# STATE OF MAHARASHTRA v. FAZAL REHMAN ABDUL

- **Citation:** [2013] 16 S.C.R. 244
- **Court:** Supreme Court of India
- **Decided:** 2013-03-21
- **Case number:** Criminal Appeal No. 418 of 2011
- **Bench:** P. Sathasivam, Dr. 8.5. Chauhan
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/state-of-maharashtra-v-fazal-rehman-abdul-29005
- **Pages:** 126

## Headnote

Penal Code, 1860 - s. 120-B, 302, 307, 326, 324, 427,
C 435, 436, 201 and 212 - Terrorists and Disruptive Activities
(Prevention) Act, 1987 - ss.3(2)(i)(ii}, 3(3) and (4), 5 and 6 -
Arms Act, 1959 - ss.3 and 7 r/w. s.25(1-A}, (1-B)(a) -
Explosives Act, 1884 - ss.3, 4(a},(b}, 5 and 6- Prevention of
Damage to Public Property Act, 1984 - s.4 - Serial bombD blast in Bombay - Acquittal of respondents-accused - By
Designated Court - Appeal by State - Held. In the facts of
the case, respondent-accused Nos. 17, 24, 75 and 94 were
wrongly acquitted under charge of conspiracy - Hence
convicted for the charge of larger conspiracy and sentenced
E to life imprisonment - Acquittal of rest of the respondentaccused upheld.
Appeal - Against acquittal - Scrutiny of - By appellate
court - Criteria to be followed - Discussed.
F
In the Bombay blast in the year 1993, 257 persons
lost their lives and 713 were injured and there had been
loss of property worth several crores. 40 of the accused,
since absconding, were not put to trial. The Designated
Court framed charges against 138 accused persons.
G During trial, 11 accused died, 2 turned hostile and 2 were
discharged. The rest of the accused were charged.
The respondents-accused had been charged for
general conspiracy which was framed against all the
H
244
STATE OF MAHARASHTRA v. FAZAL REHMAN
245
ABDUL
accused persons for the offences punishable under A
Section 3(3) TADA and Section 120-B IPC, read with
Sections 3(2)(i)(ii), 3(3), (4), 5 and 6 TADA and read with
Sections 302, 307 ,326,324,427 ,435,436, 201 and 212 IPC
and offences under Sections 3 and 7 read with Sections
25 (I-A), (l·B)(a) of the Arms Act, 1959, Sections 9-B
B
(1 )(a)(b)(c) of the Explosives Act, 1884, Sections 3, 4(a)(b),
5 and 6 of the Explosive Substances Act, 1908 and
Section 4 of the Prevention of Damage to Public Property
Act, 1984. In addition, the respondents-accused were
also charged for other offences.
c
The respondents-accused in the present appeals
were acquitted on certain charges and particularly the
main charge of conspiracy. The State filed the present 19
appeals against the respondent-accused challenging
their acquittal.
·
D
Allowing the Appeal Nos. 39112011, 1027 of 2012, 395
of 2011, 397 of 2011 and dismissing the rest of the
appeals, the Court
E
1 HELD: 1. The appellate court should not ordinarily
\set aside a judgment of acquittal in a case where two
views are possible, though the view of the appellate court
may be the more probable one. While dealing with a
judgment of acquittal, the appellate court has to consider
F
the entire evidence on record, so as to arrive at a finding
as to whether the views of the trial court were perverse
or otherwise unsustainable. The appellate court is
entitled to consider whether in arriving at a finding of fact,
the trial court had failed to take into consideration
admissible evidence and/or had taken into consideration
G
the evidence brought on record contrary to law. Similarly,
wrong placing of burden of proof may also be a subjectmatter of scrutiny by the 'appellate court. In exceptional
cases where there are c'ompelling circumstances, and
the judgment under appeal is found to be perverse, the
H
246
SUPREME COURT REPORTS
[2013] 16 S.C.R.
A appellate court can interfere with the order of acquittal.
The appellate court should bear in mind the presumption
of innocence of the accused and further that the trial
court's acquittal bolsters the presumption of his
innocence. Interference in a routine manner where the
B other view is possible should be avoided, unless there
are good reasons for interference. The findings of fact
recorded by a court can be held to be perverse if the
findings have been arrived at by ignoring or excluding
relevant material or by taking into consideration
c irrelevant/inadmissible material. The finding may also be
said to be perverse if It is "against the weight of
evidence", or if the finding so outrageously defies logic
as to suffer from the vice of irr

## Text

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A
B
[2013] 16 S.C.R. 244
STATE OF MAHARASHTRA
v.
FAZAL REHMAN ABDUL
(Criminal Appeal No. 418 of 2011)
(PART-5)
MARCH 21, 2013
[P. SATHASIVAM AND DR. 8.5. CHAUHAN, JJ.]
Penal Code, 1860 - s. 120-B, 302, 307, 326, 324, 427,
C 435, 436, 201 and 212 - Terrorists and Disruptive Activities
(Prevention) Act, 1987 - ss.3(2)(i)(ii}, 3(3) and (4), 5 and 6 -
Arms Act, 1959 - ss.3 and 7 r/w. s.25(1-A}, (1-B)(a) -
Explosives Act, 1884 - ss.3, 4(a},(b}, 5 and 6- Prevention of
Damage to Public Property Act, 1984 - s.4 - Serial bombD blast in Bombay - Acquittal of respondents-accused - By
Designated Court - Appeal by State - Held. In the facts of
the case, respondent-accused Nos. 17, 24, 75 and 94 were
wrongly acquitted under charge of conspiracy - Hence
convicted for the charge of larger conspiracy and sentenced
E to life imprisonment - Acquittal of rest of the respondentaccused upheld.
Appeal - Against acquittal - Scrutiny of - By appellate
court - Criteria to be followed - Discussed.
F
In the Bombay blast in the year 1993, 257 persons
lost their lives and 713 were injured and there had been
loss of property worth several crores. 40 of the accused,
since absconding, were not put to trial. The Designated
Court framed charges against 138 accused persons.
G During trial, 11 accused died, 2 turned hostile and 2 were
discharged. The rest of the accused were charged.
The respondents-accused had been charged for
general conspiracy which was framed against all the
H
244
STATE OF MAHARASHTRA v. FAZAL REHMAN
245
ABDUL
accused persons for the offences punishable under A
Section 3(3) TADA and Section 120-B IPC, read with
Sections 3(2)(i)(ii), 3(3), (4), 5 and 6 TADA and read with
Sections 302, 307 ,326,324,427 ,435,436, 201 and 212 IPC
and offences under Sections 3 and 7 read with Sections
25 (I-A), (l·B)(a) of the Arms Act, 1959, Sections 9-B
B
(1 )(a)(b)(c) of the Explosives Act, 1884, Sections 3, 4(a)(b),
5 and 6 of the Explosive Substances Act, 1908 and
Section 4 of the Prevention of Damage to Public Property
Act, 1984. In addition, the respondents-accused were
also charged for other offences.
c
The respondents-accused in the present appeals
were acquitted on certain charges and particularly the
main charge of conspiracy. The State filed the present 19
appeals against the respondent-accused challenging
their acquittal.
·
D
Allowing the Appeal Nos. 39112011, 1027 of 2012, 395
of 2011, 397 of 2011 and dismissing the rest of the
appeals, the Court
E
1 HELD: 1. The appellate court should not ordinarily
\set aside a judgment of acquittal in a case where two
views are possible, though the view of the appellate court
may be the more probable one. While dealing with a
judgment of acquittal, the appellate court has to consider
F
the entire evidence on record, so as to arrive at a finding
as to whether the views of the trial court were perverse
or otherwise unsustainable. The appellate court is
entitled to consider whether in arriving at a finding of fact,
the trial court had failed to take into consideration
admissible evidence and/or had taken into consideration
G
the evidence brought on record contrary to law. Similarly,
wrong placing of burden of proof may also be a subjectmatter of scrutiny by the 'appellate court. In exceptional
cases where there are c'ompelling circumstances, and
the judgment under appeal is found to be perverse, the
H
246
SUPREME COURT REPORTS
[2013] 16 S.C.R.
A appellate court can interfere with the order of acquittal.
The appellate court should bear in mind the presumption
of innocence of the accused and further that the trial
court's acquittal bolsters the presumption of his
innocence. Interference in a routine manner where the
B other view is possible should be avoided, unless there
are good reasons for interference. The findings of fact
recorded by a court can be held to be perverse if the
findings have been arrived at by ignoring or excluding
relevant material or by taking into consideration
c irrelevant/inadmissible material. The finding may also be
said to be perverse if It is "against the weight of
evidence", or if the finding so outrageously defies logic
as to suffer from the vice of irrationality. [Para 9) [260-CH; 261-A]
D CRIMINAL APPEAL NO. 418 OF 2011:
2. The Designated Court after appreciating the entire
evidence came to the conclusion that there was nothing
on record to show that the respondent-A-76 though
E facilitated sending A-39 to Dubai, had any knowledge of
the purpose of going to Dubai or Pakistan for the simple
reason that A-39 himself dl~closed that he was told In
Dubai that he would go to Pakistan and the purpose for
going there would be explalned to him lfJter on. The
F confessional statement of A-39 did not reveal the
Involvement of the respondent In persuading A-39 to
undergo weapons' training In Pakistan. There Is no
reason to Interfere with the cogent reasons given by the
Speclal Judge. The appeal lacks merit and therefore
G dismissed. [Paras 8 and 10) [259-H; 260-A; 261·8]
CRIMINAL APPEAL NO. 409 OF 2011
3. In view of records of the case, none of the
respondents-accused Nos. (l.e.A-88, A·109, A·114, A·126,
H A·127 and A·130) was aware of ·the Intention of the
STATE OF MAHARASHTRA v. FAZAL REHMAN
247
ABDUL
conspirators to send the respondents to Pakistan for A
training to deal with the arms and ammunition rather they
had been taken away to Dubai on false pretext and had
been misguided. Thus, the inference drawn and
conclusion reached by the Designated Court that as they
did not have knowledge that they were going to Pakistan
B
for training in handling of arms, is correct. There is no
reason to interfere with the same. The appeal lacks merit
and hence dismissed. [Para 26]. [266-B-C]
CRIMINAL APPEAL NOS. 601 OF 2011:
4. If the evidence of all the witnesses is read
conjointly, itbecomes evident that none of the witnesses
c
had named either of the respondents-accused. The other
persons of the police team who had been named stood
convicted. The respondents have been acquitted on the
D
ground that in absence of Test Identification Parade or
their identification by any of the witnesses/accused in the
court, it was not safe to make a guess work that they or
either of them could also be member(s) of the said police
team which intercepted the contraband. The evidence on
E
record reveal th.at police team headed by Inspector (A·
116) was having 6-7 constables. There was nothing on
record on the basis of which It could be assumed that the
respondents were the members of the said team. It Is
nobody's case that the total strength of the Shrlvardhan
F
Pollce Station was 7 or 8, so It can be presumed that all
except one or two might have come. The Sarpanchas of
7 ~llages In close proximity, deposed In court to falsify
the al/bl taken by the respondents that they were on
pollce patrolllng In their villages. Statements made by the
G
Sarpanchas that none of the respondents had visited
their village on patrolling, cannot. be a proof that the
respondents were . members· of the team, Which
Intercepted the said trucks. The,Deslgnated Court rightly
came to the conclusion that there was no material to
connect the respondents with the aforesaid Incident and
H
248
SUPREME COURT REPORTS
[2013] 16 S.C.R.
A it was not safe to presume that the respondents were
also the members of the police team which intercepted
the said trucks carrying contraband. Hence, there Is no
cogent reason to interfere with the impugned judgment.
The appeal lacks merit and hence dismissed. [Paras 36,
B 37 and 39) [270-B·F, HJ
CRIMINAL APPEAL N0.405 OF 2011:
5. The Designated Court acquitted the respondent (A·
38) of the charges only on the ground that the prosecution
C did not consider it proper to make the owner of the truck,
an accused or as a witness to find out as to whether the
respondent (A-38) had been a regular driver with him and
as to whether on that particular date he was on duty. No
person had identified him as he was driving the said
D vehicle on the said date. The confessional statement of A·
62 was not corroborated by any other witness/accused.
There is no cogent reason to Interfere with the order
passed by the Designated Court and hence the appeal Is
dismissed. [Paras 61 and 63) [279-F-G;. 280-B]
E CRIMINAL APPEAL N0.1033 OF 2012:
6. The only allegation against the respondent (A·103)
was that she had accompanied her hushand (AA) while
he carried the arms, ammunition and explosives. Further,
F there Is nothing on record to show that she had any
knowledge of such arms, and the purpose for which the
same had been brought. Further, the sister-in-law of the
respondent was neither made the accused nor a witness.
Her husband is still absconding. In such a fact-situation,
G the findings recorded by the Designated Court do not
warrant any interference. The evidence against the
respondent-accused i.e. confessional statements of the
co-accused namely A-12 and A-71 were rlghtly discarded
by the Designated Court In view of the fact that the officer
H who recorded their statement, did not meet the statutory
STATE OF MAHARASHTRA v. FAZAL REHMAN
249
ABDUL
requirement of giving him the statutory warning that he
A
was not bound to make his confession and that if made,
it would be used against him. The appeal, is, therefore,
dismissed. [Paras 82 and 86] [285-B, H; 286-A-B]
CRIMINAL APPEAL NO. 594 OF 2011:
7. The Special Judge came to the conclusion that the
respondent (A-105) had not made any confession. So far
as the confession of the co-accused A-74 is concerned,
B
it contained reference regarding the presence of one
father, but the same does not specifically reveal A-105
C
being that person, while the goods were being concealed
after taking them from the house of the respondentaccused to the mango grove. The same conclusion was
drawn reg<trding the confession of the co-accused A-81.
He made a passing remark revealing the presence of D
respondent (A-105) at the relevant time. Still the same
specifically failed to depict any act committed by him in
relation with the contraband goods. More so, there seems
to be some contradiction and variance in the sequence
of events as given in the confessions. Thus, it was
E
difficult to accept that the said material in confession of
the co-accused can be accepted without there being any
independent corroboration, though the corroboration
was required only on material points and not on each
and every point. The confessional statement of A-74 and
A-81 cannot be said to be cogent enough for establishing
involvement of the respondent (A-105) in commission of
F
the acts amounting to a criminal offence required to be
strictly proved. Thus, there is no evidence on record to
show that the respondent had been involved in the crime
G
in any manner. If his sons had indulged in the offence,
his mere presence in his house, where the contraband
had been hidden, would not make the respondent
responsible. The appeal lacks merit and, therefore,
dismissed. [Paras 96 and 98] [289-E-H; 290-A, C-0]
H
250
SUPREME COURT REPORTS
[2013] 16 S.C.R.
A CRIMINAL APPEAL NO. 402 of 2011:
8. The Special Judge gave benefit of doubt .to the
respondent (A-132), reaching the conclusion that the
prosecution failed to disclose the correct identity of the
8 accused. None of the witness/accused (in their
confessional statements) had referred to his full name or
address even once. In such a fact-situation, the Special
Judge has rightly given him the benefit of doubt. In the
facts and circumstances of the case, the prosecution failed
to fix the identity of the accused who had gone to Pakistan
C for training, and therefore the respondent has rightly been
given the benefit of doubt. The appeal is, therefore,
dismissed. [Paras 109, 110 and 112] [294-8-D, E]
D
CRIMINAL APPEAL NO. 1022 OF 2012:
9. There is no evidence on record to show that the
respondent (A-27) had any knowledge about the nature
of the articles smuggled in India. In view thereof, there is
no cogent reason to interfere with the well-reasoned
E judgment of the Designated Court whereby he was not
held guilty for commission of offences including that of
conspiracy, in view of the fact that his acts were not for
furthering the object of conspiracy of or involvement of
A-27 in the same. Therefore, the appeal is dismissed.
F [Paras 123 and 125] [299-8-D]
CRIMINAL APPEAL NO. 393 OF 2011:
10. There is no evidence on record to show that the
respondent (A-60) had any knowledge about the nature
G of the articles smuggled in India. In view thereof, no
interference is warranted on the facts of the case. The
appeal is, therefore, dismissed. [Para 137] [304-8)
CRIMINAL APPEAL NO. 597 OF 2011:
H
· 'H. The Designated Court after considering the
•
. STATE OF MAHARASHTRA v. FAZAL REHMAN.
251
ABDUL
evidence as regards the respondent (A-55), came to the
A
conclusion that the prosecution failed to disclose any
material showing his nexus with conspiracy for which he
was charged. There is no reason to interfere with the
impugned judgment applying the parameters laid down
by this court for interference against the order of B
acquittal. The evidence on r.ecord disclosed his
involvement and association with Tiger Memon (AA) in
landing and transportation, but that is because his father
A-14, was the landing agent. The appeal lacks merit, and,
therefore, dismissed. [Paras 203 and 204] [329-F; 330-F, c
H; 331-A-B]
CRIMINAL APPEAL NO. 407 OF 2011: ·
12. The Special Judge after appreciating the entire
evidence held that there being no evidence to come to
D
the conclusion that the contraband material were part and
"parcel of the consignment smuggled into country by coconspirators for commission of terrorist acts for which
· the charge at head 1stly is framed, A-72 cannot be held
guilty for the said conspiracy. As per confessional
E
statement of A-41, he had given 20 hand grenades to one
Ayub resident of Oshiwara. However, he also disclosed
that after his arrest, the said
1contraband had been
produced before the police by his father through 'H'. In
~iew of the above, the conclusion reached by the
F
Designated Court that there is nothing on the record to
establish that Ayub of Oshiwara could be A~72, does not
require interference. In such a fact-situation, the
respondent (A-72) is entitled to benefit of doubt, so far as
the charge of conspiracy is concerned. The appeal lacks
G
merit, and hence dismissed. [Paras 211 and 213] [334-C;
335-C-D; 336-D-E]
CRIMINAL APPEAL NO. 1025 OF 2012:
13. The respondent (A-135) had participated in the
H .
252
SUPREME COURT REPORTS
[2013] 16 S.C.R.
A landing at Shekhadi when the contraband were
smuggled into India. However, as the evidence on record
as well as the findings recorded by the Designated Court
remain to the effect that he was not aware of the articles
smuggled, he cannot be held liable for punishment for
B conspiracy. There is no reason to interfere with the order
passed by the Special Judge. The appeal lacks merit, and
hence dismissed. [Paras 223 and 225) [340-C-D, E]
CRIMINAL APPEAL NO. 599 OF 2011:
C
14. The Designated Court after appreciating the
confessional statements of the respondent (A-58) of the
co-accused, A-64, A-109, A-114, A-126, A-127, A-128, A-130
and that of PWs 2 and 207 reached the conclusion that
the acts alleged to have been committed by A-58, being
D much prior to main conspiracy of committing serial blast
having taken final shape and A-58 after returning from
Dubai having not participated in any act furthering object
of larger conspiracy for which charge at head 1st ly is
framed, he cannot be held liable for larger conspiracy.
E In view of the fact that the respondent has already served
the sentence of 10 years and paid the fine, therefore the
Court is not inclined to allow this appeal. Hence, it is
dismissed. [Paras 232 and 234) [343-B; 344-B, C, E]
F CRIMINAL APPEAL NO. 404 OF 2011:
15. The Special Judge acquitted the respondent (A48) of all the charges, discarding all the confessional
statements on the ground that the officer who recorded
the confessional statement of the respondent and other
G co-accused did not fulfill the requirement of law by giving
any warning to the said persons telling (i) that they were
not bound to make a confession and (ii) if made, it could
be used against them as evidence. The Designated Court
rightly rejected the confessional statement made by the
H respondent and the co-accused as the first part of these
STATE OF MAHARASHTRA v. FAZAL REHMAN
253
ABDUL
statements has not been recorded in consonance with
A
the requirement of statutory provisions in s.15 of the
TADA Act and r.15(3) of TADA Rules. Therefore, the
appeal is dismissed. [Paras 41(8) and 52] [271-E-F, 276G-H; 277-A]
S.N. Dube v. N.B. Bhoir and Ors. (2000) 2 SCC 254:
2000 (1) SCR 200; Lal Singh v. State of Gujarat and Anr.
(2001) 3 SCC 221: 2001 (1) SCR 111; Bharatbhai v. State
of Gujarat (2002) 8 SCC 447: 2002 (3) Suppl. SCR 46 -
relied on.
CRIMINAL APPEAL N0.394 OF 2011:
B
c
16. The confession of the respondent (A-80) and
other co-accused i.e. A-20 and A-21 was discarded by the
Designated Court for the reason that it had not been
D
recorded strictly in accordance with the provisions of
Section 15 TADA and Rule 15 of TADA Rules, 1987. This
Court concurs with the finding of the Designated Court
in view of the law that the compliance of Section 15 and
Rule 15 of TADA, 1987 is mandatory. As there is no
E
·admissible evidence on record connecting the
respondent (A-80) to :the crime, he has rightly been
acquitted by the court below. Thus, no interference is
required and the appeal is dismissed. [Paras 70, 74 and
75] [281-D-E, 282-D, E]
S.N. Dube vs. N.B. Bhoir and Ors. (2000) 2 SCC 254:
2000 (1) SCR 200; Lal Singh vs. State of Gujarat and Anr.
(2001) 3 SCC 221: 2001 (1) SCR 111; Bharatbhai vs. State
of Gujarat (2002) 8 SCC 447: 2002 (3) Suppl. SCR 46 -
F
relied on.
G
CRIMINAL APPEAL NO. 391 OF 2011:
17. The Special Judge recorded the finding that the
respondent (A-17) did not do anything to further the
object of conspiracy. However, landing was not of silver
H
254
SUPREME COURT REPORTS
[2013] 16 S.C.R.
A and gold, but of arms, ammunition and explosives. The
respondent was fully aware of the nature of the smuggled
articles and also the purpose for which the contraband
goods had been smuggled into India. Even after having
such a knowledge, his close association with 'TM' (AA)
s was confirmed and he participated and facilitated the
transportation of the said articles. The findings by
Designated Court are mutually inconsistent and are not
in consonance with each other. In such a fact-situation.,
the Special Judge was not justified in acquitting the
c respondent (A-17) of the charge of conspiracy. Therefore,
the respondent is convicted for the charge firstly, and
awarded the life imprisonment. [Paras 168 and 171] [316B-E-G]
D
CRIMINAL APPEAL NO. 1027 OF 2012:
18. From the confessional statement made by the
respondent (A-24), it can be ascertained that he was
aware of the arms and ammunition being landed. He
stated that he was given arms and further, was told to s.it
E on alert. He also stated that 'TM' (AA) even taught him
how to use handgrenades and also paid him for his
services. He was also later contacted by co-accused for
the disposal of 59 packets stored in a godown and was
paid Rs. 5 lakhs for the same. He further revealed that the
F contraband used in the Bombay Blast was the same as
had been landed by him and other co-accused at
Shrivardhan. The co-accused A-15, A-50, A-64, A-62, A-91,
A-29 and A-58 have corroborated the knowledge of the
respondent and the fact that he was present when the
G landing was taking place. Thus, the involvement and
participation of A-24 was throughout in the main
conspiracy. The order of the Designated Court acquitting
him on the charge of larger conspiracy is perverse, in
view of the evidence on record. Therefore, conspiracy
H stands proved. Judgment to that extent is set aside and
STATE OF MAHARASHTRA v. ·FAZAL REHMAN
255
ABDUL
the appeal is allowed, and the sentence is enhanced to
A
life imprisonment. [Paras 189 and 190) [325-G-H; 326-AB, C•D]
· CRIMINAL APPEAL NO. 395 of 2011:
19. The Evidence against the rnspondent (A-75) are· 8
his own confessional statement, and confessional
· statement of. co-accuse.d (A-134). The case of the
pmsecution was further corroborated by the Investigating
Officer as well as by the panch witnesses, particuial'ly,
PW-340 and PW-585 and the documents (i.e his fictitious
C
passport, embarkation and disembarkation cards) which
facilitated the journey of the respondent (A-75) from
Bombay to Dubai and Dubai to Bombay~ The Special
Judge recorded the finding that the respondent (A-75) did
not do anything to further the object of conspiracy.
D
However, he was involved in sending PW-1 to Dubai and
further to Pakistan for getting initiated in the training of
weapons. The respondent received the co-accused at the
airport and attended 7 conspiratorial meetings held in
Dubai. Admittedly, the respondent who travelled to Dubai
E
had a fictitious passport for a particular purpose. He
further went to Pakistan and undertook the training in
handling the arms, ammunition and explosives. He met
'TM' (AA) in Dubai, who told him that they would teach a
lesson to the Indian Government by exploding bombs etc.
F
However, the Designated Court did not convict him on
the charge of conspiracy. Such a conclusion is not worth
acceptance and the said finding being perverse, is liable
to be set aside. The respondent is liable to be convicted
for the charge first and awarded the life imprisonment.
G
Hence the appeal is allowed. [Paras 240, 244 and 248)
[346-B-C; 348-D; 351-E-H; 352-A-B]
CRIMINAL APPEAL NO. 397 of 2011:
20. In view of the fact that the respondent (A-94) had
H
I
'
l
I
I
•
I
I '
I ,
I.
I
I
1
I
L
256
SUPREME COURT REPORTS
[2013] 16 S.C.R.
A gone to Pakistan and took training in handling the arms,
ammunition and explosives -and also attended the
conspiratorial meeting· at Dubai and took oath In the ..
name of Quran not to divulge any information regarding
the conspiracy, it is abundantly clear that the respondent '
B was aware of the purpose of training. in Pakistan and he
undertook the. training there without any protest ..
Evidence against him were his. own confessional
statements and confessional statements of the coaccused A-13, A-49, A-100, A-29, A-32, A-36, A-39 and A·
c 98. · PW.237 and PW.231 have also proved the departure
of respondent (A-94) from Bombay to Dubai on 17.2.1993 .
and his arrival in Bombay on 3.3.1993 respectively. The
Special' Judge committed an error in not convicting the.·
respondent for the larger conspiracy .. Therefore, the
0 : appeal· is allowed. and he is awarded life imprisonment.
[Paras 266, 254, 263 and 267] [361-D, E; 354-D-H; 355-A;
E
357 -B, C; 361 ·F] . •
.
. ,
Case Law Reference
2000.(1) 'SCR 200
,2001 (1) SCR 111
· relied on
Paras 48
· relied on .
Paras· 49
2002 (3) · Suppl. SCR 46 relied on
Paras 50
. · CRiMINALAPPELLATE JURISDICTION : Criminal Appeal
F No. (s). 418 of 2011 etc. ·
, .
G
From the Judgment and Order dated 02.08.2007 of the
Designated Court for Bombay Bomb· Blast Case, Mumbai in
BBC No. 1 of 1993
.
· ·
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" .
WITH
.
Crl.A. Nos. 409, 601, 404. 405, 394 of 2011, 1033 of 2012,
594, 402 of 2011, 1022 of 2012, 393, 391 of 2011, 1027 of
2012: 597, 407 of 2011, 1025 of 2012, 599, 395 & 397 of
H 2011.
'
.
.
.
STATE OF MAHARASHTRA v. FAZAL REHMAN
257
ABDUL
Mukul Gupta, Satyakam, Anubhav Kumar, Anando
A
Mukherjee, Harsh N. Parekh, Arvind Kumar Sharma for the
Appellant.
Shekhar Kumar, Anjali Jha, Mushtaq Ahmad, K.N. Rai,
Vishwa Pal Singh for the Respondent.
B
The Judgment of the Court was deliverd by
DR. B.S. CHAUHAN, J. Criminal Appeal No. 418 of 2011.
1. This criminal appeal has been preferred against the
impugned judgment and order dated 2.8.2007, passed by a c
Special Judge of the Designated Court under the Terrorist and
Disruptive Activities (Prevention) Act, 1987 (hereinafter referred
to as the 'TADA') in the Bombay Blast Case No. 1/93,
acquitting the respondent of all the charges.
•
D
2. Facts and circumstances giving rise to this appeal are
that:
A. As the facts of this case and all legal issues involved
herein have been elaborately dealt with in the connected appeal
i.e. Criminal Appeal No. 1728 of 2007 [Yakub Abdul Razak
E
Memon v. State of Maharashtra thr. CBI], it may be pertinent
to mention only the relevant facts and charges against the
respondent.
B. Bombay Blast took place on 12.3.1993 in which 257
F
persons lost their lives and 713were injured. In addition thereto,
there had been loss of property worth several crores. The
Bombay police investigated the matter at initial stage .but
subsequently it was entrusted to the Central Bureau of
Investigation (hereinafter referred to as 'CBI') and on conclusion
G
of the investigation, a chargesheet was filed against a large
number of accused persons. Out of the accused persons
against whom chargesheet was filed, 40 accused could not be
put to trial as they have been absconding. Thus, the Designated
Court under TADA framed charges against 138 accused
H
258
SUPREME COURT REPORTS
[2013] 16 S.C.R.
A persons. During the trial, 11 accused died and 2 accused
turned hostile. Further the Designated Court discharged 2
accused during trial and the remaining persons including
respondent (A-76) stood charged.
8
C. The respondent had been charged for general
conspiracy which is framed against all the accused persons for
the offences punist\able under Section 3(3) TADA and Section
120-B of Indian Penal Code, 1860 (hereinafter referred to as
the 'IPC') read with Sections 3(2)(i)(ii), 3(3), (4), 5 and 6 TADA
C and read with Sections 302, 307,326,324,427,435,436, 201
and 212 IPC and offences under Sections 3 and 7 read with
Sections 25 (I-A), (1-B)(a) of the Arms Act, 1959, Sections 9-B
(1 )(a)(b)(c) of the Explosives Act, 1884, Sections 3, 4(a)(b), 5
and 6 of the Explosive Substances Act, 1908 and Section 4 of
the Prevention of Damage to Public Property Act, 1984.
D
D. In addition, the respondent had been charged for
persuading his brother-in-law Firoz Amani Malik (A-39) to
undergo weapons' training in Pakistan and keeping 111 his
possession 4 handgrenades brought to him by Firoz Amani
E Malik (A-39) and for handing over the same to Mohd. Jabir (A93-dead), showing that the same had been smuggled into India
for committing terrorist activities.
E. The Designated Court after conclusion of the trial
F acquitted the respondent of all the charges.
Hence, this appeal.
3. Shri Mukul Gupta, learned senior counsel appearing for
the appellant has submitted that the respondent had been
G responsible to send the co-accused to Dubai, and further to
Pakistan to have training for handling the arms, ammunition and
explosives, and therefore, his acquittal for all the charges is
liable to be reversed.
H
4. On the contrary, learned counsel appearing for the
STATE OF MAHARASHTRAiv: FAZAL REHMAN
· 259
ABDUL [DR. B.S. CHAUHAN, J.]
.. respondent tias submitted that the co-accuseci' (A-39), who was· A
brother-in-law of respondent himself, had ncit been aware of the .
purpose for which he had been taken to Dubai. The respondent .
. · cannot be held responsible for sending• Firoz(A-39) for. any,
cnminal activity. Thus, the' well-reasoned judgment ofthe Special ·
Judge does not require.interference.<; .
.
.,.,
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1.-,
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5: We have· considered the. rival submissions made by
learned co4nset for the parties and perused the' recori:t
. The.re is no confession by the res~~~de'ni ~66~se~(A-76) .
••
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•
<
•
•
"'
, •••
,
• '/ '
• •
; --
..
•
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•
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-..
--·
: '6.Confessi~l1at statement of Firoz'@Akram'Amani Malik .
. (A-3°9)revealed that the said respondent was the brother-in:law:
of Firoz@ Akram Amani Malik.(Ac39). The said accused Firoz
c
@ Akram 'Amani Malik (A:39) had been awarded the death
sentence in this ver)i:case and: ti is appeal· is being heard
D
atong""'.ilh this case.
' ; ' " .,
' .· ., .·. ' .·· ,..
! .· .
. Respondent (A-7S) used tci advise ihe\iaid accused (A-·
· 39) to go to Dubai and the 'said accused a!so expressed his . ·
willingness and desire to gci to. Dubai in the month of January, •
1993; He (A~39) got a passport and went to Dubai with Miyaz.
E
·.•. After getting ·a visa they left the airport. One person named Ayub
Bhai took them to a building riear Kadar Hotel. There they found
· another perso'n Nasim who took the·m to a flat on the 2nd floor ..
Nasim told him there that he wo'uld be going to Pakistan and .
his purpose forthis visit would be explained tater.
... . ·
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F .
. ·'·~. .
·:
~.:'
> ~·· -;
__ ;
. :, . .,-._· ... , . ': ·I.}·,·.·--
;'. · : , .• 7. PrakashKhanvilkar.(PW-513), deposed about the.·
.··• ·:recovery of handgrenades. from Mohme'd Jabir Abdul Latif
·~
· Mansoor (A-93). However, he does not make any reference so
· · ·'tar as the respondent Fazal Rehman Abdul Khan (A-76) is
G
·concerned.
. , ! .
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f
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8. The Designated.Court after appreciating the entire
evidence came to the ccinclusiori thatthere was nothing on
record to show that the respondent though facilitated 'sending ·
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260
SUPREME COURT REPORTS
(2013] 16 S.C.R.
A Firoz @ Akram Amani Malik (A-39) to Dubai, had any
knowledge of the purpose of going to Dubai or Pakistan for the
simple reason that Firoz @ Akram Amani Malik (A-39) himself
disclosed that he was told in Dubai that he would go to Pakistan
and the purpose for going there would be explained to him later
B on. The confessional statement of A-39 did not reveal the
involvement of the respondent in persuading A-39 to undergo
weapons' training in Pakistan.
9. This Court has laid down parameters for interference
against the order of acquittal time and again. The appellate
C court should not ordinarily set aside a judgment of acquittal in
a case where two views are possible, though the view of the
appellate court may be the more probable one. While dealing
with a judgment of acquittal, the appellate court has to consider
the entire evidence on record, so as to arrive at a finding as to
D whether the views of the trial court were perverse or otherwise
unsustainable. The appellate court is entitled to consider
whether in arriving at a finding of fact, the trial court had failed
to take into consideration admissible evidence and/or had
taken into consideration the evidence brought on record
E contrary to law. Similarly, wrong placing of burden of proof may
also be a subject-matter of scrutiny by the appellate court. In
exceptional cases where there are compelling circumstances,
and the judgment under appeal is found to be perverse, the
appellate court can interfere with the order of acquittal. The
F appellate court should bear in mind the presumption of
innocence of the accused and further that the trial court's
acquittal bolsters the presumption of his innocence. Interference
in a routine manner where the other view is possible should be
avoided, unless there are good reasons for interference. The
G findings of fact recorded by a court can be held to be perverse
if the findings have been arrived at by ignoring or excluding
relevant material or by taking into consideration irrelevanU
inadmissible material. The finding may also be said to be
perverse if it is "against the weight of evidence", or if the finding
H
STATE OF MAHARASHTRA v. FAZAI,. REHMAN
261
ABDUL [DR. B.S. CHAUHAN, J.]
so outrageously defies logic as to suffer from the vice of
A
irrationality.
10. We had been taken through the evidence.by Shri Mukul
· Gupta, learned senior counsel for the appellant, but we do not
find any reason to interfere with the cogent reasons given by
the Special Judge. The appeal lacks merit and is accordingly
dismissed.
CRIMINAL APPEAL NO. 409 OF 201.1
State of Maharashtra
... Appellant
Versus
Manjoor Qureshi & Ors. . .. Respondents
11. This criminal appeal has been preferred against the
impugned judgment and order dated 2.8.2007 passed by a
Special Judge of the Designated Court under the TADA in
Bombay Blast Case No. 1/93, acquitting the .respondents of all
the charges. The respondents had been charged in addition
to the common charge of conspiracy under Section 3(3) TADA
and Section 1208 IPC, read with the other provisions. They
were charged with knowingly abetting and facilitating the
commission of terrorist acts and acts preparatory to terrorist
acts as they had agreed to undergo weapons' training in
Pakistan in handling of arms and ammunition and explosives
for committing terrorist acts and for that purpose visited Oubai
but could not go to Pakistan as arrangement for training there
could not be made. They attended the conspiratorial meeting
at Dubai alongwith conspirators to plan the commission of
terrorist acts.
12. Mohmed Iqbal Ibrahim S/o Shaikh Ibrahim (A-127) has
died. Thus, this appeal stood abated qua him.
13. After conclusion of the trial, the Designated Court
B
c
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E
F
G
acquitted the respondents of all the charges.
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262
SUPREME COURT REPORTS
[2013] 16 S.C.R.
A
Hence, this appeal.
14. Shri Mukul Gupta, learned senior counsel for the
appellant-State has submitted that the Designated Court has
erred in acquitting the respondents of the charge of conspiracy.
The respondents had gone to Dubai to go to Pakistan for
B having training to handle the arms and ammunition and
explosives and this is a matter of chance that they came back
as the training could not be arranged but the evidence on
record clearly established that they intended to have the training
and subsequently to participate in the terrorist activities.
C Therefore, the appeal deserves to be allowed.
15. Ms. Farhana Shah, learned counsel for the
respondents has submitted that there is nothing on record to
establish that either of the respondents had any idea or
D knowledge or they had been informed by any other co-accused
that they would be sent for training to Pakistan to handle the
arms etc. and rather they had an impression that they would
be taught handling the arms to be used for self-defence. Thus,
no imputation of conspiracy can be established. The appeal
E lacks merit and is liable to be dismissed.
16. We have considered the rival .submissions made by
learned counsel for the parties and perused the record.
17. Confession of Shaikh Kasam @ Babulal Ismail
F Shaikh (A-109):
His confession revealed that he was working as an Office
Boy in the construction company of ljaz Khan in 1992. The said
office was closed after riots in Bombay in December 1992.
G Some persons namely Munna, Karimullah, Shehjada used to
come to the said construction company of ljaz and thus the
accused developed acquaintance with them. ljaz used to travel
between Bombay and Dubai. On 12.1.1993, Mr. Ethesham (A58) informed him that ljaz had come from Dubai and wanted
H to meet the respondent (A-109). The accused met ljaz Khan at
·.STATE OF MAHARASHTRA v. FAZAL REHMAN
263
ABDUL [DR. B.S. CHAUHAN, J.]
'···
the house of Haji Yakub in presence of Anwar. ljaz told them
A
that in case something wrong happens to them they can talk
to him over. the telephone. Subsequently, they left leaving
Munna and Anwar there. Yakub (AA) later told him that riots
were increasing arid he would take them out of India for training
arid using revolvers for saving themselves from the riots.
8
The respondent (A-109) brought his passport from his house
and delivered the same to Haji Yakub. Subsequently, the
respondent (A-109) went to Dubai alongwith Murad, Ethesham,
Shakil, Shahnawaz on 14,2.1993.
Yakub Haji came to meet them and said that training could c
not be given this time, and it would be done next time. They
remained for 15 days in Dubai and their visa expired. They then
came back to Bombay .. Before going to Dubai, Yakub asked
them to take an oath by placing their hands on the Quran that
whatever they are doing, it was for the sake of Islam and they
D
would not fight with each other and would not divulge their talks
to others.
18. Confession of Sultan·E-Rome Sardar Ali Gui CA114):
He was working as a driver with a Marwari at Walkeshwar.
After the demolition of Babri Masjid he lost his job because his
employer was afraid of him as he was a Muslim. The accused
(A-114) wanted to go to Saudi Arabia for search of work.
Therefore, he got his passport ready. In the month of January,
1993, he met Qamar Khan. ljaz Khan and Ethesham (A~58)
talked with them for 5-10 minutes. Then ljaz told liim that he had
to go to Ethesham as and when he was called and he would
be paid Rs.1,000/-, a pair of clothes and shoes. Ethesham
would train him in working a revolver.
On 14.2.1993, he wentto Dubaialongvvith the others and
stayed there. for 14 days without any work/training and came
back to India. H~ further disclosed,that they were not given any
. . . training or any lectures (Taqreer) in Dubai.
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SUPREME COURT REPORTS
[~013) 16 S.C.R.
A
19. Confession of Abdul Aziz Abdul Kader (A-126):
He also accompanied the other co-accused to Dubai. He
corroborated the version of other co-accused for going to Dubai
and coming back to Bombay. Yeda Yakub advised him that he
should learn to handle the arms as there was tension prevailing
B all round and the Muslims were being suppressed and beaten
everywhere and therefore such training was necessary for their
self defence, especially to face the Hindus. Muslims have
suffered heavy losses. In case riots occurred in future then by
learning the handling of weapons Muslims can effectively
C deal with Hindus. When he (A-126) was in Dubai he went to
see a person who knew to his brother and during the
conversation he enquired from the respondent (A-126) the
purpose for which he had gone to Dubai. The respondent (A126) told him that he had come for taking training of handling
D of arms and on their return journey they would take some
goods along with them to earn some money in India. He
cautioned the respondent (A-126) that the work was not good
and advised him to go back.
E
20. Confession of Mohd. Igbal Ibrahim (A-127):
He corroborated the version of other co-accused and had
admitted going to Dubai but he was not aware of the purpose
for what he had been taken to Dubai. During their stay in Dubai,
people used to talk occasionally about weapons. After 10-14
F days of reaching Dubai, they came back to Bombay. He. had
been to Dubai three times earlier. After coming back to ·India
he came to know that he was taken to Dubai for training
in handling of arms.
G
21. Confession of Murad Ibrahim Khan (A-130):
H
He corroborated the version given by other co-accused in
the confessional statement that he had gone to Dubai. He further
revealed that one day when they were in Dubai, Shakil told him
that he would go to Pakistan for weapon training but the
STATE OF MAHARASHTRA v. FAZAL REHMAN
265
ABDUL [DR. B.S. CHAUHAN, J.]
arrangement had not yet been finalized. After a few days they
A
came to know that they had been taken for weapon training but
arrangements could not be made anrl they had to return to
Bombay and on expiry of their visa they came back.
22. Confessional statement of Shaikh Mohmed
Ethesham (A-58):
B
He disclosed that he was a close associate of Yeda Yakub
and was involved in all kinds of smuggling activities. He
revealed about the smuggling of arms and said that on 7.2.1993
when he was at the place of Hazi Yakub @ Yeda Yakub, and
C
the latter informed him, Akbar, Babula! and Shahnawaz that
Muslims had suffered a considerable loss in the riots and that
they had to go to Dubai for training of arms and ammunition to
protect themselves. He, Shahnawaz, and Babulal were ready
to go to Dubai. Thus, they had gone to Dubai but came back
D
without having any training.
23. Confession of Shahnawaz Khan (A-128):
His confessional statement revealed that he had gone to
Dubai alongwith other co-accused. He came to know after
E
going to Dubai that they were going for arms' training to be held
in Pakistan. However, due to some reason arrangements could
not be made for training.