revealed that accused Mirza
Himayat Baig was in contact with the absconding accused in the said Arms
Haul case, namely, Jabiuddin Ansari and Fayyaz Kagzi. Accused Mirza
Himayat Baig had given his identity in the name of "Hasan" and "Yusuf".
He projected that he was running the Internet Cafe at Udgir. He was also in
contact with absconding accused by name Riyaj Bhatkal, Iqbal Bhatkal,
Yasin Bhatkal and Mohsin Choudhari. Accused Mirza Himayat Baig was
acting as per the directions of the absconding accused and was inciting the
minds of young persons in propagating Jehad by inciting them to cause
incidents like bomb blasts and create disharmony between the Hindu and
Muslim religion. Accused Mirza Himayat Baig had gone to Colombo and
met absconding accused Jabiuddin Ansari and Fayyaz Kagzi and had
undergone training of assembling the explosives. He had received fundings
for the said cause. The said financial assistance was received in Euro
Currency. Passport of accused Mirza Himayat Baig is Article 30.
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18. It is the case of the prosecution that accused Mirza Himayat
Baig was using ATM card of one Rehan, who is examined as PW 94. From
the diary maintained by accused Himayat Baig, it was revealed that he was
in contact with absconding accused. The banking transactions were done
from the account of Rehan. The handwriting of accused Mirza Himayat
Baig was seen on the pay-in-slips of the bank. The investigating agency
had taken specimen handwriting and signature of accused Mirza Himayat
Baig. Specimen signature of Rehan was also taken by drawing a
panchanama. (Exhs.247 and 250). The record containing CCTV footage at
the ATM centre was also relied upon by the prosecution. A C.D.
prepared for the operational purposes, by drawing a panchanama at
Exh.253, was relied upon. In this connection, two CDs were prepared by
the prosecution (Articles 23A and 23B).
19. It was further revealed that on 7/2/2010 accused Mirza
Himayat Baig had travelled from Udgir to Mumbai by bus of Priyanka
Travels. The police seized register maintained by Priyanka Travel by
drawing a panchanama (Exh. 283). Accused Mirza Himayat Baig reached
Mumbai on 8/2/2010 and resided in Al-Noor Lodge. The register,
containing the entries, maintained by the Al-Noor Lodge was seized by the
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police (Article 35). The signature of accused Mirza Himayat Baig is at
Exh. 281 in Article 35.
20. The prosecution case is that Police Inspector Reddy had
conducted investigation in connection with the use of different identity
cards by accused person. It was revealed that accused person had collected
certificate of handicapped person, caste certificate, ration card, certificate
of residence and driving license. Said documents were sent for verification
to the concerned agency. The authorities confirmed that the certificate of
handicapped person was a forged document. Concerned Tahsildar
informed that the caste certificate and ration card were forged documents
(Exhs. 285 and 286). The certificate of residence was also found to be
forged by Chief Officer, which is at Exh. 290.
21. Further investigation conducted by PI Dinesh Kadam revealed
that accused Mirza Himayat Baig had come to Mumbai on 8/2/2010 and
had purchased one sack bag and one Nokia mobile phone of 1100 model.
The police went to person, namely, Mohammad Ilias Mansoori from whom
the accused had purchased the sack bag. Accused Mirza Himayat Baig
had come to Pune on 31/1/2010. He came again there on 13/2/2010.
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22. During investigation, it was revealed that accused Mirza
Himayat Baig was using two mobile phones having Sim card of Tata
Docomo and Vodafone. When accused Mirza Himayat Baig was
apprehended, mobile phone having Sim card of Tata Docomo was found in
his possession. During his visit to Mumbai on 8/2/2010, accused Mirza
Himayat Baig had kept the cell phones with one Zakiuddin and had left
Mumbai for Udgir and the same was done by the accused to camouflage
his presence. Accused had instructed Zakiuddin to keep the mobile phones
in switched on mode and answer the phone calls.
23. On 11/2/2010 accused Mirza Himayat Baig had gone to
Aurangabad from Mumbai by bus. He had kept his mobile phones with a
person by name Shakil Ahemad and had instructed him to keep the mobile
phones on switched on mode. It was revealed that both the mobile phones
were taken back by the accused from said Shakil Ahemad in the night of
13/2/2010.
24. It revealed that absconding accused Yasin Bhatkal and Mohsin
Choudhari had visited Udgir in the third week of January 2010 and hatched
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conspiracy with accused Mirza Himayat Baig and accused Mirza Himyat
Baig had come to Pune on 31/1/2010 for surveying the German Bakery. On
6/2/2010, absconding accused Yasin Bhatkal and Mohsin Choudhari had
again visited Udgir and carried the explosives and articles used for causing
bomb blast with them. Accused Mirza Himayat Baig had arranged for their
stay and made place of Global Internet Cafe available for assembling the
bomb. The mobile phone, which was purchased by accused Mirza Himayat
Baig in Mumbai, was used to trigger the bomb.
25. The investigating officer Shri Satav deposed that necessary
sanction was secured from the concerned Collector for prosecuting the
accused under the Explosive Substances Act and after seeking sanction
from Additional Chief Secretary (Home), State of Maharashtra, under the
Unlawful Activities (Prevention) Act, further steps were taken. After
obtaining necessary permissions and sanctions and after recording
statements of various witnesses, the Investigating Officer filed charge-sheet
on 4/12/2010 against the present accused Mirza Himayat Baig and
absconding accused for the offences punishable under Sections 120(B),
302, 307, 326, 325, 324, 427, 153A, 467, 468, 471, 474, 109, 34 of Indian
Penal Code, under Sections 10, 13, 16, 18, 20 and 21 of Unlawful
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Activities (Prevention) Act, 1967 and under Sections 3, 4 and 5 of
Explosive Substances Act, 1908. Since some of the said offences were
triable by Court of Sessions, the Judicial Magistrate, First Class (A.C.
Court, Pune) committed the case to the Sessions Court by an order dated
6/12/2010.
26. According to the prosecution, at the scene of offence, 9 persons
died and 8 person died in the hospital (total number of persons died is 17).
Amongst the deceased, few were foreigners. 58 persons suffered injuries.
On behalf of the prosecution 103 witnesses were examined. The charge-
sheet was filed against seven persons, six of them were shown as
absconding. The charge-sheet was filed in the Court of J.M.F.C. (A.C.
Court), Pune. The learned Magistrate issued proclamation against the
absconding accused under Section 82 of Cr. P. C. and issued warrants
against them, based on an affidavit filed by the Investigating Officer and by
written application filed by Investigating Officer on 15/10/2011. The
learned Magistrate observed that the evidence recorded in the matter would
be under Section 299 of Cr. P.C. against the absconding accused persons.
27. The charge was framed against the accused on 16/7/2011 (Exh.
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17). The charge was read over and explained to the accused, to which he
pleaded not guilty and claimed to be tried.
28. The prosecution examined 103 witnesses, out of which
evidence of the prosecution witnesses nos.1 to 41 was tendered by
submitting affidavits pursuant to the provisions of Section 296 of Cr. P.C.,
they being formal witnesses. The defence was given opportunity to cross-
examine the prosecution witnesses. From the list of formal witnesses, the
defence chose to cross-examine 11 witnesses.
29. After framing charge, prosecution submitted an application
(Exh.20) praying for exhibiting 43 reports from the Government Scientific
Expert as per the provisions of Section 293 of Cr. P. C. The learned
defence advocate submitted say (Exh. 21) to the effect that the reports from
Forensic Science Laboratory mentioned in the application from Sr. Nos.4 to
43 may be exhibited under Section 293 of Cr. P.C. The defence did not
admit the reports of Forensic Science Laboratory mentioned at Sr. Nos.1, 2
and 3. The trial court admitted in evidence the Forensic Science Laboratory
reports (Exhs.22 to 65) with liberty to defence to make appropriate
application under sub-section (2) of Section 293 of Cr. P. C., if they so
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desired, for examining any such witness, by passing an order on 30/7/2010.
30. The prosecution submitted application (Exh. 66) under Section
294 of Cr. P. C. calling upon the defence to either admit or deny certain
documents such as spot panchanama, photographs and videography of the
scene of offence, panchanamas 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, panchanama 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 filed by them in support of the case. The say of
defence was called. The say was submitted vide Exh. 67 stating therein that
the inquests 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
and mentioned in the said application are not denied and they may be
exhibited. The inquest panchanamas and the papers regarding cause of
death of the victims came to be admitted in evidence and marked as Exhs.
69 to 85. The defence counsel admitted certificates of injured persons,
which are mentioned at Sr. Nos.34 to 85 in the application at Exh. 66. They
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are marked as Exhs.200 to 234 in evidence. The documents which were
admitted by the defence concerning the injury certificates were exhibited.
The defence advocate admitted panchanamas pertaining to seizure of
splinters removed from the body of the injured persons and seizure of
clothes of deceased. On 20/3/2012, the prosecution submitted another
application under Section 294 of Cr. P.C. concerning admission and denial
of genuineness of injury certificates of six injured persons. The defence
admitted the same (Exhs.235 to 240). Prosecution filed application for
tendering evidence by way of affidavit of formal witnesses, which was
allowed by an order dated 3/9/2011. Application was filed by the
prosecution for recording the evidence against the absconding accused
under Section 299 of Cr. P.C. The defence opposed the said application.
Said application was allowed by an order dated 15/10/2011 by observing
that the evidence recorded in the matter would be under Section 299 of Cr.
P.C. as against the absconding accused.
31. Prosecution submitted an application under Section 294 of Cr.
P.C. (Exh. 385) calling upon the defence to admit or deny sanction orders
secured by the prosecution for prosecuting the accused. The defence had
no objection to exhibit the said three sanction orders. Three sanction
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orders, therefore, came to be admitted in evidence and marked as Exhs.
391, 392 and 393. Map/sketch of the spot of incident was also submitted,
on which the defence had given endorsement that the same may be
exhibited and therefore, the same was admitted in evidence at Exh. 260.
32. The prosecution, after recording evidence, filed closure pursis
at Exh. 427. The statement of accused was recorded under Section 313 of
Cr. P. C. Defence did not examine any witness.
33. This is a case based on circumstantial evidence. The
prosecution has placed reliance on various circumstances, which includes
the long standing association of accused Mirza Himayat Baig with
absconding accused Fayyaz Kagzi, Jubiuddin Ansari, Mohsin Choudhari
and others, active part shown by the accused in the activities of "Jehad"
and tendency of the accused for taking revenge against the "atrocities"
committed on Muslim community. The prosecution states that accused
camouflaged identity by using pseudo names such as Hasan, Yusuf, Ahmed.
He created fake documents of identity. The prosecution case suggests that
the accused entered into criminal conspiracy with the absconding accused
to cause bomb-blast at German Bakery, Pune and as it's part, committed
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several unlawful activities, including hiding his own identity for indulging
into financial dealings without involving his name for using ATM card of
PW 94. As a part of criminal conspiracy, accused Mirza Himayat Baig did
reiki at Pune and visited Colombo, Sri Lanka for committing unlawful
activities.
The prosecution case is that accused Mirza Himayat Baig is a
member of banned terrorist organization Lashkar-E-Taiba i.e. L-e-T.
In pursuance of conspiracy hatched with the absconding
accused, accused Mirza Himayat Baig visited Mumbai for purchasing
mobile hand-set i.e. Nokia 1100, which was used as a triggering device and
a haversack bag. The accused, as a part of criminal conspiracy, created
false alibi by keeping his mobile phones with his friends to show that on the
date of blast, the accused was at Aurangabad. The accused was found in
possession of documents of identity of other persons. The accused had
been last seen with another absconding accused i.e. Yasin Bhatkal, wearing
a cap and carrying two bags on 13/2/2010 at Pune, on which day the blast
was carried out at German Bakery.
34. The prosecution case is that on the date of the blast, the other
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absconding accused wearing a cap and carrying two bags entered German
Bakery and left the Bakery having one bag with him. The said person was
identified as Yasin Bhatkal, who was planter of the bomb. He was shown
as absconding accused.
35. The prosecution placed reliance on seizure of CCTV footages
of German Bakery and Hotel "O", recovery of RDX, Forensic Science
Laboratories reports and sanction orders obtained under the Unlawful
Activities (Prevention) Act, 1967 and Explosive Substances Act, 1908.
36. Broadly speaking the main plank of the prosecution case rests
on circumstances like, background of the accused and his various unlawful
activities, purchase of mobile hand-set of Nokia 1100 from Manish Market,
Mumbai, seizure of RDX from a room in white building at Udgir at the
behest of the accused, making of bomb in Global Internet Cafe run by the
accused, reiki done by accused of German Bakery at Pune, his presence in
Pune along with the planter of bomb, identification by auto-rickshaw driver
and mobile phone being used as a triggering device for exploding the
bomb and use of RDX (Cyclonite) in the bomb that exploded at German
Bakery.
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37. On the issue of association of accused Mirza Himayat Baig
with absconding accused Fayyaz Kagzi, Jabiudding Ansari, Mohsin
Choudhari and other, the prosecution examined PW 73, PW 87, PW 94, PW
97 and PW 103.
PW 73 - Abdulsamad Mohammad Hanif Shaikh stated in his
examination-in-chief before the court that he was having the cloth shop by
name "Indore Cotton Shop" at Udgir. He purchased clothes from Mumbai
and sold them in his shop. He met with one person by name Yusuf sir with
his friend Khurshid Alam. His friend Khurshid Alam told him that Yusuf
sir was having an Internet Centre by name Global Internet Cafe in the
Nagar Parishad market. Khurshid told him that Yusuf sir would give him
money but Yusuf sir (present accused), who stated that he was not knowing
this witness and, therefore, he would give money to Khurshid Alam.
Accordingly Khurshid Alam gave Rs.40,000/- in cash to witness -
Abdulsamad. After two days, Khurshid Alam came to his shop and gave
Rs.60,000/- in cash to the witness. During the intervening period of three
months, an amount of Rs.1,20,000/- was paid by the witness to the accused
by visiting his Internet Cafe. He became more friendly with the accused.
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He identified the accused in the court and stated that he was "Yusuf sir".
On 6/2/2010, the witness had gone to Mumbai for purchasing. It was his
practice to book tickets from Priyanka Travels, Latur, on phone. He had
booked ticket for 6/2/2010. Priyanka Travels belonged to his friend Ezaz
Maniyar. Whenever the witness visited Mumbai, he was staying in Al-Noor
Lodge situated at Mohamad Ali Road, Crawford Market. He reached
Mumbai in the morning of 7/2/2010 and stayed at the Al-Noor Lodge.
There was a practice to obtain name and signature of the customer at Al-
Noor Lodge. The witness had written his name, mobile number in the
register maintained there and thereafter he was allotted bed. He rested
there for some time and had breakfast at the hotel situated next to Al-Noor
Lodge. The witness stated that in between 11 a.m. to 12.00 noon, he
received phone call from Yusuf sir. He told him to book one ticket for
Mumbai. Accordingly, the witness telephoned his friend Ezaz Maniyar and
booked one ticket in the name of accused. Mobile number of Yusuf sir was
given to Ezaz Maniyar. Accordingly, accused travelled to Mumbai on the
said ticket in the morning of 8/2/2010. The witness had gone to receive
Yusuf sir and he accompanied him to Al-Noor Lodge. There the accused
(Yusuf sir) wrote his name in the register. The witness identified the
register maintained by Al-Noor Lodge (Article 35) and the entry at Sr. No.
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1124 dated 7/2/2010 in the register was the in the name of accused. There
was signature of accused in Column No.16. Entry and signature was
marked at Exh. 322. The signature at Exh. 281 in the register was identified
by the witness that of accused Yusuf sir.
38. The witness stated that once he had gone to Internet Cafe to
meet the accused. There he was introduced to a person from Pune. The
witness heard of the bomb blast in German Bakery through television and it
was reported that Yusuf sir who was the owner of Global Internet Cafe was
involved in the bomb blast. In the television news, his name was
mentioned as Himayat Baig. In the television news, photographs of
German Bakery and Global Internet Cafe and one person were shown, who
was referred as Mohsin Choudhari. That person was the same person to
whom the accused had introduced the witness in Global Internet Cafe as his
friend.
39. In the cross-examination, the witness admitted that he did not
personally see Yusuf sir handing over money to Khurshid Alam. The
witness stated that thereafter police recorded his statement and it was not
read over to him. The witness did not make entry in the register
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maintained by Al-Noor Lodge in his hand-writing. He had only put up his
signature.
40. The next witness is PW 94 - Shaikh Abdul Rehan Shaikh
Ahemad. He was residing at Aurangabad since last three years with his
family. He had many friends in Beed and accused Mirza Himayat Baig is
one of them. He identified the accused in the open court. He got
acquainted with the accused in the year 2006. Mudatsir, Jabiuddin Ansari
and Dr. Sohail are the friends of accused Mirza Himayat Baig. The person
by name Abdul Jindal arrested by Delhi Police was said to be same person
by name Jabiuddin Ansari. He stated that he had seen accused Mirza
Himayat Baig together with the said person named above. The witness
stated that in the year 2006, the arms and ammunitions were found in
Aurangabad. Thereafter, his cousin brother Izaz Abdul Rahim Shaikh and
Jabiuddin Ansari had absconded. Jabiuddin Ansari was arrested in
connection with the said stock of arms and ammunitions found in
Aurangabad. The witness used to attend Dars (religious discourse). The
accused was also attending such Dars delivered by Dr. Sohail. In the said
Dars, the witness, accused Himayat Baig, Zaki, Burhan and others were
present. After 3-4 months of Dars, the witness met accused Mirza Himayat
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Baig at village Kej in District Beed in Marathwada region of Maharashtra
in one Dawat. The said Dawat was organized by accused Himayat Baig.
After having lunch, they offered Namaz about 5 p.m. and after some time
they had read Kurhan. Thereafter there was discussion about atrocities on
Muslims and incident of Babri Masjid, Gujarat riots. They discussed that all
should come together and fight against atrocities and do Jehad. These
instructions were given by accused Mirza Himayat Baig and others who
were present there.
In the year 2008, the witness was working in Pune in a
consultancy by name Job One India. He was having bank account in the
branch of Bank of Hyderabad, situated at Mondha in Beed city. He was
having ATM card of the said bank account. His bank account and ATM
card was used by accused Mirza Himayat Baig who had asked for his ATM
card. All the transactions in the said account was done by accused Mirza
Himayat Baig.
The witness further stated that in the year 2008 when he met
accused Himayat Baig, he was residing in Masjid. Thereafter the witness
also started residing in Masjid. The accused had taken on rent one shop in
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the Nagarparishad complex at Udgir. There he started Internet Cafe. The
Internet Cafe started functioning in the month of February, 2009 by name
"Global Internet Cafe". The witness started working in the said Global
Internet Cafe. He was getting Rs.1500/- per month. Thereafter the accused
took one room on rent in Masjid situated at Chandrakant Square and the
accused and the witness started residing there. During their stay, the
witness and the accused were talking about atrocities on Muslims, the
incident of Babri Masjid, Gujarat riots and disturbance in Philippines. The
accused reiterated that they should take revenge and to do Jehad. In Udgir,
accused Himayat Baig was known as "Yusuf sir".
In the month of December, 2009, accused Mirza Himayat Baig
told the witness that the Internet Cafe was not functioning properly and he
had searched a job for the witness in Hotel New Bharat at Hyderabad. The
witness went to Hyderabad in December, 2009. The accused had
accompanied him. In March, 2010, the witness and the accused came to
Udgir from Hyderabad. Accused Himayat Baig showed him one video clip
from his mobile phone, which was relating to training given to persons at
Afganisthan. Accused stated that they should also take such training.
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The witness deposed in cross-examination that father of
accused Mirza Himayat Baig was doing the work of preparing Jilebis and
Bhajia. Some time he used to go to the house of accused. Their friendship
became strong in the year 2008. The ATM card of the witness was given to
accused on asking, which was used by the accused. The witness clearly
stated that he was not depositing any amount in the said account. The
witness agreed that atrocities were committed on Muslims in Gujarat and
riots had taken place. ig He was aware of incident of demolition of Babri
Masjid. According to the witness, Jehad means to control oneself and
Jehad also means to fight back against the atrocities committed in the name
of religion. Witness stated that whenever accused Mirza Himayat Baig
went out of station, he used to look after the work of Internet Cafe.
41. The next witness is PW 97 - Mohammad Zakiuddin Ansari.
The witness is native of Beed. In May, 2006 some boys were taken in
custody in connection with RDX and firearms, which were found in
Aurangabad. He stated that at that time accused Mirza Himayat Baig and
others were absconding from Beed. Witness stated that whenever he went
to Beed, accused Himayat Baig used to meet him and talk about Godhra
incident of Gujarat, demolition of Babri Masjid, atrocities on Muslims and
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about Jehad. As per Islam, Jehad means to make efforts but Mirza Himayat
Baig used to say that Jehad means to take revenge. Sometimes the accused
used to keep his mobile phones with the witness by saying that people were
troubling him.
42. On provoking to take revenge against atrocities on Muslims
under the garb of Jehad, prosecution placed reliance on PW 95 - Shakil
Ahmed Laik Ahmed and PW 97 - Mohammad Zakiuddin Ansari.
PW 95 is Shakil Ahemad Laik Ahemad. He is educated upto
B.Sc. Computer Science. He was residing at Aurangabad since his birth.
He was called by the ATS police in their office at Kala Chowki, Mumbai in
September, 2010. When he visited the office of ATS police, accused was
shown to him. He identified accused Mirza Himayat Baig as Yusuf. The
witness identified the accused in open court by saying that he is Yusuf, by
pointing out towards him. This witness attended Dars in Parbhani. He met
Kashif, who introduced him with the accused. After Dars, he returned
back. In the year 2008, Kashif had taken him to one hotel situated in the
area of Usmanpura in the city of Aurangabad. Yusuf was present there.
Yusuf told him that atrocities were being committed on Muslims and they
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should do Jehad by taking revenge. It was the accused who stated that
students should be gathered and it was his responsibility to give them
training of arms and ammunitions, which he can arrange for. The witness
and the accused were in contact telephonically.
In the year 2009, Yusuf had called the witness to Udgir at
Global Internet Cafe. When the witness went there, the accused introduced
the witness to Sabir Patel, Rehan, Alif and Khurshid Alam. The witness
identified
Rehan - PW 94 in the open court. Witness stated in
examination-in-chief that as Yusuf started talking about Jehad, he started
avoiding the accused. On 12/2/2010 accused Himayat Baig had come to
Aurangabad. He met the witness. He again came to the witness at 10 p.m.
He kept two mobile phones with the witness. He looked tired. When
asked, the accused informed that he had come on the bike from a long
distance. The accused disclosed him the name of the organization and
when the witness asked him about the said organization, to which he replied
that it was L-e-T.
43. The next circumstance is relating to camouflaging identity by
pseudo names as Hasan, Yusuf, Ahmed. The evidence led by prosecution
relating to this circumstance is of PW 73, PW 92 and PW 95.
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PW 92 is Shaikh Gaur Khurshid Ahemad. He is a resident of
Udgir since birth. He was educated upto B.Com. He was running Alsaba
Classes for 5th to 7th standards' students at Udgir. He was running the
classes in a building known as White Building, Azad Nagar, Jalcot Road,
Udgir. The said building was owned by one Tanwir Kadri, which was
rented out to the witness. There were other persons, namely, Shaikh
Ayyaz, Abdul Rahim, Jalkote Madam, Kadri Madam and the accused
referred as "Hasan Sir" as teachers. He explained that Hasan sir means
Himayat Baig, who was teaching computer to students. Witness identified
the accused in open court. The accused told the witness that he had taken
education upto D.Ed and he wanted a place to stay, on which the witness
told him that he may stay in one of the rooms in the building and teach the
students. In the month of March, 2010, the accused had kept two bags in
the room. The accused used to teach computers in the evening between 8
p.m. to 9 p.m. The accused had not paid the rent of the room. It was
informed that he was not even attending the classes and he used to come
late in the room. The witness, therefore, told the accused to leave the room
as he was neither taking classes nor paying rent of the room. The accused
promised that he will leave the room after Ramzan. Thereafter, it is stated
that the accused did not turn up. Therefore, the witness carried his two bags
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from the room to the house of the witness. One bag was of Khaki colour
and one was of black colour.
On 8/9/2010 some officers had come to the house of the
witness. They enquired with him about Hasan sir. The witness stated that
for many days he had not come to attend the classes. The officers enquired
about bags of Hasan sir. The witness told them that they were in his house.
The officers thereafter asked the witness to hand over both the bags and
accordingly the bags were handed over by the witness to the police. Two
panchas were called in the police station. Both the bags were opened. In
one bag there were clothes and in another bag, there were certain
documents relating to educational field. The police kept the articles in six
different packets. Panchanama was accordingly drawn. Articles 24 and 26
were shown to the witness. The witness identified the same. Exh. 264 is the
panchanama dated 8/9/2010.
In cross-examination, the witness stated that he did not had the
license to conduct the classes as, according to him, there was no need to
possess such license to run the classes for 5 th to 7th standards. There was no
agreement between the landlord and the witness for using the said
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premises. There were in all five rooms in the said building and around 40
students were attending the classes. The witness had maintained the
register of the students' names. The witness was staying at a distance of
half kilometer from the white building.
44. Another circumstance is relating to criminal conspiracy for
hiding identity and doing financial dealings without involving his name.
PW 76 is Dilip Pralhad Ahiwale, who is a graduate in Science and Law.
He was appointed as the Asst. Examiner of Documents at C.I.D.,
Maharashtra State, Pune in the year 1980. After appointment, he was placed
under training for one and half year for the subject of Science of
Handwriting. After completion of his training, he started his independent
work of examination of documents. He was working as Honorary Lecturer
on the subject of Science of Handwriting and examination of documents in
various institutes and training centres. Certain documents were sent to this
officer for opinion by the Deputy Inspector General of Police, Anti Terrorist
Squad, Pune under communication dated 23/10/2010. Said letter is marked
at Exh. 333. The witness received following documents:-
(a) Seven Bank Pay-in-slips as questioned documents.
(b) One Guest house register as questioned documents.
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(c) 102 Specimen writing sheets.
(d) One pocket diary containing admitted writings.
(e) One letter dated 11/7/2008 containing admitted writings.
All these documents were shown to the witness before the court. The
witness gave opinion in respect of each of the documents.
In the cross-examination, this witness deposed that he was on
the pay-role of State C.I.D. He further stated that he had not produced the
photographs of these documents. The witness was re-examined by the
prosecution, during which he stated that he had not come across any
significant difference in the specimen handwriting and the questioned
handwriting. Dis-similarities and natural variations are two different things
which can be distinguished by an experienced person.
45. Another circumstance relates to part of criminal conspiracy
during which the accused had reiki done in Pune city.
PW 96 is Shaikh Atik Nazeer. He is resident of Udgir. He
studied upto 10th standard in Udgir and completed his 12 th standard
examination at Shirur, Taluka Ahemadpur, Dist. Latur. He studied upto
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B.Sc. from Badanapur, District Aurangabad. In the month of October,
2009, he got acquainted with a boy while travelling in the train. He
referred his name as Hasan. Thereafter, after two and half months when he
had gone to his brother-in-law near the Global Internet Cafe, he noticed the
accused sitting there. Thereafter in the month of January, 2010, he
received a phone call from Hasan. At that time he told the witness that
there was inauguration for launch of Popular Front of India party and for
the purpose of getting the reservations for Muslims, on 31/1/2010 at Pune.
He further told the witness that expenses towards travelling and meals for
the said inauguration will be borne by the said party. The witness and his
friend had attended the inauguration. Before that, on 30/1/2010 at about
2.00 to 2.30 p.m. the accused had phoned him and informed that he was
waiting at the railway station. The accused promised him a ticket of the
said party in the next election and the expenses of the election would be
borne by the party. Thereafter in between 12.00 noon to 12.30 p.m.
accused took them to Ambedkar ground where the function was to be held.
Thereafter the accused went somewhere out and came in the evening.
There was some discussion between the witness and the accused on the
point, how to offer Namaz. The witness identified the accused in the open
court. The question was put to the witness by the prosecution to the effect
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that as to whether at that time the accused said that as atrocities were
being committed on the Muslims by the non Muslims, revenge should be
taken by way of Jehad, to which the witness replied in the negative.
Thereafter, in cross-examination, the witness admitted that the
Popular Front of India is the political party. On 13/2/2010 the witness had
come to Aurangabad for appearing in examination. The examination was
of Lab Technician to be held on 14/2/2010. At that time accused met him
on 13/2/2010 between 8.30 p.m. to 9.00 p.m. The accused informed him on
telephone in between 5.00 p.m. to 6.00 p.m. that he was busy in reception.
46. To establish circumstance of purchase of mobile hand-set
Nokia 1100, the prosecution examined witness PW 63 - Mohammadali
Abdulla Gotekar. This witness was working at Al-Noor Guest House,
Crawford Market, Mumbai since the year 2007. In the year 2010, he was
working as Manager in the said Guest House. On the ground floor of said
Al-Noor Guest House, there was a dormitory wherein there were 30 beds
and from the first floor uto 4th floor there were in all 24 rooms. His duty
hours were from 9.00 p.m. to 9.00 a.m. The witness used to sit on the
ground floor. The main Manager of the Guest House was Mr. Aiyyaz
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Quadir Khot. As the witness was staying in the Guest House, he was
available in the Guest House round the clock. The witness deposed that
whenever the customer came, he wrote down his name and information in
the register and obtained signature of the customer.
On 13/9/2010 in between 4.30 p.m. to 6.00 p.m. the police
from ATS office, Pune, had come to the said Al-Noor Guest House. They
were in search of one customer and, therefore, they had come there. The
customer had come on 8/2/2010 and an entry was at Sr. No. 1129 in his
own handwriting. The entry refers to name of Mohammed Yusuf
Mohammad Issac, who had come from Udgir. His mobile number was
mentioned. The said entry is at Exh. 281.
The police seized that register. The witness identified the
accused in the open court. The person who had given reference of the
accused was also from Latur, whose name was Abdul Samad Indori.
47. PW 88 is Mohammad Ilias Abdul Kareem Mansoori. He runs
a shop under the name and style "Goodluck", bearing Shop No.35 situated
in Maneesh Market, M.R.A. Marg, Mumbai 400 001 and deals in mobile
business. The shop timings are from 12.00 noon to 9.00 p.m. The police
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had come to his shop in connection with inquiry of purchase of mobile
phone from his shop in the month of February, 2010. At that time, he was
not in the shop, but his younger brother was present. He learnt from his
brother that the police had come and, therefore, he had gone to ATS office
at Kala Chowki. Police made inquiry with him and asked as to whether he
had sold a mobile of Nokia company in February 2010, to which the
witness replied in affirmative. His statement was recorded by the police on
computer. It was read over to him. The police then inquired about the
person who had purchased the mobile from his shop in the month of
February 2010. The witness stated that one person had come to his shop in
the afternoon at about 2.00 p.m. He asked for old Nokia phone of 1100
model. Since the said model was available in his shop, witness had shown
the same to him. The said person had sorted out 3-4 mobile phones in
which the battery was of more power. He had checked the alarms of the
said mobile phones and thereafter purchased one mobile phone by paying
Rs.750/- and left the shop. The police inquired with him about the
description of the said person. The witness gave the description to the
police.
The witness was called by police after 15 days. The police
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told him that he shall accompany him to Yerwada Jail, Pune on 3/10/2010.
Accordingly, on the said date the witness had gone to Yerwada Jail, Pune.
The Test Identification Parade was held in the Yerwada Jail at Pune. In the
said Test Identification Parade, 9 persons were standing and the witness was
asked to identify the person, who had purchased mobile from him. After
watching them carefully, the witness had identified the person, who had
purchased the mobile phone. Thereafter, the Tahsildar was asked the name
of the said person and he had given his name as "Baig". The witness
identified accused, who was sitting in court as the same person.
During the course of cross-examination, the witness stated that
he does not possess any license for running the business. Number of
persons visit everyday to his shop from different age groups. The witness
stated that he kept documents pertaining to new phones, but the documents
of old mobile phones are not kept. Nokia 1100 is a old mobile. He does
not have any record as to from whom he purchased the said model of
phone. No documents are prepared in respect of selling the said old model.
The exact date of selling of mobile is not mentioned in the statement of the
witness, but he stated in court that it was 8/2/2010. The witness did not
issue any receipt against the payment of Rs.750/-. He had no documentary
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evidence to show that he sold the mobile for Rs.750/- as no receipt was
given for selling old mobile phone. In the Test Identification Parade,
accused Mirza Himayat Baig was standing approximately on the 5 th or 6th
position in the row, according to the witness.
48. The next circumstance relates to conspiracy in concealing of
identity of the accused, who was found in possession of documents
belonging to others. ig On this issue, prosecution examined following
witnesses:
PW 83 is Ramrao Hanmantrao Nautakke. He was working as
Agricultural Supervisor in Government service. On 26/9/2010 the police
from ATS had come to him for inquiry. At that time they showed him xerox
copy of his Identity Card. Witness recognized it and stated that it belonged
to him. He had given the xerox copy of the card in the shop and except
that, he had not given the xerox copy of his election identity card to any
person.
49. PW 86 is Ajmat Khan. He runs a shop in the name and style
as "Mobile Campus" situated near Udgir Nagar Parishad Office. On
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10/9/2010, the police had come to him for inquiry in respect of a Sim card.
The police had come with the xerox copy of application form meant for
getting Sim card. Said application form was of Tata Docomo company. The
said form was having a stamp of his shop. The form was of a person by
name Mukund Kulkarni. The witness stated that at the time of Christmas
festival in the year 2009, there was offer for getting the Sim card of Tata
Docomo company. At that time, a person by name Sabir Mamu and one
another person had come to his shop. Sabir Mamu is the social worker. He
used to come to his shop. At that time Sabir Mamu told the witness that the
person, who was accompanying him, was his friend and told him to give
him the Sim card. Accordingly, he had given him a Sim card. A
photograph was pasted on the form and all the information was filled in.
Since the photograph was not that of the said friend of Sabir Mamu, witness
told them that it was not his photograph. By keeping faith on Sabir Mamu,
witness accepted the form. The witness identified the said friend of Sabir
Mamu in the court and that was accused Mirza Himayat Baig. The police
again inquired with the witness on 10/9/2010 in respect of another Sim card
of Idea Company, which was in the name of one Balaji. The police had
shown him the photo and xerox copy of one election card. The witness
told the police that the said photograph and the copy was submitted in his
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shop by one person named Balaji, who was accompanying with one
woman. The witness was doing the business of Sim cards since last 4-5
years. He had obtained the license in the year 1999. The defence suggested
that the witness did not have any authority letter to deal in the Sim cards of
the Tata Docomo Company. The witness had seen the accused in the
Global Internet Cafe.
50. PW 82 is Vanmala Balaji Awarale. The witness stated that in
the year 2010, she was residing at Udgir. She wanted to purchase a mobile
phone for her father, who was at the relevant time residing at Morewadi
which was 28 kms. away from Udgir. She had gone to the shop "Mobile
Campus" situated near the office of Nagar Parishad, Udgir. The father also
accompanied her at that time. They had taken election identity card and
photos of her father. The Sim card, which was provided to her, did not
work. Therefore, she had been to the said shop again. At that time she was
told that it would start working after 2-3 days. The witness again
approached the said shop and then she was told that there was a theft in the
shop and, therefore, the election card and the photos were not returned to
the witness by the said shopkeeper. On 26/9/2010, the ATS police had
come to her for inquiry. They showed the witness xerox copy of the election
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identity card of her father. The witness identified the same to be copy of the
election identity card of her father. She was not aware as to how the said
xerox copy had come to the police. The witness identified the said xerox
copy of the election identity card (Article 31). The witness identified
Ajmat Khan in the open court.
During cross-examination, the witness stated that she had not
lodged any complaint against the said shopkeeper, nor she had informed
the police that there was a theft in the said shop.
51. PW 89 is Vilas Sangram Garibe, who was called by Anti
Terrorist Squad police Nanded on 13/11/2010. They inquired with him
regarding Sim card of mobile and the application form for obtaining Sim
card and his election card. The mobile phone number in respect of the said
Sim card was not of the witness, but he found his photograph pasted on the
form which was submitted for obtaining Sim card. The form was filled in
the name of the witness. The witness stated that the contents of the form
and signature thereon were not in his handwriting. The witness stated that
he had gone to Global Internet Cafe on 4/2/2010 for getting the xerox copy.
The witness identified the accused person sitting in open court as the person
who was available on that day in the Global Internet Cafe.
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52. PW 84 is Sanjay Devrao Biradar, who resides in Ghonshi in
Taluka Jalkot, District - Latur. He did not have Pan Card so he decided to
apply for Pan Card. For that he approached Global Internet Cafe situated in
Nagar Parishad, Udgir. It was advertised that service of issuance of Pan
Card was available there. He had paid Rs.200/-, xerox copy of Election I-
Card and one photo. Thereafter he again went to Global Internet Cafe and
inquired. The witness stated that the person to whom he had given the
amount and paper was hefty in physic. His name was Najeeb. The witness
stated that there was another associate of him in the said Internet Cafe. The
witness identified accused Mirza Himayat Baig who was sitting in the Cafe
on that day. On 26/9/2010 the ATS police again had come for making
inquiry with him. They had brought xerox copy of election identity card.
Copy of election identity card is at Article 31. The witness identified the
xerox copy of I-card. The witness stated that he did no fill up the form.
Signature on the form was not of his. According to the witness, the
photographs and the xerox copy of his election card was misused by
someone.
53. The next vital circumstance is of recovery of RDX by drawing
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memorandum panchanama at the instance of accused Mirza Himayat Baig.
This is one of the vital piece of evidence relied upon by the prosecution.
PW 77 is Shrikant Shridhar Shetti. He was called by ATS
police on 7/9/2010. On that day, he had gone to take appointment of
Dr. Sarangpani at his clinic situated near the Modern College, Pune. That
time policeman asked him that in connection with German Bakery bomb
blast, the accused has been arrested and panchanama in respect of his
statement and recovery/discovery was to be made. The policeman asked
him as to whether he would act as a panch. The witness replied in the
affirmative. That policeman took him to ATS office, which was situated at a
distance of 100 to 125 mtrs. Investigating Officer Shri Satav was present
there. There were several policemen in the office and one more person was
introduced to him as a panch. His name was Koshe. Thereafter one
person, whose face was covered, was produced before the witness. The veil
placed over his face was removed at the instance of Shri Satav, who asked
the person his name. Said person told his name as Mirza Himayat Baig.
Shri Satav asked him as to whether there was any pressure over him, to
which he replied in the negative. The said person stated that the material
used in preparing the bomb and the material which was left out was kept at
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the place of his present residence and he will show the same. His complete
statement was written down by the police on paper. It was read over to
him. He was asked, whether statement was correctly recorded, to which he
answered in affirmative. The statement was given to the witness for
reading. The panchas were satisfied after reading the said statement. The
accused thereafter signed on the said statement. Thereafter the witness put
his signature on the said statement and then the other panch had signed the
said statement. The witness identified his signature as a panch witness and
signature below his signature is that of another panch. The panchanama
bears signature of accused and of Shri Satav. The contents are true and
correct.
The witness further deposed before the court that after the
memorandum statement, he came to know that they were required to go to
Udgir. He phoned his younger brother and told him that he was going out
of station for work and would be back by tomorrow afternoon. The police
staff was called. The panchas were asked to take their personal search.
Accordingly panchas took search. The accused also took the search of
panchas. The Government vehicle was also searched. There was weighing
machine in the said vehicle and other stationery material. The face of the
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accused was covered. At the instance of the accused, the vehicle was taken
to Latur via Hadapsar. On the way they had meals. They reached Udgir
around 1.30 a.m. The accused asked the vehicle to be taken in the left side
from the Shivaji Square and accordingly the vehicle was taken. At the
instance of the accused, the vehicle was stopped. Accused stated that his
house was nearby. They all alighted from the vehicle. Shri Satav made one
phone call and called the backup required by him. The panchas and other
followed the accused. The accused showed them one house. There was a
compound wall to the said house, having one iron gate. The accused
knocked the gate and gave call by saying "Abdul, Abdul". At that time the
staff of the Bomb Squad and the sniffer dog, which was called by Shri
Satav, was with them. After the accused gave said call, the lights of the
house were switched on and one person came outside the house. The
accused lifted his veil and told the said person that it was him. Shri Satav
asked the name of that person. The said person told his name as Abdul
Sayyed. He opened the gate. Shri Satav disclosed his identity to Abdul
Sayyed and asked him to take personal search of all of them. Abdul Sayyed
declined to take personal search. Thereafter they entered the house. They
followed the accused, who had taken them on the first floor from the
staircase, which was on the right side of the hall. There was one room on
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the first floor. The accused opened the latch of the door of the said room.
There was one wooden Dewan / double bed. The accused lifted the ply of
the said Dewan. Inside therein was a carton of pressure cooker. There was
one nylon bag in the box. There was one plastic bag of white colour, which
was removed by the accused.
The witness stated before the court that inside the said white
colour plastic bag, there was one more carry bag of yellow colour. The
accused stated that, that was the same material which was used in
connection with the German Bakery blast. The accused referred the
material as "Barood". Shri Satav called the main person from the Bomb
Squad, who came along with the dog. Shri Satav told him to check the
material. The material was sniffed by the dog and the dog wagged its tail
and barked. The members of the Bomb Squad said that the material was
explosive. Shri Satav asked the staff of Bomb Squad to give in writing.
Accordingly, they gave in writing. Shri Satav asked to remove all the
material from the bag. That material was having following items:-
(i) One solder gun
(ii) One solder wire
(iii) One solder wire cutter.
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In the same material, there were five pieces of a substance in
black colour. Those five pieces were in the yellow colour bag. The said
five pieces together weighed 1200 grams. Shri Satav removed about 100
grams material from the said pieces. Said 100 grams material was divided
into two. All the said articles were packed separately in the plastic and
thereafter brown paper was wrapped. There were seven packets. Brown
paper means envelopes. The envelopes were tied with the stag. The labels
were put on each envelope and the information of the contents were written
on it. The opening of each envelope was sealed by lakh seal. Thereafter
Shri Satav asked the police staff and panchas to check the house.
Thereafter a detailed panchanama was prepared. The panchanama was
accordingly signed. The witness was able to identify the panchanama and
the signature. The contents recorded in the panchanama were true and
correct (Exh.341A). The prosecution produced seven sealed packets. The
labels of each packet bears signatures of the panchas. The second packet
was opened. It contained black colour hard material in small quantity
(Article 55). Thereafter small packet having no label and signature was
opened. The panchas signed on the labels. The said envelope was opened
(Article 56). The third packet was thereafter opened, which contained a
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solder gun (Article 57) and accordingly all the envelopes/packets were
opened and given article numbers.
The prosecution heavily placed reliance on the memorandum
statement, panchanama, extract of relevant station diary entry, extract of
log-book of police vehicle, station diary entry of Udgir City Police Station,
report of dog squad.
54.
PW 80 is Laxman Dharmaji Kumare. At the relevant time he
was working in the Bomb Detection and Bomb Disposal Squad at Latur
from the year 2006 onwards. The nature of his work consists of detecting
the suspicious material like explosive by naked eyes and with the help of
sniffer dog and equipment. The signal given by the sniffer dog is
understood by the handler of the dog. The police of ATS had sought the
help of their squad on 7/9/2010. Oral information was given by the
Superintendent of police, Latur to their Squad at 9.00 p.m. that the ATS
team from Pune had come and they should report to the Udgir Police
Station. Accordingly, eight persons from the team along with one sniffer
dog and equipment reached Udgir at 11.00 p.m. The said sniffer dog is
named as "Janjir", who is still in the team. The head of the team received
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phone call from the ATS team at about 2.00 a.m. They were asked to come
at Jalkot road and they had gone there and stopped. The ATS team was
there. They followed the ATS team. Initially the ATS team had gone on the
first floor of one house and they had stopped at the ground floor. There was
black sticky substance in the yellow colour carry bag, which was in the
nylon bag. The sniffer dog had given positive signal. Thereafter at the
instance of ATS team, the head of their team had given the written report in
that regard. The report was written down in his presence. It was signed by
Shri Attar. The witness identified the said report and the signature. The
contents of the report were said to be true and correct (Exh. 351).
In the cross-examination, witness stated that the team left Latur
at 9.00 p.m. At that time the said sniffer dog was 2 ½ years old. It was the
Labrador specie of dog. The suggestions given to the witness were denied.
55. Another circumstance relied upon by the prosecution is that
accused was last seen with absconding accused, who was a planter of the
bomb, namely, Yasin Bhatkal. Both of them were seen in Pune on
13/2/2010.
PW 93 is Shivaji Gulab Gavare. He was plying auto-rickshaw
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in Pune city at the relevant time. He owns auto-rickshaw. In the year
2010, he was plying auto-rickshaw of one Mr. Kawade.. Normally he used
to ply auto-rickshaw in Koregaon Park, Pune Station, Camp and Yerwada
of Pune City. On 13/2/2010, the witness was sitting in the auto-rickshaw
opposite Hotel Sagar situated near the Pune Railway Station. At that time
two boys came near him and asked as to whether the auto-rickshaw was
available. They told the witness that they wanted to go to Rajnish Ashram
situated in Koregaon Park area. The witness took them to Koregaon Park
through the Jahangir Hospital. On a turn, the boys told him to take auto-
rickshaw in straight direction. The straight road was going in the direction
of Bandgarden. They asked him to stop the auto-rickshaw near the Central
Mall. The witness told them that Koregaon Park is ahead, but they told him
that they wanted to get down at the said place. After they got down from
the auto-rickshaw, they paid fare to the witness and they stopped at some
distance. The witness was waiting for another customer. While describing
the appearance of the boys, witness stated that one was tall with fair
complexion and wearing cap. He was having a bag hanging in front of him
and another bag hanging on his back. Another boy was of average height,
having normal complexion. Both the boys were in the range of 28 to 30
years of age.
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The witness stated that on 27/5/2010 he had gone to police.
The reasons for going to the police was that in the Sakal Daily newspaper
published on 25/5/2010, a photograph of one suspect in the German Bakery
blast case wearing a cap was published. He stated that after seeing the said
photograph, he remembered that the said boy, wearing cap, was the same,
who was carried by the witness in his auto-rickshaw along with another boy
on 13/2/2010 from Pune Station. Since the police had made appeal to the
public to give information in connection with the German Bakery blast
case, the witness approached the police. It is the version of the witness that
earlier he could not gather courage to go to the police immediately after
seeing the photograph on 25/5/2010. But, he later on approached the police
on 27/5/2010. The witness gave information to the police. The police
recorded the statement of the witness. The police asked him whether he is
in a position to identify those two boys. The witness answered in
affirmative.
The witness thereafter received a summons from the police
informing him to come to Yerwada Central Prison on 3/10/2010 for Test
Identification Parade. The summons letter is at Exh. 379. Accordingly, on
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3/10/2010 he had gone to Yerwada Central Prison. After reaching there, he
showed the summons letter to the guard. He was taken inside. Tahsildar
Shri Yogesh Kharmate reached there. He directed the witness and others to
sit in the room and not to meet anybody. Tahsildar again asked the witness
whether he would be in a position to identify the said persons, to which
witness answered in affirmative. Tahsildar asked the witness whether the
police had shown him the suspects or any photograph. The witness
answered in the negative. Thereafter he was taken to the adjacent hall
where 9 persons were standing in line. In that hall Shri Kharmate and two
panchas were present. 9 persons were standing in one line were of similar
appearance and height. Shri Kharmate informed the witness to identify the
person who was carried by the witness in his auto-rickshaw. The witness
identified the said person by touching him. The witness stated that the
person who was identified by him was the same amongst two whom he had
dropped in his auto-rickshaw and who was not having any bag with him.
After the witness identified that person by touching, Shri Kharmate asked
his name. He gave his name as "Himayat Baig". The witness identified the
accused, who was sitting in the court.
The prosecution brought a laptop and played a CD which was
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seen by the witness, defence advocate and the learned Spl. Public
Prosecutor. The witness saw it and informed the court that the person who
was wearing a cap and having bags on his person was the same to whom
he had dropped in his auto-rickshaw along with accused Mirza Himayat
Baig who was present in court. The CD which was played showing
relevant clipping is marked as Article 61.
During cross-examination of this witness, he stated that it was
not possible for him to say as to how many passengers travelled in his
auto-rickshaw prior to one month. He had not seen sketches of the suspects
of the blast printed in the newspaper prior to 25/5/2010. He admitted that
there was no auto-rickshaw stand in front of Hotel Sagar which was in front
of Pune Railway Station. He admitted that he did not know as to where the
said two persons had gone after they left his auto-rickshaw. He also
admitted that various passengers within the age group of 28 to 30 years sit
in his auto-rickshaw or carried by him in his auto-rickshaw. He stated that
it was true that persons having different complexions and features travelled
in the auto-rickshaws.
The witness stated that on 27/5/2010 he had gone to office of
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Anti Terrorist Squad along with the said newspaper. His statement was
recorded on the same day. But the CD clipping seen by him in the court for
the first time. He identified photograph printed in the newspaper and the
person to whom he had seen in the clipping was the same. The Photostat
copy of the news item in Sakal Daily dated 25/5/2010 was brought by the
defence Advocate and the same was shown to the witness. The prosecution
did not object to the Photostat copy being marked as Article 62. Below the
photograph published in the newspaper, name of Abdul Samad was
mentioned. The witness stated that he was not aware that the person who
was shown in the photograph was arrested by the police and later on
released. The witness denied the suggestion that he had never dropped the
person in the auto-rickshaw to whom he had identified in the clipping of
the CD along with accused Mirza Himayat Baig.
56. The other circumstance relates to identification of the
absconding accused Yasin Bhatkal. On this circumstance, the prosecution
examined PW 90 - Ranjit Govindrao More.
PW 90 is Ranjit Govindrao More. On 13/3/2010 between 5
p.m. to 5.30 p.m. he was present in the German Bakery along with his girl
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friend Ruchika Bachru. He entered the German Bakery from the gate
which was adjacent to the main road. Inside, there was one Bakda (bench)
on which he kept his plastic carry bag. Both of them had been to counter
for placing order. Other people were also there to place their orders and
were carrying eatables. After taking delivery, both of them came to the
Bakda. There was one boy standing behind him near the counter and he
was carrying two bags. After the incident of bomb blast, the witness had
gone to office of Crime Branch as the messages were being received on the
mobile phones in that connection. At that time police had shown him the
CCTV footages of German Bakery. In the said CCTV footages, he along
with his girl friend were seen and the said person having two bags on his
person, who was standing behind the witness, was also seen. The said
person was wearing a cap. This witness was asked following question:
"Q. - How could you keep the said person in your mind?
Ans. - Before going to the counter for placing my order I
had kept my bag on the Bakda and I was wondering as to how
that person had come to place the order along with two bags."
There was a system of self service in the German Bakery, but
the waiters were also available to serve the food. At the time of viewing
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the said CCTV footages, the witness saw that the said person left German
Bakery and that time he was carrying only one bag. A laptop was
brought by the prosecution. The CD was played on the said laptop and
clippings were shown to the witness. The same was also viewed by the
learned Spl. P.P. and the defence advocate. The witness identified himself
and the boy wearing the cap, who left the Bakery with one bag. Police
recorded his statement.
In his cross-examination, the witness stated that he was
present in the German Bakery for 30 to 35 minutes. Bomb blast occurred
after he left the German Bakery. He identified the colour of the cap of the
boy as light green or something like tamarind colour. The sack bag, which
was hanging behind his back, was also of the same colour. The second bag,
which was hanging across his shoulders, was of black colour. The other
customers were also having bags. The witness did not see the said boy at
the time of leaving the premises of German Bakery.
57. PW 101 is Prasad Narayan Hasabnis. He was working as Sr.
PI, Kondhawa Police Station. He deposed that on 13/2/2010 when incident
of bomb blast took place in the German Bakery, he was working as the PI
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(Administration) in the Control Room at Pune. He was one of the
members of the investigating team for the said incident. Along with him,
there were two Police Inspectors by name Shri Joshi and Shri Barge for
conducting investigation. They were given work of verifying CCTV
footages in respect of the incident available from Hotel "O" and the
German Bakery to identify the suspects and the witnesses. They were
provided with copy of original footages. They had viewed the CCTV
footages and established link of persons who were seen present at the
counters of Hotel "O" and the German Bakery. They had synchronized the
timings mentioned in the footages and the persons seen in the footages. On
5/3/2010 when they were viewing the CCTV footages, they noticed one
suspicious person, standing at the counter of German Bakery. The said
person was wearing a cap on his head. He was having two sack bags on
his person, out of which one was on his back and other was at the front
side. When they viewed the CCTV footages of Hotel "O", they noticed that
the said person, who was wearing a cap and having two bags on his person,
was seen crossing the road and coming towards the German Bakery. In the
CCTV footages of Hotel "O", it was noticed that the said person was
leaving the German Bakery after some time and at that time, he was having
only one sack bag on his person. Information was given to Sr. Officers in
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respect of the same. He had informed Shri Peter Lobo and Shri Dinesh
Kadam who were police officers at the relevant time. This witness had
recorded statements of Shri Ranjit More (PW 90) and girl friend of Ranjit
More by name Ruchika Bachu and a foreigner by name Merkita. The
witness identified the person wearing cap from CCTV footages (Article 61
- CD which was played and showed to the witness).
The witness deposed that his statement was recorded on
2/12/2010. Omission is recorded in the evidence to the effect that in his
statement before police, he did not state that the person wearing cap was
carrying two bags, out of which one bag was on his backside and the other
was on front side.
58. The prosecution pointed out that the contradiction in respect of
position of the bags, was not disputed by the defence. Another omission
was to the effect that he did not state before the police that the person
wearing cap was noticed while going out with one bag. The distance
between German Bakery and Hotel "O" is about 100 fts.
59. PW 102 is Dinesh Parashuram Kadam. He deposed before the
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court that he was working as Police Inspector in the Anti Terrorist Squad
(ATS), Mumbai. Prior to that he had worked for the ATS in between 2004
to 2006. From 2007 till 2010, he had worked for Crime Branch, Mumbai.
While working in the Crime Branch, the nature of his duty was to
investigate the information received from Central Intelligence Agencies and
to investigate in respect of terrorist and the important accused persons.
In the month of May 2006, large quantity of AK 47 rifles,
RDX, handgranades, live cartilages were seized at Aurangabad and in that
regard C.R. No. 3/2006 was registered with the ATS police station. The
witness had helped in the said investigation. The main accused persons by
name Fayyaz Kagzi and Jabiuddin Ansari were the wanted accused. The
witness stated that recently said Jabiuddin Ansari @ Abu Jindal was
arrested. Both the said persons are residents of Beed, who were searched in
Beed by police. He further deposed that in July 2008, the blast had taken
place in Ahmedabad and live bombs were found in Surat. In connection
with said incident, the Terrorist Organization by name Indian Mujahiddin
had sent the e-mails to various government offices and media. Similar
e-mail was sent in August 2008. The said crime was investigated by Crime
Branch, Detection Mumbai. The said crime was registered on 15/2/2008.
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In the said crime, 21 accused persons were arrested, who were connected
with the Indian Mujahiddin Organization, who were said to be involved in
various incidents of bomb blast, which had occurred across the country.
Arms and ammunitions, detonators, timers etc. were seized at the instance
of said accused persons. Their statements were recorded under the
provisions of Section 18(2) of the M.C.O.C. Act and the charge-sheet was
filed against them and the absconding accused persons in the MCOC Court.
During the course of investigation, it was revealed that the members of the
said Indian Mujahiddin Organization by name Rijaz Bhatkal, Iqbal Bhatkal
and Yasin Bhatkal were involved in the said crime. During investigation,
police obtained photographs of the absconding accused. This witness had
visited the place known as Bhatkal in the State of Karnataka in search of
those accused.
60. The witness further deposed that when he joined ATS in May,
2010, that time ATS was investigating German Bakery bomb blast case.
Considering his experience, he was directed to assist in the investigation.
When this witness was observing the CCTV footages, while assisting in the
investigation of German Bakery case, he noticed that a person, carrying
two bags while entering German Bakery and carrying one bag while
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leaving the same, was Yasin Bhatkal, based on photographs which were
collected by him in the earlier investigation of different cases. The witness
identified the said person in the CCTV footages. The investigating agency
preserve the photographs of terrorists absconders in Album. This witness
was confident that Yasin Bhatkal was seen in the footages entering German
Bakery. He was confident that he would be able to identify Yasin Bhatkal in
the CCTV footages of the German Bakery. A CD which was played is at
Article 61. He identified the person as Yasin Bhatkal who was wearing the
cap and having two sack bags and standing at the counter of German
Bakery. The timing shown in the footages was 16.46.11 to 16.51.
In the Unit of ATS, Mumbai, the witness was attached, CR No.
9/2009 was registered and the wanted accused Abdul Samad was arrested
on 24/5/2010 from Mangalor in connection with the said crime. Abdul
Samad is younger brother of Yasin Bhatkal. In the Album maintained in the
office, photograph of the wanted accused was there. Photograph of
Ahmed was also in the Album. Information of Abdul Samad was collected
in C.R. No. 9 of 2009. The witness produced information written on one
document having one photograph and the Photostat copy (Exh. 398).
Another Article 62 is xerox copy of newspaper shown to the witness.
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Abdul Samad was never arrested in German Bakery bomb blast case.
61. The witness deposed that on 16/9/2010 the guard, who was
with accused Mirza Himayat Baig, informed him that accused wanted to
tell something. He called panchas through police constable Faruqee. He
made enquiry with the panchas and gave information about the German
Bakery Bomb Blast case. The memorandum statement of the accused was
recorded before the panchas and it was read over to panchas. Thereafter, at
the instance of the accused, the witness, the panchas and the police staff
went to the Manish Market, Mumbai. The vehicle was stopped near the
hotel by name Gulshan-E-Iran, which was situated near by the said Manish
Market. The accused took them to one shop and told that he had purchased
the mobile Nokia 1100 from that shop. The investigators introduced
themselves to the person who was present in the shop. The said person
told that he was not knowing anything as during the relevant period his
brother was present in the shop. Panchanama was prepared accordingly
which is at Exh.400.
62. After they came out of Manish Market, accused Mirza Himayat
Baig took them to nearby lane on the left side, which was known as Sabu
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Siddiki lane and pointed at one shop which was on the footpath and told
that he had purchased the haversack bag from the said shop. A person by
name Ahmed Salim was present in the said shop. The said person told that
he did not remember as to whether accused had purchased the bag from
him. The accused thereafter took them to a nearby area. At that time, face
of the accused was covered with a cloth. After they returned to the office,
entry was taken in the station diary as well as in the log-book of the vehicle.
The true copy of the station diary entry is at Exh. 401 and the true copy of
entry in the log book is at Exh. 402. On 16/9/2010 the witness recorded the
statement of Ilias Mansuri, who was present in the shop of Manish market
on 8/2/2010 and also recorded the statement of bag seller by name
Mohammad Salim Altaf Alam. Thereafter the witness submitted aforesaid
panchanamas and the statements of witnesses to IO Shri Satav. The report
is at Exh. 403.
During cross-examination, the witness stated that it is not true
to say that there is absolutely no connection with the incident happened in
Ahemadabad with the German Bakery case. According to the witness Yasin
Bhatkal, who is accused in that case, is also wanted accused in this case.
Yasin Bhatkal was absconding since the year 2008, as per the knowledge
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of the witness. He stated that the organization by name Indian Mujahiddin
was not banned in the year 2004. According to him, the organization was
banned after the year 2008. The witness stated that in all the cases, Indian
Mujahiddin was involved. The witness brought a photo album before the
court. He denied suggestions that he was deposing falsely that after
viewing CCTV footages Abdul Samad had stated that the person seen in the
same was Yasin Bhatkal. No statement of Abdul Samad was recorded
under Section 164 of Cr. P.C. in respect of the said CCTV footages.
The witness further deposed that it was true to say that no
document was available in the said mobile shop to show that the accused
had purchased the mobile phone from that shop.
63. Another circumstance relates to use of mobile hand-set Nokia
1100 as triggering device for causing bomb blast in German Bakery.
PW 98 is Gopal Ranganath Atkare, who was dealing in cloth
business at the relevant time. The witness deposed that he was called by
police at German Bakery, Koregaon Park, Pune, where the bomb blast had
taken place at 11.15 a.m. along with his friend Prakash Baliram Bulunge.
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Police told them that a panchanama of the articles from the said place was
to be made and asked them to act as a panch. The witness agreed. Shri
Nadguada, Col. Mann, persons from Hyderabad Forensic Laboratory
Shri T. Suresh and D. G. Gopinathan were present at the spot. The panchas
were introduced to them. (Col. Mann was from National Security Guard
(NSG) had collected some articles). The articles included pieces of mobile
Sim card, the broken pieces of mobile, some 14 pieces of Aluminum etc.
Around 10 to 11 articles were put in the plastic bags. Panchanama is at
Exh. 388. One big carton in sealed condition was brought by the
prosecution. It was opened in court and 20 articles wrapped in brown
colour paper, having labels were removed. All the packets were having
the labels upon which there were signatures of the witness and another
panch Prakash Bulunge. The packets were opened one by one. The first
packet upon which it was mentioned MP 98/10/1 was opened. It was having
one small plastic pouch, in which there was broken piece of Airtel company
Sim card. The second packet upon which it was mentioned MP 98/10/2
was opened. It was having one small Sim metal cover. The third packet
was having one camera view cover. The fourth packet was having one
mother board clip. The fifth packet was having one mother board clip ring.
The tenth packet was having the piece of back side of cell phone. The 11 th
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packet was having piece of bag chain and the 12th packet was having the
part of mother board of cell phone. The 15th packet was having pieces of
bag. The 16th packet was having 9-V battery piece. The 17 th packet was
having 9-V battery head pin. These articles were collectively marked as
Article 63 and seized under panchanama. During cross-examination, the
witness stated that the said articles were seized from the open space of the
premises of German Bakery.
64. PW 99 is Suhas Madhukar Nadgauda. On 13/2/2010 he was
attached to the Bandgarden Police Station, Pune as Sr. PI. The witness was
doing patrolling duty at the relevant time. At about 7.00 p.m. while he
was one patrolling duty, he received information that a big blast had taken
place at German Bakery, Koregaon Park, Pune. He immediately reached
the spot of incident with staff. When he was present there, the cashier of
German Bakery came to him and started telling the details. He asked the
said person to go immediately to Bandgarden Police Station for making a
complaint. Thereafter he followed him to Bandgarden Police Station. He
recorded the said complaint of the cashier of German Bakery by name
Pravin Pant on the computer. The recorded statement was made available to
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the said person, who had gone through the same and after going through the
contents, signed the said statement. Said complaint was treated as FIR,
based on which an offence came to be registered at C.R. No.83 of 2010
under various sections in Bandgarden Police Station. FIR is marked as
Exh. 390 (collectively). On 14/2/2010 the investigation of this case was
transferred to the Anti Terrorist Squad. Even thereafter the witness was part
of the team of investigation. On 18/2/2010 when he was present at the spot,
officers of FSL, Hyderabad and the team of NSG had come on the spot of
incident. They started inspecting the spot of incident. The team of NSG
inculded Col. Mann and in the team of FSL, Hyderabad there were officers
by name T. Suresh and G. Gopinath, who were collecting articles from the
spot, which were relevant for the purpose of investigation. The witness
called two persons to act as panchas. The panchanama is at Exh. 388 and
the articles collected are marked collectively as Article 63. The team of
NSG and FSL had collected articles from the premises of the German
Bakery.
Forensic Evidence :
65. The forensic laboratory reports regarding presence of RDX at
the scene of the blast and the FSL report regarding presence of RDX as
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explosive recovered from the accused Mirza Himayat Baig was also relied
upon as strong circumstances. Evidence of PW 75 - N. B.
Bardhan, PW 78 - Ravindra Kulkarni, Assistant Chemical Analyzer, Pune
was relied upon by the prosecution. PW 75 - N. B. Bardhan identified the
C.A. report (Exh. 23) which was prepared by him in respect of the articles
which were collected from the spot of incident. He deposed that Physico-
Chemical and Instrumental Examination confirmed the presence of RDX.
PW 75 is N. B. Bardhan, the Principal Scientific Offier,
C.F.S.L., C.B.I., New Delhi, who deposed before the court. The witness
was promoted as the Principal Scientific Officer in the year 2007. He was
posted in the C.F.S.L (Central Forensic Scientific Laboratory), Ballistic
Department. His duty was to examine the crime exhibits received in
explosion and fire arm cases and after scientific examination of the same,
he would submit a report to the forwarding authority of the case through
official channel. He had undertaken training from various scientific
institutions in India and had got around 19 years of experience in the
forensic ballistics. He had examined 400 fire arm and explosion cases
consisting of over 10,000 exhibits. As he was working in the CFSL, he
had appeared in various courts across the country. The witness stated that
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seven exhibits were forwarded to laboratory under the forwarding letter by
ATS, Pune. The letter is at Exh. 330. Parcels containing partly burnt pieces
of cloth, broken accessories of mobile phones, damaged metallic pieces, six
damaged mobile phones, damaged wrist watch pieces, two currency notes
of Rs.100/- denomination, totaling Rs.200/- and some Indian and Foreign
currency coins, one DVD player and one spectacle with cover, burnt and
torn pieces of black coloured cloth having multiple small holes on it,
damaged iron piece and pieces of clothes.
During the course of his examination, following laboratory
processes were carried out on the above referred exhibits :
(a) Physical Examination.
(b) Chemical Analysis
(c) Thin Layer Chromotography Analysis
(d) Instrumental Analysis by High Pressure Liquid
Chromotography system.
Physico-Chemical and Instrumental Examination confirmed
the presence of RDX, Ammonium Nitrate and Oil in the contents of parcle
Nos.A-1 to A-7.
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The witness deposed that RDX is high explosive material. If
RDX is used as a Explosive material in a bomb and if it is exploded, it may
cause a severe destruction to the surrounding objects. The expert could
detect a high explosive like RDX residue from the object even if it is
present in Nano Gram Level. Nano gram level means very very minimum
quantity. In the event of the explosions by use of high explosives like
RDX, after the explosion, the high explosive contents turns into gaseous
form emanating a large volume of gas and produce a high level of
temperature and gets defused to the surroundings in the form of smoke. The
smoke which emanates due to the blast, gets 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. The addition of
Ammonium Nitrate and Oil to the explosive substance, increases its
effectiveness of destruction through blast effect and inflammable effect.
(Exh. 22 is the report from Regional Forensic Science Laboratory, Pune
shown to the witness).
During cross-examination, the witness admitted that the
opinion given by him about RDX is not mentioned in the report. The full
form of RDX is Research and Development Explosive. He stated that its
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chemical name is Cyclo Trimethelene Trinitraamin. RDX is not the
technical term. The military is one of the users of RDX. As to whether
RDX was not available in the open market, the witness stated that he cannot
offer his comment. RDX is the separate compound and Ammonium
Nitrate is the separate compound. It is not necessarily to have RDX with
Ammonium Nitrate always because RDX is by itself is a high explosive.
Cyclonite is also another name of explosive called RDX. To a question, the
witness answered in the following manner:
Q. How a Bomb can be exploded?
Ans. A bomb can be exploded only when it is stimulated by
an external energy like electrical energy, flame, heat or friction.
It is not necessary to have electrical instrument always for explosion. It
depends basically on the type of Bomb supposed to be initiated. RDX in
pure form is White Crystalline Substance. The witness stated that he had
come across that in most of the explosion cases, timer device has been used
for the purpose of explosion of Improvised Explosive Device. But, in
number of cases, Remote Control Device is also used for initiation of
Improvised Explosive Device.
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66. PW 78 is Ravindra Rajaram Kulkarni, Assistant Chemical
Analyzer in Forensic Science Laboratory, Pune. The witness was qualified
as M.Sc. Organic Chemistry. He had examined thousands of samples
received in the cases and had deposed before the court as Chemical
Analyzer on many occasions. His Chemical Laboratory had received
several samples in connection with the Bomb Blast occurred at the German
Bakery, Pune. The Forensic Laboratory, Pune, where he was working,
was equipped with latest and sophisticated equipments. There are several
devices which can detect the explosives, such as RDX at different
concentrations. The GCION scan Chromatogram can detect RDX upto the
level of Picogram. In simple language, Picogram quantity means very very
small quantity. The Picogram quantity is not visible by naked eye. On
14/2/2010, seven parcels were received in the Forensic Science Laboratory
from the Bundgarden Police Station. Original forwarding letter is at Exh.
343. Exh. 22 is C.A. report shown to the witness. The witness identified his
signature from the said report. The witness stated that traces of Cyclonic
(RDX), Ammonium Nitrate and Nitrate and Nitrite Ions along with
Petroleum Hydrocarbon Oil was detected in the collective extracts of the
Exhibit numbers, which are mentioned in the report. The witness stated
that the RDX is the high explosive. Ammonium Nitrate can also be used as
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an explosive. If RDX is mixed with Ammonium Nitrate, Charcoal,
Petroleum Hydrocarbon Oil, the effectiveness of the explosion is enhanced.
The reports placed on record were exhibited by the court. The C.A. reports
are at Exhs. 22 and 24, which were shown to the witness.
During cross-examination, the witness stated that there are
various names of RDX. The common name is Research Development
Explosive (RDX). He stated that it is not necessary to have Petroleum
Hydrocarbon Oil in RDX. The contents of RDX are not available in the
open market. Military is provided with RDX. The Bomb can be exploded
with Timer, according to the witness.
67. PW 100 - Suraj Chandrashekhar Padwalkar. The witness
deposed that he completed computer repairing course and mobile repairing
course after completing 12th standard. His shop is situated near Sagar
Archade, Goodluck Square, Deccan, Pune. He claims to have knowledge
of different components of mobile phones. He provides services of
repairing the mobile phones to the general public as well as to the
Government officers. The witness was aware that a bomb blast had taken
place in German Bakery on 13/2/2010. The police approached him on
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26/2/2010. The ATS officer asked him for his assistance. The witness was
called in the office of ATS. Accordingly, he reached the ATS office
between 12.00 p.m. to 12.05 p.m. One more person namely Ashish Shinde
from Nokia Care Company was also present there. Thereafter the witness,
Ashish Shinde, Vinod Satav, IO and driver went to the Forensic Laboratory
at Pune. At that time, Shri Satav told him that mobile parts, which were
found from the spot of bomb blast, were kept in the Forensic Laboratory
and they should assist the investigating team in identifying the company of
the mobile phones etc. When they reached the Laboratory, they found
that mobile spares were kept on a table. The witness and Shri Shinde
examined the mobile parts. They were half burnt. Some batteries were
there in the said spare parts, which were also half burnt. The witness
noticed one back cover of the mobile phone made of plastic. The cover was
blackened. Both, witness and Shri Shinde examined the said articles with
the help of magnifying glass. It was noticed that the said back cover was of
Nokia 1100 model. The witness identified the said cover (Article 63-A).
During cross-examination, the witness deposed that there are
many pieces of Nokia 1100 model which were manufactured. The model
number of mobile phone is written in the inner part of the mobile phone.
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As the Article 63-A - mobile cover got blackened due to burn, the model
number i.e. Nokia 1100 could not be seen. The witness admitted that there
was no mark on the said article to show that it belonged to Nokia company,
but on the basis of notches on the said article, the witness stated that it was
of Nokia 1100 model. The witness admitted that there were several pieces
of Nokia 1100 model available in the open market. It was got explained
from the witness that the notches mean the inside projected portion of the
back cover.
68. There were in all 103 witnesses examined by the prosecution,
out of which 41 witnesses have filed their affidavits under Section 296 of
Cr. P. C. Out of said 41 witnesses, on the request of defence, 11 witnesses
were cross-examined and 30 affidavits were admitted. Section 296 of Cr. P.
C. reads as under :-
"296. Evidence of formal character on affidavit.- (1) The
evidence of any person whose evidence is of a formal character
may be given by affidavit and may, subject to all just
exceptions, be read in evidence in any inquiry, trial or other
proceeding under this Code.
(2) The Court may, if it thinks, and shall, on the application
of the prosecution or the accused, summon and examine any
such person as to the facts contained in his affidavit.
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69. The names of the witness, whose affidavits were proposed to
be filed under Section 296 of Cr. P. C. were furnished by an application by
the State on 3/9/2011 incorporating the names of 41 witnesses + 18 other
witnesses. Said application is at Exh. 111.
70. By application dated 15/10/2011, the defence expressed its
desire to cross-examine 11 witnesses (page 125 of Additional Paper Book).
The State filed an application on 8/11/2011 under Section 294 of Cr. P. C.
for reading the 28 documents in evidence (Exh. 156). By an application
dated 9/11/2011, the defence did not admit the medical certificates listed at
Sr. Nos. 1 to 28 as mentioned in the application dated 8/11/2011. An
application was filed by the complainant / State on 29/7/2011 under Section
294 of Cr. P. C. calling upon the defence to admit or deny the genuineness
of the documents which could be exhibited in the proceedings without any
further proof (Exh. 66), which included spot panchanamas, inquest
panchanamas, panchanamas about clothes of deceased and splinters
removed from the bodies of injured persons, certificates about injured
persons etc. By further application dated 20/3/2012, six documents were
submitted by calling upon the defence for its admission or denial under
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Section 294 of Cr. P. C. They included particulars of Jahangir Hospital in
respect of the injured persons (Exh. 66A). The defence submitted its say
dated 6/8/2011 (Exh. 67) on spot panchanama, inquest panchanama,
panchanamas about seizure of clothes of deceased and splinters and about
certificates of injured and about forwarding letter. In the end, the defence
stated that the documents mentioned in the say were not admitted by the
defence and it was prayed that the prosecution be directed to strictly prove
the said documents. In the said say, the defence stated that documents
which have been admitted may be exhibited under Section 294 of Cr. P. C.
The defence did not admit the genuineness of spot panchanama,
photographs of scene of offence, videography of scene of crime, hard-disk
of Hotel "O", CC Camera, seizure of video player and cassettes of German
Camera, seizure of cassettes of German Bakery CC Camera, sketch
prepared by City Survey Offier were not admitted by the defence. The
defence admitted inquest panchanamas as listed at Sr. Nos. 9 to 25. The
defence denied the genuineness of the splinters recovered from the bodies
and the panchanamas drawn listed at Sr. Nos. 27 to 33 and the certificates
issued in favour of injured persons listed at Sr. Nos.34 to 85. The trial court
had passed orders accordingly on the applications filed by the State after
obtaining say of the defence.
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71. PW 1 is Smita Dnyaneshwar Kharose, who had sworn
affidavit in the present case under Section 296 of Cr. P. C. Said affidavit is
treated as examination-in-chief. She admitted that she and her husband
were looking after the German Bakery. Her husband had looked after the
Bakery for last about 25 years and she has been looking after the Bakery
since 1999 after her husband died. The bakery consists of two rooms and
the front open space is having a tin shed. The bakery is situated on the
main road of the Koregaon Park, Pune. She admitted that there was CCTV
camera installed at the counter of the bakery since beginning. The hard-
disk of the CCTV camera was kept in the said room. She denied the
suggestion that the person entering the Bakery from the main gate was not
captured in the CCTV camera. According to her, the CCTV camera was
installed at "O" Hotel. She was not shown CCTV footages . The bakery
used to function in two shifts from 8.00 a.m. to 3.00 p.m. and from 3.00
p.m. to 11.00 p.m.
72. Another witness is PW 2 - Dr. Mansi Yogesh Jadhav, who has
a Dental Clinic on the first floor of the German Bakery. She too filed
affidavit under Section 296 of Cr. P. C. She was cross-examined by the
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defence. She deposed that she had not seen fire brigade extinguishing the
fire. She was present on the spot for about half an hour after the blast.
73. PW 3 is Shankar Narayan Kharose. He was residing at
Swapnalok Society, Flat No.1, Koregaon Park, Pune. His office is in the
same building in which German Bakery was situated. In his affidavit he
stated that initially they all suspected that the blast in the Bakery had been
caused due to an LPG Gas cylinder blast, however, on inspection they
realized that all the LPG cylinders were intact.
74. PW 22 is Vikas Shivgan who was present in German Bakery at
6.45 p.m. He deposed that as he was to take coffee cups, all of a sudden
there was a big noise and blast. He noticed 2-3 persons near the counter
falling down. His statement was recorded by Pune Police on 14/2/2010.
75. PW 23 is Ramesh Gitaprasad Panta, native of Kathmandu,
Nepal and is working presently in Goa. He was working in German
Bakery for about three years as watchman. On 13/2/2010 at about 7.15
p.m. he was getting ready for reporting to his duty when he heard a loud
explosion and felt as if the building had collapsed. He came out of the
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building and saw what had happened. During his cross-examination, he
deposed that at the time of the blast he was on the third floor of the
building. Due to the blast, the shed was completely damaged. After the
blast he came down. The police had come first and thereafter the fire
brigade. The fire brigade had sprinkled some water. His statement was
recorded on the next day in the same building by the police.
76. PW 24 is Shrikrishna Vishnubahadur Thapa. At the relevant
time, the witness was working in German Bakery since last four years as
cashier. On 13/2/2010 his duty hours were from 6 a.m. to 3 p.m. He stated
that at about 10 a.m. he went to gas agency at Yerwada, Pune, collected
cooking gas cylinder for his house. He worked till 4 p.m. He left German
Bakery at 4 p.m. and went to Camp for buying vegetables for his house. At
6.50 p.m. he came back to German Bakery and spoke to Pravin Pant,
Manager of Bakery and he gave him account of the day. While he was
leaving for his house and walking through the passage where customer
were sitting in German Bakery, all of a sudden there was a big blast and
flames were seen at German Bakery. In his cross-examination, witness
stated that the cashier counter was inside the bakery. His job was to collect
cash from the customers at the counter. He admitted that there was a
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CCTV camera at the counter. He also admitted that the persons who used
to come to the counter, were captured in the CCTV camera. The
supervision of the bakery was done by the Manager. Statement of this
witness was recorded on the next day of the incident. His affidavit was
typed by the police and was sworn by him on 16/9/2011.
77. PW 25 is Ram Gopal Karki, who was working as Manager in
German Bakery since the year 1998. The bakery used to open from 6 a.m.
to 11 p.m. The bakery used to operate in two shifts and there were 30
employees in the bakery. On 13/2/2010 the first shift commenced at 6 a.m.
and got over at 3 p.m. and the second shift had started. At 5.30 p.m. he
along with his wife had gone to Zercon Society, Viman Nagar, where he
received a phone call from his son who informed him that a very loud
explosion had occurred near the German Bakery and due to the impact of
the explosion the whole building had shaken. He stated in the affidavit that
he reached the spot within 20-25 minutes. He saw blood and human flesh
lying on the floor. Human limbs and other body parts were also lying
scattered in the Bakery. Gas Cylinders were found intact. There was a
huge cavity created in the floor. The witness went to the morgue in
Sassoon Hospital in order to search for Gokul, who is one of the employees
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of the Bakery. However, he could not find Gokul. Thereafter he went to
Jehangir Hospital and Ruby Hall Hospital to search Gokul. However, he
could not locate him. But when he returned to Budhrani Hospital, he
identified one dead body which was of Gokul Bardeva, one of the
employees of German Bakery. Gokul Bardeva's dead body was handed
over to Nepal Embassy.
During his cross-examination, the witness denied the
suggestion that the watchmen at the German Bakery used to check the
belongings of the customers. In the bakery about 300 to 400 customers
used to visit every day. He admitted that the persons entering from the
gates were not captured by the CCTV camera installed in the bakery. But
he changed the version in the next breath and deposed that the persons
entering from the gates were captured by the CCTV camera installed in the
bakery.
78. PW 28 is Kedar Shivbhakti Gibhire. He was servant in the
Bakery. He is native of Nepal. He was working in Bakery for about one
and half years.
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79. PW 30 is Hanumant Sitaram Kute. He was driving auto-
rickshaw in Koregaon Park area. After the blast, he stated that he started
running from the spot. There was lot of loss and damage to the property.
80. PW 33 is Umesh Aabaji Pongadwale. He was working as a
salesman in a shop namely Quality General Stores, Koregaon Park, Pune.
The said shop is next to German Bakery. In his affidavit, he stated that
after the blast, he came out of the shop and saw that the tin-shed outside the
German Bakery was completely damaged. The customers and employees
of Bakery were lying seriously injured. There was a pool of blood in the
bakery. During cross-examination, he deposed that the shop was owned by
Smita Kharose. The blast had taken place in the open space of the bakery.
81. PW 42 is Kishorsinha Ransinha Pardeshi. He was working in
the police department in the Crime Branch as a photographer since the year
2002. He had taken the photographs of the accused persons, the unknown
dead bodies and the spot of crime. He was in-charge of photography
department at Pune Crime Branch. He has two constables to assist him.
The cameras and other equipments for the photography are provided by the
police commissionerate. He further deposed before the court in
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examination-in-chief that the cameras having digital memory cards are
used. The witness had taken the photographs and the video shooting. The
said CDs are Article 1 and Article 1A. The said articles were marked after
playing CDs in the laptop which was brought by the witness on the defence
giving no objection to the same.
82. PW 43 is Sayyad Khwaja Hamza. He was working at the
relevant time as I. T. Manager in Hotel "O" which is situated outside the
German Bakery in the Koregaon Park. According to the witness the
cameras which were installed outside can capture the whole area covering
German Bakery. That the data gets automatically stored for 9 days. The
system operates automatically, according to the witness. The police had
asked for CCTV footages and accordingly they were shown to the police.
The report was generated through the system. The police had taken the
copy of the particular footage. The CD/DVD of the particular footages was
handed over to the police. The witness made one clone of the hard-disk.
The hard disk and clone were handed over by the witness to the police
along with CD/DVD. The police had seized and sealed the said articles.
The panchanama drawn on 14/2/2010 is marked as Exh. 163. The hard-
disk is Article 3 and the other hard disk is Article 3A. The CD is Article 4.
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The labels along with the wrapper are marked as Article 5 collectively.
During cross-examination of this witness, he deposed that if one stands at
the main entrance of Hotel "O", one cannot see the inside view of the
German Bakery. At the main entrance of Hotel "O", there were two CCTV
cameras installed. Whoever enters the Hotel "O", the CCTV cameras
record the same. The witness stated that the CCTV cameras which are
installed at Hotel "O" are having the capacity to capture the things/image
situated at the distance of 100 fts. as they are the zooming cameras. It is
stated that no CCTV cameras were seized from Hotel "O".
Panch Witnesses:
83. PW 44 is Jagdish Harishchandra Nimbalkar. The witness was
aware of the blast which had taken place on 13/2/2010. He was called by
the police to the spot of incident on 14/2/2010. According to the witness,
there was one CCTV camera above the counter near the shutter. The wire
of the CCTV camera was hanging. This witness had given account of the
situation in the German Bakery. There is one open space on the eastern
side of German Bakery ad-measuring approximately 40 fts. X 14 fts. The
witness had seen one big pit adjacent to the hole of eastern wall of the
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German Bakery. He had seen some trees which were partially burnt. There
were some gas cylinders kept in one iron enclosure. Persons from CBI,
Forensic Science Laboratory had collected half burnt clothes, pieces of
mobile phones, broken watches, pieces of tins, coins and various articles
from the spot. They were sealed by putting seal. Video shooting and the
photographs of the spot of the incident was done. The spot panchanama is
marked as Exh. 166. Two CDs were played in the laptop which was
brought by the prosecution, one by one, and shown to the witness. He
identified the same. The CDs were again sealed.
During cross-examination, the witness stated that he was in the
government service since last 9 years. The witness had recorded dying
declaration once only. He stated that he had not conducted any
panchanama. The witness denied suggestion that the entire premises of
German Bakery was washed with water. The pit spot was 11 inch deep and
26 inch wide. There was some water seen in the said pit. Other suggestions
given by the defence were denied by the witness.
84. PW 51 is Gokul Sudam Shelar. On 20/9/2010 he was called at
the Head Quarter of Police at Shivajinagar, Pune at about 11.00 a.m. by the
ATS, Pune for panchanama in respect of handwriting. Shri Satav pointed
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out towards one person and told that his name as Mirza Himayat Baig. Shri
Satav told the said person to write numbers from 0 to 9. Accordingly said
person wrote the numbers from 0 to 9 on 6 papers. The said person had
written down the numbers from 0 to 9 on each page for 6 times. Thereafter,
the witness, other panch by name Gaikwad, Shri Satav and the said person
who had written down the numbers from 0 to 9 had singed on each paper.
The said papers are marked collectively at Exh. 246.
85.
PW 58 is Soorajsingh Bisht. His evidence is at Exh. 268. On
23/2/2010 at about 11 a.m. he was called by the police from the Crime
Branch at the German Bakery. At that time he was standing in the parking
area of German Bakery. The manager of German Bakery was present there .
It was informed by the staff that there was CCTV camera installed on the
counter of the German Bakery and the recording was being done at the
residence of Gopal Garki. His residence was on third floor of the German
Bakery. His Flat Number was B-5. Therefore they all went to his flat. The
witness saw one LCD TV of Sony company and below that there was one
VCR. Shri Garki removed 7 video cassettes from the cupboard which
were kept there. Thereafter police had called Shri Dongre to prepare the
copies of the said video cassettes. The police had taken charge of 7 video
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cassettes and VCR. Said articles were wrapped in the brown colour paper
and the seal was put and also the labels along with signatures were
obtained. In the court, sealed box was opened which contained 7 video
cassettes which was marked as Article 33, the VCR is article 34. The
panchanama is at Exh. 269.
During cross-examination, the witness deposed before the
court that he had not seen German Bakery from inside, though his office
was in the same premises where the German Bakery was situated. The
video cassettes were not blank, according to the witness.
86. PW 53 is Tushar Shivaji Pandit. He was called in the office
of ATS. The police officer Shri Satav was present there. One accused was
also present there. Witness stated that said accused is present in the court
and pointed out to accused Mirza Himayat Baig. In the presence of this
witness personal search of accused was done. During the search, one
chocolate colour packet / pouch, one identity card of Election Commission
of India having the photograph of the accused, cash of Rs.3,020/-, one
spectacle, 3 passport size colour photographs of accused, one piece of
newspaper, one pocket book in which matter was written in English and
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Urdu language, one piece of ATM card of the bank of Hyderabad, two
mobile phones, out of which one was having Sim card of Tata Docomo
company were seized from the accused. Cash amount consisted two notes
of Rs.1000/- denomination, two notes of Rs.500/- denomination and two
notes of Rs.10/- denomination. The clothes of the accused were removed.
He was examined but no injury was found on his person. The said articles
are marked and placed on record. During cross-examination, the witnesses
stated that the clothes of the accused were not seized. Rest of the
suggestions were denied by the witness.
87. PW 56 is Umakant Dnyaneshwar Chatnale. He is resident of
Udgir, District - Latur. He deposed before the court that when he was
passing through the police station on 8/9/2010, he was called by the police.
He went inside Udgir Police Station. Shri Gaikwad from the ATS was
present there. The other police officers were also present there. One person
by name Gaus having two bags was present there. Shri Gaikwad told this
witness that some articles in connection with the German Bakery bomb
blast were to be seized under panchanama. The said articles were taken
from Shri Gaus. One was having black colour breif case and one Khaki
colour shoulder bag of cloth. The Khaki cover bag was opened and it
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contained two shirts, two pants, two handkerchiefs and some other articles
of clothes. The black colour brief case was opened, many documents were
seen inside the same. In those documents there was one identity card, one
document having the stamp of Chennai Airport on the passport, one blue
colour Mobile Phone of Nokia company and other documents. They were
sealed in separate packets. Panchanama was accordingly drawn. Khaki
cover bag is marked as Article 24 and all other articles collectively marked
as Article 25. The black colour brief case is marked as Article 29. The
documents and envelopes are also marked as Exh. 27. The passport along
with two small envelopes are marked as Article 30 collectively. The witness
stated that there were three Sim cards and one small light green colour
envelope having labels, which were seized in his presence. The said
panchanama is at Exh. 264. During cross-examination, the witness stated
that he does not know reading and writing Urdu language. When he
reached the police station, the person by name Gaus was also present there.
Both these bags were opened before him after the said panchanama. Most
of the written articles which were seized are in Urdu language.
88. PW 59 is Mobin Rashid Shaikh. He is resident of Khairewadi
Ganeshkhind road, Pune. He was called on 6/12/2010 at about 1 p.m. by
ATS police in their office at Shivajinagar, Pune. The documents in
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connection with the German Bakery bomb blast case were in one closed
packet. The said packet was of light green colour. Said packet was cut
by scissor. There were many papers in the said packet. It contained the
college I Cards, the receipts towards payments of fees, the certificates in
respect of educational eligibility, driving license etc. In all there were 37
documents. All these documents were collectively marked as Article 28.
89. PW 60 is Amit Mansukhlal Veera, who deposed that he was
called on 13/9/2010 by ATS police in front of one shop in Crawford
Market, Mumbai. At that time he was going from that place. He was told
that his help was required as the panch witness in the Al-Noor Guest House.
Accordingly, he went to the said guest house. The police told the Manager
of the guest house that they wanted to seize the register of the guest house.
The police had seized the register after verifying the same. The
panchanama is at Exh. 274. The witness stated that Al-Noor Guest House is
situated in the crowded area.
90. PW 64 is Gopal Chamkure. He was called to act as a panch by
the ATS Police Nanded at the Ashok Hotel, Priyanka Travels at Latur. The
agent, namely, Ijiyaz Maniyar was present in the Priyanka Travel. The said
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officers who had come there and asked the agent that they wanted to check
entry of 6th and 7th February, 2010 from the booking register. The said
agent produced one register. It was green in colour and the name Jagruti
was written over it. There was entry in the name of Samad Indori against
entry dated 6th and 7th February, 2010. The said officers took charge of the
said register and prepared panchanama, upon which the witness, other
panch and the agent Ijiyaz Maniyar and Shri Reddi had signed. The
panchanama is at Exh. 283.
91. PW 61 is Renukadas Narayanrao Dhanorkar, who was
working as Superintendent, Social Welfare, Zilla Parishad, Nanded. He
was shown identity card issued to a physically handicapped person (Article
36). The blue colour identity card which is at Article 31/1 was not issued
from his office. The stamps and the signatures on the same do not match
with the record of his office.
92. PW 62 is Mahesh Deshmukh. He was working as a Motor
Vehicle Inspector in the office of Deputy R.T.O., Ambejogai. He was
shown blank forms having stamp of Deputy Regional Transport Officer,
Ambejogai. He stated that stamps on these forms and the stamps of his
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office are not the same. During cross-examination, witness stated that the
blank forms are of no use. At the time of giving licence the documents are
verified. He admitted that the police had not seized rubber stamps from the
office.
93. PW 65 is Prabhodaya Govind Mulay, who was working as
Tahsildar, Beed. He was inquired in respect of the ration card. He stated
that ration cards are available in the office of Tahsildar. He deposed that he
had verified genuineness of the caste certificate issued in favour of accused
from the documents available in Tahsildar's office. It was revealed that the
said caste certificate was forged. The signature and the stamp on the said
certificate do not tally with the official record. The witness verified the
copy of ration card received along with the letter at Article 41 from the
office record. No entry regarding issuance of the said ration card was
found. During cross-examination, the witness deposed that the signature
was verified by him from the pay role. The witness described the procedure
for issuing ration card. It is stated that the said ration card was in the name
of Mirza Inayat Baig Mehboob Baig. It included the names of family
members. On the ration card the name of Mirza Himayat Baig was
mentioned which is at Sr. No.3. The article 28/2 is marked as Exh. 287. The
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witness stated that no complaint was received by their office in respect of
said ration card. The witness was unable to tell as to who was the Nayab
Tahsildar in the year 2003. They had not seized the stamps which were
compared with the stamp appearing on the said ration card.
94. PW 66 is Vyankati Baliram Nilawad. At the relevant time he
was working as Chief Officer in Beed Municipal Council. He was
examined in respect of Domicile Certificate. The witness stated that the
stamp appearing on the Domicile Certificate and the stamp of their office
do not tally. There was no outward number on the said certificate.
95. PW 71 is Martand Vinayakrao Patil, who was working as the
Branch Manager at the State Bank of Hyderabad, Monda Branch, Beed at
the relevant time. He was examined on the issue of signatures appearing on
the withdrawal slips. He deposed that there was no saving account in the
name of Mirza Himayat Inayat Baig in the Mondha Branch. According to
him, any person can deposit the amount in the bank account. He admitted
that on the pay-in-slip, which was part of Exh. 309 collectively, there was
no signature of the person, who had deposited the amount. All the
transactions mentioned in the statement of account are done by using ATM
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card. The witness stated that no complaint was received by the Branch
Manager that the subject account was misused by any person.
96. PW 81 is Baby John, who was working as Nodal Officer with
Tata Tele Services, Mumbai since 2005. His duty was to provide
subscriber's details to the Law enforcing agencies as per Licensing
agreement of Government of India. He stated that every mobile hand-set is
having IMEAI number. This number will also be reflected in call details.
Police had asked some call details of one Sim card by way of written
requisition. The said information was provided under signature of the
authorized person. The printed call details are also placed on record.
During cross-examination, the witness described the procedure to be
adopted by the person who applies for a Sim card. The witness provided
information from 1/1/2010 to 6/9/2010. Following question was asked to
this witness :
Q. Is it true that calling number discloses the location of
the person from where he is calling?
Ans. Yes. I say that there were two things. One is switch and
the other is the Cell I.D. The Cell I.D. gives the exact location
of that person from where he is calling.
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The witness further admitted that the location of the person to
whom the call is made is not disclosed in the aforesaid call details.
Medical Evidence:
97. Five medical officers were examined on the evidence relating
injured persons. They are, PW 45 - Dr. Sudhir Lohkare, PW 46 - Dr. Sumit
Saxena, PW 47 - Dr. Jaising Shinde, PW 48 - Dr. Balkrishna Agrawal,
PW 49 - Dr. Chetan Puram and PW 50 - Dr. Pravin Survase.
PW 45 is Dr. Sudhir Lohkare, who was attached to Inlac and
Budharani Hopsital, Koregaon Park, Pune at the relevant time as Consultant
General Surgeon. The witness is conversant with the handwriting and
signatures of the other doctors who were working with him. The witness
deposed that on 13/2/2010 near about 13 to 14 injured patients were
brought to the Inlac Budharani Hospital, which is very near to the place of
occurrence. The distance is about 1 km. The witness had brought along
with him the original papers of the hospital record. He referred to the case
papers of Vikas Shigwan, who was brought in injured condition to the
hospital. The Casualty Medical Officer Mr. Santosh examined him and the
injuries on his person were noted by the resident in Surgery Dr. Pankaj
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Nemade. Said injuries were possible by any projectile coming out of the
bomb blast. The injuries were simple in nature. According to the doctor,
the injuries were caused due to bomb blast endangering life. According to
the witness abrasion is scratch type of injury. There is no procedure to know
that the particular injury was caused only by bomb blast. The injury of the
patient was not dangerous to his life. The injury certificate is at Exh. 169.
98. PW 46 is Dr. Sumit Saxena. He was at the relevant time
attached to the Inlac Budhrani Hospital, Koregaon Park, Pune. Six patients
were brought in injured condition. Their names are mentioned by Dr.
Rahul Chaudhary, who had seen them first. The witness had brought
relevant papers to the court. Specialist in their field treated the patients.
Some of the patients had burns over face, neck and right hand and also
multiple abrasions on abdomen below the umbilicus. The percentage of
burns were 9%. The injury certificate was marked as Exhibit 171. Some of
the injured persons had suffered abrasions and lacerations. They were
treated in operation theater. Persons who suffered injury to their ear,
according to the Medical Officer, would suffer permanent impairment of
hearing. One patient, namely, Sumit Singh was brought to the Casualty
Department of Inlac Budhrani Hospital was shifted to Intensive Care Unit
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(I.C.U.) as he was found critical. X-rays were taken. He had suffered
compound fracture to left fibula and had fracture of clavicle. He had
multiple foreign bodies. Dr. Karnalkar, ENT Specialist had also seen him
and diagnosed right ear traumatic perforation. His injury certificate is at
Exh. 173. Doctor opined that in these types of cases there can be hundreds
of foreign bodies. It is not possible to remove all the foreign bodies. The
bigger foreign bodies and the foreign bodies in the vital area were
removed. There is risk of the vital nerves getting affected while removing
the foreign bodies and, therefore, certain foreign bodies could not be
removed. Doctor opined that had the patient not treated immediately, he
could have died. All the injuries were serious in nature and were possible
due to bomb blast. While referring to case of Ms. Amrapali Chauvan, the
doctor stated that she was brought in a critical condition and shifted to
I.C.U. Dr. Panse had diagnosed the case as fracture of left femur. The
patient had suffered multiple small wounds on right leg. Her condition
had deteriorated in between and had to be kept on ventilator support for
few days. The injuries were serious and could occur due to bomb blast.
Injury certificate is at Exh. 174. Likewise, Ms. Vineeta Pathak and
Mrs.Waltrawo K. were also treated as injured patients. Their injuries,
according to the Medical Officer, were possible by bomb blast.
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In the cross-examination, the witness stated that the history
was given by the patient. Abrasions are superficial injuries. These injuries
could cause dis-figuration. The injuries found on the person of Santosh R.
Chandwani were simple in nature. Doctor stated that in all the certificates,
history was given by the patient. In no certificate it was mentioned that the
injuries were dangerous to human life. In the injury certificate it was not
stated that the injuries were possible by bomb blast. The said injuries could
be cured very fast by giving treatment.
99. PW 47 is Dr. Jaising Shinde. The witness is the Founder
Director of the Surya Hospital. The said hospital was formed in the year
1985. The witness is a Surgeon by profession. The patient Uplaxya Tiwari
was brought in the Surya Hospital on 13/2/2010 at about 9 p.m. He was
transferred from Ruby Hall to Surya Hospital. He had 14 to 15% superficial
to deep burns. He had burns on face, neck, both hands and both legs. The
history of incident was given by the friends who accompanied the patient.
He had contusion on right lower leg. He had perforation of the right ear
drum. Injury certificate is at Exh. 181. Likewise, Medical Officers treated
Mr. Saqr Fadl Saleh Albidani. He was brought in the Surya Hospital on
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13/2/2010 at 8.30 p.m. He had suffered contused lacerated wounds. He
was accordingly treated by the doctor. Injury Certificate is at Exh. 181.
In the cross-examination, he deposed that in a human being
there are 3 layers of skin. The first one is Epidermis, the second one is
Dermis and the third one is Hypodermics. The danger of the said injury to
the human being depends upon the area upon which the burn occurs. Doctor
deposed that in the injury certificate it was not stated that they were
classical injuries due to bomb blast.
100. PW 48 is Dr. Balkrishna Agrawal. He is a Surgeon by
profession. He was attached to Amit Hospital situated at Yerwada, Pune
since 1986 as a practicing surgeon. Ms. Hiteshi Kamboj and Mr. Kiran
Prakash Jadhav were brought to the hospital in injured condition. They
had suffered injuries on their person. The certificate is at Exh. 183 and
183A collectively. They had sustained grievous injuries.
101. PW 49 is Dr. Chetan Puram, who is Orthopedic Surgeon,
attached to Sancheti Hospital Pune, since the year 2002. He treated patient
by name Mr. Mushtaq Ahemad, who was brought to the hospital and had
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suffered CLW and multiple abrasions. Injury certificate is at Exh. 186.
Second patient was Mr. Kanaji Sherkhane, who suffered a compound
fracture of the left tibia fibula. He was admitted in the hospital and had
undergone surgery.
During cross-examination, Medical Officer deposed that in the
injury certificates it was not mentioned as to who had brought the patient.
The age of the injury was also not mentioned.
ig How many pieces of
metallic foreign bodies were found in the body of the patient was also not
mentioned.
102. PW 50 is Dr. Pravin Survase, who is Surgery Resident at
Sassoon General Hospital, Pune. He deposed that he looks after the
emergency surgical cases. He refers to the case of patient - Bharat
Agrawal, who was brought to the hospital on 13/2/2010 at 8.53 p.m. He
had suffered five injuries, including multiple tiny abrasions, CLWs. The
patient was operated for local exploration and foreign body removal. Total
9 metallic foreign bodies were removed from right heap, right back, right
buttock and right foot. The patient was discharged on 22/2/2010. The
injuries suffered by the patient were grievous in nature. Another patient -
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Kantilal Zhala had also suffered CLWs and multiple abrasions. He was
also treated as he had suffered serious injuries. Patient was operated for
local exploration and foreign body removal. Two metallic foreign bodies
were removed from left leg and left ankle. Likewise, Paras Rimal, Rushab
Agarwal, Sunanda Naik, Uday Karemvadi, Nagrajan Reddi, Asherig
Ejrali, Chek Wang and Faraz Zalanani were also treated as injured patients.
The Medical Officer submitted that all the above patients were brought to
the Sassoon Hospital at approximately same time. They had given common
history of explosion. The injuries were indicative of bomb blast injuries.
During cross-examination, the Medical Officer denied the
suggestion that CLW is not a bleeding injury. Doctor admitted that in the
injury certificate age and nature of injury was not mentioned.
103. Prosecution had submitted inquests, postmortem reports and
connected papers in respect of persons who died in the said incident. The
defence had admitted the genuineness of the said documents and, therefore,
they were admitted in evidence and exhibited. 17 persons died in the said
incident. Their names and cause of death in the tabular form is mentioned
as under :-
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Sr.No. Name of the deceased Cause of death Exhs.
1 Anikt Kamlendudhar Hemorrhage & Shock due to 69
explosion injury
4 Kum. Sinduli Piduri Hemorrhage and Shock due to 72
explosion injury
5 Kum.Anandi Dhar Hemorrhage and Shock due to 73
explosion injury
6 Shankar Pansare Hemorrhage and Shock due to 74
punctured injury over chest
7 Vikas Tulsiyani Complication following explosion 75
injuries
8 Anas Suliman (Foreigner)
9 Kum. Aditi Jindal Complications following explosion 77
injuries
10 Atul Anap Complications following explosion 78
injuries
11 Amjad Elgo Ahemd Multiple burn injuries due to 79
(Foreigner) explosion
12 Aditya Mehta Complications following explosion 80
injuries
13 Abhishek Saxena Complications following explosion 81
injuries
16 Sayeed Abdol Khani Hemorrhage and Shock due to 84
(Foreigner) explosion injury
17 Raju Agarwal Complications following explosion 85
injuries
104. PW 91 is Balasaheb Barguje, the Police Naik attached to ATS.
The witness carried seven sealed packets to Delhi for handing it over to
Forensic Science Laboratory. On 7/4/2010 he had again gone to Delhi to
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collect report from the Forensic Science Laboratory and submitted his
compliance report at Exh. 329.
105. PW 103 - Shri Satav, the Investigating Officer, was cross-
examined in detail on behalf of the defence, during which he deposed that
he reached the site of blast after 20 to 25 minutes after receiving the
information. The witness admitted that he did not record statements of
experts from the Forensic Science Laboratory. He admitted that statements
of Col. Mann and Goinath were not recorded by him. He could not say that
the RDX is possessed by Army only, but stated that the RDX was not
available in the open market. According to him Lashkar-E-Toeba
Organization is Pakistan based one. The members of the said Organization
also operate in India. He was not in a position to state the names of the
President or Secretary of the said Organization in India. The confessional
statement of Samad Khan was recorded in M.C.O.C. case. The witness
stated that it is not true to say that the Karnataka Police had arrested Abdul
Samad in the present case and was released later on. Some of the accused
of Aurangabad Arms Haul Case are still absconding from the year 2006
onwards. No information was received as to from which place accused
Mirza Himayat Baig was coming at Pool Gate Bus Stand at Pune. The
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witness admitted that prior to 7/9/2010 he had not seen accused Mirza
Himayat Baig. He admitted that photograph of accused Himayat Baig
which was used for apprehending him, was not produced. Since accused
Mirza Himayat Baig was one of the suspects in the present case, he was
taken to the office of ATS. The witness further deposed in his cross-
examination that there was no evidence that accused Himayat Baig along
with Mohsin Chaudhari and Yasin Bhatkal had assembled the bomb at
Cyber Cafe at Udgir. ig Witness did not make any inquiry as to whom the
Cyber Cafe at Udgir belonged to. The witness denied suggestion that
accused Mirza Himayat Baig did not assemble bomb in the Cyber Cafe at
Udgir. He denied suggestion that signature of Mirza Himayat Baig was
taken on blank paper. The witness admitted that Abdul Rahim Sayyed was
not examined as witness. The witness admitted that in Exh. 414, which is a
station diary entry, names of panch witnesses were not mentioned. There
was no reference of sniffer dog and opening the gate by Abdul Sayyed. But
everything in detail was mentioned in the panchanama. The witness
admitted that there was no evidence to show that accused Mirza Himayat
Baig met with Jabiuddin Ansari and Fayaz Kagzi in Colombo. Recently
Jabiuddin Ansari was arrested, according to the witness. The witness did
not personally visit Global Internet Cafe at Udgir. It is stated that accused
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Himayat Baig posed himself as Hasan and Yusuf by using forged
documents. He was using ATM card of Rehan to conceal his transactions.
CCTV footage about the accused Himayat Baig withdrawing money from
ATM has already on record. The bank's pay-in-slip at Exh. 300 is dated
20/1/2010 and the bank pay-in-slip at Exh. 309 collectively dated
20/12/2008 and 30/06/2008 are also on record, which are prior to the
incident. The witness denied suggestion that no prior permission of search
was obtained under Section 188 of Cr. P.C. for filing charge-sheet against
accused Mirza Himayat Baig. He denied that there was no proper sanction
obtained from the Central Government under the Unlawful Prevention of
Activities Act. Accused Mirza Himayat Baig was the absconding accused
in C.R. No. 17/2008 registered under the provisions of Unlawful Prevention
of Activities Act. He denied suggestion that accused Himayat Baig was
taken in custody at Latur on 19/08/2010 by ATS Aurangabad and he was
given in custody of ATS, Pune on 20/8/2010. He denied suggestion that
accused Mirza Himayat Baig was falsely implicated in this case and
accused had not come to Pune on 13/2/2010 along with another person
wearing cap and having two bags. The witness denied the suggestion that
accused Mirza Himayat Baig had not come to Pool Gate bus stand on
7/9/2010.
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The witness was re-examined by the prosecution, during which
he stated that in respect of Col. Mann, the report was received from him in
respect of visit to the spot of incident, which is at Exh. 425. The copy of
court's order and the copy of the panchanama in respect of destruction of
the said RDX seized in Aurangabad Arms Haul case is placed on record,
which is Article 24. The witness had tendered report from the Fire Brigade
Department, that no fire had taken place on the spot of incident (Exh. 424).
106. The prosecution filed an application under Section 294 of Cr.
P.C. 1973 to admit or deny genuineness of the documents enlisted therein
for exhibiting the same in the proceeding without any further proof. By an
endorsement made on 20/3/2012, it was noted on behalf of the defence that
"all the medical certificates of injured persons are hereby admitted by the
defence at Sr. Nos.34 to 85 and they may please be exhibited".
Accordingly, those documents came to be admitted and exhibited. Said
application is at Exh. 66. The prosecution filed similar application at Exh.
66A under Section 294 of Cr. P.C. for exhibiting six documents. On the say
of the defence, those documents were also exhibited, which referred to
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particulars of hospitals Jahangir, Pune and Kokilaben, Mumbai. The
prosecution filed application under Section 294 of Cr. P. C. (Exh. 66) in
respect of spot panchanamas etc. The defence admitted panchanamas at
page Nos.117 & 118 i.e. seizure of clothes of deceased (Exh. 67). The
prosecution thereafter filed an application under Section 296 of Cr. P. C. for
filing affidavit in evidence of witnesses (Exh. 68). The said application is
dated 6/8/2011. Said application was allowed on 3/9/2011. The affidavits
relied upon were to the extent of injuries caused to the witnesses in the
blast. The prosecution further filed an application seeking permission to
record evidence in absence of the accused, who were absconding, under
Section 299 of Cr. P. C. on 20/8/2011 (Exh. 106). On 3/9/2011 the
prosecution submitted names of witnesses whose affidavits were proposed
to be filed under Section 296 of Cr. P. C. (Exh. 111). The accused desired to
cross-examine 11 witnesses by filing say on 15/10/2011 (Exh. 154). The
defence had not disputed the affidavit filed in evidence of 28 witnesses
(Exh. 156). On behalf of the accused it was submitted that the defence does
not admit medical certificate at Sr. Nos.1 to 28 as mentioned in the
application dated 8/11/2011 (Exh. 156). The prosecution further submitted
documents for admission under Section 294 of Cr. P. C. by filing an
application dated 20/10/2012 at Exh. 385.
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107. After framing charge, the prosecution submitted application at
Exh. 20 praying for exhibiting 43 reports from the Government Scientific
Experts as per provisions of Section 293 of Cr. P. C. The defence
submitted say at Exh. 21 and stated that the Forensic Science Laboratory
reports 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.
The reports admitted were given Exhibit Nos.22 to 65 with liberty to the
defence to make appropriate application under sub-section 2 of Section 293
of Cr. P. C. for examining any witness. The trial court passed said order on
30/7/2010. The prosecution itself had examined Forensic Experts as PW 75
and PW 78. Inquest mentioned at Sr. Nos. 9 to 25 and forwarding letters
addressed to Forensic Science Laboratory were also not denied by the
defence as against an application filed at Exh. 66 under Section 294 of Cr.
P. C.
108. The inquest panchanamas and papers regarding cause of death
of the vicitms came to be admitted in evidence and marked as Exhs.69 to
85 and the forwarding letters addressed to Forensic Science Laboratory
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were marked as Exhs. 87 to 104. The certificates of injured persons
mentioned in application at Exh. 66 were admitted in evidence and marked
as Exhs.200 to 234.
109. Learned defence advocate admitted panchanamas pertaining to
seizure of splinters removed from the bodies of injured persons mentioned
from Sr. Nos.28 to 33 in the application at Exh. 66 and marked as Exhs. 315
to 320. The defence admitted panchanama in respect of seizure of clothes
of the deceased at Sr. No.66 in the application at Exh. 66 and so it was
admitted in evidence and marked as Exh. 86.
110. On an application filed by the prosecution at Exh. 106 seeking
permission to record evidence in absence of absconding accused, trial court
noted that it is the matter of record that the learned Magistrate before whom
the charge-sheet was submitted, had issued proclamation against the
absconding accused persons under Section 82 of Cr. P.C. and issued the
warrants against them.
111. The application was allowed by order dated 15/10/2011 by
observing that the evidence recorded in the matter would be recorded under
Section 299 of Cr. P. C. as against the absconding accused persons.
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112. The prosecution examined 103 witnesses, out of which
evidence of prosecution witnesses 1 to 41 was tendered by submitting
affidavits pursuant to the provisions of Section 296 of Cr. P. C., being
formal witnesses. The defence was given opportunity to cross-examine the
witnesses. The defence chose to cross-examine 11 witnesses. The
prosecution closed its evidence by filing closure pursis at Exh. 427. The
statement of accused was recorded under Section 313 of Cr. P.C. The
defence did not examine any witness.
Submissions of Shri Raja Thakare, Spl. P. P.
113. The learned Spl. P. P. Shri Raja Thakare has referred to the
entire evidence recorded by the trial court, the relevant documents, orders
passed from time to time and notings. We had looked into the original
record during the course of hearing of the Confirmation Case as well as
appeal with the assistance of the learned counsel appearing for the
prosecution and the defence.
114. Learned Spl. P.P. Shri Raja Thakare submitted that the
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prosecution had brought on record the background of the accused relating
to his association with persons, his occupation, peculiar habits. The
prosecution has also focused on the ideology nurtured by the accused, his
approach towards life. The prosecution as far as possible had tried to
minutely examine the mindset of the accused person who, according to the
prosecution, had extended not only his helping hand but had played a major
proactive participatory role, which ultimately resulted into a dastardly act of
bomb explosion in the German Bakery on 13/2/2010.
115. It was submitted by the learned Spl. P. P. that long standing
association of accused - Mirza Himayat Baig with absconding accused
Faiyaz Kagzi, Jabiuddin Ansari and Mohsin Choudhary and others is a
relevant fact. The association of accused with the absconding accused is
also highlighted by the learned Spl. P. P. The accused - Mirza Himayat
Baig was advocating and was pro-actively working in taking revenge
against atrocities committed on Muslims under the garb of Jihad. He was
camouflaging his identity by pseudo names such as "Hasan", "Yusuf" and
"Ahmed". The accused was involved in creating and possessing fake
documents of identity, like documents issued by RTO department, caste
certificates, ration card, domicile certificate etc.
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116. Learned Spl. P.P. submitted that in furtherance of his activity,
the accused entered into a criminal conspiracy to continue with unlawful
activities and for hiding his own identity and for doing financial dealings
without involving his name, accused used ATM cards of others.
117. Learned Spl. P. P. submitted that as a part of criminal
conspiracy, the accused had visited Colombo, Sri Lanka and did reiki at
Pune.
118. According to the prosecution, accused Mirza Himayat Baig is
member of banned terrorists organization known as "Lashkar-E-Taiba (L-e-
T). In pursuance of the conspiracy hatched with the absconding accused,
accused - Mirza Himayat Baig visited Mumbai for purchasing mobile
hand-set i.e. Nokia 1100 which was used as triggering device and haver
sack bag. The accused, as a part of criminal conspiracy, created false alibi
by keeping his mobile phones with his friends i.e. PWs 95 and 97 to show
that on 13/2/2010 the accused was at Aurangabad. It is the prosecution case
that as a part of conspiracy and in furtherance of concealing his identity the
accused was found in possession of documents of identity of other persons.
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119. Learned Spl. P. P. submitted that accused, who is a resident of
Beed, had taken shelter at Udgir by pseudo name "Hasan" "Yusuf" and was
said to be running "Global Internet Cafe".
120. Learned Spl. P. P. submitted that the prosecution recovered
RDX from the room used by the accused. The accused had made bomb in
his Global Internet Cafe at Udgir and in pursuance of larger conspiracy had
gone to Pune along with absconding accused Yasin Bhatkal on 13/2/2010.
The other absconding accused Yasin Bhatkal was wearing a cap and
carrying two bags was identified from the images of CCTV installed in the
German Bakery and in front of Hotel "O". It was identified that the said
person was Yasin Bhatkal who had kept one bag in the German Bakery and
left the Bakery soon before the blast with one bag. According to the
prosecution Yasin Bhatkal is a planter of bomb. The learned Spl. P. P.
submitted that the prosecution had seized CCTV footages at German
Bakery and Hotel "O" and recovered RDX through memorandum of
panchanama at the instance of accused - Mirza Himayat Baig. The
prosecution placed reliance on Forensic Science Laboratory reports which
confirmed that the blast was triggered due to RDX and it was with the help
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of a mobile Nokia 1100 hand-set which was used a a triggering device. The
prosecution placed reliance on the reports to submit that the contents of the
explosive recovered under the memorandum of panchanama at the instance
of accused Mirza Himayat Baig and the one found at the scene of the blast
are identical.
121. The prosecution obtained appropriate sanctions under the
Unlawful Activities (Prevention) Act, 1967 and Explosive Substances Act,
1908. These sanctions/orders were admitted by defence under Section 294
of Cr. P. C. (Exhs. 391, 392 and 393).
Submissions of Shri Pracha, learned counsel for accused:
122. Shri Pracha, learned counsel appearing for the accused raised
preliminary issue concerning sanctions. Learned counsel submitted that
unless the investigation was undertaken under the provisions of the
National Investigation Agency Act, 2008 (for short NIA Act 2008), the
Unlawful Activities (Prevention) Act, 1967 (for short Act of 1967) had no
application. It was submitted that no formal order of sanction was passed
by the competent authority. The learned counsel referred to various
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provisions of the NIA Act 2008, Act of 1967 and the Criminal Procedure
Code. It was the submission of the learned counsel that the State did not
submit any report on receipt of information and recording of the same
under Section 154 of the Cr. P. C. to the Central Government. It was
submitted that the learned Magistrate was not entitled to take cognizance of
the charge-sheet which was filed in the court. The cognizance ought to
have been taken by the Competent Court designated under the NIA Act,
2008. It was the submission of the learned counsel that the entire
proceeding initiated against the accused and the investigation undertaken
deserves to be set aside for want of valid sanction and for taking cognizance
by a court which had no jurisdiction.
The learned counsel Shri Pracha submitted that accused has
been falsely involved in the case. There is absolutely no evidence against
him in the shape of circumstantial evidence or otherwise. The
circumstances gathered against the accused are not incriminating. The
circumstances are not independently established. In itself, the
circumstances brought on record are not sufficient to hold beyond doubt
that the offence must have been committed by the accused. It was the
submission of the learned counsel that based on documentary material
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allegedly recovered from the accused and his association with the other
persons, he cannot be branded as a person who was involved in terrorists
activities. The prosecution has failed to establish that the accused was
active member of Indian Mujahiddin, alleged terrorist organization. The
circumstances brought on record in the nature of back cover of Nokia 1100,
visit of the accused to Mumbai, his staying in the lodge, his visit to
Aurangabad are not sufficient to establish the involvement of the accused
in the crime.
123. Learned counsel submitted that recovery of so called explosive
material, known as RDX, from the white building room is not reliable, nor
there is any evidence to establish that the accused had manufactured the
bomb in his Global Internet Cafe at Udgir.
124. Learned counsel further submitted that there is no evidence to
show that the accused was frequently in touch with the other absconding
accused and the so called planter of the bomb soon before the incident, nor
there is any evidence that the accused had carried the bomb to Pune.
125. The evidence concerning alleged bogus documents to
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camouflage the identity, use of ATM card in itself does not establish
criminal liability of the accused.
126. The counsel submitted that the evidence in respect of CCTV
footages from German Bakery or "O" Hotel is not reliable. The evidence is
not established strictly in accordance with the provisions of Section 65-B of
the Indian Evidence Act. On CCTV footages, the learned counsel
submitted that the original CD is not placed on record in stead VCD, CD
for operational purposes was said to have been prepared, which is also not
placed on record. Photographs of Yasin Bhatkal is also not placed on
record. The counsel disputed the finding reached by the trial court.
According to him, call details records are not reliable and are doctored to
suit present case. It was the submission of the learned counsel that the
report submitted by Col. Mann does not refer to the CCTV of German
Bakery, nor does it say conclusively that mobile phone was used as
triggering device. The cassettes placed on record are secondary evidence
which ought not to have been exhibited by the trial court. In respect of the
hard-disks, which were placed on record, the counsel submitted that the
trial court did not see those hard-disks and no certificates in respect of the
CD were placed on record (Exh. 164).
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127. The learned counsel further submitted that the explosive
substance (RDX) was not established by the prosecution. The prosecution
failed to establish percentage of explosive/RDX allegedly used in the blast.
The forensic reports from Delhi and Chandigarh were not placed on record
deliberately. It was submitted by the learned counsel for the accused that
the blast site was crowded by people, investigators and many others and,
therefore, the sealing of the sample from site cannot be relied upon. The
counsel disputed the time of explosion by referring to the time mentioned in
the CD covering blast in the German Bakery and the CD maintained by the
"O" Hotel management. The death caused in the incident was not
homicidal as no act of blast/terror act was established by the prosecution.
The counsel disputed the entry maintained in the register of Al-Noor Lodge
at Mumbai. Questions were raised in respect of the station diary entries.
128. In respect of the seizure of explosive, learned counsel
submitted that evidence relating to dog squad taken on record was not
reliable. The prosecution failed to establish nature of substance recovered
from the white house and allegedly used in the blast. The counsel
submitted that the premises from where the prosecution claims to have
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recovered RDX was not used by the accused. The counsel questions
application of provisions of Section 43E of the Act of 1967 to the facts of
the present case. The counsel further submitted that none of the forensic
reports stated that the recovered substance is RDX. None of the reports
mentioned the percentage of RDX. The learned counsel further
submitted that house owner of the white building was not examined, nor
Abdul who was present on the date when the police claimed to have entered
the premises. Adverse inference is required to be drawn for non
examination of the material witnesses. According to the learned counsel,
there is no evidence in respect of visit of accused to Colombo for the
purpose of funding or for any criminal activity. Inspite of letter written to
Interpol by CBI, no reply was received from the Interpol or was placed on
record, nor any further efforts were made by the investigating agency to
secure reply. Therefore, adverse inference is required to be drawn against
the prosecution. The learned counsel seriously questioned that Nokia 1100
phone could be used as a triggering device. The theory is based on
imagination of prosecution.
129. The counsel submitted that last seen evidence is not reliable.
After gap of few months it was not at all possible for auto-rickshaw driver
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to identify the accused person along with so called planter of the bomb,
Yasin Bhatkal. The learned counsel submitted that the police has
deliberately not investigated the offence properly and has booked innocent
person. The learned counsel submitted that the real culprits are left behind
by the police intentionally. The counsel submitted that matter has to be
looked into seriously and action is required to be taken against the police
officers for not investigating the offence properly as the issue relates to the
security of the Nation and safety of its people.
Appreciation :
130. We would first deal with the issue of sanction. The Act of
1967 was enacted by the Parliament in the year 1967 and it was amended
from time to time. The NIA Act 2008 (34 of 2008) received the assent of
President on 31/12/2008. Section 6 of the NIA Act 2008 refers to
investigation of scheduled offences. The schedule of offences refers to
eight enactments. At Sr. No.2 the Unlawful Activities (Prevention) Act,
1967 is mentioned. Section 7 refers to power to transfer investigation to
State Government. Section 10 refers to power of State Government to
investigate scheduled offences. Chapter III constitutes Sections 6 to 10.
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Chapter IV of the Act refers to Special Courts. Sections 6 and 10 reads as
under :-
"6. Investigation of Scheduled Offences.- (1) On receipt of
information and recording thereof under Section 154 of the
Code relating to any Scheduled Offence the officer-in-charge
of the police station shall forward the report to the State
Government forthwith.
(2) On receipt of the report under sub-section (1), the State
Government shall forward the report to the Central
Government as expeditiously as possible.
(3) On receipt of report from the State Government, the
Central Government shall determine on the basis of
information made available by the State Government or
received from other sources, within fifteen days from the date
of receipt of the report, whether the offence is a Scheduled
Offence or not and also whether, having regard to the gravity
of the offence and other relevant factors, it is a fit case to be
investigated by the Agency.
(4) Where the Central Government is of the opinion that the
offence is a Scheduled Offence and it is a fit case to be
investigated by the Agency, it shall direct the Agency to
investigate the said offence.
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(5) Notwithstanding anything contained in this section, if
the Central Government is of the opinion that a Scheduled
Offence has been committed which is required to be
investigated under this Act, it may, suo motu, direct the
Agency to investigate the said offence.
(6) Where any direction has been given under sub-section
(4) or sub-section (5), the State Government and any police
officer of the State Government investigating the offence shall
not proceed with the investigation and shall forthwith transmit
the relevant documents and records to the Agency.
(7) For the removal of doubts, it is hereby declared that till
the Agency takes up the investigation of the case, it shall be the
duty of the officer-in-charge of the police station to continue
the investigation.
10. Power of State Government to investigate Scheduled
Offences.- Save as otherwise provided in this Act, nothing
contained in this Act shall affect the powers of the State
Government to investigate and prosecute any Scheduled
Offence or other offences under any law for the time being in
force."
131. Under Section 11, the Central Government is authorized to
constitute Special Courts. Section 13 refers to jurisdiction of Special
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Courts. Section 22 refers to power of State Government to constitute
Special Courts.
In the present case it is seen that after the offence was
registered under Section 154 of the Code, which means "Criminal
Procedure Code 1973", the State did receive the report, but there is no
evidence to show that the same was forwarded to the Central Government.
On receipt of report, the Central Government to determine as to whether
the offence is a scheduled offence and whether it is a fit case to be
investigated by the agency i.e. NIA. The NIA is entitled to take up the
investigation on the direction of the Central Government. The Central
Government is entitled to suo motu direct the agency to investigate the
offence.
132. In view of provisions of Section 10, the powers of the State
Government are saved as nothing shall affect the powers of the State
Government to investigate and prosecute any scheduled offence or other
offences under any law for the time being in force. The reading of both
these enactments would show that unless the Central Government directs
the NIA to take over the investigation, there is no power entrusted with the
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NIA to take over the investigation on its own. Therefore, the application of
NIA Act would come into operation only in case the Central Government
takes up the decision and issued any of the directions as mentioned under
Section 6 of the NIA Act 2008. There is no embargo under the NIA Act,
2008 and the Act of 1967 for the State Agencies to investigate till a decision
is taken by the Central Government. The investigation undertaken by the
State Government cannot be faulted on that ground. In other words, if the
investigation is entrusted to NIA, the power of the State to investigate and
prosecute the scheduled offences ceases. The NIA independently is not
given freedom to investigate any case of its choice. It is only when the
Central Government entrusts such case to it, the NIA can investigate the
said case, even if the case involved is a scheduled offence referable to the
Acts mentioned in the schedule. The NIA has to wait till the case is
entrusted to it by the Central Government.
133. Code is defined under NIA Act, 2008 as Code of Criminal
Procedure 1973. The trial of cases in accordance with the procedure
prescribed under the Code of Criminal Procedure is the rule. After
considering the provisions of both the enactments and the Code of Criminal
Procedure, we are of the view that as long as investigation of a case is not
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entrusted to NIA, the powers of the State Government and its investigating
agencies are intact and, therefore, the said agencies could proceed in
accordance with the Cr. P. C. and take further steps of completing the
investigation and filing the report under Section 173 of Cr. P. C. in a
competent court. In view of the fact that the Central Government did not
direct NIA to take over the investigation, the State agency filed the charge-
sheet in the Magistrate Court. The court took cognizance and thereafter
committed the case to Court in the Sessions Division of Pune.
134. We are, therefore, of the view that the State agency was
competent to investigate the offence and file report before the court in
accordance with the provisions of Cr. P. C. We do not find any illegality in
taking cognizance of offence by the concerned Magistrate and
consequential committal of this case to the Sessions Court. We do not
notice any jurisdictional error committed by either of the courts below.
Sanction Order :
135. The sanction order (Exh. 391) of the Home Department
(Special), Mantralaya, Mumbai is dated 2/12/2010, which was signed by
Medha Gadgil, Additional Chief Secretary (Home) and Secretary In-Charge
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of Home Department, Government of Maharashtra. The said order was
issued in the name of Governor of Maharashtra.
136. Section 45 (1) of the Act of 1967 refers to cognizance of
offences which reads as under :-
45. Cognizance of offences. _ (1) No Court shall take
cognizance of any offence -
(i) under Chapter III without the previous sanction of the
Central Government or any officer authorised 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 sub-section (1) shall be
given within such time as maybe 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
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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.
137. In law, previous sanction of the Central Government was
necessary under Section 45(1) of the Act of 1967 as amended in 2008 to
prosecute the accused for the offences committed by him under Sections 10
and 13 of the Act of 1967 and Amendment 2008.
138. The sanction order refers that the Central Government vide its
order dated 8/8/2007 (Notification No. S.O.1004(E) dated 21/6/2007) had
authorized the Secretary of the State Governments in-charge of Home
Department, Government of Maharashtra to exercise powers to accord
sanction for taking cognizance of the said offence by the court. In
accordance with the provisions of Section 45(1), it was necessary for the
State Government to accord sanction for prosecution of the accused. Under
Section 196 of Cr. P. C., sanction of the State was required to prosecute the
accused for offence punishable under Section 153A of IPC. Paras 7, 8 and 9
of the sanction order read as under :-
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7. And whereas, after having fully examined the material
placed before me and considering all facts, I am satisfied that
there is prima facie case made out against the accused person
and that it is necessary in the interest of justice that the accused
person should be prosecuted in the Court of competent
jurisdiction for the offences under sections 10 and 13 of the
Unlawful Activities (Prevention) Act, 1967 Amendment 2008.
8. And whereas, the State Government is satisfied that
there is a prima facie case made out against the accused person
and it is necessary that accused person should be prosecuted in
the court of competent jurisdiction for offences under section
16, 18, 20, 21 of Unlawful Activities (Prevention) Act 1967
Amendment 2008 and under section 153A of Indian Penal
Code (IPC)
9. Now therefore, in exercise of the powers conferred by
the clause (i) and (ii) of sub-section (1) of Section 45 of the
Unlawful Activities (Prevention) Act 1967 Amendment 2008
and section 196 of Cr. P. C. sanction is hereby accorded for the
prosecution against the arrested accused person Mirza Himayat
Inayat Baig @ Mohammed Mirza Inayat Baig @ Yusuf @
Hasan, for taking cognizance of the said offence by the Court
of Competent jurisdiction.
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139. Learned Spl. P.P. Shri Raja Thakare submitted that the Director
of Prosecutions, Maharashtra State was appointed as an authority to make
an independent review of the evidence gathered in the course of
investigation and to make recommendation to State. The Director was
appointed by the State in exercise of power under Section 45(2) of the Act
of 1967.
140. Learned counsel appearing for the defence submitted that
prosecution has not placed on record the authorization made by the State
Government under Section 45(2) in favour of Director of Prosecutions and
the material placed before the Director for making an independent review
of the evidence gathered in the course of investigation for making
recommendation. The sanction was not accorded within the time frame as
envisaged by Rule 4 of the Unlawful Activities (Prevention)
(Recommendation and Sanction of Prosecution) Rules 2008.
141. Learned Spl. P. P. submitted that the sanction order has not
been disputed by the defence and was admitted by the defence, which is at
Exh. 391. The reading of the sanction order itself demonstrates that the
authority had applied mind to the entire record and thereafter accorded
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sanction. The sanction order was admitted under Section 294 of Cr. P.C.
and, therefore, there was no occasion to lead any evidence on that part.
Learned Spl. P. P. refers to Section 465 of Cr. P. C. and placed reliance on
Apex Court judgment in the case of Kailash Vs. Nankhu and ors. [AIR
2005 SC 2441]. Paragraph 34 of the said judgment reads as under :-
"34. Two decisions, having a direct bearing on the issue
arising for decision before us, have been brought to our notice,
one each by the learned counsel for either party. The learned
senior counsel for the appellant submitted that in Topline Shoes
Ltd. vs. Corporation Bank (2002) 6 SCC 33, pari marteria
provision contained in Section 13 of the Consumer Protection
Act, 1986 came up for the consideration of the Court. The
provision requires the opposite party to a complaint to give his
version of the case within a period of 30 days or such extended
period not exceeding 15 days as may be granted by the District
Forum. The Court took into consideration the Statement of
Objects and Reasons and the legislative intent behind providing
a time frame to file reply and held : (1) that the provision as
framed was not mandatory in nature as no penal consequences
are prescribed if the extended time exceeds 15 days and; (ii)
that the provision was directory in nature and could not be
interpreted to mean that in no event whatsoever the reply of the
respondent could be taken on record beyond the period of 45
days."
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142. Learned Spl. P. P. submitted that amendment to the Unlawful
Activities (Prevention) Act, 1967 i.e. Act of 35 of 2008 came into force on
the same day after Act 34 of 2008 i.e. National Investigation Agency Act
2008 came into force. In the alternative, learned Spl. P. P. submitted that
act of JMFC of taking cognizance on the police report could be at the most
an irregularity which is saved as per the provisions of Section 460 of Cr. P.
C. as the trial itself was conducted by the Sessions Court, Pune i.e. before
the Sessions Judge of the division in whose territorial jurisdiction the
offence was committed. There was no prejudice caused to the accused in
the whole process. We find substance in the submissions of the learned
Spl. P. P.
143. Learned Spl. P. P. submitted that neither the Act nor any
authority prescribes how a sanction order is to be worded and, therefore,
merely because it is not mentioned in the sanction order to the effect that
the sanctioning authority had taken into consideration the opinion expressed
upon the independent review of the evidence made by the Director of
Prosecution, sanction order does not get vitiated. To grant sanction or not
would be a matter of subjective satisfaction of the sanctioning authority.
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144. Considering the scheme of the NIA Act, 2008 and the Act of
1967, in case the State fails to submit a report to the Central Government in
connection with the incident of terrorists act, the State agencies are not
prevented from investigating the case and also the fact that the order of
sanction is self explanatory, which is not disputed by the accused, it would
not be permissible to say that the State agencies would get no jurisdiction
to investigate the scheduled offence as mentioned in the NIA Act, 2008 and
that the sanction accorded was improper and invalid.
145. The Collector and District Magistrate Latur passed order on
20/11/2010 in exercise of power conferred under Section 7 of the Explosive
Substances Act, 1908 in according consent to prosecution of the arrested
accused Mirza Himayat Baig and for taking cognizance by the court of
competent jurisdiction for offence punishable under Sections 3, 4 and 5 of
the said Act (Exh. 392).
146. By an order dated 2/12/2010, the Collector and District
Magistrate, Pune, granted sanction under Section 7 of the Explosive
Substances Act, 1908 to prosecute the accused - Mirza Himayat Baig for
offences punishable under Sections 3, 4 and 5 of the said Act (Exh. 393).
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Law on circumstantial evidence and criminal conspiracy :
147. According to the prosecution, in pursuance of the conspiracy
hatched with the absconding accused, present accused - Mirza Himayat
Baig visited Mumbai for purchasing mobile i.e. Nokia 1100 model, which
according to the prosecution was used as triggering device and to purchase
haversack bag.
148.
PW 73 - Abdulsamad Mohammad Hanif Shaikh @ Indori
deposed that he was having a cloth shop named as "Indore Cotton Shop" at
Undgir. He used to purchase clothes from Mumbai and sell it in his shop.
For running the business, he was advanced money by the accused through
Khurshid Alam. He had paid an amount of Rs.1,20,000/- in the intervals
of three months to accused by going to his Internet Cafe. Thereafter he
became friendly with the accused. He identified the accused, who was
sitting in the court. On 6/2/2010 the witness had gone to Mumbai. For
going to Mumbai, he used to go to Latur by S.T. Bus and thereafter he used
to book a ticket through Priyanka Travels, Latur, to go to Mumbai. The
witness booked ticket on phone on 6/2/2010 through Priyanka Travels. It
seems he was more comfortable with Priyanka Travels for booking tickets
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as his friend Ezaz Maniyar was running the same. Whenever the witness
was in Mumbai, he was staying in Al-Noor Lodge situated at Mohamad Ali
Road, Crawford Market. He reached Mumbai in the morning of 7/2/2010.
Between 11 a.m. to 12 noon, he received a phone call from the accused,
who told him to book a ticket for Mumbai. Accordingly, the witness
telephoned his friend Ezaz Maniyar and booked one ticket. Accused
reached Mumbai in the morning of 8/2/2010. The witness had gone to
receive the accused and brought him to Al-Noor Lodge. The accused wrote
his name as "Yusuf" in the register maintained by Al-Noor Lodge. The
witness had identified the signature of accused in the register maintained in
the Al-Noor Lodge (Exh. 35). The signature is at Entry Sr. No.1124 dated
7/2/2010 and was in the name of the witness, he had signed against the
Column No.16 (Exh. 322) and the signature at Exh. 281 in the register was
identified by the witness to be of "Yusuf" sir. The witness further stated that
accused had introduced to him with one person saying that he was his
friend from Pune. He came to know through news channel that Yusuf sir
was the owner of Global Internet Cafe and it was Yusuf sir, who was
involved in the bomb blast in German Bakery. Name of accused -
Himayat Baig was also referred in the news. One photograph of the person
was shown to be of Mohsin Choudhari, who was the same person to whom
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Yusuf sir had introduced him in the Global Internet Cafe as his friend from
Pune. We had examined the register maintained by the Al-Noor Lodge.
PW 76 is Dilip Ahiwale, retired Chief Examiner of Documents,
C.I.D., State of Maharashtra. By communication, the investigators had sent
five documents to him for examination which are,
(1) Seven Bank Pay-in-slips as Questioned documents.
(2) One Guest house register as questioned documents
(3) 102 Specimen writing sheets
(4) One pocket diary containing admitted writings
(5) One letter dated 11/07/2008 containing admitted
writings.
The witness deposed that he had carried necessary examination
of these documents along with specimen signatures and it was found that
the signatures appearing on these documents are identical with the
specimen signatures, meaning thereby that these signatures were of the
accused person. In the cross-examination, the witness accepted that he ws
on the pay role of State C.I.D. The said department works under the control
of Additional D.G.P., C.I.D., Crimes, State of Maharashtra. According to
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the witness, he did not come across any significant difference in the
specimen handwriting and questioned handwriting.
We have verified the register seized by the prosecution from
the office of Priyanka Travels, Latur. Entries recorded on 6/2/2010 and
7/2/2010 are material for the present case. PW 67 - Maniyar Jahami is the
owner of the Priyanka Travels. His office is situated at Ashoka Hotel, Main
Road, Latur. He deposed the ATS Officer from Nanded Shri Reddy had
come for inquiry along with panchas. They took the register and the entries
on 6th and 7th February 2010 and thereafter it was seized. The witness
identified Article 39 and the entries recorded on 6th and 7th February, 2010
at Article Nos.39/1 and 39/2 respectively. According to the entry, Samad
Indori had travelled from Latur to Mumbai on 6/2/2010 and on 7/2/2010 in
the name of Samad Indori, another person had travelled. This he was saying
because after going to Mumbai from Latur on 6/2/2010, it was not possible
for the same person to come to Latur and again go to Mumbai on 7/2/2010.
He deposed that there are corrections made in the entry in article 39. This
correction, according to the witness, was made on the instruction of Samad
Indori. Earlier the entry was in the name of another person and later on it
was taken in the name of Samad Indori. In the cross-examination, the
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witness was unable to say in whose name the entry of 7/2/2010 was made.
The examination of original register of Priyanaka Travels shows that
whitener was applied against the entry recorded in the register on 7/2/2010.
Indori is rewritten on the white ink and further the cell number and the
other endorsements are also corrected by applying whitener (Article 39/2).
It is difficult to place implicit reliance on this entry to establish that the
accused had travelled by Priyanka Travels to Mumbai in the night of
7/2/2010 on the ticket registered in the name of Samad Indori. This entry is
the only entry on the relevant page of the register, wherein the whitener was
applied. The witness is not explaining the method of correction carried out
in the register. The carbon copy of the ticket issued to the passenger was
not seized by the police, according to the witness. Neither the witness had
shown the carbon copy to the police. All these circumstances show that the
evidence of this witness and entry made in the register on 7/2/2010 do not
inspire confidence in the prosecution case.
149. It is curious to note that the bus tickets for Latur to Mumbai on
6/2/2010 and 7/2/2010 were booked in the name of this witness, but for
booking ticket for the journey on 7/2/2010, mobile number of the accused
was given. The witness admitted in the cross-examination that he had not
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made entry in the Register of Al-Noor Lodge but he had put merely his
signature.
150. PW 63 - Mohammadali Abdulla Gotekar was working at Al-
Noor Guest House, Crawford Market, Mumbai since the year 2007. He
was residing in the same Guest House. The Chief Manager of the Guest
House was Mr. Ayyaz Quadir Khot. Aritcle 35 is the register maintained by
the Al-Noor Guest House which was shown to the witness. He stated that
entry dated 8/2/2010 at Sr. No. 1129 was written in his hand writing. The
said entry was in respect of the person by name Mohammed Yusuf
Mohammad Issac who had come from Udgir. This information was given
by the customer and his mobile number was also mentioned against the said
entry. The said customer signed in the last column in the presence of this
witness (Entry is marked at Exh. 281). The witness has identified the
customer to be the accused. He had also referred to a person who had given
reference in respect of the present customer by name Abdul Samad Indori.
151. PW 88 - Mohammad Ilias Abdul Kareem Mansoori is the
owner of the mobile shop from where accused purchased the mobile phone.
This witness deposed that he does business in mobile phones in his shop
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under the name and style "Goodluck". His shop number is 35 and situated
in Manish Market, M.R.A. Marg, Mumbai -01. His shop timings are 12
noon to 9 p.m. He was called by ATS Police at A.T.S. Office at Kala
Chowky. Police made inquiry with him. He deposed before the court that
he had sold a Nokia phone in February 2010. The person, who had
purchased the phone had come to his shop in the afternoon at about 2.00
p.m., who asked for a old Nokia mobile phone of 1100 model. The said
model was available in his shop, which was shown to the customer. The
customer searched out 3-4 mobile phones to check battery having more
power. The customer had also checked the alarm of the said old phone. The
customer/accused had purchased mobile phone from his shop for an amount
of Rs.750/- and thereafter he left. This witness identified the accused in
court. The police had called this witness to Yerwada Jail at Pune. The Test
Identification Parade was arranged in Yerwada Jail. The police had asked
him to identify the accused from amongst 9 persons who were standing.
The witness identified the accused. In the cross-examination, the witness
deposed that he does not have a license to run his shop. He also admitted
that number of people visit his shop everyday belonging to different age
group and there was no reason for him to keep in mind the description of
each and every customer. According to him, if customer is of typical type
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or behaviour, it is possible to remember him. The witness does not have any
dealership of mobile phone. He usually deals in old phones, but he
maintains documents in respect of new phones while dealing, but there are
no documents maintained in respect of dealings made in respect of old
mobile. Nokia 1100 mobile is a old mobile and, therefore, there was no
record maintained by this witness. The said mobile was of cheaper price.
The witness deposed that he does not have any documentary evidence to
show that he had sold the mobile phone to the accused person.
This is a vital circumstance for the prosecution as it is the
prosecution case that the blast was triggered by use of Nokia 1100 mobile
phone. The question is as to whether the witness - mobile shop owner,
would be in a position to identify the accused person after near about seven
months after the alleged incident of blast which took place in German
Bakery. The evidence of this witness does not show that the accused could
be identified due to his distinct appearance, features, physic, nature,
dressing etc. It is informed, during the course of hearing, that Manish
Market is a crowded area in Crawford Market of Mumbai where probably
thousands of people would be visiting daily in thick crowded lanes for
selling and purchasing various consumer items. What was the
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distinctiveness in the personality of the accused person, that a shop owner
who had sold him a old Nokia 1100 mobile, would remember him so
clearly in his mind so as to identify him in the Test Identification Parade is
a question. The prosecution has not established such distinctiveness in the
appearance of the accused person which would have prompted the witness
to remember him. Neither we find in the evidence that the shop owner was
possessing such photogenic memory to remember thousands of customers
visiting his shop and recollect the same. The witness does not describe that
Nokia phone had any identification mark or identification number except
the mobile phone of 1100 model. The prosecution is not in a position even
to claim that the Nokia 1100 model which was purchased by the accused
was one of the rare model phone available in the market. There could be
many such old phones of Nokia 1100 model available with customers or in
the market.
152. PW 102 - Dinesh Parashuram Kadam, who was working as
Police Inspector in the Anti-Terrorist Squad (ATS), Mumbai at the relevant
time. Prior to the incident, he had worked for ATS during the period from
2004 to 2006. He deposed that on the statement made by the accused,
panchas and the police staff went to Manish Market, Mumbai. The vehicle
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stopped near the hotel by name Gulshan-E-Iran and they followed the
accused person to Manish Market, who took them to same shop from where
he had purchased Nokia 1100. According to the prosecution the incident of
bomb blast took place in Ahmedabad was investigated by concerned police
of Ahmedabad. Some inquiry was made in respect of one e-mail in
connection with the same blast by Maharashtra Police. According to the
witness Yasin Bhatkal, one of the accused in this case, was also a wanted
accused in Ahmedabad case. The witness deposed that according to the
witness Indian Mujahiddin Organization is involved and person by name
Rijaz Bhatkal, Iqbal Bhatkal and Yasin Bhatkal were absconding since the
year 2008. The witness admitted that there was no document available in
the mobile shop to show that the accused had purchased the mobile phone
from that shop.
Recovery of RDX at the instance of accused :
153. This is a very important circumstance in the prosecution case
and it is an incriminating circumstance. The prosecution has placed
reliance on the evidence of panch witness to memorandum and seizure
panchanama - PW 77 Shrikant Shridhar Shetti, dog handler PW 80 -
Laxman Dharmaji Kumare, extract of relevant station diary entry (Exh.
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414), log-book of police vehicle (Exh.416), station diary entry of Udgir
City Police Station (Exh. 419), the report of dog squad (Exh. 351), articles
54 to 60 seized under memorandum panchanama, evidence of PW 75 - N.
B. Bardhan, Principal Scientific Officer and Assistant Chemical Analyzer
PW 78 - Ravindra Kulkarni, Forensic Science Laboratory, Pune.
PW 77 - Shrikant Shetty was called by ATS Police on
7/9/2010. He was asked as to whether he would act as a panch. Witness
replied in the affirmative. The policeman took him to ATS office which was
situated nearby. The Investigating Officer Shri Satav was present there.
There were other policemen in the office. Another panch by name Koshe
was there. The Investigating Officer Shri Satav informed this witness that
on the statement made by the accused, discovery was to be made in the
presence of panchas. Accused was brought, whose face was covered and
produced before the panchas. The veil was removed from his face. The
said person was asked his name. He disclosed his name as Mirza Himayat
Baig. The officer thereafter asked Mirza Himayat Baig as to whether there
was any pressure on him, to which he said "no". The witness deposed
before the court that accused informed that the material used in preparing
bomb and material which was left, was kept in the place of his present
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residence and he would show the same. His complete statement was
recorded and read over to him. The accused accepted the statement to be
correct and answered in the affirmative. Thereafter the panchas were made
to read the statement and thereafter the accused signed on the said
statement along with panchas and Shri Satav had also put his signature.
The witness deposed that he would identify the accused, if produced. The
witness identified his signature and signature of another panch. The witness
phoned his younger brother and told him that he was going out of station
for work and would be back next day afternoon. The witness was informed
that he was to go to Udgir by the police officer. The police party was called.
They were searched in presence of panchas. Accused - Mirza Himayat Baig
was also asked to take search of pachas. Accordingly accused took search
of panchas. The government vehicle, in which they had gone to Udgir, was
also searched in the presence of panchas. Another two private vehicles were
called. In the government vehicle, total seven persons were sitting,
including the accused, Shri Satav, panchas and other policemen. The face
of the accused was covered. The cloth put over the face was having two
holes near the eyes, nose and mouth of the accused. At the instance of the
accused, the vehicle was taken to Latur via Hadapsar. On the way, they
had meals.
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154. The witness deposed further that they reached Udgir in the
night around 1.30 a.m. The accused asked to take the vehicle on the left
side from the Shivaji Square and accordingly the vehicle was taken and
thereafter at the instance of the accused, the vehicle was taken to Jalkot
road and thereafter the vehicle was stopped at the instance of the accused.
It is deposed that the accused told that his house was nearby. All the
persons alighted from the vehicle. Shri Satav made one phone call and
called the backup required by him. All followed the accused. The accused
pointed out at one house, which has a compound wall and iron gate. The
accused knocked on the gate. Accused called by saying "Abdul Abdul". At
that time the staff of the Bomb Squad and the sniffer dog which was called
by Shri Satav was with them. After the accused gave the call, lights of the
house were switched on and a person came outside the house. The accused
lifted his veil and told the said person that it was him. Shri Satav asked the
name of the person, who disclosed his name as "Abdul Sayyed". Said
Abdul Sayyed opened the gate. Shri Satav gave his identity and asked him
to take personal search of all of them. Accordingly, Abdul took personal
search. Thereafter they entered the house. Accused took them on the first
floor from the staircase, which was on the right side of the house. There
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was one room on the first floor. The accused opened the latch of the door of
the said room.
There was one wooden Dewan. The accused lifted the ply of
the said Dewan. Inside the said Dewan, there was one carton of pressure
cooker. There was one plastic bag of white colour. It was removed by the
accused. Inside the said white colour plastic bag, there was one more carry
bag of yellow colour. ig The accused said that this was the same left out
material which was used in connection with the German Bakery Blast. The
accused referred it as "Barood".
155. Shri Satav called the main person from the Bomb Squad.
The Bomb Squad came along with a dog. Shri Satav told them to check
the said material. The material was sniffed by the dog. Dog wagged its tail
and barked. The members of the Bomb Squad said that the material was
explosive. Shri Satav asked the staff of Bomb Squad to give in writing.
Accordingly, they gave in writing. Shri Satav asked to remove all the
material from the bag. That material was having following things:-
(a) One solder gun.
(b) One solder wire.
(c) One solder wire cutter.
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In the said material, there were five pieces of a substance in black colour.
Those five pieces were kept in the yellow colour bag.
156. Shri Satav removed about 100 grams material from the said
pieces. The said 100 gram piece was divided into two. All the said articles
were packed separately in plastic and thereafter brown paper was wrapped
over it. There were total seven packets. The envelopes were tied with a
stag. The labels were put on each envelope and the information about the
contents were written on it. Opening of each envelope was sealed by lac.
The entire process was completed by 5 a.m. The witness identified his
signature on the panchanama dated 7/9/2010 (Exh. 341A). 7 packets
were produced by prosecution. They were shown to the witness. He
identified his signature on each packet and signature of another panch. All
the packets were opened one by one. The yellow bag contained hard pieces
which were black in colour. All the articles were collectively marked as
Article 54. Likewise, other packets were marked as Exhs. 55, 56, 57, 58,
59 and 60.
The prosecution submitted that the evidence of the panch
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witness is not shaken. The Investigating Officer had called for independent
panchas and after completing all the necessary procedure had proceeded in
government vehicle to Udgir at the instance of the accused. The
statement of the accused and the memorandum panchanama has been
exhibited. The explosive material was recovered, which was hidden in the
Dewan, from the place which was used by the accused as his residence. It
was exclusive possession known to accused only. The accused himself had
taken the police party to the said place and pointed out the material. As
against this, the learned counsel appearing for the defence Shri Pracha
submitted that the material, which was recovered from the white building at
Udgir and said to be explosive, was planted material by the police. The
defence submitted that two important witnesses i.e. Abdul, who opened the
gate of the white building and owner of white building were not examined.
Adverse inference is required to be drawn against the prosecution on this
count. Learned defence counsel questioned that the seized material was
explosive one or RDX, which was used in the blast. The defence placed
reliance on the forensic report in support of the submission. It is also
submitted that initially the prosecution evidence suggested that one
government vehicle and two other vehicles had proceeded to the spot, but
later on it was noticed that one government vehicle had reached the spot.
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The local police station was kept in dark. The station diary entries were
doubted by the defence. The submission of the defence is that the evidence
of dog handler cannot be relied upon as PW 80 Laxman Dharmaji Kumare
deposed that he did not sign any paper on that day. The defence had also
referred to the distance between Latur and Udgir and the time consumed by
the police party to reach Udgir. The defence had tried to show deficiencies
in respect of the recovery of the explosive material at the instance of the
accused.
157. From the evidence brought on record, station diary entries, log
book entries of police vehicle and dog handler's evidence, we find that the
prosecution evidence on this aspect cannot be discarded. Theory of
plantation of material propounded by the defence is not convincing. It can
be noticed in the evidence that accused had led police party and had himself
shown the way on the first floor. He had lifted the plank of Dewan.
Thereafter the Bomb Detection Squad was called and then they had
completed the rest of the necessary formalities. We do not find any reason
to discard the evidence of dog handler. Because of non-examination of
Abdul and the owner of the white building, the discovery of the
incriminating explosive cannot be discarded. There is nothing in the
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evidence of this witness or any other witness to suggest that knowledge of
the accused about keeping of black substance in the Dewan box was not
exclusive and that other persons or said Abdul possibly had also
knowledge about it.
158. PW 78 - Ravindra Kulkarni, Assistant Chemical Analyzer in
Forensic Science Laboratory, Pune, deposed before the court that on
14/2/2010, 7 parcels were received by Forensic Science Laboratory from
the Bandgarden Police Station. Said parcels were in connection with the
German Bakery bomb blast case. The forwarding letter is at Exh. 343. The
said report was given by the witness. He identified the signature. The
witness had deposed in para 5 of his examination-in-chief as under :-
"5. (Exh.22 which is the CA report is shown to the witness.)
This report was given by me. It bears my signature. From this
report, I say that the traces of Cyclonite (RDX), Ammonium
Nitrate and Nitrite Ions along with Petroleum Hydrocarbon oil
was detected in the collective extracts of the Exhibit numbers,
which are mentioned in the report. The RDX is the high
explosive. Ammonium Nitrate can also be used as an
explosive. If RDX is mixed with Ammonium Nitrate, Charcoal,
Petroleum Hydrocarbon Oil, the effectiveness of the explosion
is enhanced."
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The report at Exh. 24 is dated 16/9/2010. The report was
addressed to the Assistant Commissioner of Police, Anti-Terrorism Squad,
Crime Branch, Pune. The laboratory examined substance in one parcel sent
in connection with the crime i.e. Exh. 1. The report mentions description of
parcel as under:-
"One sealed parcel, seals intact and as per copy sent".
Description of articles contained in parcel
"Exh.No.1. Blackish mass in plastic bag wrapped in paper
labelled -A-1".
Result of Analysis
"--Cyclonite (RDX), petroleum hydrocarbon oil and charcoal
are detected in exhibit no.(1) -
--RDX is used as high explosive.--"
The witness deposed in court that there are various names of
RDX and it was not necessary to have Petroleum Hydrocarbon oil in RDX.
159. The prosecution submitted that on the basis of the material
collected and Chemical Analyzer's report, the prosecution established that
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the blackish mass recovered at the instance of the accused was RDX which
was explosive substance.
160. From the evidence brought on record, we are convinced to hold
that prohibited substance - explosive was discovered at the instance of the
accused. The prosecution has established discovery of the explosive
material by leading oral evidence, documentary evidence, technical reports,
which cannot be discarded.
Circumstance of last seen together with the planter of the bomb :
161. The prosecution has placed heavy reliance on the testimony of
PW 93 - Shivaji Gulab Gavare, auto-rickshaw driver. The witness deposed
before the court that since last 19 years he was plying auto-rickshaw in
Pune City. On the day of the incident, he was plying auto-rickshaw owned
by him. Normally he used to ply auto-rickshaw in areas of Koregaon Park,
Pune Station, Camp and Yerwada. He stated that he was aware that on
13/2/2010 bomb blast had taken place in German Bakery. He was plying
his auto-rickshaw on that day at about 4 p.m. He was waiting opposite
hotel Sagar situated near the Pune Railway Station. At that time, two boys
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came near his auto-rickshaw and asked as to whether the rickshaw was
available. They told him that they wanted to go to Rajnish Ashram in the
area of Koregaon Park. He carried those boys to Koregaon Park through
the Jahangir Hospital. When he was about to take turn for going to
Koregaon Park, the boys told him to take auto-rickshaw in straight
direction. The said road was proceeding towards the direction of
Bandgarden area. The passengers asked him to stop the rickshaw near
Central Mall. The witness told them that the Koregaon Park is ahead, but
they said they wanted to get down there only. After they got down from the
rickshaw, they paid fare and thereafter the witness stopped at some
distance, waiting for another customer. The witness described the
appearance of the boys. According to him amongst the said two boys, one
was tall with fair complexion and wearing a cap. He was having one bag
hanging in front of him and another bag hanging on his back. The another
boy was of average height having normal complexion and they were within
the range of 29 to 30 years of age.
162. The witness stated that on 25/5/2010 in the Sakal Daily
Newspaper he saw photograph of one suspect in the German Bakery blast
case, wearing a cap. On 27/5/2005, he approached the police. He informed
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the police that after seeing the photograph, he remembered the boys. The
police recorded his statement and asked him whether he would be in a
position to identify the boys. The witness answered in the affirmative.
Thereafter, he received summons from the police informing him to come to
the Yerwada Central Prison on 3/10/2010 for Test Identification Parade.
Accordingly, the witness had gone to Yerwada Central Prison on
3/10/2010. Tahsildar Shri Yogesh Kharmate was present there. Tahsildar
inquired with the witness as to whether the police had shown him the
photograph, to which he replied in the negative. Thereafter he was taken to
the adjacent hall, where 9 persons were standing in one line. Two panchas
were also present there. The witness claims to have identified the accused.
He was one of the passengers carried by the witness in his auto-rickshaw.
The witness identified the accused by touching him. That person disclosed
his name as Himayat Baig. This witness identified the accused in court also.
The prosecution had brought a laptop and played a CD. The said CD was
played, showing the relevant clippings was marked as Exh. 61.
163. The evidence of this witness is very crucial for the prosecution
case. The paper cutting, wherein photograph was published of the planter
of the bomb was shown to us in the court in the course of hearing. The
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witness has not given any special reason for remembering and identifying
the accused person. The only clue which the witness got was after seeing
the photograph of person in the newspaper on 25/5/2010, but, admittedly
the said photograph was not of the accused, but was of the planter of the
bomb and according to the prosecution it was of Yasin Bhatkal, who
carried two bags on his person. But in case of the present accused person,
the prosecution could not place on record any material to show that he
could remember even the accused person who was accompanying the
planter of the bomb. A xerox copy of the said news item and the copy of
receipt issued by publication house are at Exh. 62 Collectively. Careful
scrutiny of the said news item shows that below the photograph, name
mentioned was "Abdul Samad". The witness stated before the court that
he was not aware whether said person was arrested by the police and later
on released.
164. First of all, in the facts of the case, we are not inclined to place
implicit reliance on the evidence of PW 93, auto-rickshaw driver, who after
three months approached the police with a newspaper which had published
a photograph of the planter of the bomb and even identified the person who
was accompanying the planter. Nothing has been brought on record to
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suggest that auto-rickshaw driver had a photogenic memory. The auto-
rickshaw driver was involved in plying auto-rickshaw since 19 years. It
was his regular duty. In the facts, we feel that it would be difficult for the
witness to remember the accused as passenger and even identify him in
Test Identification Parad and in open court. Based on such circumstance of
last seen and considering the quality of evidence led by the prosecution on
other circumstances, we are not convinced to conclusively hold that the
evidence of the auto-rickshaw driver i.e. PW 93 is a reliable evidence and a
circumstance which was clearly established by the prosecution. There are
inherent deficiencies in the evidence of circumstance of last seen. This
circumstance does not inspire confidence in the prosecution case.
165. Prosecution submitted that Test Identification Parade
panchanama in respect of identification of accused by PW 93 was admitted
by the defence under Section 291A of Cr. P. C. The Test Identification
Memorandum is at Exh. 369. Even if the defence admitted the said
panchanama, the court, while examining the evidence and appreciating the
prosecution case, will have to deal with this circumstance independently
and weigh the quality of evidence on its own merits.
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166. The prosecution has also placed reliance on CD (Article 61),
which was played in the court. The CD had footage clippings of German
Bakery bomb blast site. PW 93, auto-rickshaw driver, identified the
absconding accused, the planter of the bomb, wearing a cap and carrying
two bags as the one accompanying present accused in his auto-rickshaw on
13/2/2010. The planter of the bomb or absconding accused i.e. Yasin
Bhatkal, according to the prosecution, was having distinct appearance i.e.
wearing a cap and carrying two bags loaded on his front and back side of
his person. The present accused does not seem to have any such distinctive
nature of appearance for him to be remembered by the auto-rickshaw driver
inspite of gap of more than three months. We are, therefore, not inclined to
accept this circumstance as incriminating one.
167. No doubt we are not appreciating the evidence against the co-
accused - Yasin Bhatkal, absconding at the relevant time and who is said to
be planter of the bomb, but some discussion in respect of as to who the
person was, has become necessary for the purposes of this case. The
prosecution had examined PW 102 - Dinesh Kadam, Police Inspector and
placed reliance on CD (Article 61) containing relevant clipping. Evidence
of PW 101 - Prasad Hasabnis, Sr. P.I., PW 90 - Ranjit More and the
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seizure of CCTV footage of German Bakery and Hotel "O".
168. PW 102 - Dinesh Kadam, Police Inspector was attached to
ATS, Kala Chowky, Mumbai. Since May 2010 he was working as Police
Inspector in the Anti-Terrorist Squad, Mumbai. He deposed before the
court that in May 2006 large quantity of AK 47 rifles, RDX, Handgranades,
live cartridges were seized at Aurangabad and in that regard C.R. No. 3 of
2006 was registered with the ATS Police Station. The witness had helped
in the said investigation. According to the witness, the main accused
persons by name Fayyaz Kagzi and Jabiuddin Ansari were the wanted
accused. Jabiuddin Ansari @ Abu Jindal, according to the witness, has
been arrested. Both the persons are residents of Beed District in
Marathwada region of the State.
169. The witness stated that in July 2008, the blast had taken place
in Ahmedabad and live bombs were found in Surat. At that time, Indian
Mujahiddin, terrorist organization, had sent e-mail to the various
government offices and the media. Similar e-mail was sent in August
2004. The said crime was investigated by Crime Branch, Detection
Mumbai. During the course of investigation, it was revealed that members
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of said Indian Mujahiddin by name Rijaz Bhatkal, Iqbal Bhatkal and Yasin
Bhatkal were involved in the said crime. The witness had personally gone
to the place by name Bhatkal in the State of Karnataka in search of the
accused persons. From the investigation done and photographs obtained,
the witness claims to have identified the CCTV footages and was of the
view that the person seen in German Bakery was Yasin Bhatkal on the
basis of said photographs collected by him in connection with the
investigation of other cases.
ig Again prosecution played CD (Article 61) on
the laptop in the court. The witness identified Yasin Bhatkal, wearing a cap
and having two sack bags, one on the front side and another on the back
side. He was present at the counter of German Bakery. The CCTV
footages of German Bakery which showed the planter at the counter
records time 16.46.11 to 16.51. The clippings further show that Yasin
Bhatkal left German Bakery at 17.29.30 with one sack bag.
170. The defence raised issue as to whether the person who was
carried by auto-rickshaw driver (PW 93) on 13/2/2010 along with present
accused person was Yasin Bhatkal or not. The learned counsel for the
defence submitted that the photograph published in Daily Sakal newspaper
mentioned the name below the said photograph as "Abdul Samad" and not
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Yasin Bhatkal. This witness deposed before the court that C.R.No. 9 of
2009 was registered and the wanted accused Abdul Samad was arrested on
24/5/2010 from Mangalor in connection with the said C.R. According to
the witness, Abdul Samad is younger brother of Yasin Bhatkal. According
to the witness the name of Abdul Samad, who was accused in C.R. No. 9 of
2009 was Abdul Samad Mohammad Jarar Siddi Bappa. The witness
admitted in his deposition that Abdul Samad was never arrested in the
German Bakery bomb blast case.
ig The news item published in the
newspaper that Abdul Samad was arrested in German Bakery case,
according to this witness, was not correct. According to the witness on
7/9/2010, ATS, Pune had arrested accused Himayat Baig in German Bakery
bomb blast case.
171. PW 101 - Prasad Hasabnis, Sr. PI is from Kondhawa Police
Station. At the relevant time, he was working as PI (Administration) in the
Control Room at Pune. He was one of the members of the investigating
team of German Bakery blast case. He was assigned job to view CCTV
footages of German Bakery and Hotel "O". On 5/3/2010 when the witness
was viewing the CCTV footages, he noticed one suspected person, standing
at the counter of German Bakery. The said person was wearing a cap on his
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head and carrying two bags. This witness had also given the same evidence
i.e. description of the planter of bomb, entering the German Bakery and
leaving the German Bakery. He was also shown Article 61, CD. He
identified the planter of the bomb.
172. PW 90 is Ranjit More. This witness deposed that he was
present in the German Bakery along with his girl friend Ruchika Bachru.
He entered the bakery from the gate which was adjacent to the Main road.
He deposed that he remembered that there was one boy standing behind
him near the counter and was carrying two bags. He had gone to the police
station and at that time police had shown him CCTV footages. In the
CCTV footages, he and his girl friend were seen and the person having two
bags was also seen. The said person was wearing a cap. CD on the laptop
was played and CCTV footages were shown to the witness. The witness
had identified himself and the person standing behind him with two bags
wearing cap. The witness was fortunate enough to leave the German
Bakery after being there for 30 to 35 minutes. The blast took place after the
witness left. According to the witness, the sack bag which was hanging on
the back of the person was of light green or something like tamarind colour.
The cap was also of the same colour. Second bag, which was hanging
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across the shoulders of the person was of black colour. The witness
admitted that other customers were also having bags. This witness could
not see person having two bags, leaving German Bakery.
173. PW 58 is Soorajsingh Bisht, a panch witness to the seizure of
seven video cassettes from the cupboard of German Bakery, which was said
to be recordings made at the residence of Mr. Garki on the third floor,
above the German Bakery in Flat No. B-5. They are numbered as Article
33 Colly. The VCR seized from the German Bakery is Article 34 and the
panchanama dated 23/2/2009 is at Exh. 269. His evidence was relied upon
by the prosecution in support of the submission that there was a CCTV
camera in German Bakery and the police had collected seven video
cassettes of the recordings under the said panchanama.
174. The prosecution placed reliance on evidence of PW 43 -
Sayyad Khwaja Hamza, who was working as I.T. Manager in Hotel "O",
which is situated besides the German Bakery. He has given description of
the situation of the CCTV camera placed outside the Hotel "O". According
to him the cameras which were installed outside, capture the whole area
upto the German Bakery. There was storing capacity of the data for nine
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days. The system operates automatically. The police had interrogated this
witness and had seen CCTV footages of Hotel "O". The report was
generated by the witness and was handed over to the police. One clone of
hard-disk was prepared. CD/DVD of particular footages were also
prepared. Hard-disk and clone were handed over to police along with
CD/DVD. The police seized and sealed these articles. The panchanama was
drawn on 14/2/2010 which is at Exh. 163. The hard-disk which is in plastic
packet (Article 3) is original one and the other hard-disk is clone one,
(Article 3A). The CD is Article 4. The defence did not raise any objection
for playing CD which is marked as Article 4. The witness was cross-
examined in detail on distance between German Bakery and the Hotel "O",
situation of placement of CCTV camera in and around Hotel "O". The
witness admitted that if one stands at the main entrance of Hotel "O", one
cannot see inside view of the German Bakery. It was stated that no CCTV
cameras were seized by the police from Hotel "O".
175. The defence has raised issues regarding admissibility of the
seven video cassettes seized by the prosecution from German Bakery
premises, clone CD, the CD made of collected clippings of German Bakery
footages and Hotel "O" footages. According to the learned defence counsel
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Shri Pracha this evidence has not been established in accordance with
Section 65-B of the Indian Telegraph Act. The learned defence counsel
submitted that the trial court ought to have seen seven original video
cassettes of German Bakery and in view of the facts that seven video
cassettes were not played in the open court, neither were seen by the
learned trial court, the evidence of the created sample of the
footages/clippings played in the open court on a laptop cannot be
admissible evidence in law.ig The learned defence counsel submitted that
such evidence is full of infirmity and it would be hazardous and risky to
place implicit reliance on such evidence. The prosecution has not
discharged its responsibility.
176. During the course of hearing and with the consent of the
learned counsel appearing for the parties, we have asked the Registry to
play the seven video cassettes. With the best efforts, the seven video
cassettes could not be played due to technical defects and non-availability
of the required record player. We share the concern of the learned
counsel appearing for the defence that these seven video cassettes ought to
have been played during the trial. At the same time, it had come on record
that the defence did not dispute the CD which was played in the open court
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during examination of the material witnesses. The learned Spl. P. P. Shri
Raja Thakare, therefore, submitted that as no doubt was expressed, nor the
defence objected to the playing of the CD in open court, the concern shown
by the defence and objection raised on that count need not be taken into
consideration.
177. During the course of hearing, with the consent of the learned
counsel appearing for the parties, the said CD was also played on T.V.
Screen fitted in the court room. We had ourselves seen the clippings
repeatedly for 3 to 4 times. CD clipping of Hotel "O" was also shown on
the screen and the laptop which was brought in the court with the consent
of the parties. We had seen a boy with a cap on his head standing behind
the counter, having two bags on his person, one in front and one on the
back. Thereafter the clipping shows that one boy leaving the German
Bakery premises with one bag on his person and soon thereafter the blast
takes place. Considering the evidence placed on record, it would be
difficult to conclusively hold that the person who was seen at the counter
with two bags on his person was Yasin Bhatkal, the boy who was planter of
the bomb. It is informed by the prosecution, during the course of hearing
of this appeal that the absconding accused Yasin Bhatkal has been arrested.
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We need not say anything more on the arrest of the absconding accused,
though the learned counsel appearing for the defence submitted that the
prosecution has failed to establish beyond reasonable doubt that the person,
planter of the bomb, was Yasin Bhatkal, absconding accused.
178. PW 103 - Investigating Officer Shri Satav deposed before the
court that on 13/2/2010 he was working as Assistant Commissioner of
Police in the Anti Terrorist Squad, Pune. He was in his office when he
received information at 19.20 hrs. (7.20 p.m.) about bomb blast at German
Bakery. He reached the site. At that time, he saw that articles were lying
scattered. The outer shed had fallen down. Blood was noticed at various
places. According to the witness, inside and outside part of the bakery got
blackened due to the blast. The gas cylinders at the German Bakery were
found to be intact. Eastern wall of German Bakery had collapsed and big
crater (big hole) was noticed.
Learned counsel appearing for the defence submitted that after
the blast, the place was visited by Investigating Officer, panchas, police
personnel, many watchers, relatives of injured as well as dead persons, fire-
brigade personnel and others. The defence pointed out that in fact the
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investigating agencies ought to have cordoned off the bakery premises and
sealed it so that third party interference/presence in the bakery premises
was prohibited and ruled out. But this has not happened in the present
case. The evidence on record suggests that no such care was taken by the
investigators. In such cases it is possible that the real evidence disappears
or something could be planted to divert the attention of the investigating
agencies. Learned counsel appearing for the defence took serious objection
to the manner in which the investigating agencies dealt with the spot of
incident.
179. PW 44 - Jagdish Nimbalkar is panch of the spot panchanama.
He deposed that the inside area of German Bakery was of 18 ft. x 14 ft. He
too stated that there was a big pit (khadda) adjacent to the hole of eastern
wall of the German Bakery. The trees in the compound of the bakery were
partially burnt. Some gas cylinders were seen in one iron enclosure.
180. The prosecution case is that the piece of black cover of Nokia
1100 model was seen in the crator during investigation which itself would
show the power generated by the blast and impact of the blast. It is curious
to note that there were many customers as usual in the German Bakery.
Around 17 persons died and many persons suffered injuries. By and large
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every customers visiting German Bakery must be having their own cell
phones. Many cell phones were seen scattered in the bakery. It is also on
record that it is not the case of the prosecution that Nokia 1100 model piece
was not generally available in the market. Many such pieces were sold and
it is possible that many customers who had purchased phones, may be using
it or phone must be lying idle with them and it is also possible that they
might have sold said model phone to some other persons. But, over all
assessment of the evidence led in respect of the spot of incident shows that
the blast had strong impact inside and outside the German Bakery. The
defence case is that there was no CCTV camera fitted in the German
Bakery, which is, however, negatived by the prosecution evidence,
particularly of PW 78 - Shrikrishna Thapa, the cashier of German Bakery,
who has admitted that there was a CCTV camera at the counter.
181. Learned counsel appearing for the defence Shri Pracha
submitted that the prosecution has failed to establish that a blast took place
in German Bakery and that was due to explosive substance - RDX.
Learned counsel submitted that though the samples were sent to Delhi and
Chandigarh Laboratories, the reports from said laboratories were not placed
on record deliberately as the said reports were not favourable to the
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prosecution. Learned counsel submitted that the sample sealing procedure
was not adopted properly. The time of explosion was also disputed.
Therefore, the defence counsel submitted that the deaths were not
homicidal one as it was not a terrorist act nor the deaths were caused due to
blast due to explosive substance.
182. The report submitted by Shri H. S. Mann, Lt. Col., OC, Bomb
Disposal Unit (NSG) is at Exh. 425. Clauses 12, 13 and 14 of the said
repost read as under :-
"Technical Assessment:
12. Looking at the condition of the site, effect of blast and
condition of the dead bodies (ref pics no 22 to 25 at appx `f'
attached) and having carried out the detailed analysis in the
unit location having returned back and having watched the
CCTV footage, the following is the technical assessment of the
team:
(a) Type of explosive used. -As per the Pune forensic
science laboratory who took the first sample from the blast site,
it is a mixture of RDX, ammonium nitrate and fuel oil. The
same will be confirmed after receiving the report from CFSL
Chandigarh of the samples forwarded by the BIO team.
However the sample of debris recovered by the NSG team was
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done approx 85 hrs after the blast and there was water
accumulated in the crater. Hence the forensic analysis of the
Pune FSL is being taken as the confirmed result for the interim
period.
(b) Oty of explosive - The quantity of the explosive used
can be anything between 3.5 Kgs. to 5.0 Kgs. Depending upon
the percentage of RDX added to the mixture of ammonium
nitrate and fuel oil.
(c) Detonator - Likely Electric detonator. The same
has been confirmed by comparing the recoveries with the
remnants of a trial detonation of an electric detonator in the
unit location during detailed analysis.
(d) Power source - Likely 9V battery. The metal parts
collected were compared with the sheet of a 9 V battery in the
unit location and detailed analysis carried out and were found
to match.
(e) Container - Likely Aluminium container of sufficient
capacity to hold the explosive contents placed in a tote bag.
(f) Mechanism - Likely Remote controlled ( likely a
mobile phone) as only parts of 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 belong to the circuit of
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initiating mechanism which on detonation has pushed these
parts deep into the crater. Parts of the mobile phone belonging
to the guests can not be pushed into the crater. Hence the
investigation leads to the possibility of use of mobile phone as
initiating mechanism.
(g) Shrapnel - No external shrapnel like ball bearing
and nails were added. The melted aluminium of the container
acted as shrapnel.
The team left Pune on 19 Feb 2010 and reached the unit
location on 20 Feb 2010.
14. Problem Areas - The blast took place on 13 Feb
2010. However the orders for mobilising the Blast
Investigation Operation (BIO) team was received on 16 Feb
and the investigation could start only on 17 Feb after a gap of
approx 82 hrs after the blast. The team could not analyze the
actual condition of the site but had to rely on photographic
record held with police and FSL scientists. Aslo vital clues and
recoveries were tampered due to the movement of number of
teams which had frequented on the site and may have been
displaced from original location."
The conclusion of the report itself shows that vital clues and recoveries
were tampered due to the movement of number of teams which frequented
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on site. The report has also noted that there is possibility of use of mobile
phone as initiating mechanism.
The report further mentions that the detonator is an electric
detonator and power source was likely 9 V battery. According to the report,
on extensive search, mobile parts marked as 1, 2 & 3 on the pic no 18 i.e.
mother board chip, the metal clipping that are parts of the mobile phone
were recovered from the debris of the crater approximately at the depth of
19" (6" further to the existing depth). The report mentioned that the team
visited Regional Forensic Laboratory, Pune on 18/2/2010 and met the
forensic scientists. The debris collected by the team was also analyzed for
any clue. The size of crater was 4' x 4' dia and 11 inch depth at the seat of
explosion. But the actual size of the crater was more which got increased
due to retrieval of large amount of debris by various agencies. As regard
the report, learned defence counsel Shri Pracha submitted that Col. Mann
was not examined, whose report was relied upon by the prosecution. The
learned Spl. P. P. appearing for the prosecution submitted that Col. Mann
was a high ranking officer and it was not required to examine him when the
report was placed on record. In our view, in the facts of the case, we find
that it would have been appropriate if prosecution had examined Col. Mann
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or any other team member headed by Col. Mann. It is noticeable that the
blast took place on 13/2/2010, but the NSG team visited the spot on
17/2/2010 i.e. after a gap of 83 hrs. after the blast. Crucial time of 28 hrs.
was lost for the reasons best known to the investigating agencies. The
NSG reached Pune from Delhi on 16/2/2010, but preferred to visit the spot
on 17/2/2010. The orders were received from the HQ NSG at 1305 on
16/2/2010 to move a BIO team to investigate the blast. The investigating
team left Delhi by Indian Airlines flight IC-849 for Pune at 1600 hrs. and
reached Pune at 1805 hrs. The team visited the site of blast between 1830
hrs. to 1900 hrs. It is observed in the report that as it was getting dark, it
was decided to start investigation on the next day morning.
183. The defence stated that annexures of report of Col. Mann were
not placed on record which should go adverse to the prosecution case. The
team headed by Col. Mann did not recover back side of part of the phone. It
was said to have been recovered by the investigating team later on. The
defence, therefore, suggested that such parts could be planted at any time at
any place in such situation. The investigating officer had forwarded the
Chemical Forensic Lab the back side part of the phone for examining as to
whether there were traces of explosives on the said part. The defence took
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serious objections that when the parts were sent under the communication
dated 24/2/2010 to the Lab at Pune, then the investigating officer along
with some other witnesses ought not to have visited the land and interfered
with the sample and allowed the other witnesses, may be experts according
to the prosecution, to handle those parts. It has caused serious prejudice to
the defence. The defence submitted that in response to the said
communication, as stated above, no report given by the CFL, Pune was
placed on record.
184. The three reports were submitted by the Assistant Chemical
Analyzer to Government Regional Forensic Science Laboratory i.e. Exhs.
22, 23 and 24. Exh. 22 - report was forwarded in respect of samples
collected from the spot of incident, which refers to blackish stained cotton
swab of the black stains which were appearing near the hole which
occurred due to the blast. The piece of floor tile and one metallic piece,
sample of clothes were lying on the floor. By communication dated
15/2/2010, the Forensic Science Laboratory, Pune submitted the following
result of analysis:
"---- Traces of Cyclonite (RDX), Ammonium, Nitrate and
Nitrite ions along -
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----- with petroleum hydrocarbon oil are detected in the
collective ---
---Extracts of Exhibit Nos.1, 2, 3, 4, 5, 6 and 7. ----
--- RDX is used as high explosive.--"
Another report is at Exh. 23, which refers to explosive
examination report. It was submitted by the Ballistics Division, Central
Forensic Science Laboratory (CBI) Block - IV, C.G.O. Complex, Lodhi
Road, New Delhi - 110003. ig The samples collected from the spot of
incident were seen in seven parcels which contained partly burnt shattered
red and black coloured cloth pieces, broken accessories of Mobile phones,
damaged metallic pieces, cotton swabs, six damaged mobile phones with
their accessories, currency notes, DVD player and other articles. In the
report submitted by Shri N. B. Bardhan, Principal Scientific Officer
(Ballistics) CFSL, CBI, New Delhi, the result of examination was
mentioned as under :-
"On the basis of examinations carried out in the laboratory
with scientific aids, following are the results of examination:-
(i) The Physico-Chemical and Instrumental examination
confirmed the presence of "RDX", "Ammonium Nitrate" and
"Oil" in the contents of parcels No.`A-1' to `A-7'.
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185. The report, concerning the sample recovered from the white
building at the behest of the accused person i.e. of blackish mass in plastic,
was submitted by Shri R. R. Kulkarni, Assistant Chemical Analyzer to
Government, Regional Forensic Science Laboratory, Pune. The results of
analysis mentioned in the said report read as under :-
"---Cyclonite (RDX), petroleum hydrocarbon oil and charcoal
are detected in exhibit no.(1) -
- RDX is used as high explosive.--"
Based on this, it was submitted that RDX was used as
explosive substance for triggering the blast. There are other reports of
analysis submitted by the Laboratory at Pune which are at Exhs. 25 to 65
regarding various samples of clothes, hair tissues and various articles
collected from the spot etc., where the FSL did not find any explosive
substance.
We are not convinced to uphold the contention of the learned
counsel appearing for the defence that the prosecution failed to establish
that explosive substance (RDX) was not used in the blast occurred in the
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German Bakery. According to the learned counsel Shri Pracha, the
prosecution failed to establish the percentage of RDX as independent
component in the explosive substance. Considering the report, we are not
inclined to uphold the said contention that the percentage of RDX was
required to be mentioned. The prosecution case on that count cannot be
said to be unreliable. No doubt, the samples which were taken by the NSG
and were sent to Chandigarh for submitting report were not placed on
record but that would not discredit the FSL reports of Pune.
ig The non-
submission of report by FSL, Hyderabad even would not adversely affect
the prosecution case.
186. Section 65-B of the Indian Evidence Act 1872 contained in
Chapter V of the said Act refers to documentary evidence. The learned
counsel appearing for the defence submitted that the evidence brought on
record in respect of use of ATM card machine by the accused and the
seizure of CCTV camera from the German Bakery and Hotel "O". VCDR
report of mobiles (Tata Docomo and Vodafone) did not stand test of
scrutiny under the provisions of Section 65-B of the Indian Evidence Act.
The learned Spl. P. P. Shri Raja Thakare fairly submitted that the original
record in respect of the ATM has not been placed on record and, therefore,
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the provisions of Section 65-B would be made applicable for admissibility
of electronic record. As regards CCTV cameras in German Bakery and
Hotel "O", the learned counsel for the prosecution referred to panchanama,
which was admitted by the defence. The learned counsel referred to Exh.
269, which is a panchanama of seizer of seven video cassettes from the
German Bakery premises dated 23/2/2010. The prosecution submitted that
the witnesses have been examined to prove the seizure of hard-disks, CD of
Hotel "O", which was attached, in respect of CDR.
187. A certificate (Exh. 349 Colly.) for and on behalf of the
Vodafone Cellular Limited of Nodal Officer was placed on record. The
learned Spl. P. P. submitted that the said certificate satisfies the requirement
of Section 65-B of the Indian Evidence Act.
188. Authorized signatory of Tata Teleservices (Maharashtra)
Limited has also issued the details of the mobile no. 8149308626
addressed to the Addl. Commissioner of Police, which is at Exh. 355.
Learned defence counsel Shri Pracha raised issues, while referring to CDR
record, that they do not disclose correct picture as described by the
prosecution. Therefore, the theory of the prosecution that the accused was
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in the habit of keeping the mobile at one place for operational method and
leave that place and go to other destination for the sole purpose to mislead
the investigating agency is not convincing. We find that the prosecution
has reasonably explained the system which is being operated by the cell
companies. The CDR evidence, on the objection raised by the learned
counsel appearing for the defence, need not be discarded. The learned
defence counsel Shri Pracha submitted that the Charcoal was not found in
the forensic report of samples recovered from the spot of incident.
Charcoal was found in the sample allegedly recovered at the behest of the
accused person from the white building. The defence submitted that
substantive components of the explosive as described by the FSL Pune in
respect of the explosive detected from the samples seized from the white
building and the blast site are entirely different and not similar. The
learned defence counsel submitted that even byproduct of such substantive
component was not found in the bakery. Therefore, it was submitted that
five black pieces which were recovered at the behest of the accused from
the Dewan of his room at Udgir could not be explosive substance (RDX).
According to the learned counsel RDX is of white colour and not black.
This itself would discard the theory of the prosecution on that count. The
defence counsel alternatively submitted that whatever material said to have
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been recovered at the behest of the accused was not explosive substance
and prosecution theory that the bakery blast was due to explosive was also
not established beyond reasonable doubt. In the light of the prosecution
case and the evidence brought on the record, we are not inclined to accept
this version of the defence.
189. It has come on record that earlier to incident, the accused
person had gone to do reiki in Pune. PW 96 - Shaikh Atik Nazeer was
examined, who stated that in connection of demanding reservation for
Muslims, a function for launch of Popular Front of India party on
31/1/2010 at Pune was organized. Accordingly, the witness reached Pune.
The programme started between 5.30 to 6.00 p.m. But, in the afternoon
the accused left the witness and others saying that he would come after
some time. Witness referred the accused as "Hasan", who came back in
the evening. The witness was not knowing as to where the accused had
gone. To a question put by the learned Spl. P.P, with the permission of the
court, the witness answered as under:
Q. Whether at that time the Accused said that as the atrocities
were being committed on the Muslims by the non Muslims, the
revenge should be taken by way of Jehad?
Ans. No."
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The witness further deposed that examination of Lab Technician was held
on 14/2/2010 and at that time accused met him on 13/2/2010 between 8.30
p.m. to 9.00 p.m. On that day he phoned accused between 5.00 pm. To
6.00 pm. At that time, the accused told him that he was in reception which
was arranged in Aurangabad. The witness did not attend the said reception.
190. PW 95 is Shakil Ahemad. He is residing at Aurangabad since
his birth. He deposed that on 12/2/2010 Yusuf, the accused, had come to
Aurangabad. Accused used to come to Aurangabad and stay in his house.
He used to talk about Jehad. Therefore, the witness stated that he started
avoiding him. Accused wanted to keep his two mobile phones with the
witness. Accused instructed the witness to keep the mobile phones in a
functioning mode and further instructed that if anyone calls on the mobile
phones, he should tell them that he had gone out and if any missed call was
there, he should call back on the said number and tell that accused had
gone out. Thereafter Yusuf/accused left on 12/2/2010. He again came to
the witness and took both his mobile phones. At that time he was appearing
tired. When the witness asked him, he told that he had come travelling on
bike from a long distance.
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191. From the evidence of PWs 95 and 96 prosecution wants to say
that the accused had come to Aurangabad on 12/2/2010 and had kept his
two mobile phones with PW 95 and on 13/2/2010 the accused had left Pune
for Aurangabad and reached Aurangabad in the evening at about 10.00 p.m.
and met PW 95. Both the witnesses i.e. PW 95 and PW 96, claim that the
accused met them at Aurangabad.
We are of the view that their evidence does not inspire
confidence. The evidence on record shows that accused had gone to Pune
on bike and returned within four hours on bike to Aurangabad on the same
day. There is no evidence to establish that a reception had taken place at
Aurangabad, which was attended by the accused in the evening of
13/2/2010. The evidence of these these witnesses i.e. PW 95 and PW 96
has inherent deficiencies and lacks reliability. The evidence is not credible.
The prosecution wants to rely on this evidence in support of the
circumstance of the accused last seen with the planter of the bomb in Pune
on 13/2/2010.
192. According to the prosecution there are two theories of arrest of
accused, whether the accused was arrested on 7/9/2010 or 19/8/2010.
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According to the defence, the accused was arrested on 19/8/2010, whereas
according to the State, the accused was arrested on 7/9/2010 at Pool Gate
Bus Stand, Pune. The defence submitted that, in fact, the accused was
arrested on 20/8/2010 at Latur. Two mobile phones were used by accused
bearing Nos.9637597877 and 8149308626.
Comments on the judgment of the trial court :
193.
The trial court has recorded reasons in the judgment after
framing points for determination. On the issue of evidence in the form of
electronic record and its admissibility, the trial court observed that record
seized under panchanama pertaining to Hotel "O" is admissible in
evidence. Seizure of VCR, video cassettes and remote control from
German Bakery was also considered. It was observed that as the said
articles were not disputed by the defence, no formal proof was produced
by the prosecution to establish its authenticity. There was some more
electronic material seized from German Bakery in the form of seven video
cassettes and VCR. On the evidence of PW 79, Nodal Officer of Vodafone
Company, the trial court observed that the authority of this witness and the
authenticity of the information supplied by him was not challenged. The
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phone call details and mobile numbers were duly proved by the
prosecution. According to the trial court, nothing was brought by the
defence to show that the system was not working properly or there was
some tampering with the system or record. On the evidence of PW 81, the
Nodal Officer with the Tata Tele Services, Mumbai, the trial court observed
that authenticity of the phone call details were not challenged and the
phone calls details of Phone No. 8149308626 were duly proved by the
prosecution.
194. On the issue of ATM card, it was observed that the authenticity
of electronic record supplied by the witness is in respect of ATM centers is
proved and thus the said electronic record is admissible in evidence. Para
25 of the judgment of the trial court reads as under :-
"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".
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195. On the issue of admissibility of news item published in
newspaper (Article 31 published on 25/5/2010), reference was made to
Apex Court judgment reported in AIR 1988 SC 1274 - Laxmiraj Shetty
and another V/s. State of Tamilnadu. The trial court opined that none of the
parties examined the Editor of the newspaper, wherein the said news item
was published. The contents of the news item are not proved. In the light
of the judgment cited above, newspaper is a hearsay evidence and,
therefore, not admissible and thus the said news item at Article 62/Exh.
399 was kept out of consideration.
196. The C.A. reports at Exhs. 25 to 65 are in respect of blood, skin,
hair sample of the victims etc. These reports were not disputed by the
defence since they do not show residue of explosive. This is recorded by
the learned trial judge in para 61 of the judgment. In para 65 of the
judgment, the learned trial judge concluded that it was established by the
prosecution that explosion occurred at German Bakery in the evening due
to explosive substance i.e. RDX. From the record placed before us and the
submissions advanced, we would not discard the case of the prosecution
that blast took place in German Bakery due to which several persons lost
their lives and several got injured. There is sufficient material on record in
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the shape of FSL report that the material used in the blast was RDX.
Defence wanted further details of components of RDX or the explosive
material detected in the samples. In our view, the prosecution has
reasonably established its case on the aspect of material used in the
explosion in the blast which occurred in German Bakery.
197. The charge was framed by the trial court on 16/7/2011 (Exh.
17), wherein it was mentioned that between March 2008 to 13/2/2010, the
accused along with wanted accused and others hatched a criminal
conspiracy and were members of criminal conspiracy and the object of
which was to commit terrorist activity in Pune. Though the trial court has
referred to conspiracy being hatched in Colombo and other places, there is
absolutely no evidence placed on record in support of the said charge that
some conspiracy was hatched in Colombo. Prosecution has placed on
record certain documents, including passport to show that accused had
visited Colombo and some correspondence was made with Interpol, but
thereafter the prosecution did not take any pains to establish its case to
show that any investigation was carried out on these lines. Therefore, the
circumstance of accused visiting Colombo is not a relevant circumstance
for the consideration of this case. The trial court had discussed this issue in
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para 83 of the judgment. Reference is made to provisions of Section 188 of
Cr. P. C. The trial court concluded by observing that admittedly the act of
causing explosion pursuant to the conspiracy was executed in India at
Pune.
198. The prosecution placed reliance on evidence of PW 103 -
Investigating Officer, who deposed that he had verified cases in connection
with the activities of terrorists. In Aurangabad case one of the accused
persons by name Samad Khan was involved wherein he had given
confessional statement in M.C.O.C. Act in which there was reference of the
present accused - Himayat Baig. Certified copy of the said confessional
statement was brought on record (Exh. 412). The defence submitted that
confessional statement is a weak piece of evidence and, therefore, the same
may not be relied upon. The trial court, therefore, observed that it is well
settled under law that confessional statement is a weak piece of evidence
and can be used for the purpose of corroboration. It cannot be taken into
consideration to establish the involvement of the accused in the present
case.
199. The defence disputed the claim of prosecution that the accused
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was arrested by Anti-Terrorist Squad on 7/9/2010. In the statement
recorded under Section 313 of Cr. P. C., the accused stated that he was
arrested on 19/8/2010 or prior to that when he had gone to Latur for
making inquiry about CET Examination. After making inquiry in the
evening he was going towards Latur bus Stop for returning to Beed, at that
time he was caught hold of from the backside on the gun point and he was
made to sit in one Sumo Jeep and was brought to Pune. It was his case
that he was kept for two days and tortured and thereafter on 21/08/2010 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 Shri Kadam (PW 102), Shri Sabnis and Shri
Patkar who were from the Anti-Terrorist Squad and he was taken to
German Bakery and told that this was a spot of incident. The accused
further stated that he was again taken to Mumbai and tortured in different
ways and he was made to sign on different blank papers at the bottom of
page. He stated that he did not sign on any written paper. According to the
trial court there were three remand reports on record dated 8/9/2010,
20/9/2010 and 28/9/2010 which showed that he was produced before the
learned Magistrate, who passed orders on those remand reports. The
remand reports did not show that any ill-treatment was given to the
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accused. Neither any grievance was made by the Advocate appearing for
the accused before the learned Magistrate. It is further stated that in case
the accused was arrested on 19/8/2010, the family members of the accused
person would have raised the issue and approached police for taking some
steps to search him. However, nothing has been done. The conclusion
reached by the trial court on this aspect of the matter seems to be
reasonable and in consonance with the evidence on record.
200.
The trial court discussed the evidence concerning the accused
using false names while residing in Udgir, seizure of two bags which he
had kept in the class room of white building, black colour brief-case having
several documents, passport (Exh. 422), which was found in black colour
brief-case which was accepted by the accused as that of his. PW 92
deposed that since the accused had not come for so many days, he took his
bags to his house. Panchanama Exh. 264 mentions in details articles which
were seized from the said bag. The trial court rightly reached conclusion in
para 107 of the judgment as under :-
"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
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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 that
the said two bags were seized from Beed, which is his native
place. However, there is nothing to support the said
contention."
From the discussion made on this issue, the trial court has
rightly concluded that the explosive substance and other articles like solder
wire, solder gun and solder wire cutter were recovered at the instance of
the accused person. The evidence of the dog handler was also relied upon,
the entries taken in the log-book and other entries made in the police
stations, Pune and Udgir were considered by the trial court for arriving at a
conclusion that the investigating team did reach white building, Abdul
Samad opened the main door, investigating team entered the house and
thereafter the bomb detection squad entered the house. The accused had
shown the Dewan in a room which was occupied by him and at his instance
the wooden plank was lifted and objectionable material was recovered. The
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defence submitted that the room was not locked, which means that it was
accessible to anybody. It was also submitted that adverse inference need
to be drawn as Abdul was not examined. Considered in their entirety, the
prosecution case, documentary evidence placed on the record and the
findings reached by the trial court, we conclude this issue by saying that the
prosecution has established that the prohibited substance/explosive material
along with other articles were kept in a sealed position by the accused in
Dewan and at his behest the recovery was made. The exclusive possession
of the prohibited material / explosive substance is established by the
prosecution and we do not find any good reason to deviate from the
findings recorded by the trial court on this issue. The counsel appearing for
the defence submitted that the RDX must have been planted in the Dewan
by somebody. No such inference could be drawn in the light of the
circumstances brought on record. The evidence of discovery, made at the
instance of the accused, is required to be believed. The articles kept were
not open, but were hidden inside the Dewan. For the reasons stated above,
we can hold that the accused was in conscious possession of the explosive
material. It is important to note that in the statement recorded under
Section 313 of Cr. P. C. except denial, the accused did not give any
explanation in that regard. The trial court concluded the findings on this
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aspect in para 129 of the judgment.
201. The learned trial court, while observing on the visit of accused
to Colombo, had dealt with the evidence of Investigating Officer PW 103
Shri Satav, which refers to the documents recovered from two bags of the
accused which were seized by the police under a panchanama Exh. 264. In
313 statement, the accused stated in respect of his visit to Colombo.
According to his explanation, he stated that he had gone for doing job, but
due to language problem he could not get the job (Question No. 264).
While reply to last question i.e. Question No. 526 in the 313 statement,
accused stated that he had gone to Colombo for selling clothes and
perfumes, which he had purchased from Mumbai and to do job in the Mall
or in a big shop.
202. In para 143, the trial court considered travel of the accused
from Latur to Mumbai by a Bus of Priyanka Travels. The travel agency was
owned by PW 67 - Ezaz Maniyar and PW 73 Abdulsamad Mohammad
Hanif Shaikh who was doing cloth business at Udgir had booked ticket for
the accused. The prosecution relied upon the evidence of these witnesses
and the registers maintained by the Priyanka Travels and An-Noor Lodge.
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We have already discussed above that whitener was applied on the entry
made in the register on 7/2/2010. The said entry does not inspire
confidence for placing reliance. Even if it is assumed that the accused had
travelled from Latur to Mumbai, the prosecution will have to make out a
case that he had travelled for the purposes of entering in a conspiracy or for
giving the final shape to a terrorist act or in furtherance of his terrorists
activities. The entries written in the register maintained by Priyanaka
Travel and the entries made in the Al-Noor Guest House in the name of
accused as "Yusuf" could at the most be considered as a circumstance
brought on record by the prosecution, but the said circumstance must be of
relevant character and nature for the purposes of establishing the guilt of
the accused. In other words, the circumstance must be of a relevant fact
and the said circumstance is not of that character.
203. One of the important circumstances is in respect of purchasing
of mobile hand-set. The trial court has discussed this issue in para 149 of
the judgment. The trial court has placed reliance on the Test Identification
Parade wherein owner of the mobile shop i.e. PW 88 identified the accused
in Yerawada Jail on 3/10/2010. The test identification parade
memorandum has been admitted in evidence pursuant to provisions of
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Section 291A of Cr. P. C. and defence had also given no objection for
exhibiting the same. It has come on record that the shop is in a crowded
area of Crawford Market. The market is known as Manish Market wherein
PW 88 - Mohammad Mansoori was selling mobile cell phones. We are not
convinced to accept the prosecution theory that accused, who was said to
have purchased the mobile Nokia 1100 model on 8/2/2010 could be
identified after near about 7 to 8 months in Yerawada Jail by PW 88 -
Mohammad Mansoori. We are not satisfied from the evidence of PW 88
and other witnesses to infer that the witnesses were impressed by a distinct
features in the personality of the accused person to remember him for such
a long time. First of all the mobile phone was old mobile phone, no papers
were maintained for sale and purchase of the said mobile phone. Secondly,
said Nokia 1100 model is not the only piece available in the market.
Obviously there must be hundreds of such pieces. There was no
distinctiveness about mobile 1100 Nokia phone which the accused alleged
to have purchased. At the same time, we are not satisfied to hold that the
very phone which was said to have been purchased by the accused from
PW 88 was used as a triggering device in the bomb blast. What was found
at the site is back cover of the phone and from the notches of the back
cover, the experts stated that it must be of Nokia 1100 model. From that
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angle, the evidence of PW 88, PW 102 and the evidence of Test
Identification Parade is required to be considered by this court. The trial
court observed that if the customer is of typical type or behaviour, it is
possible to remember him. We are not convinced to hold that any
distinctiveness in the appearance of the accused and his behaviour had such
a everlasting impact on the mind of the witnesses that he was remembered
and identified even after a gap of eight months. In the entirety of the facts
and circumstances, this circumstance too is required to be appreciated. We
find this is a weak piece of evidence and circumstance brought on record
by the prosecution. Assuming that the circumstance of accused purchasing
mobile from PW 88 is established, the said circumstance, along with other
circumstances, does not establish the guilt of the accused person regarding
bomb blast in the Bakery.
204. As regards the report of Col. Mann, the learned trial court in
para 156 recoded that said report is at Exh. 425 and it is the official
communication. There was no slightest doubt about its authenticity and it
was not challenged by the defence. None of the team members, who
visited the spot of incident along with Col. Mann, was examined by the
prosecution. In fact, if somebody was examined, such a move by the
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prosecution could have thrown more light on the several questions involved
in this case. In fact, non-examination of any of the members from the
team headed by Col. Mann adversely affects the prosecution case. Several
questions remained unanswered due to that.
205. Learned trial Judge in para 158 of the judgment reached
following conclusions :-
"158. ig From the above evidence and material on 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."
In view of the evidence brought on record and as discussed
above, there are serious doubts as to whether the blast which occurred in
German Bakery was triggered by Nokia mobile phone 1100 purchased by
the accused from Manish market, Mumbai. In the facts and in totality of
circumstances, it would be unreasonable to draw such conclusion. These
circumstances have not been established by the prosecution beyond
reasonable doubt.
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206. On the issue of accused last seen with the planter of the bomb,
the trial court has referred to the evidence of PW 93 - auto-rickshaw driver.
The said evidence is considered in para 163 of the judgment. The trial court
has placed heavy reliance on the identification parade conducted, where the
auto-rickshaw driver identified the accused in Yerawada Central Prison on
3/10/2010. We have already discussed above the nature of evidence on this
point. Again the issue relates to distinctive features in the personality of the
accused, his behaviour, trends and his appearance on the said day. We can
understand that the planter of the bomb, who was said to be with the
accused, had distinctive appearance on that day as it was stated that he was
carrying two bags, one in front and one on his back. He was also wearing a
cap. But as regards the accused, there was no such distinctiveness for auto-
rickshaw driver to identify him after 7 to 8 months gap. This circumstance
does not inspire confidence in the prosecution case. The plea of the
prosecution that the accused was last seen with the planter of the bomb
does not get credence. There are inherent infirmities and the said
circumstance does not connect the other circumstances for completing the
chain of events. There is force in the submissions of the defence that PW
93 was a got up witness who claims to have seen the photograph of the
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planter of the bomb in the newspaper and claims to have identified present
accused in the Test Identification Parade. Merely because the Test
Identification Memorandum was not challenged by the defence, that would
not establish the circumstance beyond reasonable doubt.
207. It is crucial to notice that the trial court has disbelieved PW 96
- Shaikh Nazir. In concluding para 166 of the judgment, the trial court
observed as under :-
"166. .........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."
As regards identification of the planter, who is said to be
accused Yasin Bhatkal, the trial court observed in para 167 as under :
"167. From the evidence of PW 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
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Accused Yasn Bhatkal. Through the evidence of PW 90 and
PW 101 it is established by the prosecution that the said
relevant CCTV footage in which Accused Yasin Bhatkal is
seen, is that of 13-02-2010 and just prior to the explosion.
Through the evidence of PW 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."
In the facts and circumstances of the case and considering the
quality of evidence, we are of the view that some more and better evidence
was required on the part of the prosecution to establish the identity of
Yasin Bhatkal. The prosecution may have an opportunity to establish its
case against Yasin Bhatkal as and when the case proceeds against him.
208. The trial court discussed the phone call details of all the phones
used by the accused and his movements on 12/2/2010 and 13/2/2010. The
evidence on the point that accused had gone to Pune and returned on the
same day evening is not inspiring confidence. Placing relinace on the
evidence of PW 95, it would not be appropriate to hold that the accused had
gone to Pune and returned on the same day i.e. on 13/2/2010. The
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prosecution evidence on this point lacks clarity, the evidence is vague and
full of deficiencies and doubts. The finding recorded by the trial court that
this circumstance was established beyond reasonable doubt does not appeal
to us. The said finding is discarded.
209. The trial court has placed reliance on accused using mobile
phones of others of Tata Docomo Company and Vodafone Company.
Accused used pan cards of friends, certificates, photographs, ration card
and other documents. Even if this circumstance is said to have been
established by the prosecution, it does not connect the accused with the
commission of terrorist activities. The circumstances like accused
involving in activities of arranging meetings in the name of Jehad, reading
certain objectionable material and raising voice against the injustice done
to the Muslim community, at the most, would demonstrate mental set up of
the accused, his anxiety and frustration and his perception about the
social structure and the events taking shape in the society. Some
concrete, substantial, convincing, cogent and reliable evidence was
required by the prosecution to connect the accused with the commission of
crime. In the facts of the case, we find that the prosecution has failed to
discharge its responsibility to lead evidence in support of the charge framed
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against the accused person on major counts.
210. It was observed by the trial court in para 185 of the judgment
that except denial there is no explanation from the accused as to how he
came into possession of false documents. Even if it is assumed that
accused was in possession of such documents and the same could be a
circumstance in itself, but such circumstance would become incriminating
only when the prosecution discharges its duty and brings relevant factors
for connecting all these circumstances to the activities of crime. We do not
find various circumstances, completing a chain, for upholding the
prosecution case and for upholding the conclusions drawn by the trial
court.
211. The issue of conspiracy was dealt with by the trial court in
para 187 of the judgment. The charge was framed under Section 120-B of
the IPC. Before the trial court, the learned Spl. Public Prosecutor fairly
submitted that there was no evidence to show that the accused himself had
forged the documents and used them. Indeed, he is right. There is no
evidence available on record showing that the accused himself had forged
the documents and used them or attempted to use them with any dishonest
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intention. But, at the same time, the evidence does show that the accused
was found to be in possession of forged documents, which he knew to be
forged. The accused has not given any explanation as to how he came into
possession of these forged documents, which were a handicapped
certificate, caste certificate, ration card and domicile certificate, all falling
in the category of valuable security as defined under Section 30 of the
Indian Penal Code, or for what purpose he had possessed those documents.
The inference would be that he possessed them with some dishonest
intention. It is obvious that ingredients of Section 474 of the Indian Penal
Code have been fulfilled in this case and, therefore, we are of the view that
the trial court rightly found the accused as guilty of the offence punishable
under Section 474 of the Indian Penal Code. For these reasons, we are also
of the view that the finding of innocence of the accused as regards offences
punishable under Sections 465, 467 and 468 of the Indian Penal Code
recorded by the trial court is correct and needs no interference.
Case Laws on circumstantial evidence:
212. In the case of M. G. Agarwal vs. State of Maharashtra [AIR
1963 SC 200], Supreme Court, in para 18, observed as under:
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"18. ........The main charge of conspiracy under section 120-
B is sought to be established by the alleged conduct of the
conspirators and so far as accused No.1 is concerned, that rests
on circumstantial evidence alone. It is a well-established rule
in criminal jurisprudence that circumstantial evidence can be
reasonably made the basis of an accused persons' conviction if
it is of such a character that it is wholly inconsistent with the
innocence of the accused and is consistent only with his
guilt..........."
In the case of Kali Ram vs. State of Himachal Pradesh [(1973)
2 SCC 808], Supreme Court, in paras 26 and 27 observed thus:-
"26. It needs all the same to be re-emphasised that if a
reasonable doubt arises regarding the guilt of the accused, the
benefit of that cannot be withheld from the accused. The
Courts would not be justified in withholding that benefit
because the acquittal might have an impact upon the law and
order situation or create adverse reaction in society or
amongst those members of the society who believe the
accused to be guilty. The guilt of the accused has to be
adjudged not by the fact that a vast number of people believe
him to be guilty but whether his guilt has been established by
the evidence brought on record. Indeed, the Courts have
hardly any other yardstick or material to adjudge the guilt of
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the person arraigned as accused. Reference is sometimes made
to the clash of public interest and that of the individual
accused. The conflict in this respect, in our opinion, is more
apparent than real. As observed on page 3 of the book entitled
"The Accused" by J. A. Coutts 1966 Edition, "When once it is
realised, however, that the public interest is limited to the
conviction, not of the guilty, but of those proved guilty, so that
the function of the prosecutor is limited to securing the
conviction only of those who can legitimately be proved guilty,
the clash of interest is seen to operate only within a very
narrow limit, namely, where the evidence is such that the guilt
of the accused should be established. In the case of an accused
who is innocent, or whose guilt cannot be proved, the public
interest and the interest of the accused alike require an
acquittal".
27. It is no doubt true that wrongful acquittals are
undesirable and shake the confidence of the people in the
judicial system, much worse, however, is the wrongful
conviction of an innocent person. The consequences of the
conviction of an innocent person are far more serious and its
reverberations cannot but be felt in a civilized society. Suppose
an innocent person is convicted of the offence of murder and is
hanged, nothing further can undo the mischief for the wrong
resulting from the unmerited conviction is irretrievable. To
take another instance, if an innocent person is sent to jail and
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undergoes the sentence, the scars left by the miscarriage of
justice cannot be erased by any subsequent act of expiation.
Not many persons undergoing the pangs of wrongful
conviction are fortunate like Dreyfus to have an Emile Zola to
champion their cause and succeed in getting the verdict of
guilt annulled. All this highlights the importance of ensuring,
as far as possible, that there should be no wrongful conviction
of an innocent person. Some risk of the conviction of the
innocent, of course, is always there in any system of the
administration of criminal justice. Such a risk can be
minimized but not ruled out altogether. It may in this
connection be apposite to refer to the following observations
of Sir Carleton Allen quoted on page 157 of "The Proof of
Guilt" by Glanville Williams, Second Edition:"
"I dare say some sentimentalists would assent to
the proposition that it is better that a thousand or
even a million guilty persons should escape than
that one innocent person should suffer; but no
responsible and practical person would accept
such a view. For it is obvious that if our ratio is
extended indefinitely, there comes a point when
the whole system of justice has broken down and
society is in a state of chaos."
In the case of Sharad Birdhichand Sarda vs. State of
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Maharashtra [(1984) 4 SCC 116], Supreme Court, in para 153, observed as
under:-
"153. A close analysis of this decision would show that
the following conditions must be fulfilled before a case against
an accused can be said to be fully established:
(1) the circumstances from which the conclusion of guilt is
to be drawn should be fully established.
It may be noted here that this Court indicated that the
circumstances concerned `must or should' and not `may be'
established. There is not only a grammatical but a legal
distinction between `may be proved' and "must be or should be
proved" as was held by this Court in Shivaji Sahabrao Bobade
v. State of Maharashtra where the following observations were
made : [SCC para 19, p. 807 : SCC (Cri) p. 1047]
Certainly, it is a primary principle that the accused must
be and not merely may be guilty before a court can convict and
the mental distance between `may be' and `must be' is long and
divides vague conjectures from sure conclusions.
(2) the facts to established should be consistent only with
the hypothesis of the guilt of the accused, that is to say, they
should not be explainable on any other hypothesis except that
the accused is guilty,
(3) the circumstances should be of a conclusive nature and
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tendency,
(4) they should exclude every possible hypothesis except the
one to be proved, and
(5) there must be a chain of evidence so complete as not to
leave any reasonable ground for the conclusion consistent with
the innocence of the accused and must show that in all human
probability the act must have been done by the accused."
In the case of Vijay Kumar Arora vs. State (Government of
NCT of Delhi) [(2010) 2 SCC 353], Supreme Court in paras 16, 16.1 and
16.2, which read as under:-
"16. Essential ingredients to prove the guilt of an accused by
circumstantial evidence are.
16.1. The law relating to circumstantial evidence is well
settled. In dealing with circumstantial evidence, there is always
a danger that conjecture or suspicion lingering on mind may
take place of proof. Suspicion, however, strong, cannot be
allowed to take place of proof and therefore, the court has to be
watchful and ensure that conjectures and suspicions do not take
place of legal proof. However, it is no derogation of evidence to
say that it is circumstantial. Human agency may be faulty in
expressing picturisation of actual incident, but the
circumstances can not fail. Therefore, many a times it is aptly
said that "men may tell lies, but circumstances do not".
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16.2. In cases where evidence is of a circumstantial nature, the
circumstances from which the conclusion of guilt is to be
drawn should, in the first instance, be fully established. Each
fact sought to be relied upon must be proved individually.
However, in applying this principle, a distinction must be made
between facts called primary or basic on the one hand and
inference of facts to be drawn from them, on the other. In
regard to proof of primary facts, the court has to judge the
evidence and decide whether that evidence proves a particular
fact and if that fact is proved, the question whether that fact
leads to an inference of guilt of the accused person should be
considered. In dealing with this aspect of the problem, the
doctrine of benefit of doubt applies."
Case law on Conspiracy :
213. Supreme Court, in the case of State (NCT of Delhi) vs. Navjot
Sandhu Alias Afsan Guru [(2005) 11 SCC 600], in paras 85, 87, 89 and 100
observed as under:-
"85. As conspiracy is the primary charge against the accused,
we shall now advert to the law of conspiracy, its definition,
essential features and proof. Section 120-A IPC defines
criminal conspiracy. It says :
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"120-A. 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."
Section 120-B prescribes the punishment to be imposed on a
party to a criminal conspiracy. As pointed out by Subba Rao,J.
in Major E.G. Barsay v. State of Bombay : (SCR p. 228)
" The gist of the offence is an agreement to break
the law. The parties to such an agreement will be guilty
of criminal conspiracy, though the illegal act agreed to
be done has not been done. So too, it is not an ingredient
of the offence that all the parties should agree to do a
single illegal act. It may comprise the commission of a
number of acts."
87. In America, the concept of criminal conspiracy is no
different. In American Jurisprudence, 2nd Edn., Vol. 16, p. 129,
the following definition of conspiracy is given:
"A conspiracy is said to be an agreement between two or
more persons to accomplish together a criminal or
unlawful act or to achieve by criminal or unlawful means
an act not in itself criminal or unlawful ..... The
unlawful agreement and not its accomplishment is the
gist or essence of the crime of conspiracy.
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89. In the Statement of Objects and Reasons to the
Amendment Bill, it was explicitly stated that the new
provisions (120-A and 120-B) were "designed to assimilate the
provisions of the Penal Code to those of the English Law....".
Thus, Sections 120-A and 120-B made conspiracy a
substantive offence and rendered the mere agreement to
commit an offence punishable. Even if an overt act does not
take place pursuant to the illegal agreement, the offence of
conspiracy would still be attracted.
ig The passages from
Russell on Crimes, the House of Lords decision in Quinn v.
Leathem and the address of Willes, J. to the Jury in Mulcahy v.
R. are often quoted in the decisions of this Court. The passage
in Russell on Crimes referred to by Jagannatha Shetty, J. in
Kehar Singh case (SCC t p. 731, para 271) is quite apposite:
"The gist of the offence of conspiracy then lies, not in
doing the act, or effecting the purpose for which the
conspiracy is formed, nor in attempting to do them, nor
in inciting others to do them, but in the forming of the
scheme or agreement between the parties. Agreement is
essential. Mere knowledge, or even discussion, of the
plan is not, per se, enough."
This passage brings out the legal position succinctly.
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100. Lord Bridge in R. v. Anderson aptly said that the
evidence from which a jury may infer a criminal conspiracy is
almost invariably to be found in the conduct of the parties. In
Daniel Youth v. R. the Privy Council warned that in a joint trial
care must be taken to separate the admissible evidence against
each accused and the judicial mind should nt be allowed to be
influenced by evidence admissible only against others, "A co-
defendant in a conspiracy trial", observed Jakson, J. (US p.
454), "occupies an uneasy seat" and
ig "it is difficult for the individual to make his own
case stand on its own merits in the minds of jurors
who are ready to believe that birds of a feather are
flocked together".
(Vide Alvin Krulewitch v. United States of America)
In Nalini case Wadhwa, J. pointed out, at p.517 of SCC, the
need to guard against prejudice being caused to the accused on
account of joint trial with other conspirators. The learned
Judge observed that : (SCC p. 517, para 583)
"There is always difficulty in tracing the precise
contribution of each member of the conspiracy but
then there has to be cogent and convincing
evidence against each one of the accused charged
with the offence of conspiracy."
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The pertinent observation of Judge Hand in U.S. v. Falcone
was referred to: (SCC p. 511, para 572)
"The distinction is especially important today
when so many prosecutors seek to sweep within
the dragnet of conspiracy all those who have been
associated in any degree whatever with the main
offenders."
At para 518, Wadhwa,J., pointed out that the criminal
responsibility for a conspiracy requires more than a merely
passive attitude towards an existing conspiracy. The learned
Judge then set out the legal position regarding the criminal
liability of the persons accused of the conspiracy as follows :
(SCC p. 518, para 583)
"One who commits an overt act with knowledge
of the conspiracy is guilty. And one who tacitly
consents to the object of a conspiracy and goes
along with other conspirators, actually standing by
while the others put the conspiracy into effect, is
guilty though he intends to take no active part in
the crime."
214. In the present case, considering the evidence on record, we are
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of the view that the prosecution has failed to establish that the bomb was
manufactured/ prepared/assembled by the accused in the Global Internet
Café at Udgir. It is possible that the prosecution would urge that
reasonable inference is required to be drawn on this issue in the light of the
other circumstances brought on record. But, except for the evidence that
the accused had asked his other attendants in the Global Internet Café to
leave the said Cafe, there is no evidence to enable the court to draw even an
inference that on that day accused must have prepared the bomb in the
Global Internet Café. We are not convinced to draw such inference. The
question, therefore, remains unanswered as to where the bomb was
prepared and how the bomb was handed over to the planter of the bomb.
215. From the evidence brought on record, we are of the view that
the facts established by the prosecution are not consistent with the
hypothesis of the guilt of the accused as regards the main charge relating
to unlawful activities and terrorist acts. They are not of conclusive nature
and tendency. The chain of evidence does not get completed. The
circumstances, which are established by the prosecution, are not consistent
with the guilt of the accused. It is not possible to hold that in all human
probability, the acts must have been done by the accused. There was a vast
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gap between "may" and "must" and prosecution has failed to bridge this
gap. One has to travel a long distance from "may" to reach upto "must".
The prosecution has failed to do so.
216. The major circumstances, on which the prosecution is relying
upon, are the nature of the accused, his mental aptitude, his approach
towards life, his utterances, his jehadi tendencies, his conduct of moving
with two cell phones, some forged documents etc., are in themselves do not
establish the evidence against the accused of his involvement into the
charged offences. The major circumstance, according to the prosecution,
is accused travelling from Latur to Mumbai in the night of 7/2/2010, which
is based on the entry made in register maintained by Al-Noor Guest House
on 8/2/2010 and visit to Manish Market, Mumbai for purchasing the said
mobile phone Nokia 1100, which according to the prosecution was used as
a triggering device. In our view, the evidence on this aspect of accused
purchasing the mobile phone from Manish market itself is a very weak
piece of evidence. The same does not inspire confidence.
217. In our view the prosecution has established that at the
instance of the accused the prohibited explosive substance /RDX was
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recovered. The question is whether mere recovery of RDX from the
accused person would connect him with the further activities of preparing
bomb and handing over the same to the other accused - Yasin Bhatkal.
There is absolutely no evidence. In cases of circumstantial evidence, it
would be unfair to expect evidence on each and every circumstance which
the prosecution wants to utilize. In a given fact situation, the courts will
have to draw inferences and base its findings on probability, but merely on
inferences and probabilities a guilt cannot be established. The guilt has to
be established according to settled principles of law which cannot be
compromised at any point. Graver the crime, greater should be the
standard of proof.
218. As said earlier, there is no evidence connecting the accused
with the activities of preparing of the bomb and helping the other accused
to use it for achieving the object of creation of terror in the section of
people of India. Therefore, it would not be possible to hold that mere
recovery of RDX from the accused itself is sufficient to presumptively infer
with the aid of Section 43-E(a) of the UAP Act that the accused has
committed an offence of indulging in terrorist act as defined under Section
15 and punishable under Section 16 of the UAP Act, 1967. The
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presumption under Section 43-E can be drawn only when there is reason to
believe that the arms or explosives or other banned substances used in the
commission of the offence of indulging in terrorist act were of similar
nature to those recovered from the possession of the accused. The words
"similar nature" and the expression "there is reason to believe" employed in
Section 43-E(a) are of great significance. They imply that there must be
some connection between the arms or explosives etc. recovered from the
possession of the accused and the arms or explosives etc. used in the
commission of offence of terrorist act and this connection must be
established by some relevant circumstances being brought on record by the
prosecution so as to provide a reason for the Court to believe in the
existence of such a connection. This evidence is lacking in this case and,
therefore, there is no reason to believe that the explosives recovered from
the accused must have been used in the commission of the offence of
terrorist act as defined under Section 15 of the UPA. If such an
interpretation is not assigned to Section 43-E(a), the resultant inference
would be omnibus in nature and a person found to be in possession of
explosive substance unauthorizedly would be facing the risk of being
involved in every blast triggered by means of similar explosive at different
places in the country. That being not the intention of the legislature, a care
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has been taken to prescribe a condition that there must be "reason to
believe" that the arms or explosives etc. of similar nature were used in the
commission of the offence relating to terrorist act before the presumption is
drawn, which is of course rebuttable at the behest of the accused.
219. The next circumstance is of accused being identified by auto-
rickshaw driver PW 93. His evidence does not inspire confidence. After 7
to 8 months of the incident, the auto-rickshaw driver claims to have seen a
photograph in the newspaper and approached the police with his version.
No doubt, prosecution claims to have conducted Test Identification Parade
in which the auto-rickshaw driver has identified the accused person. But
the entire exercise of the auto-rickshaw driver remembering the accused
person and identifying him in Yerawada Jail must inspire full confidence.
The said circumstance and evidence ought to have been established
beyond reasonable doubt. The defence had raised several issues
concerning identity of planter as Yasin Bhatkal. The defence pointed out
that at one stage the prosecution had referred the name of the planter as
Abdul Samad. We have noticed that the identity of the planter as Yasin
Bhatkal is tried to be established on the basis of the edited version of the
CCTV coverage which was part of the CD played in the trial court and
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before us. The Investigating Officer Dinesh Kadam - PW 102 who had
earlier investigated certain cases had certain photographs of Yasin Bhatkal
based on which he claims to have identified that the person who was seen
on the screen was Yasin Bhatkal. The defence had raised several questions
of evidentiary value and authenticity of the clippings of CCTV coverage
which was played in the trial court. Seven video cassettes were not played
in the trial court, neither with the best efforts of the technical wing of the
Registry of this court those VCDs could be played. Based on the clippings
shown on the screen and the version of one of the investigators i.e. PW 102
- Dinesh Kadam, it would be difficult to conclusively hold that the said
person seen on the screen was Yasin Bhatkal, though he may be resembling
the person named Yasin Bhatkal, according to the prosecution and other
witnesses. These circumstances assume significance, as according to the
prosecution the accused was last seen with the planter - Yasin Bhatkal and
was identified by the auto-rickshaw driver.
220. The prosecution case in its entirety has to be understood,
viewed and minutely analyzed and scanned. Collectively the prosecution
case must inspire confidence to uphold its charge to say that it must be the
accused, involved in the terrorist activities, who was responsible for
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causing death of several persons and causing injuries to several others.
Upon consideration of the evidence and the circumstances available on
record in their entirety, we find that this is a case in which the
circumstances forming links in so far as offences relating to commission of
terrorist acts by entering into conspiracy with other accused persons and
connected offences are concerned, have not been conclusively established
in as much as there are missing links in between. In a case, like the present
case, based upon circumstantial evidence, it is necessary for the
prosecution to prove all the relevant circumstances conclusively and in
such a manner that when these circumstances are taken together, they must
point towards nothing but guilt of the accused. As discussed earlier, that is
not the case here as regards the offences relating to commission of the
terrorist acts and other connected offences. It is seen that the trial court
missed out these important aspects emerging from the evidence available
on record. The accused, therefore, deserves to be acquitted of the
offences punishable under Sections 16(1)(a), 10(b), 10(a), 18, 20, 13(1)(b)
and 13(2) of the Unlawful Activities (Prevention) Act, 1967, Section 120-
B, Section 302 read with 120-B, Section 307 read with Section 120-B,
Section 435 read with 120-B, Section 153A, Section 3(b) of Explosive
Substances Act, 1908 read with Section 120-B of the Indian Penal Code
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and Section 4(a)(b) of Explosive Substances Act, 1908 and to that extent
the impugned judgment and order deserves to be quashed and set aside.
However, the finding recorded and sentence awarded for an offence
punishable under Section 474 of the Indian Penal Code, for the reasons
stated earlier, deserves to be confirmed.
It has been argued by the learned counsel for the accused that
even the offence punishable under Section 5 of the Explosive Substances
Act, 1908 is not made out for the reason that there is no clinching evidence
brought on record by the prosecution that the accused was found to be
knowingly in possession of the explosive substance in as much as the
explosive substance itself has not been found to be of special category. He
also submits that the trial court has committed perversity in recording a
finding of conviction and awarding the sentence for an offence punishable
under Section 5 of the Explosive Substances Act, 1908 and that too without
specifying as to under which of the two clauses thereof, whether Clause (a)
or Clause (b), the sentence was awarded. He submits that such a vague
finding deserves to be quashed and set aside.
We are not inclined to accept the argument of the learned
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counsel for the accused for the reason that the recovery of blackish
substance from the possession of the accused has been already found by us
to be of reliable nature and the accused has not given any explanation as to
how and under what authority he was having the possession of the
blackish substance, which has been conclusively found to be an explosive
substance called "RDX". Under Section 2(b) of the Explosive Substances
Act, 1908, RDX or the Research Development Explosive has been defined
to be included in "special category explosive substance". This explosive
substance cannot be possessed by anybody without authorization under the
law. The accused has not explained anything regarding the possession or
the purpose for which he had the possession of the explosive material, the
RDX. Therefore, the offence punishable under Section 5(b) of the
Explosive Substances Act, 1908 has been constituted in this case and
accordingly, we find that it has been committed by the accused. No doubt,
while awarding sentence for commission of the said offence, the trial court
has generally referred to Section 5 of the said Act without being specific
about which of the two clauses i.e. Clause (a) or Clause (b) of Section 5
was applicable to the facts of the case. But, that appears to be only a
mistake as the sentence of Rigorous Imprisonment for life has been
prescribed only under Clause (b) of Section 5 of the Explosive Substances
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Act, 1908. Besides, it has caused no prejudice to the accused. Therefore,
the sentence awarded by the trial court under Section 5 of the said Act
would have to be treated as awarded under Section 5(b) of the said Act and
we do so accordingly.
221. For the reasons recorded above, we pass following order:
ORDER
(I) Reference made by the Additional Sessions Judge, Pune, is
rejected.
(II) Criminal Appeal No. 755 of 2013 filed by appellant/accused -
Mirza Himayat Baig @ Ahmed Baig Inayat Mirza @ Hasan is partly
allowed.
(a) The order of conviction and sentence awarded against the
appellant/accused - Mirza Himayat Baig @ Ahmed Baig Inayat Mirza @
Hasan for offence punishable under Section 16(1)(a) of the Unlawful
Activities (Prevention) Act, 1967 is quashed and set aside and accused is
acquitted of the said offence.
(b) The order of conviction and sentence awarded against the
appellant/accused - Mirza Himayat Baig @ Ahmed Baig Inayat Mirza @
Hasan for offence punishable under Section 10(b) of the Unlawful
Activities (Prevention) Act, 1967 is quashed and set aside and accused is
acquitted of the said offence.
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(c) The order of conviction and sentence awarded against the
appellant/accused - Mirza Himayat Baig @ Ahmed Baig Inayat Mirza @
Hasan for offence punishable under Section 10(a) of the Unlawful
Activities (Prevention) Act, 1967 is quashed and set aside and accused is
acquitted of the said offence.
(d) The order of conviction and sentence awarded against the
appellant/accused - Mirza Himayat Baig @ Ahmed Baig Inayat Mirza @
Hasan for offence punishable under Section 18 of the Unlawful Activities
(Prevention) Act, 1967 is quashed and set aside and accused is acquitted of
the said offence.
(e) The order of conviction and sentence awarded against the
appellant/accused - Mirza Himayat Baig @ Ahmed Baig Inayat Mirza @
Hasan for offence punishable under Section 20 of the Unlawful Activities
(Prevention) Act, 1967 is quashed and set aside and accused is acquitted of
the said offence.
(f) The order of conviction and sentence awarded against the
appellant/accused - Mirza Himayat Baig @ Ahmed Baig Inayat Mirza @
Hasan for offence punishable under Section 13(1)(b) of the Unlawful
Activities (Prevention) Act, 1967 is quashed and set aside and accused is
acquitted of the said offence.
(g) The order of conviction and sentence awarded against the
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appellant/accused - Mirza Himayat Baig @ Ahmed Baig Inayat Mirza @
Hasan for offence punishable under Section 13(2) of the Unlawful
Activities (Prevention) Act, 1967 is quashed and set aside and accused is
acquitted of the said offence.
(h) The order of conviction and sentence awarded against the
appellant/accused - Mirza Himayat Baig @ Ahmed Baig Inayat Mirza @
Hasan for offence punishable under Section 120-B of the Indian Penal
Code is quashed and set aside and accused is acquitted of the said offence.
(i)
The order of conviction and sentence awarded against the
appellant/accused - Mirza Himayat Baig @ Ahmed Baig Inayat Mirza @
Hasan for offence punishable under Section 302 read with Section 120-B
of the Indian Penal Code is quashed and set aside and accused is acquitted
of the said offence.
(j) The order of conviction and sentence awarded against the
appellant/accused - Mirza Himayat Baig @ Ahmed Baig Inayat Mirza @
Hasan for offence punishable under Section 307 read with Section 120-B
of the Indian Penal Code is quashed and set aside and accused is acquitted
of the said offence.
(k) The order of conviction and sentence awarded against the
appellant/accused - Mirza Himayat Baig @ Ahmed Baig Inayat Mirza @
Hasan for offence punishable under Section 435 read with Section 120-B
of the Indian Penal Code is quashed and set aside and accused is acquitted
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of the said offence.
(l) The order of conviction and sentence awarded against the
appellant/accused - Mirza Himayat Baig @ Ahmed Baig Inayat Mirza @
Hasan for offence punishable under Section 153A of the Indian Penal
Code is quashed and set aside and accused is acquitted of the said offence.
(m) The order of conviction and sentence awarded against the
appellant/accused - Mirza Himayat Baig @ Ahmed Baig Inayat Mirza @
Hasan for offence punishable under Section 3(b) of the Explosive
Substances Act, 1908 read with Section 120-B of the Indian Penal Code is
quashed and set aside and accused is acquitted of the said offence.
(n) The order of conviction and sentence awarded against the
appellant/accused - Mirza Himayat Baig @ Ahmed Baig Inayat Mirza @
Hasan for offence punishable under Section 4(a) and (b) of the Explosive
Substances Act, 1908 is quashed and set aside and accused is acquitted of
the said offence.
(o) The fine amount, if deposited, in the above stated offences,
shall be refunded to the accused.
(p) The acquittal of appellant/accused - Mirza Himayat Baig @
Ahmed Baig Inayat Mirza @ Hasan for offence punishable under Sections
465, 467 and 468 of the Indian Penal Code is confirmed.
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(q) The conviction and sentence of the appellant/accused - Mirza
Himayat Baig @ Ahmed Baig Inayat Mirza @ Hasan awarded for offence
punishable under Section 474 of the Indian Penal Code is confirmed.
(r) The conviction and sentence of the appellant/accused - Mirza
Himayat Baig @ Ahmed Baig Inayat Mirza @ Hasan of life imprisonment
for an offence punishable under Section 5 (b) of the Explosive Substances
Act, 1908 is confirmed.
The sentences awarded as above against the accused shall run
concurrently.
Appellant/accused be given benefit of set off for the period of
detention already undergone by him in terms of Section 428 of the Code of
Criminal Procedure.
The muddemal property received by the Registry of this Court,
be sent to the trial court.
Office to furnish copy of this Judgment and Order to the
accused, who is in jail, through the concerned Prison Authorities.
(S. B. SHUKRE, J.) (NARESH H. PATIL,J.)
