# YAKUB ABDUL RAZAK MEMON v. THE STATE OF MAHARASHTRA, THROUGH CBI, BOMBAY PART-I

- **Citation:** [2013] 15 S.C.R. 1
- **Court:** Supreme Court of India
- **Decided:** 2013-03-21
- **Case number:** Criminal Appeal No. 1728 of 2007
- **Bench:** P. Sathasivam, Dr. 8.S. Chauhan
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/yakub-abdul-razak-memon-v-the-state-of-maharashtra-through-cbi-bombay-part-i-29208
- **Pages:** 622

## Headnote

c
TERRORIST
AND
DISRUPTIVE
ACTIVITIES
(PREVENTION) ACT, 1987:
SS. 3(3) of TADA and S. 120-B /PC rlw SS. 3(2)(i), 3(3),3(4),
5 and 6 of TADA - Serial bomb blasts in Bombay in March,
0
1993 -
Conviction and death sentence to 11 accusedappellants by Designated Court - Held: The confessional
statements of accused and co-accused as a/so the evidence
of approver and other prosecution witnesses, the recoveries
made and other evidences, establish the guilt of all accusedappellants - Their conviction affirmed - The sentence of dea.th
E
to first accused-appellant affirmed - Sentence of remaining
ten, accused-appellants commuted to rigorous imprisonment
for life - Life imprisonment means the whole natural life -
Therefore, subject to ss. 432 and 433 of the Code and
clemency powers of President and Governor under Arts. 72
F
and 161 of the Constitution, the ten accused-appellants shall
be imprisoned for life until their death -
The executive should
take due consideration of judicial reasoning before exercising
the remission power - Penal Code, 1860 - ss. 120-B, 302,
307, 324, 427, 435, 436, 201 and 212 - Arms Act, 1959 - ss.
G
3, 7, 25 (1-A), (1-BO - Explosives Act, 1884 - ss. 9-B (1 )(a)
(b), and (c)-Explosive Substances Act, 1908 - ss. 3, 4(a), 5
and 6 - Prevention of Damage to Public Property, Act, 1984
- s. 4 - Code of Criminal Procedure, 1973 - ss. 432 and 433
1
H
2
SUPREME COURT REPORTS
[2013] 15 S.C.R.
A - Constitution of India, 1950 - Arts. 72 and 161.
PENAL CODE, 1860.
s. 120-8 -
Criminal conspiracy - Explained - Held. To
bring home the charge of conspiracy within the ambit of s.
B
120-8, it is necessary to establish that there was an
agreement between the parties for doing an unlawful act -
Conspiracy, apart from being a substantive offence and
distinct. from the offence to be committed for which the
conspiracy was entered into, all conspirators are liable for the
C acts of crime of each other which have been committed as a
result of the conspiracy - Conspiracy is a continuing offence
and if any acts or omissions which constitute an offence are
done in India or outside its territory, the conspirators continue
to be the parties to the conspiracy and since part of the acts,
D in the instant case, were done in India, they would obviate the
need to obtain the sanction of the Central Government -
All
of them need not be present in India - Conspiracy may be a
general one and a smaller one which may develop in
successive stages -Since conspiracy is hatched in secrecy,
E to bring home the charge of conspiracy, it is relevant to
decide from the facts of the case, conclusively the object
behind it which is the ultimate aim of the conspiracy - Further,
many means might have been adopted to achieve this
ultimate object - The means may even constitute different
F
offences by themselves, but as long as they are adopted to
achieve the ultimate object of the conspiracy, they are also
acts of conspiracy - In order to determine whether conspiracy
was hatched, the court is required to view the entire agreement
and to find out as to what, in fact, the conspirators intended
G
to do - In the instant case, a common charge of conspiracy
was framed against all the co-conspirators -
Court is satisfied
that prosecution has placed sufficient acceptable materials to
prove the charge of conspiracy beyond reasonable doubt -
Evidence Act, 1872 - s. 10.
H
YAKUBABDUL RAZAK MEMON v. STATE OF
3
MAHARASHTRA, THR. CBI , BOMBAY
CONFESSION:
A
Evidentiary value of confession - Held: s. 164 of the
Code speaks about recording confessions and statements,
and s. 15 of TADA is a similar provision - If the confessional
statement is properly recorded satisfying the mandatory 8
provision of s. 15 of TADA and the Rules made thereunder,
and if the same is found by court as having been made
voluntarily and truthfully, then the said confession is sufficient
to convict the maker thereof -
Whether such confession
requires corroboration or not is a matter for the court to
consider on

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1
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[2013] 15 S.C.R. 1
YAKUB ABDUL RAZAK MEMON
A
v.
THE STATE OF MAHARASHTRA, THROUGH CBI,
BOMBAY
PART-I
(Appeals relating to death sentence)
B
(Criminal Appeal No. 1728 of 2007 ETC.)
MARCH 21, 2013.
[P. SATHASIVAM AND DR. 8.S. CHAUHAN, JJ.]
c
TERRORIST
AND
DISRUPTIVE
ACTIVITIES
(PREVENTION) ACT, 1987:
SS. 3(3) of TADA and S. 120-B /PC rlw SS. 3(2)(i), 3(3),3(4),
5 and 6 of TADA - Serial bomb blasts in Bombay in March,
0
1993 -
Conviction and death sentence to 11 accusedappellants by Designated Court - Held: The confessional
statements of accused and co-accused as a/so the evidence
of approver and other prosecution witnesses, the recoveries
made and other evidences, establish the guilt of all accusedappellants - Their conviction affirmed - The sentence of dea.th
E
to first accused-appellant affirmed - Sentence of remaining
ten, accused-appellants commuted to rigorous imprisonment
for life - Life imprisonment means the whole natural life -
Therefore, subject to ss. 432 and 433 of the Code and
clemency powers of President and Governor under Arts. 72
F
and 161 of the Constitution, the ten accused-appellants shall
be imprisoned for life until their death -
The executive should
take due consideration of judicial reasoning before exercising
the remission power - Penal Code, 1860 - ss. 120-B, 302,
307, 324, 427, 435, 436, 201 and 212 - Arms Act, 1959 - ss.
G
3, 7, 25 (1-A), (1-BO - Explosives Act, 1884 - ss. 9-B (1 )(a)
(b), and (c)-Explosive Substances Act, 1908 - ss. 3, 4(a), 5
and 6 - Prevention of Damage to Public Property, Act, 1984
- s. 4 - Code of Criminal Procedure, 1973 - ss. 432 and 433
1
H
2
SUPREME COURT REPORTS
[2013] 15 S.C.R.
A - Constitution of India, 1950 - Arts. 72 and 161.
PENAL CODE, 1860.
s. 120-8 -
Criminal conspiracy - Explained - Held. To
bring home the charge of conspiracy within the ambit of s.
B
120-8, it is necessary to establish that there was an
agreement between the parties for doing an unlawful act -
Conspiracy, apart from being a substantive offence and
distinct. from the offence to be committed for which the
conspiracy was entered into, all conspirators are liable for the
C acts of crime of each other which have been committed as a
result of the conspiracy - Conspiracy is a continuing offence
and if any acts or omissions which constitute an offence are
done in India or outside its territory, the conspirators continue
to be the parties to the conspiracy and since part of the acts,
D in the instant case, were done in India, they would obviate the
need to obtain the sanction of the Central Government -
All
of them need not be present in India - Conspiracy may be a
general one and a smaller one which may develop in
successive stages -Since conspiracy is hatched in secrecy,
E to bring home the charge of conspiracy, it is relevant to
decide from the facts of the case, conclusively the object
behind it which is the ultimate aim of the conspiracy - Further,
many means might have been adopted to achieve this
ultimate object - The means may even constitute different
F
offences by themselves, but as long as they are adopted to
achieve the ultimate object of the conspiracy, they are also
acts of conspiracy - In order to determine whether conspiracy
was hatched, the court is required to view the entire agreement
and to find out as to what, in fact, the conspirators intended
G
to do - In the instant case, a common charge of conspiracy
was framed against all the co-conspirators -
Court is satisfied
that prosecution has placed sufficient acceptable materials to
prove the charge of conspiracy beyond reasonable doubt -
Evidence Act, 1872 - s. 10.
H
YAKUBABDUL RAZAK MEMON v. STATE OF
3
MAHARASHTRA, THR. CBI , BOMBAY
CONFESSION:
A
Evidentiary value of confession - Held: s. 164 of the
Code speaks about recording confessions and statements,
and s. 15 of TADA is a similar provision - If the confessional
statement is properly recorded satisfying the mandatory 8
provision of s. 15 of TADA and the Rules made thereunder,
and if the same is found by court as having been made
voluntarily and truthfully, then the said confession is sufficient
to convict the maker thereof -
Whether such confession
requires corroboration or not is a matter for the court to
consider on the basis of facts of each case -
Terrorist and C
Disruptive Activities (Prevention) Act, 1987 - s. 15 -
Code
of Criminal Procedure, 1973 - s. 164.
Confession as against a co-accused - Held: As a matter
of caution, a general corroboration should be sought for -
D
But in cases where the court is satisfied that the probative
value of confession is such that it does not require
corroboration then it may record conviction on the basis of
such confession of co-accused without corroboration - In the
instant case, confessional statements of co-accused persons
E
are admissible as primary and substantive evidence against
appellants notwithstanding the amendment by Act 43of1993.
TERRORIST
AND
DISRUPT/VE
ACTIVITIES·
(PREVENTION) ACT, 1987:
F
s. 15 (as amended by Amendment Act 43of1993) rlw s.
21 -
The words "or co-accused, abettor, or conspirator" and
the proviso to s. 15(1) were added by way of an amendment
on 22.5.1993 - In the event of un-amended TADA as it stood
prior to 22. 5. 1993 were to apply, there would be a presumption
G
of guilt against appellants pursuant to un-amended s. 21,
since confession of other co-accused would implicate them
for the offence of conspiracy - However, the amendment of
1993 did not bring about any change as to the admissibility
and applicability of confession of co-accused -
Code of H ·
4
SUPREME COURT REPORTS
[2013] 15 S.C.R.
A
Criminal Procedure, 1973 - s. 164.
B
Recording of confession by Police Officer - Held: No
illegality persists in recording a confession u/s 15 of TADA
by an officer supervising the investigation.
Transmitting of confessional statement - Held: The
requirement of sub-r. (5) o r. 15 of TADA Rules, which
contemplates a confessional statement being sent to Chief
Metropolitan Magistrate or Chief Judicial Magistrate, who, in
turn, will haye to send the same to the Designated Court, is
C not mandatory and is only directory- Terrorist and Disruptive
Activities (Prevention) Rules, 1987- r. 15(5).
Retractions - Held: Where original confession was truthful
and voluntary, court can rely upon such confession to convict
0
the accused in spite of a subsequent retraction and denial in
statement u/s 313 CrPC.
CODE OF CRIMINAL PROCEDURE, 1973:
s. 306 -
Grant of pardon and evidentiary value of
E statement of approver -
TADA does not preclude
applicability of s. 306 - Therefore, power to grant pardon u/s
306 also applies to cases tried under TADA and there was
no infirmity in the order granting pardon to approver in the
facts and circumstances of the case - Further, the provisions
F of sub-s. (4) of s. 306 have not been violated -
In the light of
provisions of s. 133 rlw s. 114 Illus. (b) of Evidence Act,
evidence of an approver needs to be corroborated in material
particulars - In the instant case, it has been so corroborated
by way of primary evidence by prosecution -
Terrorist and
G Disruptive Activities (Prevention) Act, 1987 -
ss. 7 and 21 -
Evidence Act, 1872 - s. 133 rlw s. 114 Illus. (b).
H
Chapter XXVll -
ss. 353, 354 362 and 363 - Judgment
- Held. Judgment in a criminal case indicates the termination
of the case by an order of conviction or acquittal of the
YAKUB ABDUL RAZAK MEMON v. STATE OF
5
MAHARASHTRA, THR. CBI , BOMBAY
accused and judgment is to be rendered in strict adherence
A
to the provisions of Chapter XXVI/ of the Code -
Every
judgment must contain: (1) the points for determination; (2)
the decision thereon; and (3) the reasons for such decision
-
A conviction order is not a 'judgment" as contemplated u/
s 353 and judgment is pronounced only after the award of B
sentence -
·in the case on hand, Designated Court has dealt
with the issue of pronouncing the judgment uls 353(1) (c) in
detail.
s. 235 rlw s. 354(3) -
Right of hearing to the accused
on the question of sentence -
There is bifurcation of trial as C
an accused has a right of pre-conviction hearing u/s 234 and
secondly right of pre-sentence hearing uls 235 of the Code
-The occasion to apply the provisions of s. 235(2) arises only
after the conviction is recorded -
The court, while on the
question of sentence, is in an altogether different domain
D
where facts and factors which operate are of an entirely
different order than those which come into play on the
question of conviction -
Where the court imposes death
sentence, both s. 235(2) and s. 354(3) assume signal
significance and they must be harmoniously and conjointly E
appreciated and
read
-
Fairness,
justice
and
reasonableness which constitute the essence of guarantee of
life and liberty epitomised in Art .. 21 of the Constitution also
pervades the sentencing policy in ss. 235(2) and 354(3) of the
Code -
These two provisions virtually assimilate the concept
F
of "procedure established by law" within the meaning of Art.
21 of the Constitution -In the instant case, requirements of
pronouncing a judgment uls 353(1)(c) of the Code have been
fully complied with -
There is no illegality or irregularity in
the process followed and specifically ulss 353, 354 and 235 G
keeping in mind the magnitude of the task before the
Designated Judge -
The pronouncement of judgment was
in compliance with the provisions of the Code and does not
violate any of its provisions -
Constitution of India, 1950 - ·
Art. 21.
H
6
SUPREME COURT REPORTS
[2013] 15 S.C.R.
A
SENTENCE!SENTENCNG:
Balancing of aggravating and mitigating circumstances
- Held: After the new CrPC of 1973, imprisonment for life
would be the rule and a sentence of death an exception -
Amended s. 354(3) of the Code mandates that in me case
8
of sentence of death, the judgment shall state the special
reasons for such sentence - The judiciary with the aid of s.
235(2) ascertained the 'special reasons' pertaining to
criminals as required bys. 354(3) to impose death penalty -
A careful evaluation of aggravating and mitigating
C circumstances pertaining to both criminal and crime is the
approach to ascertain the 'special reasons' for imposing the
extreme penalty on a person - Thus, two cardinal factors: (i)
the penalty imposed must be proportionate to the gravity of
the crime and (ii) the degree of responsibility of the offender
D must be taken into account in determining the sentence for
an individual accused in addition to aggravating and
mitigating circumstances - Code of Criminal Procedure, 1.973
- ss. 235(2) and 354(3)-Terrorist and Disruptive Activities
(Prevention) Act, 1987 - s. 3(2)(i) - Penal Code, 1860 - s.
E 302.
QUANTUM OF SENTENCE:
Complicity of first accused-appellant -
Sentence -
Held: First accused- was in a position of authority, particularly,
F
he had played a significant role in the context of the blasts,
which is important while determining the sentence - He was
one of the architects of the blasts, without whom the plan would
have never seen the daylight - Besides, he was a/so
entrusted with the task ofhandling the explosive bags and
G for their safe keeping - He was actively involved in hawala
transactions for purpose of facilitating the blasts - Without the
planning of conspirators of which first accused was a party,
the explosives and ammunition required for the execution
would not have entered into the country and as a
H consequence the execution itself would not have materialized
YAKUB ABDUL RAZAK MEMON v. STATE OF
7
MAHARASHTRA, THR. CBI , BOMBAY
- Therefore, it can be concluded that no offence might have
A
taken place at all but for the instigation by the absconding
accused and the first accused-appellant -Besides, the
dominant position of first accused is an aggravating factor by
itself as it gives the status of direct responsibility - Under the
established jurisprudence, two factors - (i) a commanding
B
position and (ii) a crime of 'utmost gravity' ordinarily merit the
extreme penalty even accounting for the guilty plea and
mitigating factors -
This is the 'special reason' which warrants
death penalty to first accused- appellant -
Therefore, having
taken into account and weighed the totality of culpability of first
C
accused-appellant and all the particular circumstances of the
case, the decision of Designated Court is concurred with and
the sentence of capital punishment to first accused-appellant
is confirmed.
Complicity of other ten co-accused-appellants -
D
Sentence -
Held: The role played by the other ten accusedappellants differentiates with that of the first accused-appellant
- First accused-appellant and other absconding accused were
the archers whereas the rest of the accused- appellants were
the arrows in their hands -
Though the incident of bomb
E
blasts is not a brainchild of these ten accused-appellants, yet
they turned the conspirators' orders into action by executing
the blasts and, as such, they are liable for the consequence
of their acts - It is actually the masterminds strategy which was
executed by these ten subservient minions, as but for the
F
masterminds, the blasts shoum have never seen the daylight
-
This may not help in complete exoneration of their liability
but the degree of punishment must necessarily reflect this
difference -Keeping in view the aggravating factors and
mitigating circumstances and to differentiate the degree of G
punishment to the fist accused-appellant and other ten
accused-appellants, the ends of justice would be served if the
death sentence of these ten appellants is commuted to
rigorous imprisonment for life -
However, the lesser sentence
imposed on these appellants cannot be a precedent in other
H
8
SUPREME COURT REPORTS
[2013) 15 S.C.R.
A
cases and every case must be decided according to its facts
and circumstances.
Life imprisonment as rigorous imprisonment - Held:
"Imprisonment for life" is to be treated as 'rigorous
8
imprisonment for life''.
Life imprisonment -
Duration of -
Held: Life
imprisonment always means the whole natural life -
There
is a misconception that a prisoner serving life sentence has
an indefeasible right to release on completion of either 14
C years or 20 years imprisonment - A convict undergoing life
imprisonment is expected to remain in custody till the end of
his life, subject to any remission granted by appropriate
Government u/s 432 of the Code, which in tum is subject to
the procedural checks mentioned in the said provision and
D to further substantive check in s. 433-A of the Code- Code
of Criminal Procedure, 1973 - ss. 432 and 433-A.
CODE OF CRIMINAL PROCEDURE, 1973:
ss. 432, 433 and 433-A - Power to remit/commute
E sentence -
Held: Exercise of power by appropriate
government under sub-s. (1) of s. 432 cannot be automatic
or claimed as a right as this is only an enabling provision and
subject to fulfilment of certain conditions mentioned in Jail
Manual or in statutory rules - Decision to grant remission has
F to be .well informed, reasonable and fair to all concerned -
Constitution of India, 1950 - Arts. 72 and 161.
/DENT/FICA TION:
Test identification parade - Held: s. 20 of TADA rlw s. 21
G of the Code permits Special Executive Magistrate to carry out
such functions as are required in a TADA case and in the
instant case, identification parades were conducted by Special
Executive Magistrates in compliance with provisions of ·
Criminal Manual -
Terrorist and Disruptive Activities
H (Prevention) Act, 1987 -
s.20 -
Criminal Manual -
YAKUB ABDUL RAZAK MEMON v. STATE OF
9
MAHARASHTRA, THR. CBI , BOMBAY
Government Circular, Home Department No. MIS 10541 A
84588 dated 22.4.1955 - Code of Criminal Procedure, 1973
- s. 21.
INVESTIFICATION.·
Recoveries -
Panchnama - Mandatory conditions for
B
a valid Panchnama, culled out -
Circumstances when
Panchnama is inadmissible - Explained -
Evidentiary value
of Panchnama -
Held: Panchnama can be used as
corroborative evidence when 'Pancha' gives evidence in court
u/s 157 of Evidence Act - It can also be used as evidence of C
recorded transaction so as to refresh the memory of witnesses
u/s 159 of Evidence Act - In the instant case, in view of the
fact that prosecution has led ample corroborative evidence,
Designated Court was fully justified in relying on the
recoveries while accepting the prosecution case - Evidence
D
Act, 1872 - ss. 157 and 159 - Code of Criminal Procedure,
1973 - ss. 100 and 174.
TERRORISM:
'Terrorism' -
Explained -
Held: In spite of several
international conventions and Multilateral Agreements and
domestic and international legislations to counter terrorism,
it is a major problem that is reoccurring over the globe in
many different forms - There is a dire need to best deal with
it and to make sure to take preventive actions -
The Court
is of the considered view that the procedure/rules s':'ggested
by it in the judgment must have to be adopted while dealing
with the menace.
E
F
Role of Pakistan. in blasts - Held: Pakistan has infringed
G
the recognized principles of international law which obligate
all states to prevent terrorist attacks emanating from their
territory and inflicting injuries to other states - In the instant
case, accused persons were facilitated by /SI operatives in
Pakistan for training without observing any immigration
H
10
SUPREME COURT REPORTS
[2013] 15 S.C.R.
A formalities, and accused received training even from /SI
officials themselves on some occasions -
The events unveil
the tolerance and encouragement shown by Pakistan towards
terrorism - International law.
8
Role of Police Officials - Held: The role of police officials
has become more vital owing to frequent terrorist attacks
occurring across the country -
If police had been able to
curtail the conveyance of contraband in the country at the
relevant time, the occurrence could have been avoided - In
C the instant case, some of the police personnel themselves
have taken active part in smuggling and transportation of
arms and explosives meant for the plan -
Police.
Role of Customs Officials - Held: Customs officials
primarily have a duty to prevent smuggling and ensure that
D everything that enters into or goes out of the country is
brought or sent is strictly in accordance with the provisions of
law-It is shattering to notice that several Customs Officials
played an active role as members of conspiracy and
implemented the plan - A rationally structured and effective
E customs department is needed in order to curtail illegal
imports which can have frightening ramifications upon the
nation's economy and citizens' security - Customs.
Need to improve vigilance in Indian Maritime Zone and
role of Coast Guards - Held: India being a· maritime nation,
F the role of Coast Guards is very vital for shielding the coast
from external attacks - Coast Guards being the strongest link
in the security chain, are bound to be vigilant at sea and
should be in full command of the coast - Only well strategized
coast guards and high morale customs officers can prevent
G any opportunity for terrorists to attack on 01,1r country via our
maritime boundary - Coast Guards.
On 12.03.1993, in a span of about two hours, a series
of 12 bomb explosions took place at twelve different
H locations in Bombay, as a result of which 257 persons
YAKUB ABDUL RAZAK MEMON v. STATE OF
MAHARASHTRA, THR CBI , BOMBAY
11
died and 713 persons were seriously injured, and
properties worth about Rs. _27 crores were destroyed.
The bombs planted at several other places were diffused.
The investigation revealed that accused 'DI' (AA-1 ), a
resident of Dubai, and accused 'TM' (AA-2) formulated a
conspiracy to commit terrorist acts in the city of Bombay.
The object of the crime was to incite communal violence
and to overawe and weaken the government, disturb
social harmony and to break up the social, political and
economic order of the country. In conspiratorial meetings
held in furtherance of the object of the crime,
arrangements were made for sending some of the
accused persons to Pakistan and train them in handling
arms and ammunition, and after such training to. bring
them back to India, for smuggling of firefifhs and
ammunition and explosives like ROX into lndi and their
D
landing and trans·portation. Several accuse
persons
were involved in preparing vehicle bombs by filling
explosives with time mechanisms in motor vehicles and
parking of the said vehicles at targeted places. Bombs
were planted and hand grenades lobbed at targeted
places. The arrested accused persons made confessions
and disclosure statements as a result of which a large
number of incriminating articles were recovered. One of
A
B
c
E
the main conspirators became approver and he was
examined as PW-2. A large number of accused were
involved in the conspiracy and execution thereof. Some
of them absconded (described as AAs). A total number
of 123 accused were prosecuted out of whom 100 were
convicted by the Designated Court. The instant appeals
were filed by the convicts, who were sentenced to death,
namely, A-1 (the brother of accused AA-2), A-32, A-36, A39, A-44, A-10, A-29, A-9, A-11, A-12, and A-16.
Accused A-1 (Appellant in Crl. A. No. 1728 of 2007)
was charged with offences punishable u/s 3(3) of
Terrorists and Disruptive Activities (Prevention) Act, 1987
F
, .
12
SUPREME COURT REPORTS
[2013] 15 S.C.R.
A (TADA) and s. 120-8 IPC read with s. 3(2)(i), (ii), 3(3), (4), 5
and 6 of TADA read with ss. 302, 307, 326, 324, 427, 435,
436, 201 and 212 IPC and ss. 3 and 7 read with ss. 25 (1A), (1-B)(a) of the Arms Act 1959. ss/ 98 (1) (a)(b)(c) of the
Explosives Act, 1884, ss. 3, 4(a) (b), 5 and 6 of Explosive
B Substances Act, 1908 and s. 4 of the Prevention of
Damage to Public Property />ct, 1984, for entering into
criminal conspiracy in India and outside India in Dubai
and Pakistan and/or being member of the said criminal
conspiracy whose object was to commit terrorist acts in
c India with the intent to overawe the government of India,
to strike terror in the people, and to adversely affect the
harmony amongst different sections of the people, by
using bombs, dynamites, hand grenades and other
explosive substances like ROX or inflammable
0 substances or fire arms like AK-56 rifles and other lethal
weapons in order to cause death of or injuries to persons
and to damage properties and in pursuance of the said
conspiracy committed the said overt acts (charge head
Firstly). This was the common charge framed against all
E the co-accused. Accused A-1 was also charged with
other offences alleging that he advocated, abetted,
advised, and facilitated the commission of terrorists acts
that resulted in serial bomb blasts in Bombay and its
suburbs on 12.3.1993; arranged finance and arranged air
tickets and made arrangements to enable the coF conspirators and accused to undergo weapons training
in Pakistan, purchasing of vehicles and to prepare them
for the purpose of bomb blasts at targeted places,
facilitated smuggling and landing of arms and
ammunitions by AA-2 and his associates for the said
G purpose; being in possession of arms and explosives
smuggled into the country for committing terrorist acts;
and made arrangements for absconding of AA-2 and his
associates and co-conspirators from India. A-1 was
convicted of the offences charged and was sentenced to
H death amongst other terms of imprisonment.
YAKUB ABDUL RAZAK MEMON v. STATE OF
13
MAHARASHTRA, THR. CBI , BOMBAY
Accused A-32, A-36 and A-39 (Appellants in Crl. A.
Nos. 609-610 of 2008), A-44 (appellant in Crl. A. Nos. 628629 of 2008), A-10 and A-29 (appellants in Crl. A. Nos. 637 -
638), -9 (Appellant in Crl. A. No. 365 of 2008), A-11
(appellant in Crl. A. Nos. 864-865 of 2008), A-12 (appellant
in Crl. A. No. 897 of 2008) and A-16 (appellant in Crl. A.
Nos. 941-942 of 2008), besides having been charged with
common charge of criminal conspiracy under the head
Firstly, were also charged with having committed further
overt acts of receiving training in handling of arms and
ammunitions and explosives in Pakistan, attending
conspiratorial meetings for committing terrorist acts,
participating in landing and transportation of arms,
ammunition and explosives like ROX, being in
possession of arms and ammunition and explosives
smuggled into India for committing terrorist acts;
participating in preparation of vehicle bombs and parking
them at targeted places, taking vans with explosive laden
suitcases to targeted places, planting the bombs at
targeted places, throwing hand grenades at targeted
places, and thereby causing death of several persons,
injuries to many others and damage to properties. These
appellants were also sentenced to death. They were
further sentenced to various terms of imprisonment.
It was contended for the appellant-A-1 that the
impugned judgment was not a 'judgment' in terms of ss.
353, 354, 362 and 363 of the Code of Criminal Procedure,
1973 (the Code), since the reasons for conviction and
sentence were not provided to him along with the order
A
B
c
D
E
F
of conviction and sentence dated 12.9.2006 and
27.7.2007 respectively, and only the 'operative portion'
was read out and after hearing the accused the
G
conviction and sentence was imposed, which was
impermissible. It was submitted that in the absence of the
whole judgment, the sentence imposed could not be
sustained; that there was no material to prove that there
was a conspiracy among the accused persons and the
H
14
SUPREME COURT REPORTS
[2013] 15 S.C.R.
A prosecution failed to prove that A-1 had any knowledge
of any such conspiracy and the bomb blasts on
12.3.1993; that since the prosecution case rested on the
confessional statements of the accused persons and
except A-97 all other had retracted their statements and,
B as such, the conviction and sentence could not be
sustained; that in the absence of any provision in TADA
for pardoning an accused and permitting him to be
approver, and PW-2 not being validly pardoned either
under TADA or the Code, conviction based on his sole
c testimony could not be sustained.
Disposing of the appeals, the Court,
HELD: 1.1. The word "judgment" has not been
defined in IPC, nor even in TADA. The TADA contains: (a)
judgment; and (b) orders. Section 2(9) of the Code of Civil
D Procedure, 1908 defines "judgment" and 0.20, r. 1 (1 )(2)
of the Code of Civil Procedure (Madras amendment)
refers "judgment when pronounced" and "judgment to
be signed". In the light of the definition clause, namely,
"judgment" though the same has not been explained in
E the CrPC, the procedure to be followed both in the civil
and criminal cases are all acceptable. [para 21 and 43)
[113-B-E; 126-E-F]
1.2. Judgment in a criminal case indicates the
termination of the case by an order of conviction or
F acquittal of the accused and judgment is to be rendered
in strict adherence to the provisions of Chapter XXVll of
the Code of Criminal Procedure, 1973. Sections 353, 354,
362 and 363 make it clear as to how the judgment is to
be in a criminal trial, language and contents and the
G procedure to be followed in furnishing copy of the
judgment immediately after pronouncement. [para 35 and
43) [123-E; 128-F]
Hori Ram Singh vs. Emperor AIR 1939 PC 43; and
Kuppuswami Rao vs. The King, AIR 1949 PC 1 - referred
H to.
YAKUB ABDUL RAZAK MEMON v. STATE OF
15
MAHARASHTRA, THR. CBI , BOMBAY
1.3. In view of the provisions of s.354 of the Code, it
A
is necessary that every judgment must contain: (1) the
points for determination; (2) the decision there~n; and (3)
the reasons for such decision. The reason for the
decision is an important ingredient of a judgment. The
purpose of recording reasons is to facilitate the superior
B
court to examine the correctness of the judgment of the
courts below. Compliance with the law in this regard
should not be merely formal but substantial and real, for
it is this part of the judgment alone which enables the
higher court to appreciate the correctness of the C
decision, the parties to feel that the court has fully and
impartially considered their respective cases and the
public to realise that a genuine and sincere attempt has
been made to mete out even-handed justice. Reasons
form the substratum of the decision and their factual
0
accuracy is a guarantee that the court has applied its
mind to the evidence in the case. In Bachan Singh and
Ba/want Singh this Court has held that the judgment shall
state reasons for the sentence awarded and in the case
of sentence of death, the special reasons for such
sentence. [para 31, 36-37] [122-B; 123-F-G; 124-A-E; 125C-E]
Bachan Singh vs. State of Punjab_, AIR 1980 SC 898;
Ba/want Singh vs. State of Punjab AIR 1,976 SC 230 - relied
on
E
F
1.4. It is clear that "judgment" is a formal intimation
of the decision and its contents formally declared in a
judicial way in open court. It is also clear that passing a
sentence without recording the judgment would amount
to illegality. Pronouncing the sentence before completing
G
the judgment, that is, before preparing the essential part,
makes the sentence illegal and vitiates the conviction.
[para 42] [128-D-E]
1.5. Right of hearing to the accused on the question
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16
SUPREME COURT REPORTS
[2013] 15 S.C.R.
A of sentence is provided u/s 235(2) of the Code. The
purpose of the provision is recognition of new trend in
penology and awarding of sentence taking into
consideration various factors such as the prior criminal
record of the offender, his age, employment, educational
B background, sociological backdrop, family background,
financial position, antecedents, social adjustment,
emotional and mental condition and the prospects of his
returning to normal path in conformity with law. It is in fact
humanist principle of individualising punishment to suit
C the person and his circumstances and, therefore, a
hearing is required before imposition of penalty. [para 27)
[117 -D, F-G]
Santa Singh vs. The State of Punjab 1977 (1) SCR 229
= (1976) 4 SCC 190; Ram Dea Chauhan @ Raj Nath
D Chauhan vs. State of Assam 2001 (3) SCR 669 =AIR 2001
SC 2231; Narpa/ Singh & Ors. vs. State of Haryna, 1977
(2) SCR 901 =AIR 1977 SC 1066; Oagdu & Ors. etc. vs.
State of Maharashtra, 1977 (3) SCR 636 =AIR 1977 SC
1579; Tarlok Singh vs. State of Punjab 1977 (3) SCR 711 =
E AIR 1977 SC 1747; and Kamalakar Nandram Bhavsar &
Ors. vs. State of Maharashtra, AIR 2004 SC 503; Motilal vs.
State of MP. (Now Chhatisgarh 2004 (1) SCR 854 = (2004)
2 sec 469 - referred to.
F
Akhtari Bi (Smt) vs. State of MP. 2G01 (2) SCR 626 =
AIR 2001 SC 1528 - relied on.
1.6. The legislative policy discernible from s. 235(2)
read with s. 354(3) is that in fixing the degree of
punishment or making the choice of sentence for various
G offences, including one u/s 302 of IPC, the court should
not confine its consideration "principally" or merely to the
circumstances connected with the particular crime, but
also give due consideration to the circumstances of the
criminal. It is for this reason that court while hearing a
H convict on sentence is required to give a party an
YAKUB ABDUL RAZAK MEMON v. STATE OF
17
MAHARASHTRA, THR. CBI , BOMBAY
opportunity of producing evidente or materials relating
A
to the various factors having some bearing on the
question of sentence. Therefore, there is bifurcation of trial
as an accused has a right of pre-conviction hearing u/s
234 and secondly right of pre-sentence hearing u/s 235 of
the Code. [para 31 and 37] [122-D-E; 124-G-H; 125-F-G]
B
Allauddin Mian & Ors. Sharif Mian & Anr. vs. State of
Bihar 1989 (2) SCR 498 = AIR 1989 SC 1456 - relied on.
1.7. In Muniappan, this Court has held that the
obligation to hear the accused on the question of C
sentence which is imposed by s.235(2) of the Code is not
discharged by putting a formal question to the accused
as to what he has to say on the question of sentence. The
Judge must make a genuine effort to elicit from the
accused all information which will eventually have a
D
bearing on the question of sentence. The occasion to
apply the provisions of s. 235(2) arises only after the
conviction is recorded. The court, while on the question
of sentence, is in an altogether different domain where
facts and factors which operate, are of an entirely
E
different order than those which come into play on the
question of conviction. Where the court imposes death
sentence, both s.235(2) and s. 354(3) assume signal
significance and they must be harmoniously and
conjointly appreciated and read. [para 39-40] [126-C-E, FF
G; 127-8]
Muniappan vs. State of T.N, 1981 (3) SCR 270 =AIR
1981 SC 1220; Rameshbhai Chandubhai Rathod vs. State
of Gujarat, (2009) 5 SCC 740; and Malkiat Singh & Ors. vs.
State of Punjab 1991 (2) SCR 256 = (1991) 4 SCC 341G
referred to.
1.8. Therefore, fairness, justice and reasonableness
which constitute the essence of guarantee of life and
liberty epitomised in Art. 21 of the Constitution also
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18
SUPREME COURT REPORTS
[2013] 15 S.C.R.
A pervades the sentencing policy in ss. 235(2) and 354(3)
of the Code. These two provisions virtually assimilate the
concept of "procedure established by law" within the
meaning of Art. 21 of the Constitution. Thus, a strict
compliance with those provisions in the way it was
El
interpreted in Bachan Singh having regard to the
development of constitutional law by this Court is a must
before imposing death sentence. [para 41] [128-B-C]
1.9. Section 353(1) of the Code makes it clear that it
c is incumbent on the part of the Presiding Officer to
deliver the whole of the judgment or by reading out the
operative part of the judgment and explaining the
substance of the judgment in a language which is
understood by the accused or his pleader. [para 43] [128D G-H]
1.10. In the instant case, on perusal of the conclusion
in the judgment of the Designated Court with regard to
A-1, it is very much clear that he was apprised regarding
the offences for which he was found to be guilty. While
E A-1 was awarded death sentence, it is clear from the
conclusion that he was apprised that the sentence of
death awarded to him is subject to the confirmation by
the Apex Court and he was also informed that for the said
purpose the Court would be making necessary reference
F to Apex Court within 30 days from the date of completion
of passing of final order. In the same order, the trial court
has also apprised A-1 that it will take some time to
complete the pronouncement of the final order of
conviction and sentence of remaining accused and
G completed the judgment by getting the same transcribed,
corrected and signed. The court also directed the
Sheristedar to handover the 'operative part' of the order
passed on both the days, i.e., 12.09.2006 and 27.07.2007.
[para 45] [132-G-H; 133-A-C]
H
YAKUB ABDUL RAZAK MEMON~v. STATE OF
19
MAHARASHTRA, THR. CBI , BOMBAY
1.11. It is clear that a conviction order is not a
A
"judgment" as contemplated u/s 353 and that a judgment
is pronounced only after the award of sentence. In the
case on hand, the Designated Judge pronounced the
operative part of the judgment on 27.7.2007 and explained
the substance of the judgment to the appellant in
B
compliance with the requirements of s. 353(1 )(c) of the
Code. A perusal of the final judgment of the Designated
Court shows that he has dealt with the issue of
pronouncing the judgment u/s 353(1) (c) in detail. [para
4 7] [134-F-H]
C
Rama Narang vs. Ramesh Narang & Ors., 1995 (1) SCR
456 = (1995) 2 SCC 513; Lakdey Ashok vs. Government of
A.P., (2009) 6 ALT 677 - referred to.
1.12. Section 354(1 )(c) states that every judgment
D
referred to in s. 353 shall specify the offence of which the
accused is convicted and the punishment to which he is
sentenced. In view of the same, the judgment u/s 353(1)(c)
is to be pronounced only after the sentence in a case
where conviction is determined. The process of delivery
of judgment includes the determination of guilt, or
otherwise, of an accused and in the event of such guilt
being established, also includes the process of
sentencing the accused. In the instant case, the process
of delivery of judgment commenced on 12.09.2006 when
the court pronounced its verdict on the guilt or otherwise
E
F
of specific accused. Whilst doing so, the Designated
Judge explained the offences for which the accused were
being convicted and invited the accused persons to
make their statements with reference to the quantum of G
sentence. It is evident that at this stage, the detailed
1 reasoning may not have been finally communicated to
the accused, but the determination of the court as well
as the broad understanding of the operative part of the
judgment was communicated. [para 52-53] [137-F-H; 138B-D]
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20
SUPREME COURT REPORTS
(2013] 15 S.C.R.
A
1.13. An analysis of the method followed by the
Designated Judge, demonstrates that the requirements
of pronouncing a judgment u/s 353(1 )(c) of the Code
have been fully complied with. While pronouncing the
operative part of the judgment, the Designated Court
B ensured that the substance of the judgment has been
explained to the appellant in compliance with the
requirement of s. 353. It is also relevant to point out that
the said order dated 27.07.2007 was pronounced in open
court -and signed and dated by the Designated Judge in
c compliance with the requirements of the said section.
Thus, there is no illegality or irregularity in the process
followed and specifically u/ss 353, 354 and 235 keeping
in mind the magnitude of the task before the Designated
Court.
This
Court,
therefore,
holds that
the
0
pronouncement of the judgment was in compliance with
the provisions of the Code and does not violate any of
its provisions. [para 48 and 54] [136-A-C; 138-E-G]
1.14. It is also clear from the reasoning of the
Designated Court that by adopting the same procedure,
E the Designated Judge conveyed the conclusion with
regard to various charges leveled against other accused
(total convicted accused 100) and also apprised each one
of them, including A-1 as well as their pleaders, the
reasoning and other materials for arriving at such a
F conclusion. He also apprised that because the convicted
accused are 100 in number and the common judgment
is running into thousands of pages, it may require some
time and as soon as the full judgment will be made ready,
the same will be supplied to them free of cost. It does not
G mean that on the date of pronouncing the decision
(decision was pronounced on various dates), the whole
judgment was not ready or it was incomplete. [para 55]
[138-G-H; 139-A-C]
H
1.15. Regarding the requirement of providing a copy
•
YAKUBABDUL RAZAK MEMON v. STATE OF
21
MAHARASHTRA, THR. CBI , BOMBAY
of the judgment in terms of s. 363 of the Code, it is
A
significant to note that it was a joint trial of 123 accused
persons. The appellant was apprised of the fact that a
copy of the final judgment would be provided after
completion of the order as regards sentence in respect
of
the
remaining
accused.
The
process
of B
pronouncement of judgment had to be carried out for all
accused and accordingly a copy of the final judgment
could be provided to each of the accused only after the
sentence was pronounced in respect of all the accused
persons. Copy of the final judgment was provided free
C
of cost to the appellant (A-1) after the pronouncement of
the orders with respect to each of the accused by the
Designated Court. [para 49-51] [136-D, F-H; 137-B-C]
1.16. As the Code mandates that the accused are
entitled to full/whole judgment, unless the conclusion
relating to all the convicted accused is read over and
explained to them, opportunity of hearing on sentence
has been provided to them or their respective counsel
and incorporation of both the conclusions relating to
conviction and sentence has been done, the same
cannot be supplied to the accused. [para 56] [139-C-D]
1.17. Several applications were made to amend the
conviction orders, which were dismissed by the
Designated Court.