1

Receivedon:10122010 Registeredon:10122010 Decidedon:18042013 Duration:02Ys04Ms08Days. ExhNo INTHESESSIONSCOURT,ATPUNE. (PresidedoverbyN.P.Dhote,AdditionalSessionsJudge) SESSIONSCASENO771/2010 StateofMaharashtra ThroughA.C.P., AntiTerroristsSquad, (inC.RNo.06/2010). ..........Prosecution Vs. 1]MirzaHimayatBaig@ AhmedBaigInayatMirza@ Hasan. Age:32years. R/o.KamwadaGalli,Junna Bazar,Tal.Beed,Dist.Beed...........Accused AbscondingAccused 1]AhmedSiddibappaZarar@ YasinBhatkal. 2]MohsinChoudhary. 3]RiyazIsmailShabadri@ RiyazBhatkal. 4]IqbalIsmailShabadri@ IqbalBhatkal. 5]FayyazKagzi@Zulfikar FayyazAhmed. 6]SayyadZabiuddinSayyad Zakiuddin@ZabiAnsari.

APPEARANCES Ld.SpecialP.PShriRajaThakareforProsecution. Ld.AdvocateS/s.ARehmanandKaynatShaikhforthe Accused. JUDGMENT (Pronouncedon15 &18 April,2013) 1] Pune,whichissituatedneartheSahyadrihill

th th

ranges, and is the cultural and educational capital of Maharashtra State and considered to be a peaceful city. Earlier,itwasalsocalledaspensionersparadise.Now,it hasalsobecomethehubofI.TIndustries,Puneneverknew thatitwouldbethetargetofTerrorattack.Itgotshattered on13thFebruary,2010duetothepowerfulexplosionatthe German Bakery, situated on the North Main Road, KoregaonParkarea.Inthesaidexplosion17personslost their lives and 58 persons sustained severe to minor injuries.TheGermanBakerygotcompletelydestroyedand theadjacentshopswerealsoaffected.Theinvestigationby thepolicerevealedthatitwasthebombexplosionanda designed terrorist act. After investigation the Police machinery submitted the Charge Sheet naming the aforementionedpersonsasAccusedundervarioussections ofIndianPenalCode,UnlawfulActivities(Prevention)Act, 1967andExplosiveSubstancesAct,1908. 2] TheProsecution'scaseunfoldedfromthePolice

reportisasunder: The German Bakery is situated on the main North RoadofKoregaonParkareainPune.Nearbythereis the OshoAshram,wherenumberofforeignerscomeandthey staythereorinthenearbyareas.The GermanBakery is frequentedbynumberoflocalsandforeigners.On 13022010, at about 18.50 hrs. (6.50p.m.) powerful explosion took place in the German Bakery. Due to the said explosion 17 persons including some foreigners lost their livesand severalotherssustainedseriousinjuries. ThePolicereachedonthespotofincident andwiththe helpofpublicremovedthevictimstovarioushospitalsfor treatment.Thesitecametobecordoned.TheManagerof German Bakery lodged the report with the Bandgarden PolicestationandvideC.R.No.83/2010theoffencecame toberegisteredundervariousSectionsofI.P.C,Explosive SubstancesAct,1908and UnlawfulActivities(Prevention) Act,1967 by the officer of Bandgarden Police station. Considering the nature of offence and it's gravity, the Director General of Police Maharashtra, transferred the investigationtotheAntiTerroristSquadandMr.Satav,the Assistant Commissioner of Police, Anti Terrorist Squad, Pune,tookovertheinvestigationandfurtherregisteredthe C.RNo.6/2010withtheAntiTerroristSquadPolicestation,

KalaChowky,Mumbai.The Spotpanchnama wasdrawn. Theexpertsfromtheforensicsciencelaboratory,C.B.I,New DelhiandPunevisitedthesiteofexplosionandcollected the material/articles for testing. The statements of witnesses were recorded. The splinters which were removed by the Doctors from the bodies of victims, were also sent to the forensicscience laboratory. The reports from the forensic science laboratory opined that the articlescollectedfromtheexplosionsiteshowedthetraces ofcycloniteRDX,ahighexplosive,ammoniumnitrateand nitrate ions alongwith petroleum hydrocarbon oil. The CCTV footage were collected from the System of the German Bakery and hotel 'O', situated next to it, and viewedbythePoliceofficersandonesuspectwasseenin the said CCTV footage entering the German Bakery, standingonthecounterofGermanBakeryandleavingthe German Bakery. From the said CCTV footage, it was noticed that while entering the German Bakery the said suspectwashavingtwohaversackbagsonhisperson,one infrontandanotheratthebackandhewaswearingcap andwhilehewasseengoingoutoftheGermanBakeryhe washavingonlyonehaversackbag.Thetimedisplayedin thesaidCCTVfootageshowedthatthesaidsuspecthad cometothe GermanBakery shortlybeforethe explosion.

Police Inspector Mr. Kadam who had worked in the Anti Terrorist Squad and Crime Branch at Mumbai and was havingexperienceintheinvestigationofsuch cases was shownthesaidCCTVfootageandonviewingthesame,he confirmedthatthesuspectwasabscondingAccusedNo.1 Yasin Bhatkal. The investigation revealed that the said explosionwastheplannedattacktoterrorizethepublicin general,causedamagetolifeandpropertyandtoharmthe sovereigntyofNationandso,theinvestigationwasfocused in that direction. It was revealed that the absconding Accused No.5 Fayyaz Kagzi, absconding Accused No.6 Jabiuddin Ansari and the Accused Himayat Baig (hereinafterreferredastheAccused),wereoldfriendsand were residing in Udgir. On 09052006 and thereafter a hugecacheofarmsandammunitions,including16AK47 riffles, 3,200 live cartridges, 43 KG RDX and 50 live grenades alongwith other articles were seized from Aurangabadandthecasewasregisteredinthatregardwith the Anti Terrorist Squad Police station, Kala Chowky, MumbaivideLAC3/2006and21Accusedpersons were arrested and Charge Sheeted in that connection. The absconding Accused No.5 Fayaz Kagzi and absconding Accused No.6 Jabbiuddin Ansari are also the wanted AccusedinthesaidarmshaulCase.TheAccusedalsoleft

Beed since then. It was revealed that the arrested and wanted Accused of the said arms haul case were the membersofBannedOrganizationsimiandPakistanbased terrorist organization LashkarETaiba. In the year 2008, the members of Banned Organization Indian Mujahiddin werearrestedfromPune,Mumbaiandfromotherlocations acrossthecountry,inconnectionwiththeexplosioncases happenedinSurat,Ahemadabad,Banglore,Hyderabad,New Delhi etc. and absconding Accused No.1 Yasin Bhatkal, absconding Accused No.2 Mohsin Choudhari, absconding AccusedNo.3RiyazBhatkalandabscondingAccusedNo.4 Iqbal Bhatkal are also the absconding Accused in those cases. It was revealed that the Accused was in close association with the arrestedand absconding Accused of theIndianMujahiddinmodulebeforetheyfledfromPune. Investigation revealed that the Accused and the wanted Accusedconspiredin2008andthereafter,bothwithinand outside India, to cause the explosion for terrorizing the people,promoteenmitybetweendifferentgroupsofreligion prejudicial to the maintenance of peace and harmony, cause harm to the economy of country and exploit the communal sentiments and for achieving the said object, received financial help from the inimical elements across the border. In March 2008, the Accused visited Colombo

and met absconding Accused No.5 Fayyaz Kagzi and absconding Accused No.6 Jabbiuddin Ansari, where the designtocausefurtherterroristactivitieswasfinalizedand pursuanttothesaidconspiracy,theAccusedgottraining from the absconding Accused No.5 Fayaz Kagzi and abscondingAccusedNo.6JabbiuddinAnsari,toassemble explosive device and cause the explosion. The Accused received financial assistance to purchase the explosive devices and for carrying out the activities to achieve the objective. In pursuance to the conspiracy, the Accused concealedhisidentityandstayedatUdgirwhichisremote and nondescript place in the State of Maharashtra with assumed namesasYusufandHasanandalsousedthe Bank Account of his friend Rehan for the purpose of financial transactions. For the purpose of concealing his identity the Accused also forged the documents such as election card, card meant for physically handicapped personetc.TheAccusedstartedanInternetCafeatUdgir underthenameandstyle'GlobalInternetCafe'.Pursuant totheconspiracytocausetheterroristactattheGerman Bakery,KoregaonPark,Pune,theabscondingAccusedNo.1 Yasin Bhatkal, absconding Accused No.2 Mohsin Choudhari,oninstructionsfromabscondingAccusedNo.3 RiyazBhatkalandabscondingAccusedNo.4IqbalBhatkal,

came to Udgir and met the Accused in the last week of January,2010todiscussandfinalizetheplanofcausing theexplosion.On31stJanuary,2010theAccusedconducted the reconnaissance (recce) ofthetargetedsiteandtested thetimingofplantingtheexplosivedevice.Inthefirstweek ofFebruary,2010thewantedAccusedNo.1YasinBhatkal and the absconding Accused No.2 Mohsin Choudhari againcametoUdgirandmettheAccusedandgavefinal touch to the plan of executing the explosion at German Bakery,Pune.Toexecutethe explosion,theAccusedwent toMumbaiandpurchasedoneNokia1100Mobilephonefor usingitasatriggeringdevice.Tomisleadhispresencethe AccusedkepthismobilephonesinMumbaiwithoneofhis friend. With the help of explosive substance and other devices, the bomb came to be assembled at the Global InternetCafe,UdgirbytheabscondingAccusedNo.1Yasin Bhatkal,abscondingAccusedNo.2MohsinChoudhariand Accused.TheAccusedagainwenttoMumbaiandcollected hismobilephoneswhichwerekeptwithoneofhisfriend and further, to mislead his presence, traveled to Aurangabadandkepthismobilephoneswithhisfriendat Aurangabad and traveled back at Udgir. Pursuant to the conspiracy of causing the explosion on 13022010, the absconding Accused No.1 Yasin Bhatkal and Accused

carriedtheexplosivedeviceandreachedPuneatPoolGate stand andfromtheretheycametoPuneRailwaystation and from there went to the Central Mall in the auto rickshaw and from there the absconding Accused Yasin Bhatkal proceeded towards the German Bakery at approximatelyabout17.00hrs(5.00p.m.)andplantedthe bombwhichwaskeptinthehaversackbag.Thesaidbomb exploded at 18.50 hrs (6.50p.m.) by triggering, with the helpofmobilealarm. 3] During the investigation, information was

receivedthattheAccusedwascomingtoPuneon 07092010atPoolgatebusstopandthetrapwaslaid.To identifyhim,theteamwashavinghisphotograph.Atabout 3.15p.m.theAccusedwasseenatthesaidbusstopandhe wasapprehendedandbroughttotheAntiTerroristSquad office,Puneandaftermakinginquirywithhimhecameto be arrested. His personal search was conducted in presence of the panchas, in which two mobile handsets, outofwhichonewashavingsimcard,pocketbookofUrdu language,electionIcard,pouch,smallpieceofpaper,three passportsizecolouredphotographs,coverandpieceofATM card, some currency notes and one spectacle was found which came to be seized under the arrestcumseizure panchnama.Duringtheinterrogation,theAccusedstated

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thathewillshowtheremainingexplosivesubstance.His memorandum statement came to be recorded U/s. 27 of EvidenceAct,inpresenceofpanchasandheledtheteam comprising police and panchas to a house at Udgir and removed the explosive substance (RDX), soldering gun, solderingwireandwirecutterkeptinsidetheDiwan(cot). The sniffer dog from the bomb detection team gave indicationthatthesaidsubstancewasexplosive.Thesaid articles were seized and sealed under the seizure panchnama. The friend of Accused made available two bags,belongingtotheAccusedtothepolicewhichcameto beseizedunderthepanchnama.Fromthesaidbags,some clothes, passport of Accused, sim card and several other documents were found and they came to be seized. The passportof Accusedwashavingthestampshowingthat hehadtraveledfromChennaitoColomboandviceaversa. Thephonecalldetailsofthesimcardsfoundinpossession of the Accused were sought from the concerned service providers.DuringthecourseofinvestigationtheAccused pointedtheshopfromwheretheNokia1100mobilephone waspurchasedbyhimandalsotheplacefromwherethe haversack bag was purchased from Mumbai and the memorandum panchnama in that regard was prepared. The statement of various witnesses were recorded. The

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register of Priyanka Travels by whose bus, the Accused traveled to Mumbai and the register of Alnoor Guest house,wheretheAccusedhadstayputinMumbaiwere seizedunderthepanchnamasinpresenceofthepanchas. The bank account statement pertaining to the account used by the Accused was collected from the concerned Bank.TheCCTVfootageoftheATMcentersfromwherethe transactions were made by the Accused from the said account were also collected from the concerned Banks. SomeofthedocumentsseizedfromthebagoftheAccused were sent to the concerned offices for verification and it was revealed that they were forged documents and not issuedbytheconcernedoffices.Thespecimenhandwriting oftheAccused wasobtainedinpresenceofpanchasand thebankvouchersandtheregisterofAlnoorGuestHouse weresenttothehandwritingexpertforverificationandit was opined that the handwriting was identical. The samples removed from the explosive substance seized at theinstanceofAccused,wassenttotheforensicscience laboratory, Pune and the C.A report confirmed that the said substance was cyclonite (RDX), petroleum hydrocarbon oil and charcoal and RDX was the high explosive. 4] AstheInvestigatingofficerfoundthatsufficient

12

materialwasavailablewhichconnectstheAccusedpersons with the explosion at German Bakery, he obtained the Sanctions under the Provisions of Unlawful Activities (Prevention) Act and Explosive Substances Act and submittedtheChargeSheetagainsttheAccusedon0412 2010 for the offences Punishable U/s. 120(B), 302, 307, 326,325,324,427,153A,467,468,471,474,109,34ofI.P.C. and U/s10, 13, 16, 18, 20 and 21 of Unlawful Activities (Prevention) Act, 1967 and U/s 3,4, and 5 of Explosive SubstancesAct,1908.AsmostoftheSectionsunderwhich theChargeSheetwasfiled,wereexclusivelytriablebythe Court of Sessions, the Ld. J.M.F.C (A.C.Court, Pune) committed the case to this Court by order dated 0612 2010. It would not be out ofplacetomention thatsince beginningtheAccused isrepresentedbytheexperienced Lawyerofhischoiceandhewasdulyservedwiththecopy of Charge Sheet. The Ld.Spl.P.P Shri Raja Thakre (hereinafter referred to Ld.Spl.P.P), appeared for the prosecutionandtheLd.AdvocateShriA.Rehmanassisted byLd.AdvocateShriKaynatShaikh(hereinafterreferredas defenceAdvocate)appearedfortheAccused.Bothofthem wereheardonthepointofChargeandbydetailorderdated 02072011itwasheldthatprimafaciecaseexistedagainst theAccusedtoproceedandaccordingly,theChargeforthe

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offences Punishable U/s. 120(B), 302, 307, 435, 153(A), 465,467,468,474,oftheI.P.C,fortheoffencesPunishable U/s. 10(a)&(b), 13(1)& 13(2), 16(1)(a), 18 and 20 of the Unlawful Activities (Prevention) Act, 1967 and for the offencespunishableU/s.3,4(a)&(b)and5oftheExplosive SubstancesAct,1908cametobeframed on16072011, videExh.17.TheChargewasreadoverandexplainedtothe Accused,towhichhepleadednotguiltyandclaimedtobe tried. 5] After framing of the Charge, the prosecution

submittedtheApplicationatExh.20prayingforexhibiting 43 reports from the government scientific experts as per the provisions of Section 293 of Cr.P.C. The Ld. defence AdvocatesubmittedtheSayvideExh.21tothisApplication statingthatthereportsfromtheforensicsciencelaboratory mentionedintheApplicationfromSr.Nos.4to43maybe exhibitedunderSection293of Cr.P.C.However,thedefence did not admit the reports of forensic science laboratory mentioned at Sr. Nos. 1,2and 3 in the said Application. UndertheprovisionsofSection293of Cr.P.C,thedocument purporting to be a report under thehandof government scientificexpert,towhomthesectionapplies,maybeused as evidence in any inquiry, trial, or every proceedings undertheCode.Aspersubsection4ofthesaidsection

14

any Chemical Examiner or Asst. Chemical Examiner to government is covered U/s. 293 of Cr.P.C. By using the provisionsofsaidSection,allthereportsfromtheforensic science laboratory were admitted in evidence and given exhibit Nos. 22 to 65 with the liberty to the defence to make appropriate Application under sub section 2 of Section293of Cr.P.C, iftheysodesireforexaminingany such witness, by order dated 30072010. However, the prosecution itself had examined the forensic Experts as P.W.75 and P.W.78 who had prepared the C.A. reports includingtheC.A.reports,whicharenotadmittedbythe defence. 6] The prosecution submitted the Application at

Exh.66U/s.294ofCr.P.Ccallinguponthedefencetoeither admitordenycertaindocumentssuchasspotpanchnama, photographs and videography of the scene of offence, panchnamas in respect of seizure of hard disk of the computer of hotel 'O' and the video cassettes from the GermanBakery,sketchofthespotpreparedbythesurvey officer, Inquest and papers regarding cause of death of victims,panchnamaaboutseizureofclothesofdeceased, panchanamas in respect of seizure of splinters from the bodies of injured, certificates of injured persons and the forwarding letters sent to the forensic science laboratory,

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filedbythem insupportofthecase.Thesayofdefence wascalledonthisApplicationanddefencesubmittedtheir sayvideExh.67statingthattheInquestmentionedatSr. Nos.9to25andforwardinglettersaddressedtotheforensic science laboratory mentioned at Sr. Nos.89,90,96 to 129 mentionedinthesaidApplicationarenotdeniedandthey maybeexhibited.Thus,theInquestpanchnamasandthe papersregardingcauseofdeathofthevictimscametobe admittedinevidenceandmarkedasExh.69to85andthe forwarding letters addressed to the forensic science laboratoryPunewereadmittedinevidenceandmarkedas Exh.87 to 104. Later on, on 20032012 the Ld. defence Advocate admitted the certificates of the injured persons which are mentioned from Sr. Nos. 34 to 85 in the ApplicationatExh.66.Thus,thecertificatesoftheinjured personsmentionedinthesaidApplicationatExh.66from Sr. No. 36 to 38, 43 to 50 and 57 to 82 and 85 were admittedinevidenceandmarkedasExh.200to234.The Injury certificates mentioned in Exh.66 at Sr. Nos. 34,35,39 to 42,44,45,48,49 51 to 56,60,83 and 84 were exhibited prior to 20032012, in the evidence of the Doctors who are examinedasP.W.45toP.W.50andthey aremarkedasExh.168,171,172,173,174,175,176,183, 184,189,192,193,194,197and199.Thereafteron

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02062012 the Ld. defence Advocate admitted the panchnamas pertaining to seizure of splinters removed fromthebodiesofinjuredpersonsmentionedfromSr.No. 28 to 33 in the Application at Exh.66. Thus, the said panchnamasinrespectofremovalofsplintersfrombodies ofinjuredpersonswereadmittedinevidenceandmarked asExh.315to320.Thepanchnamasinrespectofremoval ofsplintersfromtheinjuredwhichismentionedatSr.No. 27 in Exh.66 is exhibited in the evidence of P.W.72 and given Exh.314. On 20082011 the Ld. defence Advocate haveadmittedthepanchnamainrespectoftheseizureof clothesofthedeceasedwhicharementionedatSr.No.26 in the Application at Exh.66 and so it was admitted in evidenceandmarkedasExh.86. 7] On 20032012 the prosecution submitted

anotherApplicationU/s.294of Cr.P.C atExh.66Acalling uponthedefencetoeitheradmitordenythegenuineness oftheinjurycertificatesanditwascontendedonbehalfof the prosecution that the injury certificates of six injured were not mentioned in theearlier Application U/s.294 of
Cr.P.C at Exh.66 due to inadvertence and therefore, this

additional Application was submitted. The defence gave their say on this additional Application stating that the samemaybeexhibitedandthus,theinjurycertificatesof

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sixinjuredmentionedintheApplicationatExh.66Awere admittedinevidenceandmarkedasExh.235to240. 8] The prosecution submitted the Application at

Exh.68prayingfortenderingtheevidenceofthewitnesses whohadreceivedthedeadbodies,theinjuredpersonswho werepresentonthespotofincidentandsustainedinjuries, by way of Affidavit pursuant to the provisions of Section 296 of Cr.P.C. Reply was given by the defence on this ApplicationvideExh.105,statingthatnonamesofformal witnesses was given by the prosecution, whose evidence theyintendtotenderbywayofaffidavit.Itwasstatedthat under sub section 2 of section 296, any witness whose Affidavitsaresubmitted,canbesummonedforexamination iftheApplicationismadebythedefence.Theprosecution submitted the names of the formal witnesses whose Affidavits they were intending to file as the formal witnesses, vide Exh.111. The Application filed by the prosecution to file the Affidavits of the formal witnesses wasallowedbyorderdated03092011. 9] In the Charge Sheet six more Accused are

named, and they are shown as absconding. The prosecution submitted the Application at Exh.106 for permission to record the evidence in absence of the abscondingAccusedundertheprovisionsofSection

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299 of Cr.P.C. The reply was filed by the defence vide Exh.110 opposing the Application of the prosecution for recordingtheevidenceU/s.299of Cr.P.C.Accordingtothe defence,theMagistratebedirectedtoleadtheevidenceas providedunderthesaidsection.Undoubtedly,someofthe sectionsunderwhichtheChargeSheethasbeenfiledare triablebytheCourtofSessions. Theprovisionsofsection 299ofCr.P.CenablestheCourtcompetenttotrytheoffence complainedof, inthe absenceofwantedAccused,ifitis establishedthattheAccused arewantedandthereisno immediateprospectofarrestingthemandtheprovisionsof said section also makes it clear that the deposition of witnessesrecordedintheabsenceofwantedAccusedcan beusedinevidenceagainsthim/themfortheoffencewith which he/they are charged, if the deponent is dead or incapable of giving evidence or cannot be found or his presencecannotbeprocuredwithoutanamountofdelay, expensesorinconvenience.Itisthematterofrecordthat the Ld. Magistrate, before whom the Charge sheet was submitted, had issued Proclamation against the abscondingAccusedpersonsU/s.82of Cr.P.C andissued the warrantsagainstthem.AlongwiththeApplicationat Exh.106, the Investigating officer submitted his Affidavit stating that the Proclamation Orders were given effect in

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accordance with the relevant provisions. In such circumstances,thesaidApplicationwasallowedbyorder dtd.15102011byobservingthattheevidencerecordedin the matter would be U/s. 299 of Cr.P.C as against the abscondingAccusedpersons. 10] To establish the Charge, the prosecution tendered the evidence of 103 witnesses out of which the evidenceofprosecutionwitnessNos.1to41istenderedby submitting the affidavits, pursuant to the provisions of Section 296 of Cr.P.C., being the formal witnesses. The defence was given opportunity to cross examine the prosecution witnesses. From the formal witnesses the defencechosetocrossexamineonly11witnesses.Inthe evidence,numberofdocumentsarebroughtonrecordby theprosecutionincludingtheelectronicrecord. 11] During the course of trial, the prosecution submitted the Application U/s. 294 of Cr.P.C at Exh.385, calling upon the defence either to admit or deny the Sanctionorders.Thesayofdefencewascalledonthesaid ApplicationandonsubmissionoftheLd.Spl.P.Pthatthe recitalsintheSanctionorderswillnotbeconstruedasthe admissiononthepartof Accused,thedefencegavetheir sayontheApplicationitselfstatingthatthesamemaybe exhibited.Thus,thethreeSanctionordersareadmittedin

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evidenceandmarkedasExhs.391,392and393.Alongwith the Charge Sheet, the prosecution have submitted the map/sketch of the spot of incident. On the said map/sketchitselfthedefencehadgivenendorsementthat the same may be exhibited and therefore, the same is admittedinevidenceandmarkedasExh.260. 12]Aftertheprosecutionclosedit'sevidencebyfiling theevidenceclosurepursisatExh.427,theincriminating circumstanceswereputtotheAccusedandhisstatement cametoberecordedundertheprovisionsofSection313of
Cr.P.C.Thedefencedidnotexamineanywitness.Thematter

waspostedfororalargumentsoftheparties. 13] Ld. Special P.P and Ld. Advocate for the Accused made their respective oral submissions. Their contentions will be considered at the appropriate stages. The sum and substanceofthesubmissionsadvancedby the Ld. Spl.P.P is that the prosecution have successfully proved beyond reasonable doubt the involvement of AccusedinthecrimeandtheAccusedfailedtorebutthe mandatory presumption under the Unlawful Activities (Prevention)Act,1967.Ontheotherhand,itissubmitted bytheLd.AdvocatefortheAccusedthattheChargesare notprovedbeyondreasonabledoubt.Boththesidescited therulingsinsupportoftheirsubmissions,whichwillbe

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consideredanddiscussedatproperstage.Afterhearingthe oralsubmissionsIhadgonethroughthematerialavailable onrecordandfollowingpointsariseformydetermination. POINTS 1]Whethertheprosecution provedthattheexplosion hadtakenplaceattheGerman Bakery,KoregaonPark,Pune,on 13022010inbetween18.50hrs. to19.00hrs.,duetotheuseof explosivesubstanceand17 personsgotkilledand58persons sustainedinjuriesduetothesaid explosion? 2]Whethertheprosecution provedthatthesaidexplosion wasaterroristact? 3]Whetherthedeathof17 personsmentionedinthe chartishomicidal? FINDINGS

Yes.

Yes.

Yes.

4]WhetherthereisvalidSanction fortheprosecutionunderthe provisionsofUnlawfulActivities (Prevention)Act,1967and ExplosiveSubstancesAct,1908? Yes. 5]Whethertheprosecution provedthattheAccused HimayatBaigisoneofthe coconspiratorinthesaid terroristactandhavethereby

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committedtheoffence PunishableU/s.120(B)of I.P.C.? 6]Whethertheprosecutionproved thattheAccusedHimayatBaig isoneofthepersonresponsible forthehomicidaldeathof17 personsandforcausingthe injuriesto58personsduetothe saidexplosionandhavethereby committedtheoffencesPunishable U/s.302and307ofI.P.C.

Yes.

Yes.

7]Whethertheprosecutionproved thattheAccusedHimayatBaig aided/abetted/assistedtheoperation ofunlawfulassociationandthe unlawfulactivity,conspiredthesame, wasmemberofterroristgangand committedtheterroristactandhave therebycommittedtheoffences PunishableU/s.10(a)&(b),13(1)&(2), 16(1)(a),18and20oftheUnlawful Activities(Prevention)Act,1967? Yes. 8]Whethertheprosecutionproved thattheAccusedHimayatBaig unlawfullyandmaliciouslypossessed theexplosivesubstanceandconspired tocauseanddidcausetheabove referredexplosionbytheuseof explosivesubstanceandhavethereby committedtheoffencesPunishable U/s.3,4and5oftheExplosive SubstancesAct,1908?Yes.

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9]Whethertheprosecutionproved thattheAccusedHimayatBaig committedforgeryofvaluable securityforthepurposeofcheating andhavetherebycommittedthe offencesPunishableU/s.465,467 and468ofI.P.C.? 10]Whethertheprosecutionproved thattheAccusedHimayatBaig possessedtheforgeddocuments intendingtouseasgenuineand havetherebycommittedtheoffence PunishableU/s.474ofI.P.C? 11]Whethertheprosecutionproved thattheAccusedHimayatBaig committedmischiefbyexplosive substancewithintenttocause damageandhavetherebycommitted theoffencePunishableU/s.435of I.P.C.?

No.

Yes.

Yes.

12]Whethertheprosecutionproved thattheAccusedHimayatBaigby spokenwordspromotedenmity betweendifferentgroupsonthe groundofreligionanddidtheact prejudicialtomaintenanceofharmony andtherebycommittedtheoffence PunishableU/s.153(A)ofI.P.C? Yes. 13]Whatorder? TheAccusedisconvicted asperfinalorder.

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REASONS

14] Beforeadvertingtothepoints,theadmissibility oftheelectronicrecordandthatofthenewsitempublished inthenewspaperisconsideredsoastoavoidrepetition.

Evidence in the form of Electronic Record and it's admissibility.

15] Since some of the evidence is in the form of electronicrecordandthereferenceofwhichwillbecoming at different stages, it's authenticity and admissibility is considered before adverting to another point. The prosecutionhasfiledonrecordthephonecalldetailsoftwo simcardsandtherecordingmadebytheCCTVcamerasat theGermanBakeryandhotel'O'whichissituatednextto itandattheATMCentersinrespectofoperatingtheBank account by the Accused. The evidence in the form of electronicrecordisadmissibleundersection65(B)ofthe Evidence Act. It will have to be seen as to whether the evidence in the form of electronic record satisfies the ingredientsoftheaforesaidprovisionofEvidenceAct.
Electronic record of C.C.T.V. footage of hotel 'O' and German Bakery

16] P.W.43 Sayyad Khwaja Hamja is the witness

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examinedbytheprosecutioninrespectofCCTVfootageof hotel'O'whichissituatednexttothe GermanBakery.In hisevidencehedeposedthathehaddonevariouscourses in Computer and was completely conversant with the computersystemandwasworkingasITManagerinhotel 'O'. His duty consist of handling software, hardware, networkingandsurveillanceaspects.Hedeposedthatthere arethreecamerasinstalledatthehotel'O'andthecamera whichisinstalledoutsidecancapturethewholeareatill the German Bakery and the system is installed in the securityofficeinwhichthedatagetsautomaticallystored till9daysandhebeingtheITmanagerwastheinchargeof thesameandwithouthispermissionnoonecangoinside thesystem.Hefurtherdeposedthatthe policehadcome tothehotel'O'inthenightof13022010andhadseized theharddiskandthecloneofharddiskofthesystemafter viewingtheCCTVfootage.Ithascomeinhisevidencethat itispossibletoknowastowhichpicturewascapturedand storedonwhichdayandatwhattime.Hefurtherdeposed thatasaskedbythepolice,hepreparedthecopiesofthe particular footage in the CD/DVD and gave them to the police. He further stated that he gave the authentication report generated through the system, to the police. He identified the panchnama at Exh.163 as the same

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panchnama underwhichtheharddisk,CD/DVDofthe relevantfootageandtheauthenticationreportwereseized bythePolice.HealsoidentifiedExh.164(collectively)asthe samesystemgenerated report.Heidentifiedthearticle3 and3Aasthesameharddiskandit'sclonerespectively and article 4 CD handed over by him to the police. He deposed that the said CD/DVD was generated from the systemofhotel'O'andthesystemwasworkinginperfect mannerandthecertificateinthatregardisthepartand parcelofExh.164(collectively).Hisevidenceshowsthatthe CDarticle4wasplayedandshowntohimonthelaptop andheidentifiedthesame.Ithas comeinhisevidence that it was highly impossible to tamper with the system andwhateverrecordingmadethereinisstoredinencrypted format.Thiswitnesswascrossexaminedbythedefence.In cross itis brought thathehadnotplacedonrecordthe documenttoshowthathewasworkingastheITManager inhotel'O'. Tothis,hevolunteeredthathehadgiventhe copy of visiting card to the police. However, there is no suggestionthathewasnotworkinginhotel'O'.Furtherin the crossexamination itselfitisbroughtthatsincelast3 yearshewasworkinginhotel'O'anditwashis4 th year. Therefore, non submitting the documents about his working in hotel 'O' is not at allfatal.Theauthenticated

27

record of the system is brought on record. This witness deniedthesuggestionthattheharddiskwerenotthatof hotel'O'andstatedthatonthebacksideoftheharddiskit ismentionedthatitwasofhotel'O'.Itisfurtherbroughtby thedefencethattheCCTVcameraswerenotseized.There is no requirement under the Law that the cameras are requiredtobeseizedforprovingtheelectronicrecord.What isrelevantisthestoreddata/recording,ofthesystem.Non seizureoftheCCTVcamerasbynostretchofimagination will render the electronic record inadmissible. The cross examination isnotofthatnaturewhichwould damage theevidenceofthiswitnessgivenfortheprosecution.Non recordingofthestatementoftheownerofhotel'O'isofno consequencesandwillnotrendertheauthenticationofthe electronicrecordofhotel'O'invalid.ThiswitnessNo.43is the responsible person of hotel 'O' and in charge of the surveillancesystemofthathotel.Thenecessaryingredients required to prove the electronic record are established through this witness and therefore, the electronic record seizedundertheaforesaidpanchnamapertainingtohotel 'O'isadmissibleinevidence. 17] Anotherelectronicrecordisinrespectofseizure ofVCRofPanasonicCompany(article9),onevideocassette ofPanasonicCompany(article10)andoneremotecontrol

28

ofPanasoniccompany(article11)fromtheGermanBakery on14022012i.enextdayoftheexplosion. Thenotesof evidence shows that the seizure panchnama at Exh.242 underwhichthesaidarticleswereseized,isadmittedby thedefence.Perusalofthesaidpanchnamashowsthatthe said articles were seized from the premises of German Bakery. The notes of evidence show that since the said panchnama was admitted by the defence, the panch witnessofthesaidpanchnama wasnotexamined.Inhis evidence P.W.103 who is the Investigating officer have deposedinpara12that,separateclipcametobeprepared of the relevant footage and article 61 CD was the same havingtherelevantclippings.Asthesaidarticlesarenot disputed by the defence, no formal proof is laid by the prosecution to establish it's authenticity. Thus, the contents of the said electronic articles are admissible in evidence. 18] Thereismoreelectronicrecordseizedfromthe GermanBakery intheformofsevenvideocassettesand V.C.R. P.W.58 Soorajsingh Bisht in his evidence have deposedthaton23022010hewascalledbythepoliceat theGermanBakery,whereMr.GopalGargi,theManagerof GermanBakeryand PoliceofficerMr.Joshiwerepresent andinhispresencethesevenvideocassetteswhichareat

29

article33(collectively) andoneVCRwhichisatarticle34 cametobeseizedfromthe3 rdflooroftheGermanBakery under the panchnama at Exh.269. He stated that the ManagerofGermanBakerytoldthepolicethatinthesaid articlestherecordingoftheCCTVcamerainstalledatthe counter of German Bakery was being done. From his evidenceitisseenthattherecordingatthecounterofthe earlier period was recorded in the said seven video cassettes.Itisclearfrompara2ofthedepositionofthis witnessthatthearticleswerebroughtinsealedcondition andthelabelswerehavingthesignatureofthiswitnessas thepanch.Inthe crossexamination itisaffirmedthatin the said cassettes the recording from the counter was recorded. Nothing is suggested in the cross examination that the system was tampered or the recording was not done on regular basis. This witness identified the said articles while giving evidence. As can be seen from the cross examination thiswitness was working in the office situatedinthepremisesofGermanBakeryinthecapacity of Manager and therefore, his presence for the said panchnamaisnatural.Fromthisevidenceitisestablished bytheprosecutionthattheaforesaidarticleswereseized fromtheGermanBakery.

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ElectronicRecordinrespectofPhonecalldetails

19] P.W.79 Jeevak Shiradkar is the Nodal officer working in Vodafone company since March 2010. In his evidencehedeposedthatheisthesinglepointofcontact betweentheGovernmentagenciesandVodafonecompany forMaharashtraandGoa.Hedeposedthatallthesystems oftheircompanyarecomputerizedandhewashavingthe control and access to the system of their company and withoutthepasswordthetamperingwiththesystemisnot possible. He deposed that whenever any Government agencyasksfortheinformation,theyprovidethesameby getting the printouts fromthesystemandprovidingthe informationfromthesystemisthepartofhisdaytoday officialwork.Hefurtherdeposedthathereceivedtheletter fromMumbai AntiTerroristSquad whichisatExh.346, asking for the information in respect of mobile number 9637597877 and accordinglyhesuppliedtheinformation by his letter at Exh.347, alongwith the customer Applicationformandtheenclosureoftheformwhichareat Exh.348(collectively). He further deposed that the phone calldetailsalongwiththecertificateatExh.349(collectively) ofthesaidmobilenumberweresuppliedbyhimtotheAnti TerroristSquad.Thiswitnesswascrossexaminedbythe defence.Nothingisbroughtbythedefencethatthesystem

31

wasnotworkingproperlyortherewasanytamperingwith thesystemorrecord.Thecrossisingeneraltermssuchas, dealer of the phone company verifies the information provided in the customer application form andthereafter gives the sim card, the customer is required to sign the Application form before the dealer. The authority of this witnessandtheauthenticityoftheinformationsuppliedby himisnotchallenged.Throughtheevidenceofthiswitness thephonecalldetailsofthesaidmobilenumberareduly provedbytheprosecution. 20] P.W.81BabyJohnistheNodalofficerwiththe Tata Tele Services, Mumbai since 2005. He deposed that hisnatureofdutyistoprovidesubscriber'sdetailstothe Law enforcing agencies as per licensing agreement of Government of India and he being the Nodal officer, is authorizedtoaccessthesystemforprovidingsubscriber's detail including the call details whenever asked. He deposedthatnopersoncanaccessthesystemwithouthis authorityandforaccessitisnecessarytoknowtheuser IDNo.andthepasswordofthesystem.Hedeposedthat theinformationisstoredinthesystemondaytodaybasis inregularcourseofactionanditisprovidedbyhimafter takingtheprintoutfromthesystem. Hefurtherdeposed that in October, 2010, vide letter at Exh.354 the Anti

32

TerroristSquadhadaskedtheinformationinrespectofone sim cardandtherequiredinformationwasprovidedvide letter dated19102010alongwiththephonecalldetails, thecertificateandthecustomerApplicationformalongwith it'sAnnexures,whichareatExh.355(collectively).Incross examination ithascomethatthesaidinformationwasin respect of the mobile No.8149308626. If the cross examination is seen, the said call details are referred to this witness by the defence in respect of some call I D addressed and nothing is brought to challenge the informationprovidedbythiswitnesstothe AntiTerrorist Squad.Theauthenticityofthephonecalldetailsandthe information provided by the letter at Exh.355 is not challenged.Throughtheevidenceofthiswitnessthephone calldetailsofthemobileNo.8149308626aredulyproved bytheprosecution. 21] Boththeaforesaidwitnessesexaminedbythe prosecution in respect of the phone call details are the responsible persons from the respective service provider companies.The Phonecalldetailsareinsuchcontinuity thatnoslightestdoubtarisesaboutit'sauthenticity.The essential requirement to prove the electronic record, are fulfilledbytheprosecutionandthus,theaforesaidphone calldetailsareadmissibleinevidence.

33

ElectronicRecordinrespectofCCTVfootageoftheATMCenters

22] P.W.54 Radheshyam Chiraniya, is the Branch Manager, State Bank of India, Mehekar and he deposed thattheStateBankofHyderabad,StateBankofBikaner andJaipur,StateBankMysore,StateBankofTravencore andStateBankofPatiyalaetc.arethesubsidiarybanksof StateBankofIndia.Inhisevidencehedeposedthatinthe year 2010 he was working at Aurangabad as the ATM ManagerandwastheinchargeofalltheATMcentersof Aurangabad Zone. He deposed that in every ATM Center theATMMachineiskeptinwhichtheCCTVcamerasare installedandwhenevertheamountiswithdrawnfromthe ATMcentertheentrywithregardtotheaccountnumber, ATM card number and the amount withdrawn gets collected in the EJ log and the time and the date of withdrawal also gets registered. He further deposed that thepersonenteringtheATMmachinegetscapturedinthe CCTVcamerasinstalledintheATMcenterandthecontrol of the CCTV hard disk is with the respective Branch Manager and with ATM Manager and since there is passwordprotection,theharddiskcannotbetamperedby anyone.Hefurtherdeposedthatpursuanttotheletterat Exh.255sentbytheAntiTerroristSquad,theCCTVfootage

34

and the transactions from EJ log of the ATM centers at ParbhaniandUdgirwhichwereunderhisjurisdiction,were suppliedvideletteratExh.256.HedeposedthattheCCTV footageistakenfromtheharddiskwhichisusedindayto daybusinessinthenormalcourseandweretakenoutby theauthorizedofficer.Incrossexaminationtheomissionto theeffectthattheprocedureofATMcenterdeposedbyhim intheevidencewasnotmentionedinhispolicestatement isbroughtonrecord.However,thesaidomissionwillnot affect the evidence given by this witness about the authenticity of the electronic record of the ATM Centers whichwereseizedbythe AntiTerroristSquad.Theother cross examination also do not affect the evidence of this witnessgivenintheexaminationinchief.Itisonlybrought in the cross examination that it is not the offence if the ATM card holder allows the use of his ATM card to his friendorotherperson. 23] P.W.55 Santosh Jadhav is the ATM Channel Manager of State Bank of Hyderabad, Aurangabad Zone since the year 2011 and the incharge of all the ATM CentersinthesaidZone.HealsodeposedthattheCCTV camerasareinstalledatATMcentersandthetransaction donethroughtheATMmachinesgetsregisteredinthehard diskofthecomputerinstalledintheATMmachineandthe

35

personenteringtheATMcentergetscapturedintheCCTV cameraandtheimagesalsogetsstoredintheharddisk. HedeposedthattheonlyauthorizedpersonistheBranch ManagerandtheATMofficerhaveaccesstotheharddisk and the transactions get stored in the hard disk in the routine course of manner and since it is password protected it cannot be tampered. His evidence further showsthatinOctober2010,hesuppliedtheCCTVfootage fromtheATMcenteratUdgirwhichwerecopiedontheC.D from the hard disk. He identified the letter at Exh.259 throughwhichthesaidfootageweresuppliedtothe Anti Terrorist Squad. His evidence shows that he was the superiorofficertotheconcernedauthorizedManager,who had taken out the CCTV footage from the hard disk. In crossexaminationithascomethattheC.DoftheCCTV footagewasgivenbytheconcernedBranchManagerina sealed condition. It is again brought in the cross examination of this witness that the ATM card of a particularpersoncanbeusedwiththepermissionofATM card holder. Except this, there is nothing in the cross examination. 24] Ascanbeseenfromtheaforesaidtwowitnesses from the Banks, they are the senior and responsible officers of the respectivebanksandtheirevidenceisnot

36

affectedbythecrossexaminationdonebydefence.Through the evidence of these witnesses the authenticity of electronicrecordsuppliedbytheminrespectoftheATM centers is proved and thus the said electronic record is admissibleinevidence. 25] Fromtheevidencediscussedinrespectofthe electronic record, the prosecution have proved the authenticityoftheCCTVfootageseizedfromthehotel'O' andthe GermanBakery,ofthephonecalldetailsandof the CCTV footage seized from the concerned Banks in respectofATMCenters,aspertheprovisionsofLawand thus,thesaidevidenceintheformofelectronicrecordis admissibleinevidence.
About admissibility of news item published in the newspaper.

26] Onemoreaspectwhichfallsforconsideration istheevidenciaryvalueofthenewsitempublishedinthe newspaper, because the news item pertaining to the GermanBakery explosionpublishedinthenewspaperis soughttobereliedbythedefenceAdvocate.Thesaidnews itemappearstohavebeenreportedinnewspaperdtd25 052010 and was initially marked as article 31 in the evidence of P.W.93 (auto rickshaw driver) and thereafter

37

subject to admissibility, it was given Exh.399 in the evidence of P.W.102 since the same was referred to the witnessbytheprosecution.Onthepointofadmissibilityof thenewsitempublishedinthenewspaper,theLd.Spl.P.P citedtheJudgmentoftheHonourableApexCourtinthe case of Laxmiraj Shetty and another V/s. State of
Tamilnadu reported in AIR 1988 S.C. 1274 in which the

aspect ofadmissibilityofthenewsitempublishedinthe newspaper is considered. The relevant para no. 26 is reproducedhere. Para26:Itisnowwellsettledthatastatementoffact containedinanewspaperismerelyhearsayandtherefore inadmissibleinevidenceintheabsenceofthemakerofthe statement appearing in Court and deposing to have perceived the fact reported. The Accused should have therefore, produced the persons in whose presence the seizureofthestolenmoneyfromappellantNo.2'shouseat Mangalore was effected or examined the press correspondents in proof of the truth of the contents of the news item. The question as to the admissibility of newspaper reports has been dealt with by this Court in SamantN.BalakrishnaV/sGeorgeFernandez,19693SCR 603. (AIR 1969 Sessions Court 1201). There the question arose whether Shri George Fernandez, the successful candidate returned to Parliament from the Bombay South Parliament Constituencyhaddeliveredaspeechat Shivaji ParkattributedtohimasreportedintheMaratha,awidely circulatedMarathinewspaperinBombay,anditwassaidA Newspaper report without any further proof of what had actuallyhappenedthroughwitnessesisofnovalue.Itisat best a secondhand secondary evidence. It is well known

38

thatreporterscollectinformationandpassitontotheeditor who edits the news item and then publishes it. In this processthetruthmightgetpervertedorgarbled.Suchnews itemscannotbesaidtoprovethemselvesalthoughtheymay be taken into account with other evidence if the other evidenceisforcible. 27] In the case in hand, none of the party have examinedtheEditorofthe newspaperinwhichthesaid newsitemwaspublished.Thecontentsofthenewspaper itemarenotproved.Inviewoftheabovecitationthesaid news item is the hearsay evidence and therefore, not admissibleandthusthesaidnewsitematarticle62/Exh. 399iskeptoutofconsideration.

ASTOPOINTNO.1 28] Itwouldbepropertohaveaclearpictureabout thespotofincident.AtExh.260thereisthemap/sketch ofthespotofincident.ThereisamainroadrunningEast WestandpassingfromtheKoregaonParkareaofPune.On the Northern side of the road the German Bakery is situated. Adjacent to the German Bakery towards East sideishotel'O'. Theroadwhichpassesbetween German Bakery andhotel'O'iscalledas'A'lane.Adjacenttothe German Bakery towards West side is the wine shop, thereafterthereisaoutletofCafeCoffeeDayandthereafter

39

is the Niranjan Jwellers. The main entry to the German BakeryisfromtheMainroadandthereisonemoregateto the GermanBakery fromthe'A'lane.Themap/sketchof the spot is reproduced below from Exh. 260 for better understanding.

Thisspot is also described by the Spot Panch P.W.44 JagdishNimbalkarinhisevidence.Itisneedlesstostate thatthespotofincidentisnotindispute. 29] As alreadymentioned,theevidenceofP.W.1to P.W.41isgivenbytheprosecutionbyfilingtheirAffidavits, under the provisions of Section 296 of Cr.P.C., being the formal witnesses. Only 11 witnesses, out of these formal witnesses, were cross examined by the defence and thereforetheirevidenceisdiscussedinsomewhatdetail. 30] P.W.4toP.W.19,P.W.21,P.W.22,P.W.26,P.W.27,

40

P.W.29, P.W.34, toP.W.41arethewitnessestowhomthe defensechosenottocrossexamine.So,onlygistoftheir evidence is taken here. All of them were present in the vicinityofGermanBakeryatthetimeofexplosion.Intheir evidenceAffidavitstheyhavestatedabouttheexplosionat theGermanBakeryon13022010inbetween6.50p.m.to 7.00p.m.Mostofthesewitnessesarethepersonswhohave sustainedinjuriesduetotheexplosionastheyhadcometo theGermanBakeryasthecustomers.Theystatedintheir Affidavits about sustaining injuries and about their admissions to the different hospitals for treatment. As these witnesses were not called by the defence for cross examination,theirevidencewentunchallenged. 31] P.W.1SmitaKharose,istheownerof German Bakery.InherevidenceAffidavitshehasstatedthaton13 022010 at about 7.15 p.m she was informed by the Manager of German Bakery about theexplosion andshe reached the spot around 8.45 p.m. and noticed that the German Bakery was virtually destroyed and the injured and deceased were removed to the hospitals. She stated thattheestimateddamagewasaroundRs.15Lakhs.She was cross examined by the defence. In the cross examinationithascomethatintheGermanBakerythere wasselfservicefacilityforthecustomersandCCTVcamera

41

wasinstalledatthecounterofGermanBakery.Ithasalso comethattheCCTVCamerawasinstalledattheadjacent hotel'O'.Thetimingoffunctioningofthe GermanBakery isstatedtobefrom8.00a.m.to11.00p.m.Beingtheowner ofthe GermanBakery,itisbutnaturalthatshereached thespotafterlearningabouttheexplosion. 32] P.W.2Dr.ManasiJadhavistheDoctorhaving herDentalCliniconthefirstfloorof GermanBakery.In herevidenceAffidavitshehasstatedthatintheeveningof 13022010ataround7.00p.m.whileshewaspresentin her Clinic, she heard loudexplosiononthegroundfloor and noticed that the German Bakery was completely destroyed and the customers were severely injured. She statedthatshetriedtoprovidehelptothevictimsandsoon thepolice,ambulanceandfirebrigadearrivedandremoved theinjuredtodifferenthospitals.Inthecrossexamination ithascomethatthetimingsofClinicwasfrom9.00a.m.to 7.00p.m. She denied the suggestion that she was not present on the spot. Since this witness was running the Dental Clinic in the same premises her presence on the spotisnaturalandthereisnoroomtodoubtherevidence. 32] P.W.3ShankarKharoseishavinghisbusiness by name K.P. Forex Pvt. Limited, in the same building wheretheGermanBakeryissituatedandhisofficetimings

42

are stated to be 10.00a.m. to 8.00p.m. In his evidence Affidavit he has stated that on 13022010 while he was present in his office, he heard a loud explosion around 7.00p.m and due to the impact of explosion the window paneadjoiningtotheentrancedooraswellasglassonhis officecounterwereshattered.Hestatedthatafterhecame outoftheofficehenoticedlotofcommotionandtherewere several injured persons shouting forhelp andthe plastic tinshedoutsidetheGermanBakery,thecounterinsidethe German Bakery and other articles were completely destroyed. He further stated that the people helped the victimstogotothe hospitalandthepolice,firebrigade andambulancehadalsoreachedandremovedtheinjured tothehospital.Thiswitnesswasnotcalledbythedefence for the cross examination. However, his business establishment being adjacent to the explosion site, his evidenceisdiscussedinlittledetail. 33] P.W.20KoustubhMhatre,isoneoftheperson whosustainedtheinjuriesinthesaidexplosionatGerman Bakery. In his evidence Affidavit he has stated that at about 6.45p.m. on 13022010, he went to the German Bakerywithhiscolleagues, tohavesomesnacksandthe explosion took place in which, he himself and his colleaguessufferedinjuriesandtheywereadmittedinthe

43

hospital.Hehasfurtherstatedthaton08092010heread in the news that Himayat Baig (arrested Accused) was arrested in this case. In his cross examination it is re iterated that the explosion had taken place within the premisesofGermanBakeryintheopenspace.Hedeposed that he do not remember whether he had seen the photographsofthesuspectinthepaper.Hedeniedthathe signedonthereadymadeAffidavitpreparedbythePolice and also denied that he was not present at the German Bakery at the time of explosion. The Injury certificate of thiswitnessisadmittedbythedefenceandthesameisat Exh.232. As regards his evidence that he read the news aboutarrestofAccusedinthiscaseisconcerned,thesame wouldbehearsayinnature.Asregardshispresenceatthe GermanBakery,happeningoftheexplosionandhisgetting injuredisconcerned,itisestablished. 34] P.W.23 Ramesh Panta is the watchman of GermanBakery.InhisevidenceAffidavititisstatedthat hestaysalongwiththeotherworkersinthesamebuilding where GermanBakery issituated and intheeveningof 13022010atabout7.15p.m.whilehewasgettingreadyfor reporting to duty he heard a loud explosion and noticed thattheentiretinshedoftheGermanBakeryhadbroken and several persons were lying in injured condition. He

44

stated that the gas cylinders were intact. In his cross examinationithascomethatthebelongingsofthepersons who entered the German Bakery were not checked and sincemanyofthecustomerswerethestudentstheyused tocarrythebagsandtherewasnooccasiontocheckthe bags.Hestatedthatthepoliceandfirebrigadehadcometo thespotandfirebrigadehadputsome water.Beingthe watchman of German Bakery his presence at the site is natural. 35] P.W.24 Shrikrishna Thapa is the witness who wasworkingintheGermanBakery astheCashieratthe relevanttime.InhisevidenceAffidavithehasstatedthat on13022010atabout6.50p.mwhilehewasleavingthe German Bakery after giving the Accounts of theday, big explosionandflameshadoccurredattheGermanBakery and he sustained injury to his person and he was hospitalized for treatment. He further stated that the customerswerelyinginpoolofbloodandshoutingforhelp and they were removed to the hospital. In the cross examinationitisconfirmedthattherewasCCTVcameraat thecounterof GermanBakeryandthepersonswhocome at the counter were captured in the same. The Injury certificate of this witness is not disputed by the defence and the same is at Exh.171. In addition to this, the

45

prosecution have also examined the Doctor who treated thiswitnessandthesaidmedicalcertificatewasexhibited intheevidenceofDoctor. 36] P.W.25 Ramgopal Karki was working as the ManagerattheGermanBakeryattherelevanttime.Inhis evidenceAffidavithehasstatedthaton13022010when he was at his sister's house, he received theinformation approximately between 6.45p.m. to 7.00p.m. about the explosionatGermanBakeryandsoin20to25minuteshe reachedthe GermanBakery andnoticedthattheBakery hadcompletelyblownawayandthebloodandhumanflesh waslyingonthefloorandthepolicewerepresent.Hehas furtherstatedthatoninspection,itwasseenthattheLPG Cylinderswereintact.Ithascomethatoneoftheemployer oftheGermanBakerybynameGokulBardevadieddueto the injuries sustained by the explosion. In cross examination done by the defence, he denied that the compoundwalloftheGermanBakerywas6ft.Headmitted that due to compound wall of 3.5fts and metal sheet erectionof4fts.onthecompoundwall,itwasnotpossible toseefromoutside,theinsidepartofBakery.Hedenied that the watchman used to check the belongings of the customers. It is further confirmed that there was CCTV cameraonthecounterof GermanBakery.Hestatedthat

46

largenumberofcustomersusedtovisiteverydayinthe GermanBakery.Hisreachingatthespotisquiteprobable, beingtheManager. 37] P.W.28KedarGibireistheemployeeof German Bakery.InhisevidenceAffidavithehasstatedthatinthe eveningof13022010atabout7.00p.m.to7.15p.mthere wasexplosionin GermanBakery andallthearticleswere destroyed and several persons were injured. In his cross examinationhedeniedthathewasnotpresentonthespot attherelevanttime.AstheemployeeofGermanBakeryhis presenceonthespotisobvious. 38] P.W.30HanumantKute,P.W.31KailashMallav andP.W.32SameerShaikharetheautorickshawdrivers. Intheirevidenceaffidavitstheyhavestatedthattheypark their auto rickshaw at the rickshaw stand next to the GermanBakery andintheeveningatabout7.00p.m.on 13022010therewasbigexplosionattheGermanBakery inwhichseveralpersonswereseverelyinjuredandsomeof themdied.Theystatedthatthehoodoftheirautorickshaw got damaged due to the explosion. These witnesses were crossexaminedbythedefence.Theaspectthattheywere therickshawdriversandusedtoparktheirautorickshaws nexttoGermanBakeryisaffirmedincrossexamination.It is denied that the distance between German Bakery and

47

hotel 'O' was 100fts. Though both these witnesses have statedthatitdidnotoccurredtothemthattheyshouldgo tothePolicestation,itisnotatallfatalfortheprosecution. In the evidence of other witnessesit has come that the Policehadreachedonthespotofincident.Theirevidenceis worthyofacceptance. 39] P.W.33 Umesh Pongadwale is the salesman workingintheshopbynameQualityGeneralStoreswhich issituatednexttotheGermanBakeryandinhisevidence Affidavit he has stated that the shop remains open from 8.00a.m.till11.00p.mandfurtherstatedthaton 13022010atabout7.00p.mwhenhewaspresentinthe shop, he heard noise of big explosion at the German Bakery and he saw that the German Bakery was completelydamagedandthecustomersandemployeesof German Bakery were lying seriously injured. He further stated that the injured were removed to hospitals in the ambulance.In crossexamination itisconfirmedthatthe shop Quality General Stores was next to the German Bakery andsincetherewasnofiretherewasnooccasion forfirebrigadetospraythewater.Hedeniedthathewas notpresentintheshopwhentheincidenthadoccurred. Hispresenceatthesiteisquitenaturalbeingworkingin theshopsituatednexttoGermanBakery.

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40] Onevaluationoftheevidenceoftheaforesaid formalwitnesses,theirpresenceinthevicinityofthespot ofincidentcannotbedoubted.Thoughsuggestionisgiven by the defence that they were not present, it is denied. Evenif,thecrossexaminationoftheaforesaidwitnessesis acceptedasitis,theevidencegivenbythemisnotaffected adverselyinanymanner.Manyoftheformalwitnessesare thecustomerswhohadvisitedtheGermanBakery.Though incrossexaminationoftheseformalwitnessesithascome thattheirstatementswererecordedafter2to4daysfrom the incident, that is not fatal for the prosecution for the reasonthattheincidentissuchthatthefirstpriorityofthe Policemachineryistoremovethevictimstothehospitals forprovidingmedicalaidand tomakesecurethespotof incident for proper investigation. When there are large number of witnesses, it is humanly impossible to record theirstatementsimmediatelyandonthesameday.Ifthe tenor of cross examination of the aforesaid formal witnessesisseen,itbecomesclearthatthehappeningof incident, damage to the property, injuries to victims and death of some persons is not disputed by the defence. P.W.3,P.W.23andP.W.25havecategoricallystatedintheir evidenceAffidavitthattheLPGcylindersofGermanBakery werefoundtobeintact.Thereisnochallengetothisaspect

49

fromthesideofdefenceandso,itiscompletelyruledout thatthesaidexplosionwasnottheresultofexplosionof LPGgascylinders.InhisevidencetheInvestigatingofficer whoisP.W.103hasalsodeposedthatthegascylindersof theGermanBakerywerefoundtobeintact. 41] P.W.42KishorSinhaPardeshiisthepoliceman workingintheCrimeBranchasthephotographersincethe year2002.Ithascomeinhisevidencethat hisjobisto takethephotographsofthespotofcrime,deadbodiesand the Accused persons and for that purpose the Police Commissionerate has provided the cameras and the photography equipments and the cameras having the digital memory card are used by them. He stated that VishalMhetreandAnilMaliweretheconstablestoassist him and in the night of 13022010, after receiving the informationabouttheexplosionattheGermanBakery,he wentthereandnoticedthathiscolleaguesbynameVishal Mhetre and Borawke had already reached the spot of incidentandtheyhadsnappedthephotographsanddone the video shooting of thespot.Hefurther statedthathe hadgoneatthehospitalswherehetookthephotographsof deadbodies.Ithasfurthercomeinhisevidencethatthe photographsandthevideoshootingpertainingtothesaid explosion at German Bakery were uploaded in the

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computer of their office which was working in proper conditionandtheC.Ds.ofthesaidphotographsandvideo shootingwere preparedandtheywereatarticle1,1A, 2 and2A.HisevidenceshowsthatthesaidC.Dswereplayed onthelaptopatthetimeofhisevidenceandheidentified the photographs and videoshootingcontainedthereinas thatofGermanBakery explosion.Hewascrossexamined bythedefence.Thoughithascomethathewasnothaving any degree in photography it has come that he had completed the course in photography. Experience shows thatphotographyisthematterofpracticeandnoformal educationisrequiredtooperatethecamerasandthevideo shootingcameraandevenalaymancanoperatethesame with little practice. Merely because the memory cards of cameras and the cameras were not produced before the Court, the same cannot be the reason to discard his evidence.Hisnotmeetingtheownerof GermanBakery is not of any consequence. There is no suggestion that the photographs and the shooting recorded in the aforementioned CDs were not in connection with the German Bakery explosion. From the evidence of this witnessitbecomesclearthataftertheexplosionthesiteof explosionandthevictimswerecapturedinthecameraand video.

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42] P.W.99SuhasNadgaudaistheSr.P.Iwhowas attached to the Bandgarden Police station, Pune at the relevanttime.Inhisevidencehehasstatedthaton 13022010 at about7.00p.m.whenhewasonpatrolling duty,hereceivedtheinformationaboutthebigexplosionat the German Bakery, Koregaon Park, Pune and so he immediatelyreachedonthespotwithhisstaffandnoticed thattherewastremendouschaosandthedeadbodiesand injuredwerelyingandthe GermanBakery wasdestroyed. Hedeposedthatthevictimsweresenttodifferenthospitals andwhenthecashierof GermanBakerybynamePravin Pantcametohimandstartedtellingthedetails,herealized thathewasthewitnesstotheincidentandhewasasked to immediately reach Bandgarden Police station and he also reached at the Bandgarden Police station and recordedhisstatementanditwasclearthatseriousoffence was committed and so he submitted the report to the Station House officer for registering the crime and accordinglyC.RNo.83/2010wasregisteredundervarious sectionsandtheentrywasmadeinthestationdiary. 43] The evidence of this witness shows that the ComplaintcumFIRwaspointedtohimandheidentified his signature on the same and the signature of Station House officer and the complaint and FIR are marked as

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Exh.390(collectively).Fromtheevidenceitisseenthatthe defencehadobjectedtoexhibittheentiredocumentasthe Complainant wasnotavailableandbykeepingopenthe objectionforargumentatthetimeoffinalhearingitwas exhibited.Admittedly,PravinPantwhogavetheFIR,isnot examined by the prosecution as he is not available. However,thisP.W.99istheofficerwhohadsignedtheFIR. InmyconsideredviewnonexaminationoftheComplainant by no means is fatal for the prosecution because it is settled position under the law, that the purpose of report/FIR is to set the criminal law in motion and to contradict the Complainant. Ultimately, the case would depend upon the evidence led by the prosecution. Thus nonexaminationoftheComplainantisnotfatal. 44] It has further come in the evidence of this witnessP.W.99thatheagainwenttothespotofincident and formed different teams for the purpose of recording statementsofinjuredfor preparingInquestpanchnamas andforotherpurposesandhewasalsothepartofteam. Hisevidenceshowsthaton14022010theinvestigationof thecasewastransferredtothe AntiTerroristSquad and thereafteralsohewasthepartoftheinvestigationteam. HisevidenceshowsthatherecordedthestatementofP.W.1 who is the owner of the German Bakery and seized the

53

clothesofNinedeceasedpersonsunderthepanchnamaat Exh.86. He has further stated that the experts from the forensic science laboratory had come on the spot of incidentandcollectedthearticlesforexamination.Ithas alsocomeinhisevidencethat thebloodsamplesofthe injuredandthedeceased,splintersfoundintheirbodies and skins were collected and sent to the Chemical Laboratory forexamination. He wascrossexaminedby thedefence.Nothingmaterialisbroughtbythedefenceto discardtheevidence.Thesuggestionsthatnoarticleswere collectedfromthespotofincident,nobloodsamplesand splinters were collected and not carrying out the investigationaredenied.Ithascomethatthestatementof thiswitnesswasrecordedafterNinemonths.Thiswitness haveexplainedthedelaybystatingthatashewasthepart ofinvestigationhisstatementwasrecordedafterhedidhis investigation.Hestatedthatfirebrigadehadnotsprinkled wateronthespotofincident.Theevidenceofthiswitness clearlygotoestablishthatimmediatelyaftertheexplosion hereachedthespotofincidentandarrangedforsending the victims to the different hospitals, cordoned the spot andrecordedtheFIR. 45] The prosecutionhasbroughtonrecordthe medical evidence to prove the injuries suffered by the

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victimsinthesaidexplosion.Asalreadymentioned,allthe injurycertificatesareadmittedbythedefence.Sincesome of the injury certificates were not admitted at the first instance,theprosecutionhadexaminedfiveDoctorswho treatedtheinjuredpersons.Thoughtheinjurycertificates areadmittedbythedefence,itwouldnotbeoutofplaceto discussthemedicalevidenceavailableonrecord. 46] P.W.45Dr.Lohokare,istheconsultantGeneral Surgeon attached to the Inlac and Budhrani Hospital, KoregaonPark,Pune.Inhisevidenceithascomethaton 13022010 about 13 to 14 patients, injured due to explosion at the German Bakery were brought for treatmentinthesaidhospital.Accordingtothiswitnesshe examinedpatientVikasShigwanwhowasbroughtatabout 23.11 hrs. on 13022010 and he gave the history of explosioninjuryatthe GermanBakery.Hedescribedthe injuriespresentonthepersonofsaidpatientandstated that the injury was caused due to Bomb explosion and endangeringtolife.Theinjurycertificateofthesaidpatient at Exh.169 is identified by this witness. In cross examination itisstatedthattheinjuryofthesaidpatient wasnotdangerousforhislifeandthereisnoprocedureto know that the particular injury is caused only by Bomb explosion.

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47] P.W.46 Dr. Saxena is the Consultant plastic SurgeonattachedtotheInlacBudhraniHospital,Koregaon Park, Pune. He stated that certain patients who were injured in the Bomb explosion at German Bakery were broughttothehospitalandhehadoccasiontoexaminethe patients by name Krishna Thapa, Santosh Chandwani, SumeetSingh,AmrapaliChavan,VineetaPathak,andMrs. Waltrawo K. He deposed that the said patients were broughtinthehospital on13022010intheeveningat different times and they were given treatment. In his evidence he described the injuries found on the said patients and stated that the injurieswere possible by Bomb explosion. He identified the injury certificates at Exh.171to176asofthosepatients.Incrossexamination hehasstatedthatallthedetailsarenotmentionedinthe injury certificates and volunteered that the nature of injuries is very much given in the certificates. In the re examinationthiswitnessstatedthattheinjurycertificates giveonlythegistoftheinjuriesandthedetailsaboutthe samearegiveninthemedicalpapers. 48] P.W.47Dr.ShindeistheSurgeonandfounder Director of Surya Hospital, Pune. In his evidence he deposed that two patients by name Uplaksh Tiwari and SaqrAlbadani,whowereinjuredintheBombexplosionat

56

GermanBakery KoregaonPark,Punewerebroughttothe hospitalon13022010ataboutto9.00p.m.and8.30p.m. respectivelyandtheywereexaminedandgiventreatment. Inhisevidencehedescribedtheinjuriessuffered bythe said patients and stated that they were possible due to Bombexplosion andwereofseriousnature.Heidentified theinjurycertificateatExh.181andmedicalpapersatExh. 181Aand181Basthatofthesaidpatients. Inthe cross examination hestatedthatthoughthecertificatewasnot signedbyhim,itwasissuedasperhisinstructionsand therequireddetailsaregiven. 49] P.W.88Dr.BalkrishnaAgrawal,istheSurgeon attachedtoAmitHospital,Yerwada,Pune.Inhisevidence hestatedthatpatientbynameMiss.HiteshiKambojand KiranJadhavwerebroughton13022010at8.00p.mand 7.30p.m. respectively to the hospital for multiple injuries suffered due to Bomb explosion at German Bakery. He described the injuries suffered by them and treatment giventothem.HedeposedthattheinjurysufferedbyMiss. Kambojwasgrievousinnatureandtheinjurysufferedby Kiran Jadhav was simple in nature and possible due to Bombexplosion. Heidentifiedthe medicalcertificatesat Exh.183 and 184 and the medical papers at Exhs.183A and184Aasthatofthesaidpatients.Incrossexamination

57

hestatedthatthereisnoruletodeterminethattheinjury iscausedduetoBombexplosion. 50] P.W.49 Dr. Chetan Puram, is the Orthopedic Surgeon attached to Sancheti Hospital, Pune. In his evidencehestatedthaton13022010between9.30p.m.to 10.00p.m.personsbynameMushtaqAhemadandKanaji Sherkhane were brought to the hospital for injuries sufferedduetotheBombexplosionatGermanBakery.He statedaboutthetreatmentgiventothem anddescribed the injuries found on their persons and stated that the injurieswerepossibleduetoBombexplosion.Heidentified theinjurycertificatesatExh.186and187andthemedical papersatExh.187Aasthatofthesaidpatients.In cross examination hestatedthattheinjurytotheTibiaFibula maycauseduetofall. 51] P.W.50 Dr. Pravin Survase, is the Surgery residentofSassoonGeneralhospital,Pune.Inhisevidence he stated that on 13022010 in between 7.50p.m. to 10.13p.m. the patients byname Bharat Agrawal,Kantilal Zala, Paras Reemal, Rushabh Agrawal, Sunanda Naik, Vidya Nayak, Uday Karemvadi and Nagrajan Reddi were broughttothehospitalforinjuriessustainedintheBomb explosion at the German Bakery. He deposed about the treatment given to the said patients and described the

58

injuriespresentontheirpersons.Hefurtherdeposedthat theinjurieswereconsistentwiththeexplosioninjuries.He identifiedtheInjurycertificatesatExh.189to198asthat ofthesaidpatients.Incrossexaminationhedeposedthat theopiniongivenbyhimwasnotmentionedinthemedical certificates and the medical papers. He denied the suggestion that none of the patient have suffered the explosioninjuries. 52] ThoughtheaforesaidfiveDoctorwitnesseswere crossexaminedbytheLd.defenceAdvocate,theevidence givenbytheminrespectofsustainingtheinjuriesbythe saidpatientsduetoexplosionandgivingthetreatmentto them and issuing the medical certificatesisnot affected. The evidence of these Doctors show that while giving evidencetheyhadbroughttheoriginalmedicalpapersof theirrespective hospitals.Itisneedlesstostatethatthe treatmentgiventothepatientsisnottobereproducedin the injury certificate and only the injuries are to be mentioned nor there is any such requirement under the Law.Themedicalevidenceshowsthattheinjuriestothe victims were caused due to the foreign bodies/projectiles whichgotblownduetotheexplosion. Itiscrystalclear from the evidence of these Doctors that all the said patients were admitted in the evening of13022010

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afterthetimewhentheexplosionhadtakenplaceandthe historygivenwasthatof injuriesdueto Bombexplosion andtherefore,bynostretchofimaginationitcanbesaid thattheinjurieswerenotcausedduetotheexplosion.The injuriesonsomeofthepatientsaresimpleandtheinjuries onsomeofthepatientsaregrievous.Thoughitisbrought on record in the cross examination of the Doctors that thereisnoruletodeterminetheinjuryastheBombblast injury all the patients were brought from the German Bakerywheretheexplosionhadtakenplace.Thoughthese DoctorwitnesseswerecrossexaminedbytheLd.defence Advocate the injury certificates of said patients were admitted subsequently by the defence. So, ultimately no dispute remains about the same. The name of injured, cause of injury and the exhibit numbers of the Injury certificate are given below in tabular form. Some of the injured persons are the witnesses who had given their evidenceAffidavits.
Sr No 1 2 3 4 5 6 VikasShigwan(P.W.22) KrishnaThapa(P.W.24) SantoshChandwani(P.W.12) SumitSingh(P.W.40) Ms.AmrapaliChavan(P.W.21) Miss.VineetaPathak(P.W.39) Blast Blast Blast Blast Blast Blast 169&169A 71&171A 172&172A 173&173A 174&174A 175, 175A & Nameofinjured Causeofinjury Exh.Nos.

60 240 7 8 Mrs.WaltrawoK(P.W.41) SaqrAlbadani(P.W.35) UplakshyaTiwari(P.W.38) Miss.HiteshiKamboj KiranJadhav(P.W.6) MushtaqAhemad(P.W.29) TanajiSherkhane(P.W.7) BharatAgrawal(P.W.34) KantilalZala ParasReemal RushabhAgrawal SunandaNaik(P.W.8) VidyaNayak(P.W.9) UdayKaranwade NagrajanReddi AshErigEjrali FarazZalnani ChekWang BharatTurkia UdayKedambadi(P.W.14) RazaviAlireza LazarusAshley(P.W.15) VikasGaurav DeepakBajaj ReetaAnap BornaKananiya ChinmayJokhla(P.W.18) SnehalDudhabade(P.W.17) SmrutiBatta(P.W.19) EktaLulla(P.W.11) Blast Blast Blast Blast Blast Blast Blast Blast Blast Blast Blast Blast Blast Blast Blast Blast Blast Blast Blast Blast Blast Blast Blast Blast Blast Blast Blast 176&176A 181&181B 181&181A 183&183A 184&184A 186 187&187A 189 190&202 191&203 192 193 194 195 196&204 197 198 199&205 200 201 205A 206 207 208 210&211 212&213 214 215 216 217

9
10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36

61 37 38 39 40 41 42 43 44 45 46 47 48 49 50 51 52 53 54 55 56 57 58 NeerajLulla(P.W.10) KunalBhalla RehmaniJaffar RameshSatyamurthy ShivangiTyagi NatrajanBalsubramanyam (P.W.4) AdityaAnilkumar ArinjayJain(P.W.13) AftabHussain ArunMaddy AjaysinghThakur(P.W.37) SilvesterCordorio(P.W.5) HemantKapoor JayBudhdhaDev(P.W.16) KaustubhMhatre(P.W.20) ShashankNagar AnapGanpat AnasSluman VikasTulsiyani AdityaMehta RajuAgrawal Blast Blast Blast Blast Blast Blast Blast Blast Blast Blast Blast Blast Blast Blast Blast Blast Blast 218 219 220 221 222 223 224 225 226 227 228 229 230 231 232 233 234 235 236 237 238 239

Miss.PratyushaSarkar(P.W.26) Blast

Withthe materialonrecord,theprosecutionhaveclearly established that the persons mentioned in the aforesaid chart were injured in the explosion which occurred at GermanBakery,KoregaonParkPune,on13022010. 53] The prosecution submitted the Inquest, Postmortemreportsandotherrelatedpapersinrespectof

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the persons died due to said explosion. As already mentioned, the defenceadmittedthegenuinenessofthe said documents and therefore, they were admitted in evidenceandexhibited.Itisneedlesstostatethatthefacts admitted need not be proved. Perusal of the said documents clearly go to show that the victims named in these documents died due to injuries suffered in the explosion occurred at theGerman Bakery.Thesearethe documents prepared at the relevant time in ordinary course of nature. The cause of death of the victims mentionedinthesedocumentsisstatedbelowintabular formwhichgivesthenameofdeceased,causeofdeathand Exhibitnumbersofrelevantpapers.
SrNo Nameofthedeceased Causeofdeath 1 2 3 4 5 6 7 8 9 AnkitKamlendudhar Kum.ShilpaGoyanka Kum.VinitaGadani Kum.SinduliPiduri Kum.AnandiDhar ShankarPansare VikasTulsiyani AnasSuliman (Foreigner) Kum.AditiJindal Exhs

Hemorrhage & Shock due to 69 explosionInjury Explosioninjury Explosioninjury

70 71

HemorrhageandShockdueto 72 explosionInjury HemorrhageandShockdueto 73 explosionInjury HemorrhageandShockdueto 74 puncturedInjuryoverchest Complication followingexplosioninjuries.

75

Septicemia due to explosion 76 injuries Complications followingexplosioninjuries

77

63 10 11 12 13 14 15 16 17 AtulAnap AmjadElgoAhmed (Foreigner) AdityaMehta AbhishekSaxena GokulNepali Ms.NadiaMacerini SayeedAbdolKhani (Foreigner) RajuAgarwal
Complications followingexplosioninjuries.

78

Multiple burn injuries due to 79 explosion Complications followingexplosioninjuries. Complications followingexplosioninjuries. Explosioninjuries. Explosioninjuries.

80 81 82 83

HemorrhageandShockdueto 84 explosionInjury Complications followingexplosioninjuries

85

From the above material on record it is unerringly establishedbytheprosecutionthat17personsdieddueto theinjuriessufferedfromtheexplosionatGermanBakery. 54]P.W.72SantoshBhoreisthepanchwitnessfor the panchnama in respect of seizure of the splinters removedfromthebodyofinjuredpersons.Inhisevidence he stated that on 14022010 at about 3.30p.m. he was called by the police at the Sancheti Hospital, Pune in respectofthepanchnamaforsplintersandtheDoctorfrom the hospital shown onebottleonwhich thename ofthe patientwaswrittenanditwashavingeightsplintersandit wasseizedbythepoliceunderthepanchnamaatExh.314. This witness identified his signature on the said panchnamaandalsoidentifiedthebottleatarticle45as

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thesame.In crossexamination ithascomethathewas present in the SanchetiHospital with hisrelativepatient andthenameoftheDoctorwas Tembhurne.Thisshows thatheisthenaturalwitness.Hestatedthathehadnot seenremovingthesplintersfromthebodyofpatients.Itis commonexperiencethatnostrangeroroutsiderisallowed bytheDoctorswhiledoingtheproceduresonthepatient and therefore, his not seeing the act of removing the splinters from the body of patients will not discard his testimony.Theotherpanchnamasinrespectofseizureof splintersareadmittedbythedefenceandtheyareatExh. 315to320.ThearticlesNos.46to51arethearticleswhich wereseizedundertheadmittedpanchnamas.Theevidence ofseizureofsplintersfromtheinjuredisalsocorroborated bytheevidenceofP.W.99whoisthepoliceofficerofthe BandgardenPolicestationwheretheoffencewasregistered as can be seen from Para 6 of his evidence. Thus, the evidence on record establishes that the splinters were removed from the patient's body and they were taken chargeofbythepolice. 55] P.W.44 Jagdish Nimbalkar is the witness in whosepresencetheSpotpanchnamawasdrawn.Heisthe GovernmentofficerworkingasTahsildar.Inhisevidencehe hasstatedthathewascalledbythepoliceattheGerman

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Bakery,KoregaonPark,Puneinthemorningat8.00a.m. on 14022010 for the purpose of preparing the Spot panchnama and another panch Suhas Soma was also presentthere.InhisevidencethisP.W.44havedescribed thespotofincidentingreatdetailwhichgivestheactual scenarioatthespotaftertheexplosion.Hestatedthatthe counter, the shed had fallen down and broken, the furnitureinthepremisesof GermanBakery wasbroken, pieces of human bodies and flesh were scattered, the compound wall was cracked, there was one hole on the Eastsidewallandtherewasbigpitadjacenttothesaid wallofGermanBakery,theleatherboutiquewasinbroken condition,thearticlesofnearbyshopsweredamaged,the signboardofhotel'O'washalfbrokenandtheglassonthe secondfloorofthehotel'O'wascracked. Healsodeposed thatthepersonsfromtheforensicsciencelaboratoryhad collectedthesamplesfromthespot.The Spotpanchnama atExh.166isidentifiedbythiswitnessasthesamewhich was drawn in his presence. In his evidence he also identifiedthearticleswhichareatnumber6(collectively), 7(collectively)and8(collectively),whichconsistoftinpieces, piecesofmobilephones,chargers,batteries,piecesoftiles, metallicparts,piecesofburnedclothes,watches,C.Dsetc. as the same articles which were collected from the spot

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undertheaforesaidspotpanchnama inhispresence.His evidencefurthergotoshowthatthearticle1and2which are the CDs having the pictures of the spot of incident, which are brought on record in the evidence of P.W.42 (policephotographer),wereplayedonthelaptopandshown tohimandhedeposedthatthepicturesandvideoshooting wasthatofthespotofincident.Hehascategoricallystated thatthespotofincident wasprotectedbycordoningthe area.Crossexaminationofthiswitnessshowsthatmajor part of the cross examination is in the nature of suggestions which are deniedby him. He denied that he acted as the panch on several occasions. This witness beingtheTahsildar,bynomeanscanbesaidtobeunder theinfluenceofpolicemachinery.Nothingisbroughtinthe cross examination to doubt the evidence of this witness. Theevidenceofthiswitnesscorroboratestheprosecution casethatexplosionhadtakenplaceatGermanBakery in whichtherewasdestructionofpropertyandlossofhuman life. 56] P.W.103 Vinod Satav is the witness who was working as the Asst. Commissioner of Police in the Anti Terrorist Squad, Pune and who investigated this case. In hisevidencehedeposedthatafterreceivingtheinformation abouttheexplosionattheGermanBakery,KoregaonPark,

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Puneon13022010herushedtothespotofincidentwith thestaffandP.W.99wasalreadypresentwiththestaff.He statedthattheinjuredandthedeadweresenttodifferent hospitals. He deposedabout thecondition ofthespot. It has come in his evidence that on the directions of the Director General of Police the investigation was handed overtotheAntiTerroristSquadbytheorderdated 13022010 which is at Exh.408. He identified the endorsementandsignatureonthesaidorderinrespectof receiving the same. He further deposed that after taking overtheinvestigationheregisteredtheoffencewiththeAnti TerroristSquad,KalaChowkyoffice,Mumbaiandsentthe copyofcomplainttotheSpecialCourtandidentifiedthe report at Exh.409 as the same by which the copy of complaintwassent.Hefurtherdeposedaboutconducting the Spotpanchnama,comingofexpertsfromtheforensic sciencelaboratoryandcollectingthearticlesfromthespot forexamination,takingincustodytheCDsatarticle1and 1Ainrespectofthephotographsandshootingofthespot. Healsodeposedthatthesamplescollectedfromthespotof incident weresenttotheforensicsciencelaboratory for examination. In his evidence he has stated that the fire brigadedepartmenthavesubmittedthereportatExh.424 statingthatnofirehadtakenplaceonthespotofincident.

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In cross examination there is nothing to discard the evidenceofP.W.103thatexplosionhadtakenplaceatthe GermanBakery andhehadgoneonthespotofincident. Hedeniedthatthefirebrigadesprinkledthewateronthe spot before he reached. The cross examination of this witness done in connection with other aspects would be dealtwithatrelevantstages. 57] Ifthecrossexaminationdonebythedefenceof theformalwitnessesandtheaforementionedwitnessesis seen, it appears that they wanted to show that the fire brigade had sprinkled the water on the spot of incident. Comingofthefirebrigadeonthespotwheresuchincident happensisnotunnaturalbecauseitisoneoftheessential services. The report of the fire brigade department is preparedintheregularcourseofit'sdutyanditnowhere showsthatthewaterwassprinkledwithinthepremisesof German Bakery where the actual explosion had taken place. Itshowsthatwaterwasusedonlyforcleaningthe road. Even the witnesses have denied that water was sprinkled in the German Bakery premises. Only in the evidence of P.W.23 it hascomethatfirebrigadehadput somewater.IfthatstatementofP.W.23isreadinthelight of the aforesaid report of fire brigade, the only inference whichcomesoutisthatthewaterwasputontheroadonly

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andnotinthepremisesofGermanBakery.Inanycase,it willnotaffecttheprosecutioncaseinanymanner. 58] P.W.91BalasahebBargujeisthePoliceNaikof the Anti Terrorist Squad who carried the seven sealed packets to Delhi for giving it to the forensic science laboratory. In his evidence he identified Exh.374 as the written directions given to him by P.W.103, Investigating officer in that regard. His evidence shows that after submittingthepacketshegavethereportatExh.375and thereafter on 07042010 he had again gone to Delhi to collectthereportfromtheforensicsciencelaboratoryand submittedthecompliancereportatExh.329.Thisevidence isnotchallengedbythedefence. 59] Thereisforensicevidencebroughtonrecordby theprosecutiontoshowthattheexplosiveswereusedto causetheexplosion.P.W.75N.B.BardhanisthePrincipal ScientificofficerattheCentralforensicsciencelaboratory, C.B.I,NewDelhiandP.W.78RavindraKulkarniistheAsst. Chemical Analyzer in forensic science laboratory, Pune. Their evidence goes to show that they had received the articles/samples in connection with the German Bakery Bomb explosion in Sealed condition and they examined thesaidarticles/samplesandpreparedthereportsinthat regard.

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60] P.W.75identifiedtheC.AreportatExh.23asthe same which was prepared by him in respect of the articles/samples which were collected from the spot of incident and deposed that the physio, chemical and instrumentalexaminationconfirmedthepresenceofRDX, ammoniumnitrateandoilinthearticles/samples.TheC.A report at Exh.23 corroborates his evidence. He identified the letter at Exh.330 as the letter by which the articles /samples were received by the laboratory. Perusal of the letteratExh.330andtheC.AreportatExh.23showsthat theywerethesamearticles/sampleswhichwerecollected from the spot of incident and examined. P.W.103 Vinod Satav also deposed in his evidence that Exh.330 is the same letter through which he sent the 7 samples for examination toforensic sciencelaboratory,Delhiandthe C.AreportatExh.23wasreceivedfromthesaidlaboratory inthatrespect. 61] P.W.78identifiedtheC.AreportatExh.22as the same which was prepared by him in respect of the articles/samples which were collected from the spot of incident and deposed that the traces of cyclonite (RDX) ammoniumnitrate,nitrateionsalongwithhydrocarbonoil was detected in the articles/samples. The C.A report at Exh.22corroborateshisevidence.Heidentifiedtheletterat

71

Exh.343astheletterbywhichthearticles/sampleswere receivedbythelaboratory.PerusaloftheletteratExh.343 and the C.A report atExh.22shows thattheywerethe samearticles/sampleswhichwerecollectedfromthespot of incident and examined. P.W.103 Vinod Satav also deposed in his evidence that Exh.343 is the same letter through which he sent the7samplesforexaminationto forensic science laboratory, Pune and the C.A.report at Exh.22 was received from the said laboratory in that respect.TheotherC.A.reportspreparedbythiswitnessor atthePuneforensicsciencelaboratory,whichareatExhs. 25to65,areinrespectoftheblood,skin,hairsamplesof thevictimsandtheyarenotdisputedbythedefencesince theydonotshowtheresidueofexplosives. 62] P.W.75 further deposedthatRDXisthehigh explosivematerialusedforexplodingtheBombanditmay cause severe destruction to the surrounding objects and theyattheirlaboratoryhavetheinstrumentsbywhichthey can detect the high explosive even if it is present in nanogramlevel(veryveryminimumquantity).Hefurther deposed that after the explosion by use of RDX, the explosive contents turns into gaseous form, emanating a largevolumeofgasandproduceahighleveltemperature anditisdefusedinthesurroundingsintheformofsmoke

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andthesmokewhichemanatesduetotheblastgetstuck to the surrounding object in the form of smoke residue and from the analysis of that residue, the nature of explosiveusedcanbedetermined.Hefurtherstatedthat addition of ammonium nitrate and oil to the explosive substance increases it's effectiveness of destruction through explosion effect and inflammable effect. His evidenceshowsthattheC.A.reportatExh.22preparedby P.W.78wasshowntohimandhestatedthattheresultof analysismentionedisRDX,ammoniumnitrateandnitrate ionalongwithpetroleumhydrocarbonoilweredetectedin theexhibitsreceivedbythesaidlaboratory. 63] P.W.78furtherdeposedthattheirlaboratoryat Puneisequippedwithlatestandsophisticatedequipments whichcandetecttheexplosivessuchasRDXatdifferent concentrationsandGCIONscanchromatogramcandetect RDXuptothelevelofPictogram(veryverysmallquantity), which is not visible to naked eye. He also deposed that RDXisthehighexplosiveandammoniumnitratecanalso be used as an explosive and if RDX is mixed with ammonium nitrate, charcoal, petroleum hydrocarbon oil, theeffectivenessoftheexplosionisenhanced.Hedeposed that whenever the explosion occurs, heat gets generated and pressure gets developed and material nearby in the

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vicinity is blown off and they may get stuck to the surroundingsurfacesinaverysmallamount. 64] Boththesewitnessesfromtheforensicscience laboratory were cross examined by the Ld. defence Advocate. It has come that RDX means Research Development Explosive. P.W.75 stated that the opinion given by him in his evidence about the RDX was not mentionedinhisreport.Itisneedlesstostatethatinthe C.Areportonlytheresultofanalysisofarticles/samplesis tobegivenandtherefore,notmentioningtheopinionabout theRDXintheC.Areportwillnotmakeanydifferenceor will not render the C.A. report useless. In cross this witnessstatedastohowtheBombcan beexploded.The cross examination could not affect the evidence given by this witness for the prosecution. P.W.78 in his cross examination stated that it is not necessary to have petroleum hydrocarbon oil in RDX. Nothing material is broughtinthecrossexaminationofthiswitnesstodenthis evidencegivenfortheprosecution. 65] Fromtheevidenceofthesetwowitnessesfrom theforensicsciencelaboratoryitisclearlyestablishedby theprosecutionthattheexplosionoccurredattheGerman Bakery,KoregaonPark,Puneintheeveningof13022010 was due to the explosive substances as stated above. In

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their cross examination it is confirmed that RDX is not available in open market and so, it is clear that the explosion was made to cause. From all the evidence discussedaboveitisclearthatthe explosionhadcaused at German Bakery on the said date and time and it resultedinseveredestructiontothepropertyandclaimed thelifeof17personsandcausedinjuriesto58persons. Hence,PointNo.1isansweredaccordingly. ASTOPOINTNO.2 66] Onceitisestablished thatthe explosionat the German Bakery was caused due to use of explosive substances, it is to be seen as to whether it was the Terrorist activity. The term terrorist Act is defined Under Section15of UnlawfulActivities(Prevention)Act,1967.The relevantpartofthesaidprovisionisreproducedhere. threatenorlikelytothreatentheunity,integrity,security,or sovereigntyofIndiaorwithintenttostriketerrororlikelyto striketerrorinthepeople oranysectionof thepeoplein Indiaorinanyforeigncountry: a] by using bombs,dynamite or other explosive substancesorinflammablesubstancesorfirearmsorother lethal weapons or poisonous or noxious gases or other chemicals or by any other substances (whether biological radioactive,nuclearorotherwise)ofahazardousnatureor byanyothermeansofwhatevernaturetocauseorlikelyto cause
Terrorist Act Whoever does any act with intent to

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i]deathof,orinjuriestoanypersonorpersonsor ii]lossof,ordamageto,anypersonorpersonsor iii]................. iv]............... b]............... c]................ Itwouldnotbeoutofplacetomentionsomeofthe meaningsofthewordTerrorismasshowninpara47ofthe case MohammadKhalidV/sStateofWestBengalreported
in2002(7)SCC334.

Terrorismistheuseofthreateneduseofforcedesigned tobringaboutpoliticalchangeBrianJenkins. Terrorism constitutes the illegitimate use of force to achieve a political objective when innocent people are targetedWalterLacquer. Terrorism is the premeditated, deliberate, systematic murder,mayhem,andthreateningoftheinnocenttocreate fearandintimidationinordertogainapoliticalor tactical advantage, usually to influence an audience James M Poland. Terrorism is the unlawful use of threat of violence against persons or property to further political or social objectives.Itisusuallyintendedtointimidateorcoerce a government, individuals or groups, or to modify their behaviororpoliticsVicePresident'sTaskForce1986. Terrorism is the unlawful use of force or violence against persons or property to intimidate or coerce a government,thecivilianpopulation,oranysegmentthereof, infurtheranceofpoliticalorsocialobjectivesFBIDefinition.

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67]Onthispointtherelevantevidenceisthatofthe Police officers and the report from the National Security guard. The Investigating officer of this case, is P.W.103 VinodSatav.Thereisnodisputeontheaspectthathewas holdingthepostofAsst.CommissionerofPoliceintheAnti Terrorist Squad at the relevant time and was competent officertoinvestigatetheoffenceunderUnlawfulActivities (Prevention)Act,1967.Hisevidenceshowsthatpursuantto theordersofDirectorGeneralofPolicetheinvestigationof thiscasewashandedovertotheAntiTerroristSquadand the order in that regard isat Exh.408 and thereafter he tookovertheinvestigationandregisteredtheoffenceatthe KalaChowkyofficeofAntiTerroristSquad,Mumbaiandby reportatExh.409heforwardedthecopyofcomplaintto theSpecialcourt,AntiTerroristSquad.Hisevidenceshows that PI Hasabnis,PIJoshiandPIGaikwadweregiventhe work of viewing the CCTV footage of the vicinity and separateclipoftherelevantfootagewascopiedintheC.D at article 61. If the cross examination of this witness is seen,thereisnochallengeontheseaspects. 68] ItisfurtherdeposedbyP.W.103thatbynightit wasconfirmedthatthe Bombexplosion wastheterrorist actandafterconsideringthepreliminaryinformationand over all situation and because of use of RDX, in the

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explosion,itwassuspectedthatthe Bombexplosion may have been executed by the Banned organization like LashkarEToyba and Indian Mujahiddin and the investigationwasfocusedinthatdirection.Intheevidence ofthiswitnesstheprosecutionhavebroughtonrecordthe Gazette issuedbytheGovernmentofIndiadated1208 2010, 06052008 and 30122004 at Exh. 421 (collectively),banningtheorganizationsbynamesimIand LashkarEToyba.BeingtheGovernmentGazettethesame isadmissibleinevidence.AsregardsthesaidNotificationis concerned,thesameisnotdisputedbythedefence. Itis needlesstostatethatintheSchedulegivenintheUnlawful Activities (Prevention) Act,1967, the names of Terrorist organizations are given which includes the said organizations.Notrememberingthedatebythiswitnesson whichtheOrganizationIndianMujahiddinwasbannedis ofnoconsequenceasheisnottheauthoritytoissuethe ordersofban.Itis broughtonrecordthatatthetimeof incident the said Organization Indian Mujahiddin was banned Organization. In cross it is confirmed that the Organization LashkarEToyba is Pakistan based Organization.Thiswitnessstatedthatthemembersofthe saidOrganizationalsooperatesinIndiaandhecannottell astowhoisthePresidentorSecretaryofthesame.Inthe

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crossexaminationitisbroughtthatRDXisnotavailablein the open market. He stated that he cannot say that the RDXisonlyintheexclusivepossessionoftheArmy. The cross examination could not affect the evidence given by P.W.103inrespectoftheBannedOrganizationanduseof RDXintheexplosionatGermanBakery. 69] Further,intheevidenceofP.W.103ithascome thatColonelManfromtheNationalSecurityGuardandMr. GopinathfromtheDelhiforensicsciencelaboratory had visited the site on 18022010 and they collected certain articlesfromthespotofincidentandthesaidColonelMan submitted his report inthatregardwhichisatExh.425. Thesaidreportisinrespectofthesaidexplosionoccurred at GermanBakery andthefindingsofthesamearethat the mobile phone is the likely device used as the mechanismtoexplodethebomb.Thereisnochallengeto thesaidreport. 70] P.W.101istheSenior PoliceInspector andwas postedintheControlRoom,Puneasthe PoliceInspector (Administration)atthetimeofincidentandwasoneofthe memberintheinvestigatingteam.Thiswitnessalongwith PoliceInspectors Mr.JoshiandMr.Bargeweregiventhe workofverifyingtheCCTVfootageseizedfromthehotel'O' and the German Bakery, to establish the link of the

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personswhowerepresentattherelevanttime.Hedeposed that they synchronized the timings mentioned in the footageandthepersonsseeninthefootageandon 05032010, noticed onesuspectwearingcapandhaving twosackbagsonhisperson,outofwhichonewasonhis backandotherwasatthefrontsidewasstandingonthe counterofGermanBakeryandintheCCTVfootageofhotel 'O'thesaidpersonwasseencrossingtheroadandcoming towardsthe GermanBakery andaftersometimehewas seenleavingtheGermanBakerywithonlyonesackbagon his person. He informed the Sr. officers about the said footage.Whilerecordingtheevidenceofthiswitness,article 61 CD having the relevant recording from the footage of hotel'O'andthe GermanBakery was playedandshowed to him and he identified the said footage in which the timingofstandingofthatsuspectatthe GermanBakery counterwasfrom16.46.11to16.51andthetimingofthat suspectleavingtheGermanBakerywas17.29.30.Healso recordedthestatementofthewitnesseswhowerepresent at the German Bakery soon before the explosion. Cross examinationshowsthathevisitedthespotofincident45 timesandtherewasnoCCTVcameraattheentranceof GermanBakery andatthesidegatewhichisoppositeto hotel'O'.However,thereisnodisputethatCCTVcamera

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wasinstalledatthecounterofGermanBakery.Ithascome that the CCTV footage which were seized, were seen by them number of times. He denied that the distance between German Bakery and hotel 'O' is about 100 fts. According to this witness the distance between German Bakery and hotel 'O' may be between 30 to 35 fts. The omission in the statement given to the Police is only in respectofthepositionofbagsonthesaidpersonwearing capand havingonlyonebagwhilegoingout. Thesaid omissionsareof noconsequencesbecausethestatement isbasedontherecordingwhichwasalreadystoredinthe CCTV.Thereisnothinginthe crossexamination tocaste doubtonhisevidence. 71] Theprosecutionhavealsoexaminedoneofficer from Anti Terrorist Squad by name Dinesh Kadam as P.W.102toestablishthispoint.Itisthecontentionof Ld. defence Advocate that this witness is not of the rank of Asst.CommissionerofPolice andsonotcompetentunder theUnlawfulActivities(Prevention)Act,1967toinvestigate. It is submitted by Ld.Spl.P.P that even if the said contention of defence is accepted for a moment, the evidenceofthiswitnessinrespectoftheinvestigationdone byhimintheothercasescanalwaysbeconsideredsinceit wouldnotbetheinvestigationinthiscase.Ifindmeritin

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thesubmissionofLd.Spl.P.P.Presentlytheonlyaspectis whethertheexplosionwastheterroristsactornotandso, todeterminethisaspecttheevidenceofthesaidwitness canbeconsideredandthereisnobarforthesameunder theLaw.Asregardstheaspectofinvestigationdonebythis witnessinthepresentcase,ifany,wouldbeconsideredat theappropriatestage. 72] P.W.102 is the Police Inspector from the Anti TerroristSquadMumbai,sinceMay2010andpriortothat from the year 2007 he worked with the Crime Branch Mumbai and prior to that he was in the Anti Terrorist Squad.Hisevidenceshowsthat whileworkingso,inthe department, his duty was to investigate the information received from the Central Intelligence Agencies and to investigate in respect of the terrorists and the important Accusedpersons.Hisevidenceshowsthathehadassisted intheinvestigationoftheC.RNo.3/2006registeredwith the AntiTerroristSquad inconnectionwiththeseizureof large quantity of AK47 riffles, RDX, hand grenades, live cartridgesfromAurangabadandinthesaidcasepersons bynameFayyazKagziandJabbiuddinAnsari whoarethe residentofBeedwerethewantedAccusedandtheirsearch was done in Beed. He deposed that recently Jabbiuddin Ansari was arrested. His evidence further shows that he

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hadassistedintheinvestigationofC.RNo.152/2008which wasregisteredinconnectionwiththeEMailssenttothe variousGovernmentofficesandthemediabytheTerrorists OrganizationsbynameIndianMujahiddinandinthesaid C.Rtheyhadarrestedinall21Accusedpersonswhowere connectedwiththesaidOrganizationandthestatementsof the said Accused persons were recorded under the provisionsofSection18(2)ofM.C.O.C.A andthe Charge Sheet was filed against them and against the wanted persons.Hefurtherdeposedthatitwasrevealedthatthe membersofthesaidorganizationbynameRiyazBhatkal, IqbalBhatkalandYasinBhatkalwereinvolvedinthesaid CrimeandtheysearchedforthesaidAccusedpersonsat variousplacesbyobtainingtheirphotographs.Hefurther deposedthatafterhejoinedthe AntiTerroristSquad in May 2010, considering his experience he was asked to assist in the investigation pertaining to thiscase andhe was shown the CCTV footage which were seized during investigation. He deposed that after viewing the CCTV footage,henoticedthatthepersonwhowascarryingtwo bagswhileenteringtheGermanBakery andcarryingone bag while going out at the German Bakery was Yasin Bhatkal(abscondingAccusedNo.1).Hedeposedthatsince thephotographofYasinBhatkalwasobtainedintheyear

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2008hewasabletoidentifyhimonthebasisofthesaid photograph.Ithascomeinhisevidencethatonthebasis of information received from the Central Intelligence Agency,theykeepthephotographsoftheterrorists,collect the information about the manner of their working, the placesoftheirfunctioningandtheirassociatesandonthe basis of information received from his sources and the photographs,hewassurethatthesaidpersonseeninthe CCTVfootagewasnonebut YasinBhatkal.Para20ofhis evidence shows that he had brought with him the photo albumandtheinformationofthevariousAccusedpersons available with them. While giving evidence article 61 CD pertainingtotherelevantCCTVfootageofGermanBakery andhotel'O'wasshowntohimandhedeposedthatthe personwearingthecapandhavingtwosackbagstanding atthecounterofGermanBakeryandhavingonlyonesack bag while going out of the German Bakery was Yasin Bhatkal. In cross examination he deposed that Yasin BhatkalisthewantedAccusedintheAhemadabadBomb explosion caseandalsointhepresentcaseandiswanted since2008.HedeniedthatthepersonseenintheCCTV footage was Abdul Samad and not Yasin Bhatkal. It is suggested by the defencethat YasinBhatkal waswanted since2006.HedeniedthatAbdulSamadwasarrestedin

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thepresentcase. Hisnottakingactionagainstthenews paperagencyinwhichthenameAbdulSamadisprinted belowthephotographofYasinBhatkal,inconnectionwith the present case, cannot be the reason to discard the evidenceofthiswitnessabouthisidentifyingtheplanterof BombasYasinBhatkal.Theadmissibilityofthenewsitem inevidenceinalreadyconsideredatthebeginningofthis point.Nonrecordingofthestatementofthiswitnesswillbe ofnobenefittothedefencefirstlybecauseheidentifiedthe suspectafterviewingtheCCTVfootage,secondlyitisthe settledpositionundertheLawthattheevidenceofwitness cannotbeignoredorrejectedmerelyonthegroundthathis statementwasnotrecordedbytheinvestigatingmachinery. Fromtheevidenceofthiswitnessitisestablishedbythe prosecutionthat thepersonseenintheCCTVfootageof theGermanBakeryandhotel'O'wearingcapandhaving the sack bag on his person is Yasin Bhatkal who is wantedAccusedinthiscase.Theevidenceofthiswitness shows that he has sufficient experience in the investigations in respect of terrorist organization and the persons concerned with the said organization. Though cross examined, the evidence of this witness identifying Yasin Bhatkal in the CCTV footage has remained unaffected.Merelybecausethiswitnessisapoliceofficer,

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hisevidencecannotbediscarded.Theauthenticityandthe admissibility of the CCTV footage is already considered priortostartingdiscussiononthispoint. 73] From the evidence of the aforesaid three witnessesitbecomesclearthatjustbeforetheexplosionat GermanBakery, absconding AccusedNo.1YasinBhatkal enteredtheGermanBakerywithtwosackbagsandheleft GermanBakery withonlyonebag.Itisunlikelythatone willforgetonebagoutofthetwowhenbothofthemare carriedbyhimself.Itisalreadyseenintheevidenceofthe watchman examined while considering the Point No.1 (WitnessNo.23),thatsincemanycustomerswhousedto visittheGermanBakerywherethestudentscarryingbags, therewasnooccasionforthewatchmentocheckthebags. So,itisclearthatthebagswerenotcheckedwhileentering the German Bakery. There is no material to show that abscondingAccusedNo.1YasinBhatkalhadagaincometo the German Bakery and took the second bag with him. Thisshowsthatoutoftwobagsonebagwasdeliberately leftback.Noonewoulddothis.Itisagainstthenormal humanconduct.Takingplaceofexplosionshortlyafterthe abscondingAccusedYasinBhatkallefttheGermanBakery with only one bag, becomes more relevant. Evidence in this regard is trustworthy and accepted. It is already

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established by the prosecution that the explosion at the GermanBakerywasduetouseofRDX.Thisclearlygoesto show that the explosives were planted to cause the explosion. It is already established that due to the said explosion17peoplediedand58gotinjured.Theevidence of P.W.1 that the German Bakery wasvirtually destroyed anddamagedtotheextentofRs.15Lakhswascausedis alreadyconsideredinPointNo.1.Suchactarecausedonly withtheintentiontothreatentheunity,integrity,security orsovereigntyofnationorwithintenttostriketerrorinthe minds of citizens. From the evidence available on record discussed up till now, it is clearly established by the prosecutionthatthesaidexplosionwasaTerroristsAct.

ASTOPOINTNO.3 74] While discussing the Point No.1 the Chart showingthenamesofthedeceasedandthecauseoftheir deathisreproduced.Asregardsthecauseofdeathofthe said17personsduetoexplosionisconcerned,thereisno dispute.Itisalreadydiscussedthatthesaidexplosionwas due to use of explosive and the terrorist act. Thus, the deathofsaid17personsisprovedtobehomicidaldeath. ThusPointNo.3isansweredaccordingly.

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ASTOPOINTNO.4 75] AstheChargeSheetisalsofiledfortheoffences punishable under the provisions of Unlawful Activities (Prevention)Act,1967andExplosiveSubstancesAct,1908 theobtainingofSanctionunderthesaidActs,isnecessary. TherearethreeSanctionordersonrecordatExh.391,392 and393.AlltheSanctionordersareadmittedbydefence. However,atthetimeoffinalargument,itissubmittedby Ld. Advocate for defence that the Sanction under the Unlawful Activities (Prevention) Act, 1967 is given by authority after the prescribed period of seven days mentionedinRule4oftheRulesframedunderthesaidAct andthereforetheSanctionisbad.HecitedtheJudgment inthecaseof AshrafKhan@BabuV/s.StateofGujrath,
2013ALLS.C.R198 andthecaseof RaviSharma@Arjun V/s.StateofZharkhandandothers,inW.P(Cri)No.91/2012.

Tothis,itissubmittedbyLd.Spl.P.Pthatadmittedly,the Charge Sheet is submitted after receiving the Sanction ordersandevenifthereisdelaybythecompetentauthority to issue theSanctionorderwithintheprescribedperiod, thatwouldnotaffectthetrialorwillnotmaketheSanction bad. He cited the Judgment of the Honourable Bombay
HighCourtpassedinCriminalApplicationNo.1256of2011, dtd. 19thDecember,2012 between Mohammed Bilal V/s. The

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StateofMaharashtraandors.

76] Before dealing with the contentions and the rulings of the parties, it would be proper to see the provisions in respect of Sanction in Unlawful Activities (Prevention) Act, 1967 andtheExplosiveSubstancesAct, 1908.
1967 . Cognizance of offence: 1] No Court shall take Section 45 of Unlawful Activities ( Prevention) Act,

cognizanceofanyoffence i]underChapterIIIwithouttheprevioussanctionofthe CentralGovernmentoranyofficerauthorizedbytheCentral Governmentinthisbehalf. ii] under Chapters IV and VI without the previous sanctionoftheCentralGovernmentor,asthecasemaybe, theStateGovernmentandwheresuchoffenceiscommitted against the Government of a foreign country without the previoussanctionoftheCentralGovernment. 2] Sanction for prosecution under Subsection(1) shallbegivenwithinsuchtimeasmaybeprescribedonly afterconsideringthereportofsuchauthorityappointedby theCentralGovernment or,asthecasemaybe,theState Governmentwhichshallmakeanindependentreviewofthe evidencegatheredinthecourseofinvestigationandmakea recommendationwithinsuchtimeasmaybeprescribedto theCentralGovernment or,asthecasemaybe,theState Government. The relevant rules under the Unlawful Activities (Prevention) (Recommendation and Sanction of the prosecution)Rules,2008areasfollows:
Rule3:Timelimitformakingarecommendationby

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theAuthority TheAuthorityshall,undersubsection(2)of

Section 45 of the Act, make it's report containing the recommendationtotheCentralGovernmentor,asthecase maybe,theStateGovernmentwithinsevenworkingdaysof the receipt of the evidence gathered by the Investigating officerundertheCode. Rule 4: Time Limit for sanction of prosecution The Central Government or, as the case may be, the State Governmentshall,underSubSection(2)ofsection45ofthe Act,takeadecisionregardingsanctionforprosecutionwithin Sevenworkingdaysafterreceiptoftherecommendationof theAuthority. 77] Fromtheaboveprovisionsitisclearthatbefore takingcognizanceofanyoffenceunderUnlawfulActivities (Prevention) Act, 1967 the proper Sanction is necessary. Perusal of the first authority cited by the Ld. defence AdvocateshowsthatthecasewasundertheTerroristand DisruptiveActivities(Prevention)Act.Inthatcase,oneof theaspectwasthattheFIRundertheprovisionsofTADA was registered without approval of the District Supdt. of Police as contemplated U/s.20A(1) of TADA. Admittedly, the present case is not for the offence under TADA. Secondly,theLd.defenceAdvocatefailedtoshowthatthere issimilarprovisioninUnlawfulActivities(Prevention)Act, 1967 mandating the prior approval before registering the offence. However, intheevidenceofP.W.103VinodSatav, whoisthe Investigatingofficer ithascomethatonthe

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Ordersofthe DirectorGeneralofPolice,whichisatExh. 408,theinvestigationwashandedovertotheAntiTerrorist Squad. 78] PerusalofthecitationrelieduponbytheLd.Spl. P.P shows that the issue involved in that case was the samewhichisraisedbythedefenceinthepresentcasei.e theprosecutionundertheUnlawfulActivities(Prevention) Act,1967wasquestionedonthegroundthatthemandatory provisionsandruleswerenotfollowed.Frompara8ofthe ruling cited by prosecution it is clear that in that case there was delay in recommendation and sanction as required under Rules 3 and 4. After considering the observationsinthecaseofMaharashtraV/s.JaganNepali andanother,reportedin2011(5)MahL.J.386, itisobserved inpara13asfollows: Section 45(2) is introduced as a resolution of 2008 amendment,thetimelimitandsanctionfromtheauthority and review are checks and Legislature desired to avoid false prosecution. The measures of the checks are the administrative exigencies, procedural supervision meant to speed up the administrative process after investigation on thebasisofwhichtheprosecutionhastobelaunched.Any falloutinadheringthetimescheduledoesnotmadeouta caseforbreachofeitherofthecomplianceofsection45(2).It hastobeshownthatthedelayhasledtothedenialofright, conferredupontheaccused.Thereisnosuchsituationas theStatedesiredprosecutionanditwasplacedbeforethe authorityforreviewandthenneedstoberecommended.The defectorirregularityinofficialcompliancehasnoadverse

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bearingonthecompetenceofthesanctionintermsofSection 45(2)ofthesaidAct. Further,thereportedcitationrelieduponbythe Ld. defence Advocate is considered in para 16 of the JudgmentrelieduponbytheLd.Spl.P.P.Theissueinvolved inthesaidcasebeforetheHonourableBombayHighCourt wasidenticalwhichisraisedinthiscasebytheLd.defence AdvocateandpertaintothesameAct.Thus,theJudgment relieduponbytheLd.Spl.P.Pissquarelyapplicabletothe caseinhand.Itisnowherethecasethatanyprejudiceis caused to the arrestedAccusedduetogrant ofSanction beyondtheperiodprescribedundertheRules. IntheSecondJudgmentrelieduponbythedefence, the Sanction order were passed by the concerned authoritiesmuchafterthecognizanceoftheoffenceunder theActwastakenbytheLd.ChiefJudicialMagistrateand wasissuedatthefagendoftheTrialandthereforeitwas heldinthatcasethatthecognizancewasnotsustainable intheeyeofLaw.However,itisnotthesameinthecasein hand. 79] In the present case the Sanction under the Unlawful Activities (Prevention) Act, 1967 is at Exh.391. Perusalofthesameshowsthat itisissuedbytheHome Department(Special),Mantralaya,Mumbaiandsignedby

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AdditionalChiefSecretary,(Home)andSecretaryInCharge of Home Department, Government of Maharashtra. It is clearfromsubsection1(i)oftheSection45quotedabove, that the Central Government can delegate the powers of grantingsanction.Perusalofpara4oftheSanctionorder clearly go to show that the Central Government vide it's Order No. I/17014/14/07IS VII, dtd. 08082007 (NotificationNo.S.O.1004(E),dated21st June,2007)has authorized the Secretary of the State Government in ChargeofHomeDepartment,GovernmentofMaharashtra toexercisepowerstoaccordSanctionfortakingcognizance of the offence under Unlawful Activities (Prevention) Act, 1967. However, on this aspect there is no dispute. For issuing Sanction the only requirement is primafacie satisfaction of the Sanctioning authority on the basis of materialplacedbeforehim.PerusaloftheSanctionorder showsthatitisissuedafterfullyexaminingthematerial placed before the Sanctioning Authority and considering thefactsandgettingsatisfiedthatthereisprimafaciecase againsttheAccused.ItisclearthattheSanctionaccorded under Unlawful Activities (Prevention) Act,1967 is proper andvalid. 80] Section7oftheExplosiveSubstancesAct,1908 RestrictiononTrialofoffencesNoCourtshallproceedwith theTrialofanypersonforanoffenceagainstthisActexcept

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withtheconsentofDistrictMagistrate. The Sanction orders under the Explosive Substances Act, 1908 are at Exh.392 and 393. The SanctionatExh.392isissuedbytheCollectorandDistrict Magistrate,Latur,dated20112010andtheSanctionorder at Exh.393 is issued by the Collector and District Magistrate, Pune dated 02122010. As regards the competency about the issuing authority, there is no dispute.PerusalofboththesaidSanctionordershowsthat theyaredulyissued.However,asfarasthesetwosanction ordersundertheExplosivesSubstancesActareconcerned, nogrievanceisraisedbythedefence. 81] One of the submission made by Ld. defence Advocate is that the cognizance is taken before the Sanction because the Accused was produced before the Ld. Magistrate prior to grant of sanction. Replying this submissionLd.Spl.P.PsubmittedthattheSanctionorders werefiledwiththeChargeSheet andonlythereafterthe cognizance is taken. The Sanction order at Exh.391 and 393isdated02122010andtheSanctionorderatExh.392 isdated 20112010. ItisnotindisputethattheCharge Sheetisfiledon04122010alongwiththeSanctionorders. Therefore,itiscrystalclearthattheSanctionorderswere issuedpriortofilingofChargeSheet.Asregardstheterm

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taking cognizance is concerned, useful reference can be madetotheJudgmentofHonourableBombayHighCourt reported in 2005 (1) Bom. C.R. (Cri) 337 in which the meaning of word 'take cognizance' is dealt with and relevantauthoritiesonthatpointarequotedtherein.Under thewellsettledpositioninLaw,takingcognizanceistaking noticeofanoffenceorapplicationofmindtothecasewith theintentionofinitiatingJudicialproceedingsagainstthe offenderortakingstepstoseewhetherthereisanybasis for initiating Judicial proceedings or the point when a Magistrate or a Judge first takes Judicial notice of an offence.MereproductionoftheAccusedforthepurposeof RemandbeforeMagistrateandpassingordersonRemand Application do not come within the term 'taking cognizance'.Attheremandstagetheonlyaspectbeforethe MagistrateiswhethertogivePolicecustodyremandorto send the Accused intheJudicialcustody.Productionof theAccusedforthepurposeofremand,beforefilingofthe ChargeSheetisthestageatthetimeofinvestigationandat thatpointoftimethereisnoquestionofCourttakingthe cognizance of the case. Cognizance is not taken of the Accusedbutoftheoffence,whichcanbedoneonlyafter filingtheChargeSheet.Further,theChargeisframedby thisCourtafterhearingthepartiesandperusingthecase

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papersandadmittedlytheSanctionorderswereonrecord. Fromthis,itismorethanclearthatthecognizanceofthe casewastakenonlyaftertheSanctionorderswereissued. The cognizance is lawful in all respects. Hence the contention of the Ld. defence Advocate is liable to be rejected. 82] Forthesecondtime,thecontentionisraisedby Ld. defence Advocate that no priorpermission of Central Government is sought by the prosecution under Section 188ofCr.P.CbeforefilingtheChargeSheetasallegedlythe conspiracywasheldatColombo.Inrespectofjurisdiction the Ld. defence AdvocatehavecitedtheJudgmentofthe Honourable Apex Court in the case of Dipankar Dutt
V/s.StateofBihar 2007 Cr.L.J.4360. Inthesaidcasethe

issuewastodecidetheterritorialjurisdictiononthebasis ofallegationsmadeinthecomplaintanditwasheldthat as per the averments in the agreement between the Accused and some othersfor criminal conspiracy,could not have taken place atPatnaandifsuch anagreement tookplace,itcanbeinferredtohavetakenplaceonlyat Calcutta.Thefactsofthesaidcasearecompletelydifferent. 83] The said section pertains to the offence committed outside India and for trying such offence the previoussanctionoftheCentralGovernmentismandatory.

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ThisveryaspectwasraisedbythedefenceAdvocateatthe timeofframingtheChargeandthesamehas beendealt with and considering the Judgment in the case of Ajay
Agrawal V/s. Union of India 1993 (3) SCC 609, in which

identicalissueinrespectofSanctionU/s.188of Cr.P.C is considered,itwasrejectedTherelevantobservationsmade in the said Judgment is reproduced. It is observed that conspiracy is the continuing office and so long as it's performance continues, it is a continuing offence till it is executed or rescinded or frustrated by choice or necessity and being a continuing offence, if any acts or omission whichconstitutesanoffencearedoneinIndiaoroutsideit's territory the conspirators continuing to be parties to the conspiracyand since part of the acts were done in India, theywouldobviatetheneedtoobtainsanctionoftheCentral Government U/s. 188 of Cr.P.C. However, if the Charge of conspiracy framed in this case is seen, it is not only in respect of conspiracy at Colombo but also in respect of conspiracyatotherplaces.However,admittedly,theactof causingexplosionpursuanttotheconspiracyisexecuted in India, at Pune. Hence the contention is liable to be rejected. Thus,PointNo.4isansweredaccordingly.

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ASTOPOINTNOS.5TO12 84] Since allthepointsareinterlinkedthey are taken for discussion together. Before embarking on the circumstances brought on record by the prosecution to prove the charges, there are some aspects which require considerationpriortodiscussingthecircumstancessoas toavoidrepetition.
Evidence showing the basis on which the Investigating officersuspectedtheinvolvementofAccused.

85] P.W.103hasdeposedthatheverifiedthecases which were registered inconnectionwiththeactivitiesof the terrorists. He deposed that he had done the supplementary investigation of the case which was registered in connection with seizure of 16 AK47 riffles, 3,200livecartridges,43Kg.RDX,50handgrenadesetc. fromAurangabadinMay,2006and thepersonsbyname Samad Khan was the Accused in that case and he had giventheconfessionstatementundertheM.C.O.C.Actin whichtherewasreferenceofthepresentAccusedHimayat. Inhisevidence,thecertifiedcopyofthesaidConfessional statement is brought on record at Exh.412. While advancing argument itwassubmittedbythe Ld.defence AdvocatethattheConfessionalstatementisaweakpieceof evidence and therefore,thesamemaynotberelied.Itis

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well settled position under Law that the confessional statement is the weak piece of evidence and can be considered only for corroboration. The said confessional statementbynomeanscanbetakenintoconsiderationto establish the involvement of the Accused in the present case.HefurtherdeposedthattheAccusedwasthewanted Accused inC.RNo.17/2008whichwasregisteredwiththe Anti Terrorist Squad under the provisions of Unlawful Activities(Prevention)Act.Ascanbeseenfromtheevidence ofthiswitnessonthebasisofsaidcircumstancehestarted the investigation in respect of Accused. If the cross examinationisseen,thisaspectisnotatalldisputedbut thesameisfurtheraffirmed.
ArrestoftheAccused

86] Thisaspectistakenforconsiderationbecause theAccuseddisputedhisarrestbytheAntiTerroristSquad on07092010.InhisstatementrecordedU/s.313of Cr.P.C itisstatedbytheAccusedthathewasarrestedon1908 2010 or prior to that, when he had gone to Latur for making inquiry about the CET Examination and after making the inquiry in the evening he came to the Latur Bus stop for returning to Beed and at that time 5 to 6 personscaughtholdofhimfromthebacksideonthegun pointandmadehimtositinoneSumoJeepandhewas

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brought to Pune, where he was kept for two days and tortured and thereafter on 21082010 he was taken to Mumbai at Kala Chowky and tortured in different ways includinggivingcurrentsontheprivatepartandaftertwo dayshewasagainbroughttoPunebyMr.Kadam(P.W.102), Mr.SabnisandMr.PatkarwhoarefromtheAntiTerrorist Squad andhewastakentothe GermanBakery andwas toldthat thiswasthespotofincident.Hefurtherstated that he was again taken to Mumbai and tortured in different ways and was made to sign on different blank papersatthebottomofpageandhedidnotsignedonany written paper. He further stated that he was threatened that his friends, brother in law and brothers would be implicatedandwastoldthathisbrotherinlawandbrother weresittingintheotherroomandtheyarebeingbeaten and his brother in law was going to give divorce to his sister.Hefurtherstatedthat2to3timeshewastakento some secluded place by covering his eyes with the cloth and was told that he will be encountered like Khwaja Yunus and since he got frightened and scared about his life,hedidwhateverhewastoldtodoandafter15to20 days he was again brought to Pune and was produced beforethecourtandatthattimehecametoknowastoin which case he was implicated. He further stated that he

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wasagaintakenbacktoMumbaiandthreatenednottotell anythingeitherinthehospitalorinthecourt.Hefurther stated that during his custody the police had kept his mobilephonesinswitchonmode. 87] Perusalofrecordshowsthatnosuchcomplaint wasmadeby AccusedbeforetheLd.Magistratewhenhe wasproducedforremand.Therearethreeremandreports on recordwhicharedated08092010,20092010 and 28092010,whichshowsthatonthatdatestheAccused was produced for remand and the Ld. Magistrate passed ordersonthoseremandreports.Perusalofthesaidorders show that no complaint of illtreatment at the hands of policewasmadebytheAccusedtotheLd.remandCourt. Record also shows that the Ld. Advocate who is representing the AccusedintheTrial,hadalsoappeared for the Accused before the remand Court. However, no suchgrievancewasmadeatanypointoftimebeforethe Learned Remand Court. Had really the Accused would havebeenliftedabruptlyon19082010andwaskept in illegalcustodywithoutbeinginformtohisfamilymembers, inallprobabilitieshisfamilymemberswouldhavelodged missingcomplaintwiththepoliceortakensomestepsto searchforhim.However,nothingofthatsortisdone. 88] In his evidence P.W.103 Vinod Satav who is

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Investigatingofficerhasdeposedthaton07092010when hewaspresentinhisoffice,hereceivedinformationfrom theD.I.GthatAccused wascomingtothePoolGatebus stopatPuneandaccordinglyheimmediatelyreachedthere withthestaffandtoidentifyhim,theyhadthephotograph of Accused. It has further come in his evidence that at 14.00hrs.theysawtheAccusedonplatformNo.3andhe wasapprehendedandbroughttothe AntiTerroristSquad officeandinthepreliminaryinquirymadewithhim,itwas revealedthathewasinvolvedinthepresentcaseandso the Accused was arrestedon07092010andthearrest cumsearchpanchnamaatExh.252waspreparedandhis arrestwasinformedtohisbrother.Ithasalsocomeinhis evidencethatthereportatExh.413wassubmittedtothe BardgardenPolicestationinrespectofhisarrest.Perusal of the said report shows that on 07092010 itself the informationaboutthearrestoftheAccused wasgivenby this witness to the Bandgarden Police station where the offence was initially registered. He denied the suggestion thattheAccusedwastakenincustodyatLaturon 19082010by AntiTerroristSquad, Aurangabadunitand wasgiveninhiscustodyon20082010. 89] ThePanchwitnessTusharPanditisexaminedas P.W.53. In his evidence he stated that on 07022010 he

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was called at the office of Anti Terrorist Squad where P.W.103and theAccused Himayatwerepresent andthe personalsearchofAccusedwastakeninhispresenceand thefollowingarticleswerefoundinhispersonalsearch. articleNo.13 articleNo.14 NokiaCompanyMobileHandset. G5CompanyMobileHandsetwith simcardofTataDocomo. articleNo.15 Onespectacle. articleNo.16 PocketbookofUrdulanguage. articleNo.17 IcardofElectioncommissionofIndia. articleNo.18 Browncolourpouch. articleNo.19 SmallpieceofNewspaper. articleNo.20 3Passportsizecolourphotographs. articleNo.21 PieceofATMcardandcoverofATM Card. articleNo.22 CashofRs.3,020/inthenatureof SixCurrencynotes. ThispanchwitnessidentifiedthepanchnamaatExh.252 asthesamearrestcumpersonalsearchpanchnamawhich waspreparedatthattimeandidentifiedhissignatureat Sr.No.2 as the Panch. He and P.W.103 identified the aforesaidarticlesasthesamewhichwereseizedfromthe personalsearchoftheAccused. Hefurtherdeposedthat clothes of the Accused were removed and his body was examined and no injury was found on his person. This panch witness P.W.53 was cross examined by the Ld. defenceAdvocate.Hedeniedthathewastheregularpanch ofthePoliceandthesaidarticleswerenotseizedfromthe

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possessionoftheAccused . Nonsigningonthearticlesby the panch witness will not discredit his evidence particularly when it is corroborated by the panchnama . ThepanchnamaatExh.252fullycorroboratestheevidence ofthispanchwitness.Thepanchnamaalsoshowsthatthe brother of Accused by name Shahajad Inayat Baig was informedaboutthearrestofAccusedonhismobilephone No.9763031186.Thoughcrossexamined,thereisabsolutely nothingwhichwouldcreatedoubtaboutthetestimonyof thispanchwitnessP.W.53.IntheChargeSheetthereisthe arrestformdulyfilledinwhichshowsthatAccused was arrested on 07092010. This evidence of P.W.103 and P.W.53 corroborated by contemporary documen ts establishesbeyondreasonabledoubtthattheAccusedwas arrested on 07092010 and the aforesaid articles were seizedfromhispossession. 90] ItissubmittedbyLd.defenceAdvocatethat if atalltheAccusedwasarrestedatthePoolgateBusstop, thePolicecouldhavecalledthetwopanchasfromtheBus stand or else the Accused could have been taken to the nearby Sholapur Bazar police chowky for his personal search, butinsteadofdoingso,hewasdirectlytakento the Anti Terrorist Squad office, Pune. Replying to this contention it is submitted by Ld. Spl.P.P that since the

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investigationwasofthesensitivecaseinvolvingdangerous persons, taking the search on the spot would have attracted lot of members of the public and may have resultedintopanicsituationandifhewastobesearched inanyeventatsomeotherplaceinLaw,itwouldnothave madeanydifferencehadhebeensearchedatthenearby PolicestationortheAntiTerroristSquadUnitofficewhich is also in Pune itself. He further submitted that nothing has been said to be planted on the Accused during his personal search and therefore, the said submission is purely academic. On this point P.W.103 who is the Investigatingofficer havestatedinthecrossexamination that since the Accused was one of the suspect in this case, he was taken to the office of Anti Terrorist Squad wheretheinquirywasmadewithhimandthereafterthe panchaswerecalledandthepanchnamawasdone.Ifind meritinthesubmissionsofLd.Spl.P.Panditisclearfrom the evidence of the Investigating officer that only after inquirywiththeAccused thesearchwasconductedand nothingwrongisseenindoingthat. 91] InhisstatementU/s.313of Cr.P.CtheAccused thoughdisputedhisarreston07092010,havestatedthat hewasusingtwomobilephonesandonlyonesimcardof Tata Docomo was seized from him. As seen from the

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evidenceofP.W.53 panchwitness inwhosepresencethe personal search and arrest of Accused was done, it is categorically stated by him that one mobile phone (article14)seizedfromthepossessionoftheAccusedwas having the sim card of Tata Docomo company. Exh.252 searchcumarrest panchnama also shows that the sim cardfoundinarticle14wasthatofTataDocomocompany havingthemobilenumber8149308626.TheInvestigating officer,P.W.103havealsostatedthatmobilephonehaving simcardofTataDocomowasfoundinthemobilewhich wasseizedfromthepossessionof Accusedwhenhewas apprehended and the phone call details were called. The evidence of Nodal officer who supplied the phone call details of the said Mobile number is already discussed whileconsideringtheauthenticityofthephonecalldetails. Thephonecalldetailsoftheaforesaidmobilenumberare atExh.355(collectively).Perusalofthesamedonotshow thetowerlocationofMumbaifrom19082010tillhis dateofarrest.If thestatementgivenbyAccused Under Section313istobebelievedthatduringhiscustodythe policehadkepthismobilephonesinswitchonmode,then thetowerlocationofMumbaiwoulddefinitelycomeinthe saidphonecalldetailsforthatperiodbetween19082010 till07092010,hadreallyhewastakenincustodypriorto

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07092010. From this, it becomes clear that the contentionsoftheAccused thathewastakenincustody on19082010isafterthought. Thereisonemoreaspect whichshowsthatthearrestoftheAccusedwasdoneon 07092010anditisthat,thesaidphonecalldetailsare onlytill06092010.OneofthecontentionofLd.defence Advocate is that from the phone call details at Exh.355 (collectively)itisseenthatthetowerlocationofthemobile phone on 06092010 was Bhavani Peth Pune and therefore, this shows that he was in police custody. In absenceofanyevidence/materialtoshowthatinthetower location of Bhavani Peth only the office of Anti Terrorist Squad Puneiscovered,thesaidcontentionhasnolegsto stand. It is needless to state that the tower location of mobile phone cover a considerably large area. That only showsthatonthatdatealsotheAccusedwasinPuneand therefore,itgivesfurtherassurancethathewasarrested on07092010andnotbeforethat. 92] Further, the Ld. Spl.P.P pointed to Exh. 15 whichistheSaygivenbythedefencetotheApplicationat Exh.14whichwasfiledbytheprosecutionforpermissionto fileAdditionaldocumentsandstatedthatinthisSayitself thedefencehaveadmittedthattheAccused wasarrested on07092010.PerusalthesaidsayatExh.15showsthe

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followingsentenceofdefence. 1] ItispertinenttonotethattheAccused

was arrested on 07092010 by the Police from Mahatma GandhiBusstop,Pune................................. 93] Fromtheaboveevidenceavailableonrecordit iscrystalclearthatthe Accused wasarrestedon0709 2010andnotpriortothatascontendedbythe Accused. Thus,theclaimof Accused thatthedateofhisarrestis not07092010,isunacceptable.
Taking of specimen handwriting/signature ofthe Accused andP.W.94Rehan.

94] Theevidenceonrecordshowsthatthespecimen handwriting ofthe AccusedandhisfriendRehan(P.W.94) wastakenbytheInvestigatingofficer.P.W.51GokulShelar have deposed that on 20092010 he was called at the Police head quarters, Shivajinagar, Pune by the Anti Terrorist Squad, where Mr. Satav, (P.W.103), two to four otherpersonsincludingAccused werepresentandinhis presencethespecimenhandwritingofthe Accused,which includedwritingofnumbers,writingofthematterwhich wasdictatedbyP.W.103byreadingtheslipsofStateBank ofHyderabad,signaturesandnamewastakenunderthe panchnamaatExh.247.Heidentifiedthepanchnamaand

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Exh.246(collectively)asthesamespecimenhandwritingof Accused. He also identified the Accused as the same person whose specimen handwriting was taken in his presence. Incrossithascomethatonthatdatehehad cometotheshopforgivingthedeliveryofstationaryand hewascalledbythepolice.Thereisnothingtoshowthat hewasregularpanchofthepolice.Thoughthequestions pertainingtotheBankslipsareaskedtothiswitnessby the Ld.defenceAdvocate,thiswitnesshadnoreason to knowthecontentsoftheBankpayinslips.Hisevidenceis limitedonlyinrespectoftakingthespecimenhandwriting oftheAccused.Histestimonyisnotaffectedbyanymeans andthroughthiswitnesstheprosecutionhaveestablished thatthespecimenhandwritingoftheAccusedweretaken. 95] P.W.52 Yogesh Naik is the panch witness in respect of taking the specimen handwriting of Rehan (P.W.94). He deposed that on 20102010 while he was proceedingfromtheModernCollege,hewascalledbythe Policeinthe AntiTerroristSquad officewheretheperson by name Rehan Shaikh was present and the specimen handwriting of that person was taken in his presence under the panchnamaatExh.250.HeidentifiedExh.249 (collectively) as the samespecimen handwritingofRehan Shaikh.Incrossexaminationthereisnothingtodoubtthe

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evidenceofthiswitness.HeisnottheregularPanchofthe police. The evidence of this witness finds corroboration fromtheevidenceofP.W.94RehanShaikhwherehestates thathewascalledatthe AntiTerroristSquad office,Pune wherehisspecimenhandwritingsweretaken. 96] P.W.103, Investigatingofficer alsostatedthat the specimen handwriting of Accused and P.W.94 were taken and identified the panchnama and specimen handwritinginthatrespect.Further,intheRemandreport dtd.28092010thereisreferenceabouttakingspecimen handwriting of the Accused. From the aforesaid evidence availableonrecord,theprosecutionhaveestablishedthat during the course of investigation the specimen handwritingoftheAccusedandP.W.94wastaken.

EvidenceofHandwritingExpert

97] Since the reference of the documents and opinionwillcomeatdifferentplaces,the evidenceofthe Handwriting expert is taken up for discussion to avoid repetition. The evidence on record shows that the documents seized by the investigating machinery during the investigation were sent for examination to the handwriting expert alongwith the specimen handwriting andsignatureoftheAccusedandP.W.94Rehanandthe

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Expertgavehisopinionandreportinthatregard.P.W.103 Investigatingofficerhavedeposedtothateffect. 98] P.W.76DilipAhiwaleistheHandwritingexpert. His evidence shows that he was appointed as the Asst. ExaminerofDocumentsinC.I.D.,MaharashtraState,Pune in the year 1980 and after appointment he was placed underTrainingforonetooneandhalfyearforthesubject ofscienceofhandwriting.Hisevidenceshowsthathewas having the experience of examining approximately more than3LakhdocumentsandheretiredastheChiefState ExaminerofDocuments,CID,StateofMaharashtra,Pune. His evidence shows thatvidelettersatExh.332and333 from the Anti Terrorist Squad, Pune he received the followingdocumentsforexaminationandopinion. 1] SevenBankpayinslipsasquestioned documents.(Exh296,300,304,305and309 (collectively) OneGuestHouseRegisterasquestioned document.(article35) 102specimenwritingsheets.(Exhs.246and 249. OnePocketdiarycontainingadmittedwritings. (article12) Oneletterdated11072008containingadmitted writings.(article53).

2] 3] 4] 5]

Hisevidenceshowsthatheexaminedthedocumentsunder variouslightingmagnificationsandundervariouslighting

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conditions and marked the Questioned writings and signaturesbyreferringAlphabet'Q,'markedtheSpecimen writings and signatures by referring Alphabet 'A' and 'B' andmarkedtheadmittedwritingsbyreferringAlphabet'N'. InhisevidencehisreportatExh.334andthereasonsfor his opinion at Exh.336 are brought on record and he identified the same as given by him. He was cross examinedbythedefence ontheaspectsofvariationsin theAlphabetswritteninthedocumentsandhestatedthat thevariationswerenatural. Ithascomeinhisevidence thatdissimilaritiesandnaturalvariationsaretwodifferent things which can be distinguished by the experienced personandthereasongivenbyhimwereillustrativeand not exhaustive. He denied that he had given the opinion undertheinfluenceofPolicemachinery.Thereisnothing inthe crossexamination whichwoulddamagethe report and the opinion given by this witness on the aforesaid documents examined by him. His evidence remained unshattered. Evidence of this witness shows that he is havingvastexperienceinexaminationofthe documents andheistheexpertinscienceofhandwriting.Thereisno reasontodiscardthereportandopiniongivenbyhimon thedocumentssentbytheinvestigatingmachinerytohim forexamination.

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99] ItissubmittedbyLd.defenceAdvocatethatthe opinionevidenceisaweakpieceofevidenceandcitedthe Judgmentreportedin 2005(1)AllM.R.593inthecaseof

Abdul V/s. Smt. Khubai wherein it is observed that, the

expert'sevidenceastohandwritingisopinionevidenceand it can rarely take the place of substantive evidence and before acting on such evidence, it isusual to see if it is corroborated either by clear direct evidence or by circumstantialevidence.Thesaidpositioniswellsettledin Law. 100] ItissubmittedbyLd.defenceAdvocatethat when the case is based on circumstantial evidence, the chainofcircumstancesisrequiredtobeestablishedbythe prosecutionandinthecaseinhandtherearemissinglinks to connect the Accused with the crime. He cited the following Judgments on the point of circumstantial evidence. A.I.R.1994S.C2585.TasneenV/sTheDelhi Administration. A.I.R2002S.C.3206AshishV/s.StateofM.P.

Perusal of these Judgments show that in the aforementioned Judgments the principles about the circumstantialevidencearegivenas i] Thecircumstances from which conclusion of guilt is to be drawn has to be

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fully established. ii] All the facts so established are consistentonlywiththehypothesisofguiltoftheAppellant and they do not excludeanyotherhypothesisexceptthe onesoughttobeproved. iii] Thecircumstancesonwhich reliancehasbeenplacedareconclusiveinnature.Itisalso observed that there is motive behind every criminal act andthatiswhyinvestigatingagencyaswellasthecourt, while examining the complicity of an Accused try to ascertain as to what was the motive on the part of the Accused to commit the crime in question. The said principlesarewellsettled. Circumstancesbroughtbytheprosecutiontoprovethe involvementoftheAccused.
1] ResidingatUdgirbyassumed/falsenames

To establish this circumstance the prosecution is

relying on the evidence of P.W.73 Abdul Samad Indori, P.W.92 Shaikh Gaus, P.W.94 Shaikh Rehan and P.W.95 ShakilAhemadLaik. 101] P.W.73 is the Cloth Merchant having his businessatUdgirunderthenameandstyleIndoreCotton Shop.HedeposedthatinDecember,2009ashewasin need of Rs. One Lakhforhisbusiness,hecontactedhis friendfromUdgir KhurshidAlamwhoagreedtohelphim and called him at the Qureshi Masjid, Chaubara Road,

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Udgir where he introduced him with Yusuf Sir as the person who was having the internet center by the name Global Internet Cafe in the premises of Udgir Nagar Parishad.HedeposedthatYusufSirtoldhimthathewill givethemoneyto KhurshidAlamandaccordinglyinthe nextdaymorningKhurshidAlamcalledhimandgaveRs. 40,000/incashandaftertwodaysgaveRs.60,000/cash andwiththatamounthewenttoMumbaiforpurchasing goods.HefurtherdeposedthathepaidRs.1,20,000/in theinstallmentsofthreemonthstoYusufSirbygoingto his internet cafe and became more friendly with him.He identifiedAccusedasthesamepersonbynameYusufSir. Incrossexaminationitisnotdisputedthatthiswitnessis doing business at Udgir. It has come in the cross examination that he did not see Khurshid Alam taking moneyfromtheAccused.However,thisaspectgetsdiluted inviewofthespecificsuggestiongiventothiswitnessthat hepaidRs.1,07,000/totheAccusedatonetime.Further suggestion is given that he had given the cheque of Rs. 13,000/drawnonJanKalyanBank,UdgirtotheAccused. This indicates that this witness and the Accused were knowing each other well. It has come that he was not knowing as to who was the owner of the internet cafe. However,theevidenceinrespectofknowingtheAccusedby

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nameYusufSir andgoingtotheGlobalInternetCafefor giving money to the Accused, are not affected in any mannerinthecrossexamination. Itisnottheuniversal formulathatgoodbusinessmandonottakeloan.Thereis noreasonforthiswitnesstodeposefalse. 102] P.W.92 is the resident of Udgir and was runningtheclassesforthestudentsof5thto7thstd.under thenameandstyleAlsabaClassesintheWhiteBuilding, AzadNagar,JalcotRoad,Udgirwhichwastakenbyhimon rent.Inhisevidencehedeposedthattorunhisclasseshe washavingteachersbynameShaikhAyyaz,AbdulRahim, JalkoteMadam,KadriMadamandHasanSir.Heidentified the Accused as the said Hasan Sir. According to this witness he got acquainted with the Accused at the Chaubara,throughSayyedInamwhowasworkinginthe M.S.E.B and since the Accused told him that he had acquired the qualification as D.Ed and was having the knowledge of computer and wanted the place to stay, he askedtheAccusedtoteachinhisclassesandresidethere. HefurtherdeposedthatinMarch,2010theAccusedkept histwobagsintheclassroomsandfromtheendofMay, 2010 the Accused started teaching in the classes in between 8.00p.m. to 9.00p.m. Hedeposed that since the Accuseddidnotpaidtherenttowardsstayingintheclass

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andusedtonotattendtheclasses,hetoldtheAccusedto leavetheroomandtheAccused toldhimthathewillgo afterRamzan. He further deposedthatforso manydays the Accused had not come and so, his two bags were broughtbyhimathishouse.Hefurtherdeposedthaton 08092010 the policemen had come to his house for inquiryandthetwobagsoftheAccusedwerehandedover byhimtothepoliceunderthepanchnamaatExh.264and hesignedonthesameasthetokenofit'sreceipt.Incross examinationitissuggestedthathehadnolicencetorun theclassestowhichherepliedthatthereisnoneedtotake thelicenceforconductingtheclassesof5 thto7thstd.Ithas comethattherewasnoagreementfortakingthebuilding on rent. It has come that the register of students is maintained by him. Admittedly, there is no documentary evidence to show that the Accused was teaching in the said classes. However, it is well known that the unregistered private tutorials seldom issue the appointmentlettertotheirstaff.Inhisstatementrecorded U/s.313ofCr.P.CtheAccusedhavestatedthatheacquired the educational qualification of B.Ed. from Pune by the year2006andforsearchingthejobhehadgonetoLatur, Udgir and Aurangabad. Looking to the educational qualificationoftheAccused itbecomesclearthathecan

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beprovidedthejobasateacherandso,evenifthereisno documentary evidence about his teaching in the said classes,thereisnoreasontodiscardtheevidenceofthis witness.Further,theevidenceofthiswitnessinrespectof seizure of two bags by the police is corroborated by the evidence of P.W.56 Umakant Chatnale who is the panch witnessforthesaidseizure.Itwouldbeappropriatetoalso considertheevidenceofP.W.56atthisjuncture. 103] P.W.56inhisevidencehavedeposedthaton08 092010 while he was passing in front from the Police stationatUdgir,hewascalledbythepolicemenandthe person by name Gaus(P.W.92) was present in the Police station with one black colour brief case and one khaki colourshoulderbag.Hedeposedthatthekhakicolourbag containtheclothes(article25)comprisingonefullsleeves shirtofyellowcolourhavingchecks,oneblackcolourfull sleeves shirt, two light brown colour full pants one Ash colour half sleeve T shirt, one cream colour half sleeves sweater, one small pink colour plastic polythene, three handkerchief,onelightbluecolournapkin,onetoothbrush, onesmall Pepsodenttoothpaste,oneGreencoloursoap, soapwrapperhavingthenameSesaand1/Re.coin.He further deposed that intheblackcolourbriefcasethere wereseveraldocumentsandtheywereseparatelypackedin

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sixdifferentenvelopes.Heidentifiedarticles24and26as thesamebags.Hedeposedthatthepanchnamaofthesaid processwaspreparedwhichwasreadoverbyhimandhe signedit.Healsodeposedthatthelabelsofhissignature andthatofotherpanchwereputonthem.Heidentified thepanchnamaatExh.264(alongwithJaptipatrak)asthe same panchnama and also identified signature of Mr. Gaus(P.W.92)onthesameintokenofreceivingthecopy.He identified the documents at articles 27(collectively), article28(collectively),article29(collectively),article30(collecti vely), article31(collectively)andarticle32(collectively)as thesamedocumentswhichwerefoundintheblackcolour briefcaseandseizedunderthesaidpanchnama.Fromthe crossexaminationofthispanchwitnessitisseenthathe istheresidentofUdgirandworksinoneGroceryshopand educatedupto10thstd.Nonmentioninginthesaidseizure panchnamaatExh.264aboutthiswitnesspassinginfront from the Police station is of no consequence. There is nothing to suggest that he is the regular panch of the police. Though there wasnolockonboththesaidbags, thereisnothingwhichwouldsuggestthatthesaidarticles werenotseizedfromthesaidtwobags.Theevidenceofthis panch witness is cogent and reliable. The passport at Exh.422whichisfoundintheblackcolourbriefcaseand

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referredinthesaidpanchnama,isacceptedbytheAccused asthatofhis.Evidenceofthispanchwitnesscorroborates theevidenceofP.W.92aboutseizureoftwobagsandthe articles found therein belonging to the Accused, by the police.Fromtheevidenceofthiswitnesstheprosecution have established that several documents which are specificallymentionedindetailinthesaidpanchnama,are seizedfromoneofthebagsoftheAccused. 104] AccordingtoLd.defenceAdvocate therewas noneedforP.W.92totakethebagsofAccusedtohishouse and give it to the police. For this, the answer is already presentintheevidenceofP.W.92,whereinhedeposedthat sincetheAccusedhadnotcomeforsomanydayshetook his two bags to his home. He did what a prudent man woulddo.Asthepoliceaskedforthesaidbags,hehadno optionbuttohandoverthesametothepolice.Perusalof thepanchnamaatExh.264mentionsindetailthearticle which were seized from the said bag. The panchnama is also identified by P.W.92 as the same by which the aforesaidarticleswereseizedbythepolicefromhim. 105] P.W.94 is the witnesswho hailsfrom Beed which is the native place of Accused and they both are friends. He got acquainted with the Accused in the year 2006.HisevidenceshowsthattheAccusedwasresidingin

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UdgirandrunningtheInternetcafe.Hedeposedthat he was working at Pune in Consultancy by name 'Job One, India'andoncehewenttoBeed,whichishisnativeplace, without informing his working place and so, he was removedfromjobandithasfurthercomeinhisevidence that, he was searching for job in Pune and contacted Accused,whocalledhimtoUdgiranditwastheyear2008. He further deposed that he started residing with the Accused in the Jama Masjid at Chaubara and started workingintheGlobalInternetCafe,whichwasstartedby theAccused inthepremisesofNagarParishadUdgirin February,2009 on payment of Rs.1,500/p.m. He further deposedthatfor2to4daystheAccusedusedtogooutof station.HefurtherdeposedthatAccusedusedtochaton thecomputeraloneandwhenevertherewasaphonecall, heusedtogoatsomedistanceandtalk.Thispartofhis evidencefindsnochallengeinthecrossexamination.He beingwellacquaintedwiththeAccused,itisnotunnatural thathewaswiththeAccusedatUdgir. 106] P.W.95isthepersonwhogotacquaintedwith the Accused in June/July, 2007 in the Dars (religious discourse) arranged at Parbhani. He knows the Accused bythenameYusuf.HeagainmettheAccusedintheyear 2008atAurangabadinthehostelsituatedinUsmanpura

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area.Hisevidenceshowsthathewasalsoincontactwith the Accused telephonically. In his evidence he deposed thatintheyear2009AccusedcalledhimtoUdgiratthe GlobalInternetCafewheretheAccused introducedhim withSabeerPatel,Alif,KhurshidAlamandRehan(P.W.94) by the name Salman. His evidence further shows that Rehan(P.W.94)wasconfrontedtohimatthetimeofgiving evidence and he identified him as the same person as Rehan.HefurtherdeposedthatAccusedusedtocomeand meethimatAurangabad.Perusalofthecrossexamination of this witness shows that the above aspects are not challenged. 107] From the evidence of the above referred witnessesitisabundantlyestablishedbytheprosecution that the Accused resided at Udgir for some time in the Masjid and for some time in the white building by the assumed names Yusuf and Hasan. Though the said witnesses were cross examined by the defence, their testimonyremainedunshaken.Theseizureoftwobagsin whichoneofthedocumentisthePassportoftheAccused Himayat,givesfurtherassurancethat thesaidbagsand thearticlesbelongedtotheAccusedandtheywerekeptin thewhitebuilding,wherehewasteachingandresiding.In hisstatementU/s.313ofCr.P.CitisstatedbytheAccused

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thatthesaidtwobagswereseizedfromBeed,whichishis nativeplace.However,thereisnothingtosupportthesaid contention. Thus, this circumstance is established by the prosecutionbeyondreasonabledoubt.

2] Seizure of Explosive substance at the instance of Accusedofthesamecompositionwhichisusedincausing explosioninGermanBakery.

This is the highly incriminating circumstance

broughtbytheprosecutionagainstthe Accused.Itisthe prosecution'scasethattheexplosivematerialisseizedon the statement made by the Accused. On this point the prosecutionisrelyingontheevidenceofP.W.77Shrikant Shetti (panch witness),P.W.80 Laxman Kumare (the member of Bomb detection and Bomb disposal squad), P.W.103 Vinod Satav (Investigating officer), P.W.75 N.B.Bardhan (Forensic expert) and P.W.78 Ravindra Kulkarni(Forensicexpert). 108] Beforeevaluatingtheevidenceoftheaforesaid witnessesinrespectofdiscoveryandseizurepanchnama, it would be pertinent to take note of the provisions of Section27oftheEvidenceActwhichreadsthus:
How much of information received from accused may be proved Provided that, when any fact is deposed to as

discovered in consequence of information received from a

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person accused of any offence in the custody of a police officer,somuchofsuchinformation,whetheritamountstoa confession or not, as relates distinctly to the fact thereby discovered,maybeproved. TheLawonthisaspectiswell settled from the Judgment of Pulukuri Kotayya V/s.
Emporer(A.I.R.1947 P.C67). Therearecatenaofdecisions

of the Honourable Higher Courts that 'fact discovered' includesnotonlythephysicalobjectproducedbutalsothe placefromwhereitisproducedandtheknowledgeofthe Accusedastoit'sexistence. 109] AccordingtoP.W.77,hewascalledbytheAnti TerroristSquadon07092010atabout4.30p.m.whilehe had come to take the appointment at the Clinic of Dr. Sharangpani situated near the Modern College, Pune for panchnama U/s. 27 of the Evidence Act of the Accused arrestedinthe GermanBakery Bombexplosion caseand heagreedtoactasapanch.HedeposedthattheAccused whose face was veiled, P.W.103 Vinod Satav and another panch by name Koshe were present in the Anti Terrorist SquadofficeandafterliftingtheveiltheAccusedgavehis nameasaboveandwhenP.W.103askedtheAccusedasto whether there was any pressure over him, the Accused said No. His evidence shows that the Accused gave statementthat hewillshowtheplacewherethematerial

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usedinpreparingtheBombandthematerialwhichwas leftwaskeptandthesaidstatementwasrecordedandwas readovertotheAccusedandthereafteritwasreadbyhim (panchas) and thereafter the Accused put his signature andthepanchasandtheInvestigatingofficeralsosigned the memorandum. He identified Exh.341 as the same memorandum. He further deposed that after the said memorandumhecametoknowthattheywererequiredto gotoUdgir and P.W.103communicatedforarrangingthe BombDetectionSquadandhehimselfandtheotherpanch wereaskedtotakethepersonalsearchofthepolicestaff and accordingly they took the search of police staff and onlynormalarticleswerewiththestaff.Hefurtherdeposed thatAccusedwasaskedtotakesearchofthePanchasand accordingly Accused took search of him and the other panch.IthasfurthercomethattheGovernmentvehiclein whichtheyhadgonewasalsosearchedbeforeleaving.He further deposed that in the Government vehicle the weighing machine, stationary comprising papers, carbon papers,theenvelopesofsmallandbigsize,lac,stag etc. were taken and in the Government vehicle he himself, Accused, P.W.103, the driver, another panch and another policemantraveledandthefaceoftheAccusedwasveiled having holes at the place of eyes, nose and mouth. He

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furtherdeposedthatthevehiclewastakenattheinstance of AccusedtoLaturviaHadapsarandthereaftertoUdgir wheretheyreachedaround1.30a.mandattheinstanceof the Accused the vehicle was taken to Jalkot road and stopped and after alighting from the vehicle they all followedthe Accused whoshowedonehouse.Hedeposed thatinthemeanwhileP.W.103madephonecallandcalled thebackuprequiredbyhim.Hefurtherdeposedthatthe compoundofthesaidhousewashavingoneirongateand theAccusedsoundedthelatchofgateandgavethecallby saying'Abdul'andatthattimetheBombSquadandthe snifferdogwaswiththem.Hefurtherdeposedthatonthe call given by the Accused the lights of the house were switchedonandonepersoncameoutsidethehouseand the Accused lifted his veil and when P.W.103 asked the nameofthatpersonhegavehisnameasAbdulSayyadand he opened the gate. He further deposed that the said personAbdulwasaskedbyP.W.103totaketheirpersonal search but he declinedtotakethesearch andthereafter theyfollowedtheAccusedandenteredthehouseandthe Accusedhadtakenthemonfirstfloorofthathousefrom thestaircasewhichwereontherightsideofthehalland there was one room on the first floor and the Accused openedthelatchofthedoor.Hefurtherdeposedthatthere

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wasonewoodendoublebedandtheAccusedliftedtheply ofthesaiddoublebedandremovedonenylonbagwhich waskeptinonecartonofpressurecookerandfromthat removed the white colour plastic bag inside which there wasonemorecarrybagofyellowcolourandthe Accused told that the said material was the same material which wasleftinconnectionwiththeGermanBakeryanditwas 'Barood.'HefurtherdeposedthatP.W.103calledthemain persons from Bomb Squad who came alongwith the dog andthedogwasmadetosniffthematerialanditwagged it'staleandbarkedanditwasstatedbythemembersof Bombsquadthatthematerialwasexplosive.Ithascome thatonesoldergun,onesolderwire,onesolderwirecutter andfivepiecesofblackcolourmaterialwerefoundinthe saidbag.Hefurtherdeposedthatthesaidfivepieceswere weighedanditwasfoundtobeof1200gramsandfrom thatP.W.103removed100gramspieceandallthearticles wereseparatelypackedinplasticandthereafterinbrown paper(envelopes)andthereafterwrappedandthelabelsof theirsignatureswereputoneacharticleandthecontents of the information was also written in the labels. He deposedthattheopeningofeachenvelopewassealedby lacandthedetailpanchnamawaspreparedandwasgiven tothepanchasforreadingandaftertheyreadandfound

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the contents to be true and correct, they both panchas signedthepanchnamaandP.W.103hadalsosignedonthe panchnamaandthelabels.Hedeposedthatattheinstance of P.W.103, they alongwith the police staff checked the house.HeidentifiedthepanchnamaatExh.341A(second part of memorandum) as the same panchnama and identifiedthesignaturesappearingonit.Healsoidentified thearticles54(collectively)hardpieceofblackcolourkept in yellow colour plasticbag andwhitecolour bag,article 55small portion of the black hard material, article 56(collectively) portion of blackmaterial in yellow colour plastic bag, article 57solder gun, article 58solder wire, article59wirecutterandarticle60Nylonbagasthesame articleswhichwereseizedunderthesaidpanchnama.He identified Accused as the same person who gave the statementU/s.27oftheEvidenceActandatwhoseinstance theaforesaidarticleswerediscovered. 110] Thispanchwitnesswascrossexaminedbythe defenceAdvocate.Incrossexaminationithascomethatin the memorandum at Exh.341 it is not stated that the Accused was brought in veil and the memorandum was readovertotheAccused.IthasalsocomethattheAccused hadnotgivenhishouseNumberandplotnumberinthe statement. To the suggestion that in the voluntary

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statement itisnotmentionedthatthe Accused willshow thesoldergun,solderwire,andsoldercutter,itisanswered thatthe Accused statedthathewillshowtheremaining articlesandexplosives. Ithasfurthercomethatitisnot mentioned in the memorandum that the panchas had takenthesearchofthepolicemenandthe Accused was toldtotakethesearchofthepanchasandaccordinglythe Accused had taken their search. He deposed that he cannottellthecolourofthesaidhouse.Hestatedthatthe housewasoneplusonehavingtotalsevenroomsandtwo toiletsandtherewasonlyonepersoninthehousebyname AbdulSayyed.Ithascomethattheroomatthefirstfloor wasnotlockedandthereisnomentioninthesecondpart ofmemorandumatExh.341Athattherewasthecartonof thepressurecooker.Hestatedthatthepanchashadnot signedonthewritingswhichthepersonsfromtheBomb SquadhadgiventoP.W.103.Ithascomethatthesignature oftheAbdulSayyadwhowaspresentinthesaidhouseand thesignaturesofthepersonsfromtheBombSquadwere nottakenonthepanchnamaatExh.341A.Hestatedthat hewas unable totell astowhetherthecopyofthesaid panchnamawasgiventothesaidpersonwhowaspresent inthehouse.Ithascomethatthesoldergun,solderwire and solder cutter were the articles related to electrical

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equipments. He deniedthathewastheregularpanchof the police and he had never gone to Udgir and the aforesaid articles were not seized in his presence. He deniedthatthe aforesaid memorandumandpanchnama weresignedintheofficeofAntiTerroristSquad.Hedenied that since he was in the catering business he was well acquaintedwiththepoliceandhehasgivenfalseevidence attheinstanceofpolice. 111] P.W.103havealsodeposedaboutrecordingof the statement of Accused and going to Udgir with the Accused,panchasandthestaffintheGovernmentvehicle. HealsodeposedaboutseekingthehelpofBombDetection and Disposal Squad and pointing of the house by the Accused. Healsodeposedaboutopeningthegateofthe said house by the person named Abdul Sayyed after the Accused gave call. He also deposed about climbing the staircase after entering thesaidhouseandremoving the explosivematerialbytheAccusedfromthestorageboxof the bed after opening the panel. He also deposed about sniffingtheexplosive materialbythedogofBombSquad andgivingpositivesignal.Healsodeposedaboutremoving 100 grams sample from the explosive material which weighed1200grams.Healsodeposedthattheplasticbag containing the explosive material were having articles

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soldergun,solderwire,andwirecutter.Hedeposedabout separatelypackingofallthesaidarticlesandsealingthem withthelacsealandputtingthelabelsonthemhavingthe signature of panch witnesses. He also deposed about preparingthepanchnamainthatregard.Heidentifiedthe MemorandumatExh.341andseizurepanchnamaat Exh.341Aandalsoidentifiedthearticles54to60asthe same which were seized under the said seizure panchanama.Healsodeposedabouttakingsearchofthe saidhouse.Healsodeposedaboutmakingtheentryinthe stationdiary beforeleavingtheofficeandafterreaching theofficeatthetimeofaforesaidpanchnamasatExh.341 and 341A and identified Exh.414 and 415 as the said relevant entries. He also deposed that the entries were madeinthelogbookoftheGovernmentvehiclewhichwas usedatthetimeofaforesaidpanchnamasatExh.341and 341A and identified as Exh.416 as the same relevant entries from the log book. He further deposed about the reportgiveninthatregardtotheUdgirPolicestationand stationdiaryentrymadeintheUdgirPolicestationinthat regard.HeidentifiedExh.418and419asthesame. 112] In cross examination he denied that the Accused never made the statement and the said memorandum is the falsedocument.Hestatedthatthe

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house number, address and the area of place where the house was situated was not mentioned in the memorandumandvolunteeredthatsincetheAccuseddid notstatedaboutthesame,itwasnotmentionedtherein.It hascomethatthestatementoftheownerofthesaidhouse was not recorded. He also stated that the plastic bags which were seized were not sent for finger print examination. He denied that the aforesaid memorandum and the seizure panchnamas were prepared in the Anti TerroristSquad office.Hedeniedthesuggestion thatno dogsquadwascalled.Ithascomethatthoughthenames of the panchas were not mentioned in the station diary entry at Exh.414, there is reference of presence of two panchas. He denied that the station diary and log book entriesweresubsequentlypreparedandsubmittedatthe timeofrecordingevidence. 113] FromcrossexaminationofP.W.77itisseen that certain aspects stated by him in his evidence are missingfromthememorandumatExh.341.Letusconsider a hypothetical situation that there is no written memorandum. If that be so, there would be no question that certain things stated by the witness are not finding place in the written memorandum. In a Full Bench JudgmenttheHonourableGuvahatiHighCourt,inthe

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caseof RajuPhukanV/s.StateofAssamreportedin2010
Cr.L.J.338,afterconsideringvariousrulingsonthepointof

Section27oftheEvidenceActhaveheldthat aDisclosure statementtobeadmissibleU/s.27isnotstatutorilyrequired tobereducedintowriting,thoughprudencedemandsthat suchaninformationshouldberequiredintowritinginorder tounablethecourttoknowexactlyastowhattheAccused is alleged to have stated and the extent to which the information given by him is admissible. However, in the presentcase,tocorroboratetheevidenceofP.W.77panch witness and P.W.103 Investigating officer, there is contemporary written Memorandum at Exh.341. What is material or relevant is the admissible part of statement madebythe Accused incustody,relatingdistinctlytothe factdiscoveredandnothingmore.Asregardsthestatement madeby Accused,thewitnesshavestatedinhisevidence anditisconsistentwiththeevidenceofthe Investigating officerandtheMemorandumatExh.341.Nonmentioning of the aspects such as the Accused was veiled, reading over of the Memorandum to the Accused, search of the policemenbyPanchasandaskingtheaccusedtotaketheir searchinthememorandumatExh.341willnotaffectthe evidenciary value of the same. These aspects cannot be

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labeled as the omissions or contradictions because the memorandum atExh.341isnotthepreviousstatementof P.W.77.There is complete consistency in the evidence in respectofthestatementmadebytheAccused.Exceptthe saidaspectsthereisnothinginthe crossexamination of both the aforesaid witnesses which would affect their testimonyinrespectofthestatementmadebytheAccused admissible U/s.27 of the Evidence Act.Though it is not required under the Law that it should be signed by the Accused making the statement,the Memorandum at Exh.341is signed by the Accused. Perusal of the Memorandum at Exh. 341 and second part/seizure panchnama at Exh.341A shows that it is in such a continuitythatitisinsuchacontinuitythatitrulesout thepossibilityofanyinsertioninthesame. 114] There is further corroboration to the

prosecution's case in respect of discovery of explosive materialattheinstanceofAccused.P.W.80isthewitness workingintheLaturSquadofBombDetectionandBomb Disposal whose duty consists of detecting suspicious material like RDX by naked eyes and with the help of sniffer dog and equipments. He deposed that the Anti TerroristSquad Pune,hadsoughtthehelpoftheirsquad on 07092010 and accordingly they reached Udgir along

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with their sniffer dog and along with the Anti Terrorist Squadwenttoonehousewhereonthefirstfloortheirdog wasmadetosmelltheblackstickysubstancewhichwasin theyellowcolourcarrybagkeptinthenylonbagandthe doggavepositivesignal.Hedeposedthatthereportinthat regardwasgivenbytheheadoftheirteamMr.Attar,tothe AntiTerroristSquadteamandExh.351isthesamereport. Incrossexaminationitisbroughtthatthesaidreportwas not signed by this witness and his statement was not recordedandhehadnotsignedonanypaperonthatdate. ThiswitnesswasnottheheadofBDDSteambutoneofthe memberofthatteamandthereportisgivenbytheheadof their BDDS team. As can be seen from his evidence the head of their team Mr. Attar is retired from services. As theybothwereworkingtogether, itisnaturalforhimto identifythesignatureofMr.Attar.Sincethiswitnesswas the part of BDDS team, his testimony becomes relevant. P.W.103Investigatingofficer,inhisevidencehavedeposed aboutthesaidreportatExh.351.Perusalofthesaidreport showsthatitfullycorroboratestheevidenceofthiswitness fromBombSquad.Thecrossexaminationcouldnotaffect thetestimonygivenbyhim.Thereisnothingtoshowthat theBDDSisunderthecontrolandsupervisionoftheAnti TerroristSquad andsothereisnoreasonforthemtogive

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false report at the instance of Anti Terrorist Squad. The evidenceofthiswitnesscorroboratestheevidenceofP.W.77 and P.W.103 in respect of seizure of explosive from the housepointedoutbytheAccused.FromthisreportatExh. 351itisagainclearthattheexplosiveswereseizedfrom the building by name White building where the Accused wasresidingandteachingandnaturallyhehadaccessto thatplace. 115] Onesubmissionof Ld.defenceAdvocatethat the address of the house is not mentioned in the Memorandumstatementandtothissubmission,thereply is already finding place in the evidence of Investigating officer P.W.103 where he deposed that since the Accused havenottoldthehousenumbersandotherdetailsofthe house, itis notmentionedtherein.Othersubmissionof Ld.defenceAdvocate isthatthe Accused havenotstated specifically about the wire cutter, soldering wire and solderingguninhisMemorandumstatementbut,stillthey areseized. Perusalof Exh.341clearlyshowsthatthough thesaidthreearticlesarenotspecificallymentioned,but there is clear reference about pointing the other miscellaneousarticleswiththeexplosives.Thus,thesaid contentionisofnoconsequence. 116] AsregardstheseizureofarticlesNo.54to60

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isconcerned,thereiscompleteconsistencyintheevidence of P.W.77 and P.W.103 andit isalso corroboratedbythe seizure panchnama at Exh.341A. It has come in the evidence that the articles were sealed by the lac seal separatelyandlabelsoftheirsignatureswereputonthem. Theseizurepanchnamaisidentifiedbythemandtheyalso identifiedthearticleNos.54to60.Ontheaspectofseizure also,thecrossexaminationcouldnotdenttheprosecution evidence brought on record. There issuggestion that the statement of house owner is not recorded and the said person Abdul is not examined. Non examination of the house owner from where the discovery is made at the instanceofAccusedisnottherequirementundertheLaw. However, inthe crossexamination P.W.103, Investigating officerhavedeposedthatthesaidhousewastakenonrent byShaikhGauswhoisP.W.92.Further,nonexamination ofthesaidpersonAbdulwhohadopenedthegateofthe houseisnotfatalfortheprosecution,becausewhatcounts is the quality of evidence and not the quantity. It is the prosecution's choice as to which witness they should examine.Togoonestepfurther,underthepositioninlaw, therecovery/discoverycanalsobeestablishedthroughthe evidence of the Investigating officer aloneifthe sameis foundtobecogentandtrustworthy.

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117] OnesubmissionoftheLd.defenceAdvocateis thatnopanchnamaisdrawnforthesearchofthevehiclein which they had traveled and for the search of the PolicementakenbythePanch.InhisevidenceP.W.77has categoricallydeposedthattheGovernmentvehicleinwhich they had gone wassearchedandtheypanchasalsotook thesearchofthepolicestaffandtheAccusedalsotookthe searchofthepanchwitnesses.Hisevidenceistrustworthy andnocorroborationisrequired. 118] By giving the suggestion to P.W.103

InvestigatingofficeraboutthedestructionofRDXseizedat Aurangabad in the year 2006, the defence wanted to suggestthattheexplosivesareplantedontheAccused.It isdeposedbyP.W.103thattohisinformationthe43Kg. RDX which was seized in May 2006, in the city of Aurangabadwasdestroyedundertheordersofconcerned Courtandinreexaminationtheprosecutionhasplacedon record the copy of Court's order and the copy of panchnamatoshowthatthesaidRDXhasbeendestroyed. Since the said copy is not the certified copy it is only markedasarticle24.Intherecrossexaminationtakenby theLd.defenceAdvocatethereisnosuggestionthatarticle 24wasnotinrespectofdestructionofthesaidRDX. 119] One of the submission of the Ld. defence

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Advocateisthatthebuildingownerwasnotcalledatthe time of seizureof articlesattheinstanceofthe Accused and so the Investigating officer failed in his duty. As referred earlier P.W.103, in his evidence have stated that saidhousewastakenonrentbyShaikhGauswhoisP.W. 92. Asseenearlier,inhisevidenceP.W.92ShaikhGaus havestatedthathehadtakenonrentthehousebyname White building. In the report at Exh.351 given by the BDDStotheInvestigatingofficerandinthereportatExh. 418 given bytheP.I MilindGaikwadofthe AntiTerrorist SquadtotheSr.P.IofUdgirPolicestationforthepurpose ofmakingthestationdiaryentry,thereisreferenceofthe White building as the place from where the aforesaid articlesareseized.InhisevidenceP.W.103haveidentified thesaidreports.Inthesecircumstances,notcallingofthe ownerofthebuildingornotexamininghimasawitnessis immaterial.Whatismaterialorrelevantistheknowledgeof the Accused aboutthearticlesandtheplacewherethey arekept. 120] OnesubmissionofLd.defenceAdvocateisthat P.W.77 have given contradictory statement which create doubt about his going with the police party. The said submission is without any basis and only made for the sakeofargument.Sincethereisnopreviousstatementof

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thiswitness,thereisnoquestionofgivinganycontradictory statement.Heisthe panchwitness formemorandumand seizure panchnama. The evidence of P.W.77 is consistent and do notcreate slightestdoubt.Thereisabsolutelyno materialtoshowthatheistheregularpanchofthepolice. 121] One of the submission of the Ld. defence Advocate is that the RDX may have been plantedon the Accused Himayat.Noneofthematerialorcircumstances give rise to such an assumption. The evidence on record haveclearlyestablishedthattheAccusedwasarrestedon 07092010 in the afternoon at Pune. The memorandum statementisofthesamedayafterhisarrestandpursuant tothatthediscoveryofarticles54to60iseffectedinthe interveningnightof7thand8thSeptember,2010.Thisclearly showsthatthediscoveryattheinstanceoftheAccusedis immediate after his arrest pursuant to his disclosure. In the evidence of P.W.103 he has clearly deposed that the RDX seized at Aurangabad is destroyed and that part of evidence went unchallenged. It is the own contention of defencethattheRDXisnotavailableintheopenmarket but only with the Military. Admittedly, the Anti Terrorist Squad isinnowayconcernedwiththeMilitaryoralsois not in such a position so that they can influence the Military and procure the RDX. There are contemporary

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documents brought on record by P.W.103 in the form of stationdiaryentriesmadebeforeleavingtheofficeatthe timeofMemorandumstatementandaftercomingbackto theofficeaftertheseizure.Nonmentioningofthepanchas name,thehousenumberandabouttheBDDSteaminthe stationdiaryentryisnoreasontopresumethatthestation diaryentriesaresubsequentlymade.Itisneedlesstostate that only in brief the gist of theduty performedby the policemenistobewritteninthestationdiaryentry.There isalsotheentriesmadeinthelogbookoftheGovernment vehiclewhichwasusedinthetravel,whichisbroughton record.Further,intheevidenceofP.W.103,thereportgiven to the Udgir Police station and the entry made in the stationdiaryoftheUdgirPolicestationinconnectionwith theseizureoftheaforesaidarticles54to60,arebrought onrecordvideExh.418and419respectively.Perusalofall thesedocumentsclearlygotoshowthattheyareprepared in the normal course of official work. The first Remand report dtd. 08092010 filed by P.W.103 before the Ld. Magistratealsospeaksofseizureofthesaidarticlesatthe instanceoftheAccused.Further,itisalreadyseeninthe evidence of P.W.92 Shaikh Gaus that the Accused was teaching computer and residing in the White building whichhe(P.W.92)hadtakenonrent.Therefore,itisclear

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that the Accused was having access to the said white building. Asseen fromtheevidenceavailableonrecord, particularlyExh.418,419and351,theseizureofarticle54 to60aremadefromthisWhitebuildingattheinstanceof theAccused. 122] OneofthesubmissionofLd.defenceAdvocate isthatthecartoninwhichthesaidplasticbagscontaining article54to60werekeptisnotseizedandthenylonbag was not sent for the finger print expert. To this it is submittedbythe Ld. SplP.Pthatthefingerprintscanbe liftedonlyfromtheglossyobjectsandnotfromtheNylon bag.Theplasticbagsinwhichthesaidarticleswerekept areadmittedlyseized.Nonseizureofthecartoninwhich they are kept would not affect the seizure because if everything is required to be seized then the wooden cot (Diwan)fromwhichthesaidarticleswereremovedbythe Accusedwillalsoberequiredtobeseized.Whatismaterial istheexplosivearticles.Further,inviewoftheoralaswell asdocumentaryevidenceavailableonrecord,notsending thenylonbagtothefingerprint expert isimmaterialand notfatalfortheprosecution;'. 123] Further,inhisevidenceP.W.103havedeposed that the explosive substance which was seized at the instance of arrested Accused from Udgir was sent to the

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forensic science laboratory vide report at Exh.344, for examination and the C.A. report in that respect was received and Exh.24 was the same report, wherein it is mentioned that the explosive substance was RDX, petroleumhydrocarbonoilandcharcoal.Hefurtherstated thatthematerialcollectedfromthespotofincident was alreadyreferredtotheforensicsciencelaboratoryPuneand Delhi and their C.A reportswere at Exh.22 and 23. He furtherdeposedthat asperthesaidC.AreportsatExh. 22,23and24thecontentsofexplosivewerethesame.On this point there is no cross examination by the defence. PerusalofthesaidreportatExh.344showsthat50grams material/explosive which was seized at the instance of Accusedwassenttotheforensicsciencelaboratory,Pune byP.W.103. 124] P.W.78istheforensicexpert.Somepartofhis evidenceisconsideredwhilediscussingthepointrelating to happening of the incident. He is working as the Asst. Chemical Analyzer since last 26 years and deposed that the samples are received by their Laboratory in sealed conditions alongwith forwarding letter and they are accepted only after verifying the seals. He deposed that afterthesamplesareexaminedtheysentthesametothe concernedPolicestationunderthesealoftheirlaboratory.

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He identified article 56 as the same material which he examinedandalsoidentifiedthewrapperinwhichitwas senttothelaboratoryandidentifiedthecaseNo.asMP 363/2010. He deposed that the sample was received in sealed condition and the seal was intact as per the specimen.HisevidenceshowsthattheC.A.reportatExh. 24 was in respect of article56. Heconfirmed that the contentsofC.A.reportastrueandcorrect.Perusalofthe C.A. report at Exh. 24 shows that the letter number of Exh.344ismentionedtherein.Further,hisevidenceshows thattheC.AreportatExh.24pertainingtoseizureofthe explosiveattheinstanceofAccusedandtheC.Areportat Exh.22pertainingtothearticles seizedfromthespotof incident,wereconfrontedtohimandhedeposedthatboth thereportsshowthatsimilartypeofexplosivewasdetected inboththesamples.Perusalofthe crossexamination of thiswitness showsthatthereisvirtuallynothingonthis aspect. It would not be an exaggeration to say that the evidenceofthisforensicexpertwentunchallengedinthis respect. 125] P.W.75isalsotheforensicexpert.Hisevidence tosomeextentisalsoconsideredwhilediscussingthepoint in respect of happening of the incident. His evidence furthershowsthatthereportatExh.22pertainingtothe

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articlesseizedfromthespotofincident,wasconfrontedto himandhestatedthattheresultofanalysismentionedis RDX, ammonium nitrate and nitrate ion alongwith petroleum hydrocarbon/oil were detected in the exhibits received by the said laboratory. Evidence of this witness becomes relevant, being the expert and he confirms the findingsrecordedbyP.W.78whoisalsotheforensicexpert inC.AreportatExh.22andExh.24preparedbyhim.In the crossexamination thereisnothingwhichwoulddent or affect the evidence ofthiswitness, asit ison general terms. 125] The aforesaid scientific/forensic evidence corroborates the evidence of P.W77, P.W.80 and P.W.103 thattheexplosivesubstancewasseizedattheinstanceof Accused.Fromtheevidenceoftheseexpertwitnessesitis established that RDX isthehighexplosiveandifmixed withammoniumnitrate,charcoal,petroleumhydrocarbon oil, the effectiveness of explosion gets enhanced. Their evidence further establishes that the explosives used in causingtheexplosionattheGermanBakery,Puneandthe explosives seized at the instance of Accused is similar. Their evidence remained unshaken in the cross

examination. Evidence on record also shows that the explosiveseizedattheinstanceofAccusedwassealedwith

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lac seal on the spot of seizure and the seal was found intactwhenitreachedthelaboratoryandsothepossibility of tampering is also ruled out completely. Further, the evidence on record also firmly establishes that the place fromwherearticle56to60wereseized,wasaccessibleto theAccused. 126]Anotheraspectwhichfallsforconsiderationis whetheritcanbesaidthattheexplosivesubstancewasin possession of Accused. It would not be out of place to examine the meaning of word possession. The Three JudgeBenchoftheHonourableApexCourtinthecaseof
Superintendent V/s. Anil Kumar, reported in 1979(4) S.C.C.274, had the occasion to interpret the word

possession. The relevant Para 13,14,15 and 16 from the saidJudgmentreproducedhere. may have different meanings in different contexts. It is impossible to work out a completely logical and precise definition of 'possession' uniformly applicable to all situationsinthecontextsofallstatutes.DiasandHughesin theirbookonJurisprudencesaythatifatopiceversuffered toomuchfromoriginitisthatof'possession'.Muchofthis difficulty and confusion is (as pointed out in Salmond's Jurisprudence. 12th Edition, 1966) caused by the fact that possessionisnotpurelyalegalconcept.'Possession'implies arightandafact;therighttoenjoyannexedtotherightof propertyandthefactoftherealintention.Itinvolvespower ofcontrolandintenttocontrol.(SeeDiasandHughes,ibid).
Para 13 'Possession' is a polymorphous term which

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Para 14 According to Pollock and Wright when a

personisinsucharelationtoathingthat,sofarasregard thethinghecanassume,exerciseorresumemanualcontrol ofitatpleasure,andsofarasregardsotherpersons,the thingisundertheprotectionofhispersonalpresence,orin oronahouseorlandoccupiedbyhimorinanyreceptacle belonging to him and under his control, he is in physical possessionofthething. Para 15 While recognizing that 'possession' is not a purelylegalconceptbutalsoamatteroffact;Salmond(12 th Edition, page 52) describes 'possession in fact' as a relationshipbetweenapersonandathing.Accordingtothe learnedauthorthetestfordetermining'whetherapersonis inpossessionofanythingiswhetherheisingeneralcontrol ofit'. Para16 InGunwantlal(ibid),thisCourt,whilenoting that theconceptofpossessionisnoteasytocomprehend, heldthat,inthecontextofSection25(a)oftheArmsAct, 1959, the possession if a firearm must have, firstly, the elementofconsciousnessorknowledgeofthatpossessionin thepersonchargedwithsuchoffence,andsecondly,hehas either the actual physical possession of the firearm, or where he has not such physical possession, he has nonetheless a power or control over that weapon. It was furtherrecognizedthatwhetherornottheaccusedhadsuch controlordominiontoconstitutehispossessionofthefire arm, is a question of fact depending on the facts of each case.Inthatconnection,itwasobserved: Inanydisputed questionofpossession,specificfactsadmittedorprovedwill alone establish the existence of the de facto relation of controlorthedominionofthepersonoverit necessaryto determinewhetherthatpersonwasorwasnotinpossession ofthethinginquestion. 128]TheLd.defenceAdvocatecitedfourJudgments onthePointofdiscoveryU/s.27oftheEvidenceAct.The

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FirstJudgmentis ofHonourableKerlaHighCourtinthe case of Abu V/s State of Kerala reported in 2010 Cr.L.J
2324. Perusal of the same shows that in that case the

seizureofexplosivewasnotpursuanttothememorandum statementgivenbytheAccusedthereinbutthesamewas onthebasisofreliableinformationwhichwasreceivedby the police that the explosives were unlawfully stocked. Secondly,theTrialCourthadrecordedthefindingthatthe prosecutionfailedtoestablish thatthe Accused therein keptexplosivesubstanceforanyunlawfulobject.Thirdly, there was discrepancy in the number of the articles mentioned in the search list and number of articles receivedbythelaboratory.Fourthly,thequantityofsample dispatched to C.A was not mentioned in the certificate. Fifthly,itwasheldthattherewasnolinkevidencetoshow thatthesampletestedbytheChemicalAnalyzerwasthe sampletakenoutunderthesearchlist.Sixthly,noquestion U/s. 313 was put to the Accused therein that any explosivesubstancewasseizedfromhispossession.Inthis Judgmentinrespectofword'possession'itisobserved, The word 'possession' no doubt has different shades of meaninganditisquiteelasticinit'sconnotation.Possession and ownership need not always go together but the minimum requisite element which has to be satisfied is custodyorcontroloverthegoods.

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The Second Judgment is in the case of Aslam V/s.

Government of N.C.T reported in A.I.R. 2003 S.C. 3547.

Perusalofthesameshowsthattheraidwasconductedby the police team on the workshop where arms and ammunitionswerefound.Allthepanchasinthatcasedid notsupportedtheprosecution.Theevidenceofpoliceman was found to be highly artificial and improbable. The Accusedthereinwasseenenteringtheworkshopat10.00 a.m.andtheraidwasconductedat11.00a.m.Itwasheld thatthoughthepolicewereinuniform,theAccusedwould become apprehensive but, nothing that sort happened. OneoftheAccusedinthatcasewasconvictedforseizure of revolver pursuant to Memorandum statement by the TrialCourt and it was observedbytheHonourableApex Courtthattherecoveryhadbeenafter8monthsandthat toofromtheopenspaceandnotfromaclosedorconcealed place. ThethirdJudgment isinthecaseof BahadulV/s.
StateofOrissareportedinA.I.R.1979S.C.1262.Perusalof

thesameshowsthatinthecasethereintheonlyevidence against the Accused was the confession and removal of Tangia from beneath the cot without there being any statementU/s.27ofEvidenceAct. TheforthJudgmentisinthecaseof RajuV/s.State

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ofMaharashtrareportedin2008AllM.R(Cri)2632. Perusal

ofthesameshowsthattheprosecutioncasewasaccepted and it was observed that in a case which is based on circumstantialevidence,theCourtwouldalsohavetobe mindfulofthefundamentalprincipleoflawthatitisforthe prosecution to establish all the links in the case which connect the Accused to the offence beyond reasonable doubt, more over in a case founded on circumstantial evidence,allthecircumstancesmustbeconsistentwiththe guiltoftheAccused. 129] The legal position given in the aforesaid Judgments is well settled. However, the facts and circumstances of the aforesaid cases are vastly different fromthefactsandcircumstancesofthiscase.Inthecase in hand, there is Memorandum in respect of statement givenbytheAccusedwhichiswrittendowninpresenceof panchasandpursuanttothesaidstatementtheAccused led to one house at Udgir and removed the explosive materialandotherarticleskeptintheplasticbags,from insidetheboxofthecot/Diwanbyliftingtheplyandthis itselfshowsthatthearticles54to60wereinaconcealed position and not open/visible/accessible to any one. Thoughthesaidroomwherethecot/Diwanwaskeptwas notlockedbut,thesamedoesnotassumeanyimportance

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becausethearticleswerenotopenlykeptintheroombut werehiddeninsidethecot/Diwan.Itisalreadyseenfrom theevidenceofP.W.92 thattheAccused hadtheaccess inthesaidhouseashewasteachingandresidinginthat house. Pointing the explosive articles from such a concealed place shows the exclusive knowledge of the Accusedaboutthesame.Onekeepsthearticlesinsucha concealed place onlytohavecontrolandpossessionover thesame.Fromthis,theonlyirresistibleconclusion gets culledoutisthattheAccusedwasinconsciouspossession oftheexplosivematerial. Thecircumstanceinrespectof Memorandum statements and seizure of the explosive materialpursuanttotheMemorandumstatementwasput totheAccusedinthestatementU/s.313of Cr.P.C.Except denialthereisnoexplanationgivenbyhiminthatregard. ItissubmittedbyLd.defenceAdvocatethatitwasforthe prosecution to establish as to from where the Accused procured the said explosivematerial and from wherethe Accusedgottrainingtoassemblethebombandtherefore, the Accused cannot be linked with the incident. This submissiondonotimpressmeforthereasonthatitwould betheexclusiveknowledgeoftheAccusedastofromwhere theexplosivematerialisprocuredandfromwherehelearnt toassembletheBomb.UndertheprovisionsofSection106

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oftheEvidenceActwhenanyfactisespeciallywithinthe knowledgeofanyperson,theburdenofprovingthatfactis uponhim. Fromtheevidenceonrecord,theprosecution have proved beyond reasonable doubt that the explosive substancewasinconsciouspossessionoftheAccusedand the same wasseized athisinstance.Thereisnothingto show that the Accused was having any licence or authorization to possess the explosive substance. Thus, thiscircumstanceisfullyestablishedagainsttheAccused. FromtheevidenceofP.W.92ShaikhGausitisclearthat one of the teacher wasby name Abdul Rahim in hisAl Saba Classes and therefore, coming out andopeningthe gate of the house by the person named Abdul is quite natural. Further in the seizure panchnama at Exh.341A the name of the person who opened the gate is also mentionedatAbdulRahim. Thus,thiscircumstanceisprovedbytheprosecution beyondreasonabledoubt.

3]Using/operatingtheBankAccount ofanotherperson

Toprovethiscircumstancetheprosecutionisrelying on the evidence of P.W.94 Shaikh Abdul Rehan, P.W.68 Govind Somani, P.W.69 Suresh Deshmukh, P.W.70 Dattatraya Kalaskar P.W.71 Martand Patil and the

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documentaryevidencebrought onrecordintheevidence ofthesaidwitnesses. 130] P.W.94 is thesamewitnesswho hailsfrom BeedwhichisthenativeplaceoftheAccusedandishis friend. According to him, when he was working in the ConsultancybynameJobOneIndiaintheyear2008,he washavingtheBankAccountintheBankofHyderabad, Mondha,BeedandwashavingATMcardofthesaidBank Account.HedeposedthattheAccusedaskedhisATMcard andsohegaveittohim andthesaidBankaccountand theATMcardwasusedbyAccusedandallthetransactions in the said account were done by the Accused. In cross examinationithascomethatheusedtogotothehouseof AccusedinBeedandintheyear2008hisfriendshipwith the Accused became strong and since the Accused demandedtheATMcard,hegaveittohim.Ithasfurther comeinthe crossexamination thathissaidaccountand theATMcard wasusedbytheAccusedandhe(himself) wasnotdepositinganyamountinthesaidAccount. 131] P.W.68istheBranchManagerofStateBankof Hyderabad Parbhani Branch and in his evidence he deposed that pursuant to the letter at Exh.294 received from the Anti Terrorist Squad he supplied the original creditvoucheroftheAccountvideletteratExh.295.The

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originalvoucheratExh.296isidentifiedbythiswitnessas the same. Perusal of the said document show that it pertainstoAccountNo.62058905660.Incrossthe said exhibits are not challenged and it is affirmed that the accountmentionedinthesaidvoucherwasofBeedBank. Theonlyaspectwhichisbroughtincrossexamination is thatthereisnosignatureinthesaidvoucheroftheperson depositingtheamount. 132] P.W.69 is the Account's Manager of State BankofHyderabad,ShahaganjBranch,Aurangabadandin hisevidencehedeposedthatpursuanttotheletteratExh. 298receivedfromtheAntiTerroristSquadhesuppliedthe originalpayinslipoftheAccountvideletteratExh.299. The original payinslip at Exh.300 is identified by this witnessasthesame.Perusalofthesaiddocumentshow thatitpertainstoAccountNo.62058905660.Incrossthe said exhibit is not challenged. The only aspect which is brought in cross examination is that any person can deposittheamountintheaccountofanotherpersonand he will not be able to tell as to who had deposited the amountinthesaidaccountthroughthesaidpayinslip. 133] P.W.70 is the Manager of State Bank of Hyderabad, Old Jalna Branch and in his evidence he deposedthatpursuanttotheletteratExh.302 received

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from the Anti Terrorist Squad, his branch supplied the originalpayinslipsoftheAccountvideletteratExh.303. The two original payinslip at Exh.304 (collectively) are identifiedbythiswitnessasthesame.Perusalofthesaid documents show that it pertains to Account No. 62058905660. In cross the said exhibits are not challenged. The only aspect which is brought in cross examinationisthatanypersoncandeposittheamountin theaccountofanotherpersonandtheamountcannotbe withdrawnfromtheaccountexcepttheaccountholder.It isfurtherstatedbyhimthatthesignatureonboththepay inslipsweredifferent.Inreexaminationhedeposedthat amountcanbewithdrawnfromtheaccountbytheperson inwhosenamethedebitcardisissuedorthepersonwho possessesthedebitcardandalsothepinnumber. 134] P.W.71 is the Manager of State Bank of Hyderabad,MondhaBranch,Beedandinhisevidencehe deposedthatpursuanttothelettersatExh.306and307 receivedfromtheAntiTerroristSquadhisbranchsupplied thethreepayinslips,thestatementofAccountand the Account opening form alongwith it's enclosures i.e Electricity Bill and certificate of the Maharashtra State TechnicalBoard videletteratExh.308.Thethreeoriginal payinslip at Exh.309 (collectively), the Bank Account

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statement at Exh.310 and the Account opening form at Exh.311andtheEnclosuresofthesaidformatarticle44 collectively are identified by this witness as the same documents supplied by the Branch to the Anti Terrorist Squad.Perusalofthesaiddocumentsshowthatitpertains toAccountNo.62058905660.Incrossthesaidexhibitsare notchallenged.Theonlyaspectwhichisbroughtincross examinationisthatthenameofAccountholdermentioned in the three payinslips at Exh.309 (collectively) is mentionedasShaikhAbdulRehan(P.W.94).Ithasfurther comeinthe crossexamination thatitisnotmentionedin the Bank account's statement at Exh.310 as to who has withdrawntheamountandhecannottell astowhohad depositedtheamountintheaccountthroughthesaidpay inslips. In reexamination it is brought that all the transactions mentioned in the statement of Account at Exh.310 are done by using the ATM. In recross examination it is brought that no complaint regarding misuseofthesaidaccountwasreceived. 135] P.W.94isthefriendofAccusedandsohaveno reason to state falsely against him. Cross examination of thiswitnesshavefurtherconfirmedaboutusinghisBank accountbytheAccused.Throughthewitnessesfromthe Banktheprosecutionhavebroughtinevidencethevarious

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vouchers/payinslips, the Bank account statement and the original account opening Application form of Bank Account No. 62058905660. The aforesaid witnesses from the Banks are the high ranking and responsible officers andtheyhavenoreasontogivefalseinformation.Incross examination their evidence in respect of the said documentshasremainedunchallenged.Perusalofthesaid documentsclearlygotoshowthattheywereusedinthe regularcourseofBanktransaction. TheAccountnumber on all the said bank documents is one and the same. Exh.311showsthatthesaidaccountwasinthenameof Rehan(P.W.94).ThebankaccountstatementatExh.310is also of the same account. The opinion given by the HandwritingexpertshowthatthehandwritingontheBank payinslipsandthespecimenhandwritingoftheAccused match with each other. So, the evidence of Handwriting expert corroboratestheevidenceof P.W.94RehanShaikh thatthe Accused usedhisBankaccount.Thereisfurther corroborationtoestablishthiscircumstanceandthatisin thenatureoftheCCTVfootageofvariousATMssituatedat UdgirandParbhani,whichwereseizedfromtherespective Banks.Theadmissibilityofthesameisalreadyconsidered. TheevidenceofP.W.103showthatthefootageoftheATM Center seized under the panchnama at Exh.253 and

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preservedinarticle23Aand23BCDswereshowntohim whilerecordinghisevidenceandheidentifiedtheAccused in the footage. It is further deposed by P.W.103 that the entries in the Bank Account statement at Exh.310 are correspondingwiththedatesonwhichthe Accused had withdrawn the money from the ATM Centers. There is sufficient and cogent evidence on record to prove this circumstance.ToaddtothisinthestatementU/s.313of
Cr.P.C whileansweringtheQuestionNos.378and505,the

AccusedhaveadmittedthathegotacquaintedwithRehan intheyear2009andashewasinneed,forsomeperiodhe used the ATM card of Rehan with his permission. AccordingtotheLd.defenceAdvocate,itisnotthecrimeto use anybody's Account with his permission. There is no doubt about it.ThefactinissueiswhethertheAccused usedtheBankaccountofRehanornotandnotwhetherit is crime. Thus this circumstance is proved beyond reasonabledoubt.
4] VisittoColomboandthereafterdepositofsubstantial amountintheBankaccountoperatedbyAccused.

It is the prosecution's case that the Accused had visitedColomboasthepartofconspiracyandhegotthe funding to execute the conspiracy. To establish this circumstance,theprosecutionisrelyingontheevidenceof

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P.W.103 Investigatingofficer,thepassportandthebank documents. 136] It is already seen while discussing the circumstance of Accused residing in Udgir with the assumed/false names, that two bags of the Accused havingseveraldocumentswereseizedbythepoliceunder thepanchnamaatExh.264.Oneofthearticlefoundinthe black colour brief case is the Passport (Exh.422). In the saidpanchnamatherearedetailsatSr.No.45inrespectof thepassport.Ascanbeseenfromthecrossexaminationit isnotdisputedbythedefencethatthesaidPassportisthat of the Accused. The Passport at Exh.422 shows that Accused had gone to Colombo from Chennai on 0703 2008andreturnedon24032008.InhisevidenceP.W.103 Investigating officer have deposed that the Accused had gonetoColomboandafterhisreturnfromColombothere weredepositsofRs.73,000/,Rs.18,500/andRs.30,000/ on 29062008, 20122008 and 20012010 in theBank Account which was used by the Accused. The Bank Account statement at Exh.310, corroborate the evidence that there are deposits of the aforesaid amount in the AccountusedbyAccused.Itisalreadyestablishedthatthe said account is in the name of Rehan (P.W.94), but was usedbytheAccused.Fromthecrossexaminationitisclear

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thatthevisitoftheAccusedtoColomboisnotdisputed. Even,inhisstatementU/s.313of Cr.P.C,theAccusedhave admitted that he had visited Colombo. Though P.W.103 admittedofnotgoingtoColomboforinvestigation,inhis crossexaminationthecopyoflettersenttotheInterpolis broughtonrecordatExh.423.Perusalofthesameshows thattheinformationwassoughtaboutthestayofAccused alongwith absconding Accused Fayyaz Kagzi in Colombo and about the arrival and departure of the said abscondingAccusedfrom/toPakistan.Theletterishaving outwardnumberandshowsthatitisissuedbytheDeputy Commissioner of Police, Anti Terrorist Squad, Mumbai. This shows that P.W.103 had taken steps to investigate abouttheColombovisitoftheAccused.WhentheAccused wasputthequestion(Q264)inthestatementU/s.313of
Cr.P.C abouthisvisittoColombo,hestatedthathehad

gonetherefordoingjobbutduetolanguageproblemhe could not get the job. Further, while replying to the last question(Q526)inthestatement,hestatedthathehad gone to Colombo for selling the clothes and perfumes whichhehadpurchasedfromMumbaiandtodojobinthe Mallorinbigshop.Twodifferentanswersaregivenbythe Accused in respect of his visit to Colombo. The said explanationbynomeansappearprobable.

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Generally, Colombo is not the preferred destination for businessorjobs.However,fromtheevidenceavailableon record it is established that the Accused had gone to Colomboandafterhisreturntherewassubstantialdeposit inthebankaccountusedbyhim.SincetheAccusedwas operatingthesaidAccountheonlycangivetheexplanation inthatregard.Exceptdenialthereisnoexplanation. Thus,thiscircumstanceisprovedbeyondreasonable doubt.
5]AssociationwiththeabscondingAccusedpersonsand themindsetofAccusedinfluencedbytheideologyof terrorism and having perverted notions about religion.

To establish this circumstance the prosecution is relying on the evidence of P.W.73 Abdul Samad Indori, P.W.87AspakKhan,P.W.94RehanShaikh,P.W.95Shaikh LaikandP.W.97MohammadAnsari. 137] P.W.73isthesamewitnesswhoisthecloth merchant fromUdgir andknowstheAccused byname YusufSir.Ithascomeinhisevidencethatwhenoncehe hadgonetotheInternetCafeoftheAccusedtoreturnthe money,theAccused introducedhimtoonepersonashis friendfromPunebut,thenameofthesaidfriendwasnot toldandaftertheBombexplosionattheGermanBakery

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the news was being shown over the television in which apart from name of Accused, another person by name MohsinChaudhariwasshownasoneofthesuspectandhe wasthesamepersontowhomtheAccusedhadintroduced him in the Global Internet Cafe. On thispoint the cross examinationisinpara11.Thoughthewitnesscouldnot give the dateand monthonwhichhehadseen thesaid news on the television, he stated that it was after the month of Ramzan. Not remembering the date of German BakeryBombexplosionbythiswitnesscannotbesaidto befatalfortheprosecution.Headmittedthathewasnot acquainted with Mohsin Choudhari. He denied the suggestion that he had not seen Accused with Mohsin Choudhri in the Global Internet Cafe and further denied the suggestion that he was deposing at the instance of police. Except this, there is nothing in the cross examinationwhichwouldmakehistestimonyunreliable. 138] P.W.87isthewitnesswhohadtakeneducation ofB.EdfromtheAzamCampusPune,wheretheAccused had also taken the education. He deposed that in the college,Accusedwashisseniorandresidinginthehostel. HeidentifiedtheAccused.HedeposedthatAccusedused totalkof'Jehad'andprovocativeinconnectionwithGujrat riots and taking such stepswhich would take revengeof

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thesameandaboutkillingthepeoplebelongingtoother religion who have killed the Muslims and to cause the Bomb explosion. He further deposed that even after completingthestudies,theAccused usedtocontacthim over the phone. In cross it is admitted that he did not tendered any documentary evidence to show that he studied in the Azam Campus and was residing in the hostel. There appears to be omission in his police statement which is not provedthrough the Investigating officer,abouthisstayinthehostel.However,ithascomein the cross examination that he was doing B.Ed in Azam Campus in the academic year 20042005. His not complainingtothePrincipalabouttheprovocativetalkby theAccusedisnotsufficienttodoubthistestimonyforthe reasonthatnormallysuchthingsarenotreportedbythe friendsorknownpersons,unlessitbecomesnecessary.He deniedthesuggestionthattheAccusedwasnottalkingin thesaidmanner. TheAccused inthestatementU/s.313 statedthatthiswitnesswashisjuniorinthecollege.Itis submitted by Ld. defence Advocate that this witness admitted that he do not know the meaning of Jehad. Though he admitted the same, he categorically deposed about the manner in which the Accused used to talk. Beinginthesamecollege,Accusedtalkingwithhiminthat

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mannerisnotimprobable.Evidenceofthiswitnessisnot affectedbythecrossexamination. 139] P.W.94 is the same witness whose bank account and ATM card is used by the Accused. In his evidenceithascomethatMudatsir,JabiuddinAnsariand Dr.SohailarethefriendsofAccused andthepersonby nameAbuJindalwhoisarrestedbytheDelhipoliceisthe same person by name Jabiuddin Ansari. He further deposed that he saw the Accused together with the said persons.Ithascomeinhisevidencethatintheyear2006, when the arms and ammunitions were seized from the Aurangabadcity,atthatpointoftimehiscousinbrother Ezaz Abdul and Jabbiuddin Ansari had absconded and JabbiuddinAnsariwasarrestedinthesaidseizureofarms andammunitions.Ithasfurthercomeinhisevidencethat when he attended the Durs (Religious discourse) held in theyear2007inBeedatthehouseofBurhan,thattime Accused, Zakir, Dr. Atik, Hafiz and other persons were presentandtherewasdiscussionabouttheatrocityonthe MuslimsandabouttheincidentofBabriMasjidandGujrat Riotsanditwasdiscussedthatallshouldcometogether andfightagainsttheatrocityandtheinstructionsinthat regard were given by Accused and others. He further deposedthatwhilehewasresidingwiththeAccusedthey

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used to talk about atrocities on Muslims and on the aforementionedtopic.Ithasfurthercomeinhisevidence that when he and the Accused were returning from HyderabadinMarch2010,theAccusedshowedonevideo clipfromhismobilephoneinwhichthepeoplewereseen takingthetraininginAfghanistanandAccusedsaidthat they should also take such type of training. In cross examination he deposed that Jehad means to control oneselfandalsomeanstofightbackagainsttheatrocities on religion. It is suggested that since this witness was aware about the incident of demolition of Babri Masjid, there was no question of Accused discussing about the same.IthascomethatJabiuddinwastheresidentofBeed andusedtodoelectricwork.ItissubmittedbyLd.defence Advocatethatintheevidence ofthiswitnessithascome that he along with the Accused went to Hyderabad in December 2009 and they came back to Udgir from HyderabadinMarch2010andsothereisnoquestionfor Accused beinginPuneinFebruary2010.Perusalofthe evidenceofthewitnessdonotshowthatfromDecember 2009 till March 2010 Accused was altogether with this witness in Hyderabad. In the cross examination of this witness the picture gets clear wherein the witness have deposedthathedonotremembertheexactdateonwhich

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the Accused had come to Hyderabad and it was in the month of March. This goes to show that after going to Hyderabad in December 2009, Accused came back and again went to Hyderabad in March 2010. It is clearly brought in the cross examination thatsincethiswitness had no place of his own at Udgir he stayed with the Accused.Beingtheperson stayingwiththeAccused for considerableperioditisnotunnaturalthatthesaidkind of talk was done by the Accused. It is submitted by Ld. defenceAdvocatethatmerelybecausetheAccusedknows thepersonsnamedbythiswitness,donotmakehimasa Accused.However,theevidenceofthesewitnessesclearly show the association of Accused with the absconding Accused persons. Further, from the evidence of these witnesses it becomes clear as to what sort of talk the Accused usedtodorepeatedly. Itisonlybroughtbythe defence that Zaki, Dr. Sohail and Burhan are the respectable persons. One of the submission of the Ld. defence Advocate is that when the Accused Jabbiuddin Ansari, Fayaz Kagzi and Yasin Bhatkal are wanted since long,howcometheywillbeintouchwiththeAccused.Itis clear from the evidence of Investigating officer that the aforesaid Accused persons are wanted. To be absconding meansremainingawayfromtheclutchesof police.That

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doesnotmeanthattheabscondingAccusedpersonsalso stop meeting each other or their activities. The cross examinationdonotcreateanydenttotheevidenceofthis witness. 140] P.W.95isthewitnesswhoknowstheAccused bynameYusuf.HedeposedthathemettheAccused in JuneorJuly2007attheDarsinParbhaniandthereafter hadtheoccasiontomeettheAccusedintheyear2008at Aurangabadand atthattimetheAccused saidthatthe atrocitiesarebeingcommittedonMuslimsandtheyshould do Jehad and take revenge and the students should be gathered and it was his responsibility to give training to themandincasethearmsandammunitionsarerequired, hecanarrangeforthesame.Hefurtherdeposedthaton telephonealsoAccusedusedtotalkofJehad.Ithascome in his evidence that since the Accused used to talk of Jehadhestartedavoidinghim.Hisevidencefurthershow that when in the year 2009 he had gone to the Global Internet Cafe at Udgir, theAccused hadintroducedhim withthepersonsbynameSabirPatel,Rehan(P.W.94),Alif and Khurshid Alam, by the name Salman and when he askedAccusedthereasonofintroducinghimbythename Salman,AccusedtoldhimthathewasworkingforL.E.Tin which the real name is not to be disclosed. He further

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deposedthatlateronhelearntthatL.E.TmeansLashkar ETaiba. In cross examination suggestion is given that when he was introduced to others by the Accused as Salman, he had not objected and to this suggestion the witnesshavestatedthatsincetheAccusedwasknownto him, he kept silent. The aspect of Accused telling him abouthisworkingwithL.E.Tistheomissioninhispolice statement which is not proved through the Investigating officerNotreportingbythiswitnessaboutthetalkofthe Accused tothepolicecannotbetermedasunnaturalas normally people do not complain against the known personsaboutsuchtalks. 141] P.W.97MohammadAnsariisthenativeofBeed whichisalsothenativeplaceofAccused.Hedeposedthat he has many friends in Beed including the Accused and once Accused introduced him with his friends by name Fayaz Kagzi and Jabbiuddin Ansari. He deposed that in May2006,someboysfromBeedweretakenincustodyin connection with seizure of RDX and fire arms found at Aurangabad,andatthatpointoftime,theAccused,Fayaz KagziandJabbiuddinAnsariwereabscondingfromBeed. HefurtherdeposedthatAccusedusedtoalwaystalkabout Godhra incident of Gujrath, demolition of Babri Masjid, atrocities on Muslims and Jehad. He deposed that

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according to Accused the word Jehad means to take revenge. Incrossexamination itisreaffirmedthatheis nativeofBeedandthepersonsbynameFayyajKagziand JabbiuddinAnsariarealsotheresidentofBeed.Hedenied thesuggestionthatnotalkasaforesaidwasbeingdoneby theAccused withhim.Notknowingthe mobilenumbers ofAccusedHimayatwillnotrenderhistestimonydoubtful. 142] Fromtheevidenceoftheaforesaidwitnessesit isseenthattheywereallknowntoAccusedbyonewayor theother.Fromtheevidenceofalltheaforesaidwitnesses, itisclearthattheAccusedusedtotalkprovocativewith them.Nothingisbroughtbythedefenceastowhythesaid witnesseswillstatefalseagainstAccused.AccordingtoLd. defenceAdvocate Jehadisareligiouswordsousingitby theAccusedisnotwrong.Howoneinterpretthemeaning of word is upto that person. Evidence of the aforesaid witness show that the word Jehad was used by the Accusedinthesenseoftakingrevenge.Whatisestablished fromtheevidenceofthesewitnessesisthattheAccusedis havingtheextremeordangerousopinionaboutthereligion and revengeful mindset and was in association of the abscondingAccusedpersonshavingcriminalantecedents. Thus, this circumstances is proved by the prosecutionbeyondreasonabledoubt.

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6]

Going to Mumbai on the ticket booked in another's name and residing at the lodge in assumed name shortlybeforetheincident.

On this point the prosecution is relying on the evidence of P.W.73 Abdul Samad Indori, P.W.64 Gopal Chamkure,P.W.67ManiyarEzazMehmoodJahami,P.W.60 AmitVeeraandP.W.63MohammadAliGotekar. 143] P.W.73 is the same witness doing cloth business at Udgir and who knows Accused by the name YusufSir.Forhisclothbusinesshepurchasetheclothes fromMumbaiandtraveltoMumbaibythebusofPriyanka TravelsfromLaturwhichbelongtohisfriendEzazManiyar (P.W.67).Inhisevidencehedeposedthaton6 th February, 2010hehadgonetoMumbaibythePriyankaTravelsand reachedMumbaiinthemorningon7thFebruary,2010and went to the Alnoor lodge situated at Mohamadali Road, CrawfordMarket,Mumbai,wherehestayputwheneverhe gotoMumbaiandaftermakingtherelevantentryinthe register he was allotted the bed. He deposed that he receivedthephonefromthe Accusedinbetween11.00a.m. to12.00noonaskinghimtobookoneticketforMumbai andsohephonedEzazManiyar(P.W.67)andaskedhimto book one ticket in hisnameandtoldthat Accused was going to travel onthatticketandhegavethenumber of

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AccusedtosaidEzazManiyar.Hefurtherdeposedthatin the morning of 8th February,2010 he went to receive the Accused and they both came to Alnoor lodge and the Accused wrote his name in the register. The witness identifiedtheentryatExh.322fromtheregisteratarticle 35,astheentryinhisnameandidentifiedthesignature atExh.281 fromtheregisteratarticle35,asthatofthe Accused.Incrossexaminationithascomethatwhenever he go to Mumbai the Munim of his shop manage the business.HisgoingtoMumbaibyPriyankaTravelsisnot challenged.Notrememberingtheamountpaidforthebus ticketbythewitnessisnoreasontoholdthathehadnot traveledasdeposed.Thewitnesshadvolunteeredthat,the busfarekeeponfluctuatingandnoonekeeptheticketfor somanydays.Itisconfirmedthattheticketsdated6 thand 7th February, 2010 were booked in his name. He volunteeredthatfortheticketdated7th February,2010he hadgiventhenumberofAccused.Itisbroughtthatabout 12hour'stimeisrequiredfortravelbytheBusfromLatur to Mumbai and viceaversa. Though the entry in the registerofAlnoorlodgeisnotinthehandwritingofthis witness,thesignatureismadebyhim,asseenfromthe crossexamination.Hedeniedthesuggestionthatnoticket wasbookedbyhimfortheAccusedandtheAccuseddid

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nottraveledontheticketdtd.07022010. 144] P.W.64 is the panch witness in whose

presencetheregisteratarticle39ofthePriyankaTravels, Latur is seized under the panchnama. This witness is havingthePanstallinfrontofthePriyankaTravels,Latur andhewascalledbytheAntiTerroristSquadPoliceon 16092010atthesaidPriyankaTravelsatabout8.30p.m. andinhispresencetheGreencolourregisteratarticle39 wasseizedandkeptinthepacketuponwhichthelabelof their(panchas)signaturewasput,underthepanchnama at Exh.283. He identified the said register and the panchnama.IthascomeinhisevidencethatEzazManiyar (P.W.67) was present at that time. He denied that the panchnama was already written and he signed at the instanceof police. Thereisvirtuallynothinginthe cross examinationtodoubthistestimony. 145] P.W.67 is the owner of the Priyanka Travels havingit'sofficeatAshokhotel,MainRoad,Latur.Inhis evidence he deposed that from his said Travel office, the booking for journey from Latur to Bombay and Latur to Pune is done, either telephonically or personally and the travel bus goes to Mumbai from Latur every night at 10.00p.m. and it takes time of 12 to 13 hours to reach Mumbai. He further deposed that the same bus leaves

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Mumbaiat8.00p.m.forLatur.Ithascomeinhisevidence thatSamadIndori(P.W.73)ishisregularclient.Hedeposed that on 16092010 the officer from the Anti Terrorist Squad had come for inquiry with two panchas and after verifyingtheentriesinthearticle39 register,theofficers seized the register under the panchnama. He identified article39asthesameregisteranddeposedthattheentry dated6thFebruary,2010(article39/1)andtheentrydated 7th February, 2010 (article 39/2) were in the name of Samad Indori (P.W. 73). He specifically deposed that anotherpersonhadtraveledinplaceofSamadIndori(P.W. 73)on7thFebruary,2010becauseitwasnotpossiblefora persontocomebackatLaturandagaingotoMumbaion 7th February,2010.Asregardsthecorrectionintheentry dated7th February,2010hedeposedthatearlierthesaid entrywasinthenameofanotherpersonandthereafteron telephonic instructions from Samad Indori (P.W. 73) the entrywasmadeinhisname.Incrossexaminationitisnot disputed that he is running the Travel business and deposed that the identity proof of the traveler is not verified in his office. Since the register at article 39 is seized, non seizure of the carbon copy of ticket is not material. It is confirmed that Samad Indori (P.W.73) traveledinhisbusonmanyoccasionsandtherefore,the

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omission in the police statement that P.W. 73 was the regular customer is not material. This shows the acquaintanceofthiswitnesswithP.W.73.Itisreiterated thatP.W.73hadphonedfromMumbaion7thFebruary,2010 andbookedtheticketforhisfriend. Itisconfirmedthat P.W.73didnottraveledbyhistravelbuson7 th February, 2010.Hedeniedthesuggestionthatnoticketswerebooked by P.W.73 on 6th and 7th February, 2010 and he was deposing falsely. The evidence of this witness remained unshatteredincrossexamination. 145] P.W.60isthepanchwitnessforseizureofthe register from the Alnoor Guest house,Crawford Market, Mumbai. He deposed that on 13092010 in between 4.15p.m.to4.30p.m.whenhewasgoingfromtheCrawford Market, he was called by the policemen of Anti Terrorist Squadforactingasapanchandaccordinglyhewentwith themtotheAlnoorGuesthousesituatedatthedistanceof 23 minutes and the police seized the register from the ManagerofthesaidGuesthouse.Heidentifiedthearticle 35asthesameregisterandthepanchnamaExh.274under whichitwasseized.Incrossexaminationhedeposedthat hecannotsayastohowmanyfloorsthesaidGuesthouse was.Sincethiswitnessisonlyinrespectofseizureofthe register,itisnotexpectedfromhimtoknowthefloorsof

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theGuesthouseunlesshesurveysthesameandthereis nothing toshow that hehadtheoccasiontogooneach flooroftheGuesthouse.Healsostatedthenameofthe GuesthouseManager.Thereisnothingtoshowthatheis the regular panch of the police. From his evidence the seizure of register from the Alnoor Guest house is established. 147] P.W.63istheManagerofsaidAlnoorGuest house andsinceheisresidingintheGuesthouseheis alwaysavailableintheGuesthouse.Hedeposedthaton the ground floor of the said Guest house, there is a dormitory, having 30 beds and from the 1 st floor till 3rd floor,thereare24rooms.Hefurtherdeposedthatafterthe customer comes to the Guest house, his complete information such as name, address, Phone number, ID CardNo.,theplacefromwherehehadcomeandtheplace where he is supposed to go, timing of his arrival and signature is taken. He identified article 35 as the same registeroftheAlnoorGuesthousewhichwereseizedby the police. He identified Accused as the same customer whohadsignedagainsttheEntryNo.1129dtd. 08022010atExh.281appearinginthearticle35register. Incrossexaminationitisclearlystatedbythiswitnessthat initially they used to not take the copy of I Card of the

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customers.Therefore,itisobviousthattheICardnumber isnotmentionedagainsttheentryatExh.281.Headmitted that number of customers come to theGuest houseand thereisnoreasontokeepinmindthecustomers.However, hevolunteeredthatthemobilenumberismentionedinthe entry. He clarified that ifthecustomer isnothavingthe proofofhisidentity,heisaskedtobringthepersonwho knowshimandinthepresentmattertherewasreferenceof thecustomerfromLaturbynameSamadIndori(P.W.73). Thoughhehadnotgiventhedescriptionofthecustomerin hisstatementandhehadnoreasontokeepinmindthe customerandthattheentryatExh.281wasinthename of Mohammad Yusuf Mohammad Issaq, it is established fromtheevidenceofthiswitnessthatthesaidarticle35 wastheregisterofthesaidGuesthousemaintainedinthe regularcourseofbusiness. 148] Further,thereistheevidenceof Handwriting expertwhoisexaminedasP.W.76towhomthedocuments seized inthis case weresentforopinion.Hisevidenceis already considered andaccepted. Hisevidenceshowthat oneofthedocumentwastheregisteratarticle35whichis of the said Alnoor Guest house and the signature at Exh.281wasmarkedasQ20andthespecimensignature oftheAccusedwasmarkedasA13toA18byhimandhe

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gavetheopinionvidereportatExh.344andreasonsat Exh.336 that, they are written byoneandthesame person. Further, in the entry at Exh. 281 in Article 35 which is the register of Alnoor Guest house and in the entrymarkedasArticle39/2intheArticle39whichisthe register of Priyanka Travels, the same mobile number i.e 8149308626,ismentionedwhichwasfoundinpossession ofthe Accused atthetimeofarrest.Fromthe evidence broughtonrecord,theprosecutionhaveclearlyestablished beyondreasonabledoubtthat Accused cametoMumbai on08022010ontheticketbookedbyP.W.73andchecked in theAlnoorGuestHousesituatedatCrawfordMarket, Mumbai, in the assumed name as Yusuf. The Defence remainedunsuccessfulinmakingdentintheprosecution evidence. Thus,thiscircumstanceisprovedbytheprosecution beyondreasonabledoubt.

7]

Purchasingunaccountedmobilehandsetfrom Mumbai, shortlybeforetheincident.

On this point the prosecution is relying on the

evidenceofP.W.88MohommadIliasMansooriandP.W.102 DineshKadam. 149] P.W.88 istheownerofmobilephoneshop.In hisevidencehedeposedthatheisinthebusinessofselling

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new and old mobile phones under the name and style Goodluck situated at Shop No.35, Manish Market M.R.A Marg,Mumbaiandhisshoptimingsarefrom12.00noon to9.00p.m.Ithascomeinhisevidencethaton16092010, Anti Terrorist Squad Police had come for inquiry to his shop in respect of purchase of one mobile phone. He deposed that Accused had come to his shop at about 2.00p.m.inthemonthofFebruary,2010andaskedforold Nokiamobilephoneof1100modelandasthesaidmodels were available in his shop, he had shown them to the Accused and after checking the alarms of the mobile phones,hepurchasedonemobilephoneforRs.750/and left.Hedeposedthatthepolicemadeinquirywithhimin that regard and he had given the description of that person.Thereisnodisputethat Accusedwasnotknown tothiswitnessandtherefore,thequestionofidentifyingthe Accusedassumesimportance.Hisevidenceshowsthathe wascalledtoYerawadaJail,Puneon03102010for Test Identification Parade in which he identified Accused amongsttheninepersonswhowerestandinginthequeue. HefurtherdeposedthataftertheTestIdentificationParade his statement was recorded. He identified the letter at Exh.367,asthesamewhichwasgiventohimforcomingto theTestIdentificationParade.Further,whilegivingevidence

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he identified the Accused as the same person who purchased the aforesaid model of mobile phone from his shop. In cross examination it has come that he do not havethelicenceforhisbusinessandsincelast10yearshe was doing the business in Mumbai. He categorically deposed that his said business was conducted unauthorizedly.Ithascomeinthecrossthatthereisno reasontokeepinmindthedescriptionofeachandevery customer and further stated that if the customer is of typicaltypeorbehavior,itispossiblethathisappearance iscapturedinmind.Heclarifiedthatthedealershipisfor the new phones and not for the old phones and so, not havingdealershipwillnotrenderhistestimonyunreliable becauseithascomeinhisevidencethattheoldmodelsof mobilephonewereshowntothe Accused.Nonissuingof thereceipt oranydocument isnotsufficienttodiscard hisevidencebecausehisevidenceisfoundtobereliable. TheAccusedchoosingtheManishMarkettopurchasethe mobilephonetoseethatthepurchasetransactionremains unaccounted,isquitepossible.Inthecrossexaminationit has come that it was 8th February 2010 when the said mobilephonewassoldbyhim.Sincethisdateisbrought onrecordbythedefenceincross,itcannotbesaidtobe theomissionfromhisstatement.Itisalreadyestablished

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bytheprosecutionthaton8thFebruary2010Accusedwas inMumbai.HedeniedthattheAccusedwasshowntohim in the office of Anti Terrorist Squad. He also gave the positiononwhichtheAccused wasstandinginqueueat thetimeofTestIdentificationParade.Notrememberingthe colourofclotheswhichthe Accused waswearingcannot besaidtobefatal. 150]TheTestIdentificationParadememorandumis at Exh.369. It is admitted in evidence pursuant to the provisionsofSec.291Aof Cr.P.C and thedefencehadalso gavenoobjectionforexhibitingthesame.The Ld.defence AdvocatecitedtheJudgmentreportedin 2012AllM.R.(Cri)
3238inwhichtheTestIdentificationParadewasconducted

in breach of guidelines and no weight was given to the substantiveevidenceandtheentireevidenceofprosecution inrespectofidentificationofAccusedandidentificationof stolenarticleswasfoundtobehighlydoubtfulinnature.It is not so in the present case. Perusal of the Test Identification Parade memorandum shows that it was conductedbytheTahsildar,PuneCityinpresenceoftwo panchas and the same is held as per the prescribed procedure. It is needless to state that the object of Test Identification Parade is to lend corroboration to the identificationoftheAccusedbythewitnessinthecourt.

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151] Thiswitnesshadgiventhedescriptionofthe Accused tothepolice.Ithascomeinhisevidencethatif thecustomerisoftypicaltypeorbehavioritispossibleto capture his appearance. Though cross examined by the defence, his testimony remained unshaken. Nothing is shownthathehadthereasontodeposefalse.Hisevidence showsthatthephonewaspurchasedintheafternoonand the Accused sortedthreemobilephonesandcheckedthe alarms. Therefore, it is clear that the Accused must be presentintheshopforsufficienttime.Itisnotthatthis witnesshadonlyafleetingglanceoftheAccused.Insuch circumstances, this witness had sufficient opportunity to keepinmindtheappearanceofthe Accused. Therefore, the identification of the Accused by this witness do not createanydoubtinmindandisfoundtobetrustworthy. Fromtheevidenceofthiswitness,itisclearlyestablished by the prosecution that the Accused purchased the unaccounted mobile of Nokia 1100 from Manish Market Mumbai, on 8th February,2010 i.e five days prior to the incident. 152] P.W.102 is the Police Inspector in the Anti Terrorist Squad Mumbai. He is the officer who identified wantedAccusedYasinBhatkalintheCCTVfootage.Inhis evidence he deposed that after he joined Anti Terrorist

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Squad in May 2010, the investigation of German Bakery wasgoingonandconsideringhisexperiencehewasasked toassistintheinvestigation.Hisevidenceshowsthatthe AccusedpointedthesaidshopofP.W.88inManishMarket, Mumbaiastheplacefromwherehepurchasedthemobile phoneandtheshopinSabuSiddiquilanefromwherehe purchased the haversack bag. In his evidence, the Memorandum panchnama in that regard is brought on record at Exh.400. Further, the copies of station diary entry and log book entry in connection with the said discoveryarebroughtonrecordatExh.401and402.Only afterpointingouttheshopbytheAccusedthestatementof P.W.88 was recorded and so it is not that, Police were knowingtheshopofP.W.88inadvance.Itissubmittedby Ld.defenceAdvocatethat,thiswitnesshadnoauthorityto dotheinvestigationinthiscaseashewasnotoftherank of Dy.S.P./A.C.P, as mandated under the provisions of UnlawfulActivities(Prevention)Act,1967.Thereisnodispute about the said provision. However, admittedly, the Chief InvestigationofficerisP.W.103whoistheofficeroftherank whichtheLawmandates.Thisveryaspectisdeposedby P.W.102 in cross examination. There is nothing to show thatanyprejudiceiscausedtothe Accused inrespectof P.W.102accompanyinghimatthetimeofpointingoutthe

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mobile shop from where he had purchased the mobile phone and the shop from where he had purchased the haversackbag.Inthecrimeofsuchawidemagnitude,the Chief Investigatingofficer isboundtotaketheassistance of theotherofficersworkingunderhim.However,evenif this part of investigation in respect of memorandum panchnama at Exh.400 done by P.W.102 is ignored or discarded, the evidence of P.W.88 is quite cogent and reliable and sufficient to establish this circumstance againsttheAccused. This circumstance is proved by the prosecution beyond reasonable doubt. This circumstance assumes importanceandbecomesrelevantbecausemobilephone isusedasthetriggeringdevicetoexplodetheBombatthe GermanBakery.
8] Use of mobile phone as the triggering device to causetheexplosionatGermanBakery

Toestablishthiscircumstancetherelevantevidenceis that of forensic expert, Investigating officer, report from National Security Guards, P.W.98 Gopal Atkare and P.W.100SuhasPadwalkar. 153] The evidence of P.W.75, who is the Ballistic ExpertwithrobustexperienceinthefieldofBallisticand who examined several cases of explosion and whose

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evidenceisconsideredatthetimeofdiscussingPointNo.1, haveansweredthequestionputtohimbythedefenceasto howtheBombcanbeexploded.HedeposedthattheBomb canbeexplodedonlywhenitisstimulatedbytheexternal energy like electrical energy, flame, heat or friction. He statedthatnotnecessarilyheatcanbecausedbyelectrical instrumentanditdependsonthetypeofBombsupposed tobeinitiated.Inreexaminationhedeposedthatinmost oftheexplosioncases,timerdevicehasbeenusedforthe purposeofexplosionofimprovisedexplosivedeviceandin number of cases remote control device is also used for initiationofimprovisedexplosivedevice. 154] P.W.98 Gopal Atkare is another witness in whose presence the samples/articles were collected from thespotofincidenton18022010.Hestatedthathewas called by the police at German Bakery Koregaon Park, Puneand ColonelMan,P.W.99Nadgauda,TSureshand Mr.Gopinathwerepresentandtheyliftedthearticlesfrom thespotofincidentandtheywerepackedinplasticbags andthesealsofPanchassignatureswereputonthem.He statedofdrawingpanchnamainthatregardandidentified Exh.388asthesamepanchnama.Heidentifiedthearticles 63 (collectively) which consists the broken piece of sim card, sim metal cover, camera view cover, mother board

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chip, mother board clip ring, metal chips, memory card, partsofcircuitboard,aluminumcontainerpart,backside of cell phone, piece of bag chains, mother board of cell phone, cell phone connected socket wire, metal pieces, pieceofbag,9voltbatterypiece,9voltbatteryheadpin, containerpieces,smallpiecesofbagandpiecesofcanvass asthesamearticleswhichwerecollectedfromthespotof incident. In cross examination there is nothing to show thathewastheregularpanchofthePoliceorhewasnot present on the spot. He denied the suggestion that the panchnamawaswrittenintheBandgardenPolicestation. The evidence of this witness clearly establishes that the expertshadvisitedthespotofincidentandcollectedthe aforesaid articles for examination. The evidence of this panchwitness iscorroboratedbytheevidenceofP.W.99 Nadgauda who was the Sr. Police Inspector of the BandgardenPolicestation,asseenfromparaNo.8ofhis evidence and the evidence of P.W.103 who is the Investigating officer, as can be seen from para 10 of his evidence. 155] ItissubmittedbyLd.defenceAdvocatethat twospotpanchnamasarepreparedinthepresentcaseand twicethearticleswerecollectedfromthespotastherewas no need to do so. This submission is misconceived. The

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spot panchnama is only which is drawn on14022010. The incident is such that everything was damaged and scattered due to explosion. In such a situation it is not possibleoreasytocollectthesamplesfromthespotinone go.Thesamplesrequiredfortheforensicexaminationare normallycollectedbytheexpertsanditisclearfromthe evidenceofthepanchwitnessandtheofficersthaton 18022010theexpertsfromoutsidePunehadcomeand they collected the samples. Nothing is shown by the defencethatanyprejudicewascausedtotheAccused by collectingthearticlesfromthespotofincidentforsecond timeon18022010.Therefore,thesaidcontentionisliable toberejected. 156] P.W.103, the Investigating officer, in his evidence have deposedthat on 18022010,ColonelMan, fromtheNationalSecurityGuardsandMr.Gopinath,from theHyderabadforensicsciencelaboratoryvisitedthespot of incident and removed/collected certain articles under thepanchnamaatExh.388andtheytoldthattocausethe Bomb explosion mobile phone is used as a triggering instrument and 9 volt battery is also used and in the articleswhichwerecollectedbythemwereindicationofthe same. In the cross examination it is brought that the statements of Colonel Man and Mr. Gopinath were not

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recorded. They being not the witnesses and being the experts,recordingoftheirstatementisnotatallnecessary. Thesuggestionthatnomobilephoneisusedasatriggering devicetocausetheBombexplosionisdenied.Exceptthis, there is nothing in the cross examination on this point. Further, thereportissuedbyColonelManisbroughton recordbytheprosecutionatExh.425.Perusalofthesame showsthatitistheofficialcommunicationdulyissuedand itisinrespectofthe GermanBakery explosion.Itbears the outward number and the date of issue and also the endorsementaboutit'sreceiptbytheofficeofD.I.G, Anti TerroristSquad,Pune.Thereisnoslightestdoubtaboutit's authenticity.Itisalsonotchallengedbythedefence.The relevant part from the said report mentioned under the caption 'Technical assessment' and subcaption 'Mechanism'isreproducedbelow: f] Mechanism Likelyremotecontrolled(likelya mobilephone)asonlypartsofthemobilephonehavebeen recovered and no parts of any other initiating mechanism has been recovered. Also recovery of these parts from the craterclearlyindicatethatthesepartsbelongedtothecircuit of initiating mechanism which on detonation has pushed thesepartsdeepintothecrater.Partsofthemobilephone belonging to the guests cannot be pushed into the crater, hence the investigation leads to the possibility of use of mobilephoneasinitiatingmechanism. 157] P.W.100SurajPadvalkaristhewitnesshaving

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mobile repairing shop in the Sagar Archade, Good Luck Square,Deccan,Pune.Heishavingtheexperienceof12 yearsintheworkofrepairingmobiles.Hiscertificateabout completingthemobilerepairingcoursesuccessfullyinfirst classisplacedonrecordatExh.395.Hedeposedthathe was having knowledge about different components of mobile phones and as requested by the Anti Terrorist Squad foridentifyingthecomponentofmobile,hewentto theforensicsciencelaboratoryPunewherethehalfburnt mobile parts were kept on table and he identified one plasticbackcoverofmobilephoneofNokia1100Modeland accordingly informed P.W.103 Mr. Satav. He identified article63Awhichisthebackcoverofmobilephoneasthe samebackcoverofNokia1100modelidentifiedbyhimat that time. According to him, the Nokia 1100 model was having torch light, battery backup, loudalarm and ring tones. It would not be out of place to mention that this article63Aisfromthearticle63whichwerecollectedfrom thespotofincidenton18022010.Incrossexaminationit hascomethatthephonepartsofdifferentcompanieswere keptonthetableinforensicsciencelaboratoryanditwas notwrittenonarticle63AthatitwasofNokia1100model northerewasanymarktoshowthatitbelongedtoNokia company.Evidenceofthiswitnessshowsthatbypointing

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thenotches ofarticle63A,thiswitnessdemonstratedby showingthefreshpiece/backcoveroffreshNokiaMobile andstatedthatitisidenticaltothatofarticle63A.Incross examinationithasbeenstatedbythiswitnessthatonthe basis of notches at article63A, heissaying that it is of Nokia1100model.Fromthecrossexaminationitisseen thatthereisnochallengetotheexperienceofthiswitness inthefieldofhandlingandrepairingmobilephones.Itis notunnaturalforanypersontoidentifyaparticularobject on the basis of his experience. There is no challenge or suggestion in the cross examination that thenotchesof back cover of all the mobile phones, irrespective of the companyareidentical.Itisquitepossiblethatonthebasis of considerable experience at his command, this witness identifiedarticle63AasthatofNokia1100Model.Thereis nothingtoshowthatthiswitnesswasundertheinfluence ofpoliceorpuppetinthehandsofpolice.Theevidenceof this witness is very natural and nothing is there to disbelieve him. His evidence that the backside of mobile phone at article 63A is that of Nokia 1100 model, is accepted. Thus, this circumstance is proved by prosecution beyondreasonabledoubt. 158] From the above evidence and material on

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record, it becomes crystal clear that the explosion at GermanBakery iscausedbyusingthemobilephoneasa triggeringdevice.Inthisfactsituationorcircumstance,the purchase of mobile phone of Nokia 1100 by the Accused from Mumbai by unaccounted transaction assumes importanceandbecomerelevant.
9] Keeping the Mobile phones with others in Mumbai and Aurangabad,priortotheincidentofexplosion at GermanBakery,tomisleadthepresence.

It is already seen that the Accused had come to

Mumbaion08022010onthetravelticketissuedinthe name of Samad Indori (P.W.92) and checkedin the Al noor Guest House,Crawford Market, Mumbai and purchased the unaccounted mobile phone from Manish Market, Mumbai. To prove that the Accused kept his mobilephoneinthecustodyofhisfriendstheprosecution isrelyingontheevidenceofP.W.97MohammadAnsariand P.W.95ShakilAhemad. 159] P.W.97isthesamewitnesswhosesomepartof evidence is considered in the circumstance about the associationofthe Accused andthemindset.Heis from BeedandresidesinMumbai.Inhisevidencehedeposed that on 08022010 Accused gave a missed call on his mobile phone and so, he called him back and Accused

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asked him to come at hotel Gulshan Irani situated near ManishMarket,onM.R.AMarg,Mumbaiandso,hewent thereat9.00p.mandtheAccusedcametohiminhurried mannerandgavetwomobilephonestohimandtoldhim thathehadtakenloanandpeopleweretroublinghimfor thesameandtherefore,hewaskeepinghismobilephone withhimandtoldthathewilltakebackthemobilephones after23days.HefurtherdeposedthatAccusedtoldhim tokeepthemobilephonesinoperationmode.Hefurther deposedthatthereafteron11022010Accusedcametohis room and took back his mobile phones and told that he wasgoingtoAurangabadandwhenaskedhimtostopas thenextdaywasholiday,theAccusedtoldhimthathewas havingsomeurgentworkandhewasgoingtoAurangabad and so he accompanied the Accused till the Bus and Accused left by one private Luxury Bus. In the cross examination it is not disputedthat thiswitness isfrom BeedandstudiedwiththeAccusedinsameschool.Since themobilephonesweremerelyhandedoverbyAccusedto thiswitness,thereisnoreasonforthewitnesstoknowor keepinmindthemobilenumbersoftheAccused.Itisnot expected that this witness should know as to where the Accused had stay put in Mumbai between 8th and 11th February,2010ashismeetingwiththeAccusedwasvery

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briefjusttohandoverandtakebackthemobilephones.It ispertinenttonotethatthe entry at Exh.281in the article 35 register of theAlnoor Guest house shows that in the evening of 08022010 the Accused had checkedoutfromtheguesthouse.Thisgotoshowthatthe AccusedleftMumbaiinthenightof8 thFebruary,2010.In the cross it is brought that this witness accompanied AccusedatDadartoseehimoff,fromwheretheAccused hadgonetoAurangabadandreachedthereinthemorning of next day i.e 12102010. This shows that the Accused had again come to Mumbai and collected his mobile phones.Thecrossexamination haveinfactgivenforceor backingto the prosecution's case that on 11th February, 2010AccusedleftMumbaibybusforAurangabad. 160] P.W.95isthewitnesswhogotacquaintedwith the Accused intheDars(religiousdiscourse)atParbhani inJune/July2007andknowstheAccusedbynameYusuf. Somepartofhisevidenceisconsideredwhiledealingwith the circumstance of the Accused residing in Udgir by assumedname.Inhisevidenceithascomethathewasin contactwiththeAccusedtelephonicallywheneverAccused usedtocomeatAurangabad.Hedeposedfurtherthaton 12022010 Accused came to Aurangabad and met him andtoldthathewasrequiredtoreturnthemoneytosome

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persons and the said persons were troubling him by makingphonecallsandtherefore,hewantedtokeephis twomobilephoneswithhimandfurtheraskedhimtokeep themobilephonesfunctioningandalsotoldthatincase anyone calls on the mobile phones, he should tell them thathehadgoneout.HefurtherdeposedthattheAccused further told him that in case the mobile phone received missedcall,heshouldcallbackonthesaidnumberand tellthathehadgoneoutandthereaftertheAccusedleft.In thecrossexaminationitisbroughtonrecordthatsincethe Accused came tohim andrequestedtokeepthemobile phoneshekeptwithhim.Again,notknowingthemobile numberofAccusedbythiswitnessisquitenaturalbecause the mobile phones were only given to keep with this witness. Due to the saving of mobile numbers in mobile phonespeoplearenotinthehabitofkeepinginmindthe mobilenumbersofallthepersonstheyknow.Inthecross examinationtheaspectoftheAccusedkeepinghismobile phoneswiththiswitnessisnotseriouslychallenged.From theevidenceofthiswitnessitisestablishedthaton1202 2010 the Accused had come to him at Aurangabad and handedoverhismobilephonestohimandleft. 161] Fromtheevidenceoftheaforesaidwitnesses, theprosecutionhaveestablishedthatinMumbaiAccused

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had kept his mobile phones with his friend P.W.97 and from there he came to Aurangabad and again kept his mobilephoneswithhisfriendP.W.95,priortotheincident. Thus, thiscircumstanceisprovedbytheprosecution beyondreasonabledoubt.
10] SeenwiththeplanterofBombinPuneshortlybefore theexplosion.

Toprove thiscircumstancetheprosecutionisrelying ontheevidenceofP.W.90RanjitMoreandP.W.93Shivaji Gaware.ThecrucialevidenceisthatofP.W.93. 162] P.W.90isthewitnesswhowaspresentinthe German Bakery just before the explosion, with his girlfriend. He proved to be lucky. After the explosion the messageswereflashedonthemobilephonesandsothis witnesswenttotheofficeof CrimeBranch wherehewas shown the CCTV footage of German Bakery in which he identified himself, his girlfriend and the person carrying twobagsonhispersonandwearingacap.Ithascomein hisevidencethatforplacingtheorderhehadgonetothe counter of the German Bakery and by taking the order cametotheBakda(Bench).Hedeposedthatheremember that there was one boy standing behind him near the counterandhewashavingtwobags.Tothequestionputto himbytheLd.Spl.P.Pastohowcouldhewasabletokeep

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thesaidpersoninmind,hedeposedthatbeforegoingto thecounterforplacingorder,hekepthisbagontheBakda andhewaswonderingastohowthatpersonhadcometo placethe orderalongwithtwobags.Whilerecordingthe evidencethiswitnesswasshownthearticle61CDhaving therelevantclippingsofGermanBakeryandhotel'O'and he identified himself standing alongwith his girlfriend at thecounter andbehindhimtheboywearingcaphaving twobagsonhispersonandidentifiedthesaidboygoing outsidethe German Bakery withonlyonebag.In cross examination it has come that he was present at the German Bakery for 30 to 35 minutes and the Bomb explosion had occurred after he left. This much time is sufficienttokeepinmindthecircumstance.Thecolourof thecapwhichthesaidboywaswearingandthecolourof bags which the said boy was having on his person is broughtonrecordbythedefenceaslightgreencap,light greenbagandblackbag.Itisbroughtthatinhisstatement beforethepolicehehadnotstatedthataftertheboyleft German Bakery, he was having only one bag. The same cannotbetermedasomissionasthesaidaspectwastold byhimonlyafterviewingtheCCTVfootageandnowhere claimedthathesawthesaidboypersonallywhileleaving with one bag. There is absolutely nothing in the cross

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examination tocastedoubtonhiscredibility.Hisevidence iscorroboratedbytheCCTVfootagewhicharerecordedin theregularcourseoffunctioning. 163] P.W.93istheAutorickshawdriverwhoplyhis autorickshawinPunecityintheareasofKoregaonPark wheretheGermanBakeryissituated,PuneStation,Camp andYerwada.Inhisevidence hedeposedthaton1302 2010ataround4.00p.m.whenhewaspresentinhisauto rickshaw opposite hotel Sagar near the Pune Railway station, two boys out of which one was tall with fair complexion and wearing cap and was having two bags hangingonhisperson,oneinthefrontandtheotheron the back side and the other boy was of average height havingnormalcomplexion,hadcometohimandhiredhis autorickshawforgoingtotheRajneeshAshraminthearea of Koregaon Park and so, he carried them in the auto rickshawandaftertravelingatsomedistancethesaidtwo boysaskedhimtostoptherickshawneartheCentralMall andwhenhetoldthatKoregaonParkwasaheadtheysaid that they wanted to get down at that place and so he stoppedhisautorickshawandbothofthemgotdownfrom theAutorickshawandpaidhimthetariff.Heidentifiedthe Accusedasthesameperson whowasaccompanyingthe person wearing cap and having two bags on his person,

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who traveled in his auto rickshaw on13022010. While recording his evidence CD at article 61 having relevant CCTVfootagefromthe GermanBakery andhotel'O' was shown to him and from the recording, he identified the personwearingcapandhavingsackbagsonhispersonas the same person to whom he had dropped in his auto rickshaw with Accused. His evidence show that after looking to the news item having the photograph of one suspectintheGermanBakeryBombexplosionwhichwas published in the newspaper dated 25052010, he rememberedthatthe personseeninthephotographwas thesametowhomhehaddroppedinhisautorickshawon thedayofexplosionandsohewenttothePolicestationon 27052010 and gave the information and the police recorded his statement. His evidence further show that pursuanttotheletteratExh.379hewascalledatYerwada CentralPrisonforthepurposeofTestIdentificationParade on03102010andaccordinglyhewentthereandamongst the nine persons standing in one line, he identified Accusedasthesamepersontowhomhehaddroppedin hisautorickshaw alongwiththepersonwearingcapand carryingsackbags.Incrossexaminationitisnotdisputed thatheistherickshawdriver.Ithascomethatduringone dayheferry30to40passengersinhisautorickshaw.Itis

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truethatnormally there canbenoreasonfortheauto rickshawalas to keep in mind the identification of the passengers. However, in cross examination this witness deposedthatincaseanyspecialthinghappens,thefaceof passenger remains in memory. It has also come in the crossexaminationthatthepolicehadmadetheAppealto the public for giving information in connection with the Bombexplosion.Therefore,hisgoingtothePolicestation after seeing the photograph of the suspect in German Bakery Blast case, printedin newspaper isquitenatural andprobable.Ithascomeinthecrossthatthereisnoauto rickshawstandinfrontofhotelSagarwhichissituatedin front of Pune Railway station. However the witness have deposedthattheautorickshawdostandthereforaminute or two. It is common knowledge that in the cities and particularlyinbigcitieslikePune,theautorickshawshalt evenattheplaceswherethereisnoearmarked rickshaw stands.Itistriedtobebroughtthattherearemorethan one way from Pune Railway station for going to Rajnish Ashram(KoregaonPark)andthewitnesswasaskedasto whyhehadtakenthesaidtwopersonsfromanotherroute. To this, the witness deposed that there is no much difference in the route suggested by the defence and the root by which he had taken them. It is usual that the

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autorickshawalasortaxiwalastakethepassengerstotheir destinationbythelongerroutetofetchmorefare.Itisalso usual and normal that the autorickshaw walas read the newspapersintheautorickshawswhileathalt,therefore,it is quite natural that this witness came across the news item published in the the paper. Non seizure of the newspaperwhichthiswitnessreadon25052010,byno meansisfatalfortheprosecutionasinanycase,itwould notbeadmissibleinevidence.Thiswitnessnotgoingtothe BandgardenPolicestationbut,goingtothe AntiTerrorist Squad office is also not strange because in the cross examinationitselfithascomethattheAppealwasmadeby thepolice tothepublictogivetheinformationregarding the Bomb explosion. When such appeal is made to the public in general by the police machinery, the contact address and the phone numbersarealso published. As regards going to the police station after two days after seeingthephotographinthenewspaper,theexplanation has come in the examination in chief itself where he deposedthatsincehecouldnotgatherthecouragetogoto thepoliceimmediatelyon25052010,hewenttothePolice on 27052010 after thinking. He denied that the photographoftheAccusedwasshowntohimpriortothe TestIdentificationParade.Hedeniedthatsinceheplythe

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auto rickshaw and having good relations with police, he deposedattheinstanceofpolice. 164] Accordingtothedefence,thisP.W.93isthe got up witness. Admittedly, the news item in respect of GermanBakery explosioncasewiththephotographofthe suspectwaspublishedinthenewspaperdated25052010. Theappearancegivenbythiswitnessinrespectofoneof thepassengersamongsttwo,waswearingcapandhaving twosackbagsonhispersonwhichmakestheappearance remarkableanddifferentfromtheappearanceofpeoplewe generallyseearoundus.Thesaidtwopassengersengaged hisrickshawforgoingtoOshoAshrambut,askedhimto dropthem beforetheirdestinationandtheygotdownat Central Mall. The time at which he dropped the said passengerswasthedaytime.Whiletalkingtothematthe time of hiring the auto rickshaw and thereafter taking money after they got down from the auto rickshaw, this witnesshadtheopportunity tosee thefacialfeaturesof thosepassengers.Allthisclearlygotoshowthattherewas no fleeting glance of thesaidpassengers bythiswitness buthehadtheopportunitytoseethemproperly.Inthese Circumstances,hisidentificationoftheAccusedcreatesno doubt.Hisidentificationinthecourtiscorroboratedbythe previousidentificationintheTestIdentificationParade.The

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Test Identification Parade memorandum is already on record at Exh.369 and while considering the evidence of P.W.88fromwhoseshopthemobilephoneispurchasedby Accused,itisobservedthatthe TestIdentificationParade was held in accordance with the guidelines. Though entitled to call the officer who had conducted the Test IdentificationParade forthepurposeof crossexamination undertheprovisionsofSection291Aof Cr.P.C,thesameis not done by the defence and so, the Test Identification Parade memorandumremainsunchallenged.Notshowing the clippings to this witness at the Anti Terrorist Squad officewhenhehadgonethereafterreadingthenewspaper isnotfatalbecausethiswitnesshadgonethereonlyafter seeing the photograph of the suspect published in the newspaper. The aspect that this witness ply the auto rickshawintheareastoldbyhimintheexaminationin chief has also remained unchallenged. Further, the Accused isarrested muchafter thedateonwhichthis witness had gone to the Anti Terrorist Squad office and gave the information and his statement was recorded. Therefore,thesubmissionthatP.W.93isthegotupwitness hasnoforce.Thereisnoreasonforthiswitnesstodepose false.Thoughcrossexaminedbythedefence,theevidence ofthiswitnesshasremainedunshaken.Theevidence of

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thiswitnessisaccepted. 165] P.W.103VinodSatav,whoisthe Investigating officer ofthiscasehavealsodeposedthaton27052010 P.W.93hadcometohisofficeafterthenewswaspublished inthenewspaperdated25052010.Whileconsideringthe PointNo.2,hisevidencetotheeffectthatseparateclipsof the CCTV footage of hotel 'O' and German Bakery were preparedandtherelevantclippingswereinarticle61CDis alreadyconsidered.Thedefencewantedtosuggestascan beseenfromthe crossexamination ofthewitnessesthat since there was the wall at the compound of German Bakery it was not possible that the persons on theroad wouldgetcapturedintheCCTVCamerasofhotel'O'.For this,theevidenceofP.W.43whowastheITManagerof hotel'O'(whichisconsideredundertheheadauthenticity oftheelectronicrecord),isrelevant.Inhisevidenceithas clearlycomethattheCCTVcamerasinstalledathotel'O' arehavingthecapacity tocapturetheimagesituatedat thedistanceof100ftsandtheyaretheZoomincameras andthesaidCCTVcamerascoverthecompleteviewofthe roadanditcoversonesideof GermanBakerywhichhas the rickshaw stand. Thus,the said submission of the defencemeltsdowntoinsignificance. 166] P.W.96ShaikhNaziristhewitnessfromUdgir

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whoknowtheAccusedbynameHasanandgotacquainted withhiminOctober2009.Inhisevidencehedeposedthat attheinstanceofAccused hehadcometoPuneon31 st January, 2010 to attend the program of the launch of party by name Popular Front of India and the Accused hadleftforsometimeandcamebackintheevening.The evidence of this witness except showing that he was knowingtheAccusedbynameHasan,donotappeartobe materialin establishingthecaseofprosecution.Incross examinationhedeposedthaton13022010hehadgoneto Aurangabad for giving the examination of the lab technicianwhichwastobeheldon14022010andfurther deposedthattheAccusedmethiminbetween8.30p.m.to 9.30p.m.Hefurtherdeposedthatinbetween5.00p.m.to 6.00p.mhe phonedtheAccused andAccused toldhim thathewasinreception.Hefurtherdeposedthatthesaid reception was at Aurangabad but he had not gone there and further deposed that he had gone to the place of reception but the reception was over. From this cross examination itissubmittedbyLd.defenceAdvocatethat onthedayofexplosiontheAccusedwasatAurangabadin receptionandso,itisnotpossiblethattheAccused had cometoPunewiththeabscondingAccusedjustbeforethe explosion. If the cross examination of this witness is

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considered,hedoesnotappeartobereliablewitness.The phone call details of the mobile phones used by the Accused are on record at Exh.355(collectively) and 349(collectively). Perusal of the phone call details at Exh.355donotshowthattherewasanyincomingcallon thephoneinbetween5.00p.m.to6.00p.m.on13022010. PerusalofphonecalldetailsatExh.349(collectively)donot show any call either outgoing or incoming between 5.00p.m.to6.00p.mon13022010.Therefore,hadreally thiswitnessphonedandtalkedtotheAccused,therewould have been the entry of incoming call in the phone call details.Absenceof suchentry inthephonecalldetails, falsifiestheevidenceofthiswitness.Insuchcircumstances theentireevidenceofthiswitnessshouldbediscardedand isdiscarded. 167] From the evidence of P.W.102, it has already been established by the prosecution that the person wearingcap seenenteringthe GermanBakery withtwo bags, seen at the counter of GermanBakery andleaving GermanBakery withonlyonebagintheCCTVfootageis none other but, absconding Accused Yasin Bhatkal. Through the evidence of P.W.90 and P.W.101 it is establishedbytheprosecutionthatthesaidrelevantCCTV footageinwhichAccusedYasinBhatkalisseen,isthatof

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13022010 andjustpriortothe explosion.Throughthe evidenceofP.W.93theprosecutionhavefurtherestablished that the Accused was seen with absconding Accused YasinBhatkalinPuneshortlybeforetheexplosion. Thus,thiscircumstanceisprovedbytheprosecution beyondreasonabledoubt. 168] Itissubmittedby Ld.defenceAdvocate that thereisnoreasontocausethe explosion atthe German BakeryandifatalltheAccusedwantedtocauseexplosion theywouldhavedoneitattheCentralMallwheretheygot downfromtheautorickshaw.Forthistheanswerliesin theevidenceofP.W.103whoisthe Investigatingofficer.It hascomeinhisevidencethattheGermanBakeryisinthe areaofKoregaonPark,Puneandnearbythereisaplacefor offering prayers for the Jews which is called as Chabad House and nearby there is a Osho Ashram and at both theseplacestheforeignerscomeinlargenumberwhoalso cometoGermanBakery.Itiswellknownthatinthemalls, noentryisgivenwithoutsecuritycheckandthebagsare notpermittedinsideandtherefore,suchplacewouldnever beselectedbyanyonetocommitsuchcrimeforthereason that they would be caught even before entering the premises.AdmittedlyGermanBakery isnottheplacelike mall and it has clearly come in the evidence of security

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guardwhoisexaminedasawitness,thattheydonotcheck thebelongingsofthecustomers.Forallthesereasonsitis obviousthattheGermanBakeryisselectedasthetarget. 169] ItisfurthercontendedbyLd.defenceAdvocate that judicial note be taken of the aspect that the DIG, A.T.S,PuneRegionhadgiventhestatementtothemedia thattheAccusedhadnotcometoPuneon13022010.In crossexamination P.W.103havedeposedthathewasnot awarethatsuchstatementwasmadebythethenD.I.GMr. Ravindra Kadam to Media. He denied that due to such statement,hewastransferredtoGadchiroli.Thecontention oftheLd.defenceAdvocateisliabletoberejectedfirstlyfor thereasonthatitisnotsuchaaspectofwhich judicial notice can be taken and secondly, whether the Accused hadcometoPuneonthesaiddateistobedecidedonlyon the basis of evidence on record and not on the basis of mediareporting.
11] Accusedlookingtiredinthenightof13022010.

The Prosecution's further case is that after the explosion the Accused had collected his both mobile phonesfromhisfriendfromAurangabadandatthattime hewaslookingexhausted. Itisalreadydiscussedthatthe Accused hadkepthismobilephoneswithP.W.95Shakil Ahemad at Aurangabad on 12022010 and told him to

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keephismobilephonesinfunctioningmodeandheshould callbackincasethephonereceivesthemisscallandalso toreceivethephonecallsandtellthathehadgoneout. 170] Further,inhisevidenceP.W.95deposedthatin between10.00p.m.to10.30p.m.Accusedcametohimand took both his mobile phones and at that time he was appearingtobetiredandwhenheaskedtheAccusedasto whyhewaslookingtired,Accused toldhimthathehad come traveling on the bike from long distance. In cross examinationhedeposedthatbytheS.T.busthedistance betweenPuneandAurangabadmaybecoveredin5to6 hour's time and by 'Volvo' the time of 4 hours may consume. He deposed thatsincehehadnottraveledthe saiddistancebymotorcycle,hecannottellastohowmuch timewouldbeconsumedintravelingbetweenthesaidtwo citiesonbike.Incrossitisbroughtonrecordthatinthe policestatementhestatedthattheAccusedhadcometo him on 13022010 at about 10.00p.m. From this cross examinationitisfirmlyestablishedthattheAccusedhad cometothiswitnessforcollectinghismobilephonesinthe night of 13022010 between 10.00p.m. to 10.30p.m. He deniedthesuggestionthatthe Accused hadnotcometo himforcollectingthemobilephones. 171] ItisfurthersubmittedbyLd.defenceAdvocate

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thattheevidenceofP.W.81whoistheNodalofficerofTata Docomo,showsthat intheeveningof 13022010,phone call was made from the mobile used by the Accused (8149308626)andthephonecalldetailsshowthelocation as the Aurangabad switch and so, the prosecution case getsdemolishedthattheAccusedwasinPuneon 13022010. In cross examination of P.W.81 it is brought thatfrommobileNo.8149308626,phonecallwasmadeon mobile No.9028131619 at 17.54.49 hrs. from the Aurangabadswitch.ThesaidevidenceofP.W.81isbasedon the phone call details at Exh.355(collectively). When the prosecutionbyexaminingP.W.95haveestablishedthatthe Accusedhadkeptbothhismobilephoneswithhimon 12022010andtheyweretakenbackinbetween10.00p.m. to 10.30p.m. on 13022010, the record of phone call detailsisnotsufficienttodisprovethecaseofprosecution thatthe Accused wasnotinPuneon13022010.Ithas categorically come in the evidence of P.W.95 that the Accusedtoldhimtoreceivethecallsandalsotocallback if missed calls are received on his mobile phones. It is quite possible that P.W.95 may have followed the said instructions given by the Accused. It is already observed above that the evidence of P.W.95 remained unaffected thoughcrossexaminedbythedefence.

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172] FromtheevidenceofP.W.95itisestablishedby the prosecution that the Accused had come to him between10.00p.m.to10.30p.m.on13022010andatthat timehewaslookingtiredandtoldhimthathehadcome fromlongdistanceonthemotorcycle.Whenthedistance betweenPunetoAurangabadcanbecoveredin4hoursby theVolvobus,thesaiddistanceinallprobabilitycanbe coveredinlessthanfourhour'stimebymotorcycle.Ithas alreadycomewhilediscussingpointNo.1thattheexplosion hadoccurredattheGermanBakeryinbetween6.50p.m.to 7.00p.m and the Accused was seen with the wanted co accusedYasinBhatkalbyautorickshawala(P.W.93)around 4.00p.m.Lookingtothesetimings,evidenceofthiswitness furthergetsfortified. Thus, the prosecution have established this circumstancebeyondreasonabledoubt.
12]Usingsimcardsissuedinthenameofotherpersons

In his evidence P.W.103, Investigating officer have

deposedthatitwasrevealedthatAccusedusedtheidentity cardsofdifferentpersonsandobtainedphonesimcards. Toestablishthis circumstance,theprosecutionisrelying on the evidence of P.W.86 Ajmat Khan, the phone call detailsatExhs.355(collectively)and349(collectively),the panchnama inrespectofseizureofarticlesatthetimeof

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arrestoftheAccused,thepanchnamainrespectofseizure of two bags belonging to the Accused, having various articles,P.W.82VanmalaAvrale,P.W.83RamraoNautakke, P.W.84 Sanjay Biradar, P.W.85 Mukund Kulkarni and P.W.89VilasGaribe. 173] P.W.86istheresidentofUdgirhavinghisshop under the name and style 'Mobile Campus' in the Udgir NagarParishad.AccordingtohimatthetimeofChristmas festivalintheyear2009,therewasofferfor gettingsim card of Tata Docomo company and the person by name Sabir Mamu who is known to him had come with the AccusedtohisshopandhewastoldthatAccusedwasin needofthesimcardandsohegaveonesimcardalongwith theformtothemandafterhalfanhour,theybroughtthe formafterfillingit.Thiswitnessdeposedthatwhenhesaw theform,theinformationwasfilledinandthephotograph whichwaspastedontheformwasnotof Accusedand so hetoldSabirMamuaboutthesame.Hefurtherdeposed thatbykeepingfaithonSabirMamu,heacceptedtheform. This witness identified Accused as the same person who accompaniedSabirMamutohisshopandsubmittedthe sim card application form having photograph of different person.Hefurtherdeposedthaton10092010thepolice hadcomeforinquiryinrespectofthesimcardalongwith

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theXeroxcopyoftheApplicationform,meantforgetting the sim card and the said form was of Tata Docomo company having the stamp of his shop. In cross examination it is not disputed that he was doing the business of sim card. It is well known that the service providersintroducetheschemesforsellingthesimcardof their company to the public through the regular shop keepers/traders.SincetheApplicationformsubmittedby the customer contains the required information and also thephotograph, itis notunnaturalthatthiswitnessdid notmaintainedtheregisterinrespectofgivingsimcardsto thecustomers.Ithascomethathewasnotknowingthe AccusedbutsinceSabirMamuwaswiththe Accused,he gavethesimcardandacceptedtheform.Manyatimesby keepingfaithontheknownpersons,thetransactionsare donewiththepersonswhoarenotknown.Incrossithas clearlycomethatsincelastmanyyearsthiswitnesswas knowingSabirMamu.Ithasalsocomeintheevidenceof this witnessthathehadseentheAccusedinthe Global InternetCafe.Thecrossexamination donebythedefence couldnotaffecttheevidenceofthiswitnessgivenforthe prosecution. From this witness the prosecution have establishedthathehadgiventhesimcardofTataDocomo company to the Accused by accepting the Customer

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Application form having photograph and information of differentperson.Itispertinenttonotethatatthetimeof arrestofAccusedandhispersonalsearch,thesimcardof TataDocomocompanyisseizedandthephonecalldetails ofthesameareatExh.355(collectively),whichshowsthat thesaidsimcardwasregisteredinthenameofMukundB Kulkarni(P.W.85). 174] The said Mukund B Kulkarni is also examined bytheprosecutionasP.W.85.Hedeposedthat on29102010thePolicehadcometohimforinquiryin respect of sim card issued in his name but, used by another person and the police pointed the copy of Applicationformhavinghisnameandinformation,meant forsimcardofTataDocomocompanyandXeroxcopyofhis election card. He deposed that he never filled the ApplicationformforgettingthesimcardofTataDocomo companyandnevergavehisphotographandxeroxcopyof electioncardtoanyperson.Hedeposedthathewasnot awareastohowthesamehadcomeinpossessionofpolice. In cross examination it has come that in his statement beforepolicehehadstatedthathehadgivenhiselection cardtohisbrotherMaheshforgettingthexeroxcopy.His evidencethatheneverfilledthecustomerApplicationform forgettingthesimcardofTataDocomocompanyremained

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undisturbed. 175] P.W.82istheresidentofUdgirandintheyear 2010asshewantedtopurchasethemobilephoneforher father,shehadgonetotheshopbyname'MobileCampus' situated in the Nagar Parishad, Udgir andsubmittedthe electionIcardandphotoofherfather.Shedeposedthat the sim card which was provided to her did not started functioningandso,shehadgonetothesaidshopwhere shewastoldthatitwillstartworkingin23daysandwhen thereaftershewenttotheshopbecausethesimcarddid notstartedworking,shewastoldthattherewastheftin theshopand shedidnotreceivedtheelectionIcardand photoofherfather.Herevidenceshowsthaton26092010 theAntiTerroristSquadofficerwenttoherforinquiryand pointedtheXeroxcopyofherfather'selectionIcard.She identified article 31/3 as the same Xerox copy of her electionIcard.InthepanchnamaatExh.264inrespectof seizure of various documents from the bag belonging to Accused,atSr.No.49thereisareferenceaboutseizureof thisarticle31/3.Herevidencefurthershowsthatshewas confrontedwithP.W.86AjmatKhanandsheidentifiedhim astheshopkeeperfromwhereshegotthesimcard.Thus, her evidence becomes relevant. Cross examination shows that shedidnotreportedtothepoliceagainsttheshop

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keeper. It appears that for the first time she deposed aboutthetheftinthesaidshop.Herevidenceaboutgoing tothemobileshopandsubmittingtheelectionIcardand photoofherfatherforgettingthesimcardisnotaffected bythe crossexamination.Notreportingthemattertothe policeagainsttheshopkeepercanbenoreasontodiscard herevidence. 176] P.W.83 istheagriculturalSupervisor andin connectionwithhisworkhewasrequiredtogoatUdgir. HisPancardwaslostandsincehecametoknowthatPan card was made available at the 'Global Internet', Udyog BhavanNagarParishad,Udgirhewentthereandpaid Rs.250/,andsubmittedthepassportsizephotoandxerox ofelectionIcardforthepurposeofgettingPancardissued inhisname.Ithascomethathewastoldbytheperson calledNajeebwhowaspresenttheretocomeafter10to12 daysandwhenhehadgonetocollecthisPancard,hewas toldthat itwouldbereadyin4to5daysandwhenhe againwenttheretocollectthesame,thesaidpersonwas notthere.Hedeposedthaton26092010theAntiTerrorist SquadPolicecametohimforinquiryandshowedthexerox copyofhisICardandheidentifiedthesame.Hedeposed thatarticle31/4wasthesamexeroxcopyofhiselectionI card.InthepanchnamaatExh.264inrespectofseizureof

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variousdocumentsfromthebagbelongingto Accused,at Sr.No.52 there isareferenceaboutseizureofthisarticle 31/4.Thus, evidence of this witness becomes relevant. In cross examination he stated that he did not lodge the complaintwiththepoliceinrespectofmissingofthePan card. The onlyomissioninhisstatementisinrespectof thenameGlobal.Ithascomethatnoreceiptwasissuedto himforpaymentofRs.250/attheGlobalInternet.Not lodgingthecomplaintfornotgettingthePancardfromthe internet cafe is not strange or unnatural because the amountpaidbyhimwasverysmall. 177] P.W.84istheLibraryAsst.residingatUdgir.In September, 2009 he decided to get the Pan card and for thatpurposevisitedthe GlobalInternet situatedinNagar Parishad, Udgir since he came across the advertisement publishedinthatregard.TherehepaidRs.200/andgave the xerox copy of election I cardand one photograph for gettingthePancard.However,hedidnotreceivethePan card. He identified the Accused as one of the person presentinthesaidInternetcafe.Hedeposedthaton 26092010 the Anti Terrorist Squad police had come to himforinquiryandshowedtheXeroxcopyofhiselectionI cardandheidentifiedthesamewhichhehadsubmittedin the said Internet Cafe. He identified article 31/5 as the

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copyofhiselectionIcard.InthepanchnamaatExh.264in respect of seizure of various documents from the bag belonging to Accused, at Sr. No.51 there is a reference about seizure of this article 31/5.He deposed that his photographandxeroxcopyofhiselectionIcardwhichhe hadsubmittedinthesaid GlobalInternetCafe mayhave beenmisused.Thus,theevidenceofthiswitnessbecomes relevant.Incrosshedeposedthatnoreceiptwastakenby himtowardsthepaymentofRs.200/madeattheInternet Cafe. Sincetheamountpaidbyhimwasnotmuch,not lodging the complaint against the internet cafe is not unnatural. He admitted that he had no transaction with Accused.Notrememberingthedateonwhichhehadgiven money,xeroxcopyofelectionIcardandphotographinthe internetcafe,isnatural. 178] From the above evidence it is clearly

establishedbytheprosecutionthatthedocumentswhich theaforesaidwitnesseshadsubmittedforgettingthesim cardorPancardwerefoundfromthebagbelongingtothe Accused which were seized by the police under the panchnamaatExh.264.Thiscannotbeacoincidentthat thedocumentsoftheallsaidwitnesseswerefoundinthe bagbelongingtotheAccused.Ithasalreadycomeinthe circumstanceNo.1thatAccused washavingtheInternet

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CafeatUdgirbythename'GlobalInternetCafe' Evidence ofalltheaforesaidwitnessesbecomesrelevant.Thereisno explanation by the Accused in this regard. The only irresistible conclusion which comes out isthat thexerox copyofdocumentsofthesaidwitnesseswereretainedby theAccusedforobtainingvarioussimcards. This circumstance is proved by the prosecution beyondreasonabledoubt.

12]Havinginpossessiontheforgeddocuments.

Further, it is deposed by P.W.103, the Investigating officer thatthedocumentssuchascertificateofhandicap person,castecertificate,rationcard,certificateofresidence and driving licence which were found in one of the bag belongingtotheAccusedweresentforverificationtothe concernedagenciesandthesaiddocumentswerefoundto beforged.Thepanchnamainrespectofseizureofvarious documentsfromthebagsbelongingtothe Accused isat Exh.264andperusalofthesameshowsthattheaforesaid documentswerefoundinoneofthebagbelongingtothe Accused, seized from P.W. 92 Shaikh Gaus, in whose tutorials the Accused was teaching.There is evidence of two panch witnesses P.W. 57 Abhijit Dalvi and P.W. 59 Mobin Shaikh to show that the documents which were

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seizedfromoneofthebagbelongingtothe Accused and kept separately in envelopes, were opened in presence of these panch witnesses. The evidence P.W.57 shows that four packets were opened in his presence under the PanchnamaatExh.266andtheevidenceofP.W.59shows that one packet was opened in his presence under the Panchnama at Exh.277. Both the said panch witnesses identifiedthePanchnamasandthedocuments.Ifthecross examination ofthese panchwitnessesisseen,nothingis there to show that they werethe regular panchas of the police. Prosecution evidence cannot be discarded merely becauseallthepacketswerenotopenedatthesametime. To establish this circumstance, the prosecution is relying on the evidence of P.W.61 Renukadas Dhanorkar, P.W.62 Mahesh Deshmukh,P.W.65PrabhodayMulayand P.W.66VyankatiNilawad. 179] P.W.61 istheSuperintendent,SocialWelfare Department,ZillaParishad,Nanded.Fromhisdepartment the ICardisissued forphysicallyhandicappersonsand theregisterinthatregardismaintainedinregularcourse of business in their office. The article 31/1 blue colour Identitycard was senttohimforverificationbythe Anti Terrorist Squad vide letter at article 37 and after verificationhesubmittedtheletteratExh.276tothe Anti

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TerroristSquad statingthatthesaidarticle31/1wasnot issuedbytheirofficeandthestampandthesignatureson thesamedidnot matchwiththerecordoftheiroffice.In thepanchnamaatExh.264inrespectofseizureofvarious documentsfromthebagbelongingtoAccused,atSr.No.46 there is reference about seizure of this article 31/1.Non seizure of the register from their office is of no consequence.Crossexaminationofthiswitnesscouldnot affecthisevidence. 180] P.W.62 istheInspectorofMotorvehicle,RTO Ambejogai and the Anti Terrorist Squad made inquiry about the Blank Forms meant for issuing the driving licencehavingthestampofDeputyRTO,Ambejogai.This witnessverifiedthestampsonthesaidBlankformswhich arearticle31/2andfoundthatthestampsdidnotmatch withthestampsoftheirofficeandaccordinglyheinformed the Anti Terrorist Squad by a letter at Exh.279. In the panchnama at Exh.264 in respect of seizure of various documentsfromthebagbelongingtoAccused,atSr.No.55 thereisareferenceaboutseizureofthisarticle31/2.In crosshedeniedthattheprintedformsforgettinglicence are supplied by putting the stamp of their office. He admittedthatBlankformisofnouse.Thoughthiswitness have not taken the training for making the stamps he

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statedthatbyworkingdailyintheofficehecanmakeout thedifferencebetweenthestampoftheirofficeandother stamps.Fromtheevidenceofthiswitnessitisestablished thatthestampsontheblankformsofRTOatarticle31/2 arenotgenuine. 181] P.W.65istheTahsildarofBeedsince 24092010.InDecember2010hereceivedtwolettersfrom the Anti Terrorist Squad Pune inquiring about the caste certificate of Accused and about the Xerox copy of one Rationcard. This witnessverifiedthegenuinenessofthe saiddocumentsfromhisofficerecordandfoundthatboth thesaiddocumentswerenotissuedbytheirofficeasthere was no entry in theirofficerecordinrespectofthesaid documents. He informed the Anti Terrorist Squad accordingly by letters at Exh.285 and 286. The caste certificateisatarticle28/1andthexeroxcopyofRation cardisatarticle28/2whicharereferredinthepanchnama atExh.264inrespectofseizureofvariousdocumentsfrom thebagbelongingtoAccused.AtSr.No.1and26thereisa reference about seizureof these twoarticles. Incrosshe statedthatnocomplaintofmisuseofsaidcastecertificate wasreceivedbytheiroffice.From crossexamination itis seenthatonthesaidrationcardtherationwastakenfrom therationshopNo.26,situatedatJunaBazar,Beed.Non

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seizure of the stamp of the office of this witness, is not necessaryastheverificationofthedocumentswastobe doneonthebasisofofficerecord.Hedeniedthattheration cardwasgenuine.Fromtheevidenceofthiswitnessitis establishedthatthecastecertificateissuedinthenameof Accused andtherationcardissuedinthename ofhis family arenotissuedbytheiroffice.Merelybecausethe ration is taken on the false document, the same do not becomegenuine. 182] P.W.66istheChiefofficerofMunicipalCouncil, Beed.TheDomicilecertificateisissuedfromhisoffice.The Anti Terrorist Squad inquired from his office about the Domicilecertificateatarticle28/3andafterverifyingthe office record, he informed by letter at Exh.290, that the saidDomicilecertificatewasnotissuedbytheMunicipal CouncilBeed.InthepanchnamaatExh.264inrespectof seizure of various documents from the bag belonging to Accused,atSr.No.25thereisareferenceaboutseizureof this article. In cross examination he stated that no complaint was received by their office in respect of said Domicile certificate. Non seizure of register of his office wouldnotaffecthisevidencesinceheinformedinwriting aboutthegenuinenessofthesaidDomicilecertificateand beingtheGovernmentofficer,thereisnoreasonforhimto

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state false. From the evidence of this witness it is established that the Domicile certificate at article 28/3 foundinthebagofAccusedwasthefalsedocument. 183] Itissubmittedby Ld.defenceAdvocate that there is no evidence that the forged documents were prepared by the Accused within the jurisdiction of this courtandtherefore,inviewofprovisionsofSection177of
Cr.P.C hecannotbetriedfortheoffenceofforgery.Asper

thesaidSection, everyoffenceshallordinarilybeinquired intoandtriedbyaCourtwithinwhoselocaljurisdictionit was committed. This contention was also raised by the defenceatthetimeofframingChargeandthesamewas consideredinthelightofdecisionoftheHonourableApex Court in the case of Purushottamdas V/s. State of West Bengal,reportedinAIR1961SupremeCourt1589, though the said observations pertains to the old Cr.P.C (1898), whereinitisobservedthat, theCourthavingjurisdictionto trytheoffenceofconspiracyhasalsojurisdictiontotryan offenceconstitutedbytheovertactswhicharecommittedin pursuance of the conspiracy beyond it's jurisdiction. It is furtherobservedthatSection177simplysaysthatordinarily every offence would be tried by a Court within the local limitsofwhosejurisdictionitwascommitted.Itdoesnotsay that it would be tried by such Court except in the cases

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mentioned in Sections 179 to 185 and 188 or in cases speciallyprovidedbyanyotherprovisionsofLaw.Itleaves theplaceoftrialopen.Itsprovisionsarenotperemptory. 184] Admittedly, thefalsedocumentsare foundin thebagbelongingtotheAccused.simplybecausethedate onthesaidfalsedocumentsispriortothedateofoffence itcannotbeconclusivelysaidthattheywereforgedonthat date only and at the place mentioned in the documents. Document can be forged today by putting previous date. TheevidenceonrecordhaveestablishedthattheAccused had kept with himself the false documents. Hence the submissionisrejected. 185] Fromtheevidenceofalltheaforesaidwitnesses itis crystalclearthatthe Accused washavingthefalse documentsinhispossessionandhehadkepttheminhis bag which was seized bythe police from P.W. 92Shaikh Gaus under the panchnama at Exh.264. Except denial there is no explanation from the Accused as to how he came in possession of the said false documents. It is submittedbyLd.defenceAdvocatethattheprosecutiondid notsendthesaiddocumentstothehandwritingexpert.In view of the evidence given by the various government officersinrespectofthesaiddocuments,notsendingthe documentstohandwritingexpertisimmaterial.

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Thus,thiscircumstanceisprovedbytheprosecution beyondreasonabledoubt. 186] The prosecution, by laying cogent evidence, have established that the Accused stayed in Udgir in assumed names, explosive substance was found in possessionoftheAccused,theAccusedoperatedthebank account of another person, the Accused visited Colombo andthereaftersubstantialamountcametobedepositedin the bank account operated by him, the Accused was in association with the absconding Accused and he was influencedbytheideologyofterrorism,theAccusedwent toMumbaionthebusticketbookedinanother'snameand residedinthelodgeatMumbaiinassumednameshortly before the incident, the Accused purchased unaccounted mobile handsetfromMumbaishortlybeforetheincident, theuseofmobilephoneasthetriggeringdeviceincausing theexplosionattheGermanBakery,theAccusedkeeping hismobilephoneswithothersinMumbaiandAurangabad shortly before the explosion at the German Bakery to mislead his presence, the Accused seen with the absconding Accused No.1 Yasin Bhatkal who planted the explosive in the German Bakery shortly before the explosion,thetiredappearanceoftheAccusedinthenight of 13022010, i.e the date on which the explosion took

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placeatGermanBakery,theAccusedusedthemobilesim cardsissuedinthenameofotherpersonsandtheAccused possessingtheforgeddocuments.Allthecircumstancesare provedbeyondreasonabledoubt.Thoughthedefencehad crossexaminedthewitnesses,nothingmaterialisbrought on record to discard the above circumstances. Taken together, all the circumstances becomes relevant to establishtheinvolvementofAccusedinthecrime.

Conspiracy

187] OneoftheprimaryChargeagainsttheAccused is that of Conspiracy. Section 120(B) of I.P.C is the provision which provides for punishment for Criminal conspiracy. Definition of Criminal Conspiracy is given in Section120(A)ofI.P.Cwhichreadsthus: Whentwoormorepersonsagreetodo,orcausetobe done1]anillegalact,or 2]anactwhichisnotillegalbyillegalmeans,suchan agreementisdesignatedacriminalconspiracy. Provided that no agreement except an agreement to commit an offence shall amount to a criminal conspiracy unlesssomeact besidestheagreement isdone byoneor morepartiestosuchagreementinpursuancethereof. The Law in respect of the evidence required to establishtheoffenceofconspiracyiswellsettled.Itwould be proper to refer some of the Judgments of the

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HonourableApexCourtinthatregard. MohammadKhalidV/s.StateofBengal,(2002)7 S.C.C334. Inpara17itisobservedthus: ................ Law making conspiracy a crime, is design to curb immoderate powertodomischiefwhichisgainedbyacombinationofthe means. The encouragement and support which co conspirator gives to one another rendering enterprises possiblewhich,iflefttoindividualeffortswouldhavebeen impossible,furnishthegroundforvisitingconspiratorsand abettorswithcondignpunishment.Theconspiracyisheldto becontinuedandrenewedastoallit'smemberswhereever and whenever any member of the conspiracy acts in furtheranceofthecommondesign.Foranoffencepunishable under section 120 (B), prosecution need not necessarily provethattheperpetratorsexpresslyagreetodoorcaused to be done illegal act, the agreement may be proved by necessaryimplication............... Inpara18itisobservedthus: Nodoubtincaseofconspiracytherecannotbeany direct evidence. The ingredients of offence are that there shouldbeanagreementbetweenpersonswhohavealleged toconspireandthesaidagreementsshouldbefordoingan illegalactorfordoingillegalmeansanactwhichitselfmay notbeillegal,therefore,theessenceofcriminalconspiracyis anagreementtodoanillegalactandsuchanagreementcan be proved either by direct evidence or by circumstantial evidenceorbybothanditisamatterofcommonexperience thatdirectevidencetoproveconspiracyisrarelyavailalble, therefore,thecircumstancesprovedbefore,duringandafter the occurrence have to be considered to decide about the complicityofthe Accused.
Inpara21itisobservedthus:

Privacy and secrecy are more characteristics of a conspiracy,thanofalouddiscussioninanelevatedplace opentopublicview,Directevidenceinproofofaconspiracy isseldomavailable,offenceofconspiracycanbeprovedby

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either direct or circumstantial evidence. It is not always possibletogiveaffirmativeevidenceaboutthedateofthe formationofthecriminalconspiracy,aboutthepersonswho tookpartintheformationoftheconspiracy,abouttheobject, with the objectors set before themselves as the object of conspiracy, and about the manner in which the object of conspiracy is to be carried out, all this is necessarily a matterofinference. In the case of State N.C.T. of Delhi V/s. Navjyot
Sandhu, reported in 2005 (11) S.C.C. 600 the Law on conspiracy is considered. The relevant paragraphs are reproducedbelow.

InYashpalMittalV/s.StateofPunjab(1977(4)SCC 540). Goswami J speaking for a threeJudges Bench analysedthelegalpositionrelatingtocriminalconspiracy.At pages610611,theLearnedJudgeobservedthatthevery agreement, the concert of league is the ingredient of the offence and that it is not necessary that all the conspirators must know each and every detail of the conspiracy.Itwasthenobservedthattheremustbeunity of object or purpose but there may be plurality of means, sometimes even unknown to one another amongst the conspirators. Dr. Sri Hari Singh Gour in his well known 'CommentaryonPenalLawofIndia'(Vol.2,11th Edn.Page 1138)summedupthelegalpositioninthefollowingwords: Inordertoconstituteasinglegeneralconspiracythere must be a common design. Each conspirator plays his separatepartinoneintegratedandunitedefforttoachieve thecommonpurpose.Eachoneisawarethathehasapart toplayinageneralconspiracythoughhemaynotknowall it'ssecretsorthemeansbywhichthecommonpurposeisto be accomplished. The evil scheme may be promoted by a

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few,somemaydropoutandsomemayjoinatalaterstage, but, the conspiracy continues until it is broken up. The conspiracymaydevelopinsuccessivestages.Theremaybe general plan to accomplish the common design by such meansasmayfromtimetotimebefoundexpedient. Mostly, the conspiracies are proved by the circumstantialevidence,astheconspiracyisseldomanopen affair.Usuallyboththeexistenceoftheconspiracyandit's objectshavetobeinferredfromthecircumstancesandthe conduct of the accused (Per Wadhwa J in Nalini's case (supra) at page 516). The well known rule governing circumstantialevidenceisthateachandeveryincriminating circumstance must be clearly established by reliable evidenceandthecircumstancesprovedmustformachain ofeventsfromwhichtheonlyirresistibleconclusionabout theguiltoftheaccusedcanbesafelydrawnandnoother hypothesis against the guilt is possible. G.N.Roy J. in TanibeeriPankajKumar(1997(7)SCC665),observedthat thisCourtshouldnotallowthesuspiciontotaketheplaceof legalproof.AspointedoutbyFazalAliJinV.CShuklaV/s State(1980(2)SCC665)inmostcasesitwillbedifficultto getdirectevidenceoftheagreement,butaconspiracycanbe inferredevenfromcircumstancesgivingrisetoaconclusive or irresistible inference of an agreement between two or more persons to commit an offence. In this context, the observationsinthecaseNoorMohammadYusufMominV/s. StateofMaharashtra(AIR1971SC885)areworthnothing. Inmostcasesproofofconspiracyislargelyinferential though the inference must be founded on solid facts. Surroundingcircumstancesandantecedentandsubsequent conduct,amongotherfactorsconstituterelevantmaterial. A few bits here and a few bits there on which the prosecution relies cannot be held to be adequate for connectingtheaccusedintheoffenceofcriminalconspiracy.

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The circumstances before, during and after the occurrence canbeprovedtodecideaboutthecomplicityoftheaccused. (videEsherSinghV/sStateofA.P.2004(1)SCC585) One more principle which deserves notice is that cumulative effect of the proved circumstances should be takeninto accountindeterminingtheguiltoftheaccused rather than adopting an isolated approach to each of the circumstances. Of course, each one of the circumstances shouldbeprovedbeyondreasonabledoubt.Lastly,inregard to the appreciation of evidence relating to conspiracy, the Courtmusttakecaretoseethattheactsorconductofthe parties must be conscious and clear enough to infer their concurrenceastothecommondesignanditsexecution. 188] The Ld. defenceAdvocate citedthe following rulings on the point of circumstantial evidence and conspiracy. State of U.P. V/s. Sukhbasi, A.I.R 1985 S.C.
1224.Inthatcaseitisobservedthat,

there was no iota of evidence to establish that the three Accused prior to the commission of the offences had conspiredtogetherwiththe Accused Ashokkumarandgot forgedfromhimtheruqqainthenameofKripalsingMunim tosecureanentryintothehouseofthedeceased.Therewas nothing toshowthat the Accused Ashokkumarhad been associatingwiththeother Accused. Further,itisobserved that, in a case which the evidence is of circumstantial nature,thefactsandcircumstances fromwhichconclusion ofguiltissought tobedrawnbytheprosecutionmustbe fullyestablishedbeyondallreasonabledoubtandthefacts and circumstances so established, should not only be consistent with the guilt of the accused but they must be entirelyincompatiblewiththeinnocenceoftheAccusedand must exclude every reasonable hypothesis consistent with

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hisinnocence. Topandas V/s. State of Bombay, 1956 Criminal L.J. 138. Inthatcaseit isobservedthat bythetermsofthe definitionitself,thereoughttobetwoormorepersonswho mustbepartiestosuchanagreementanditistritetosay thatonepersonsalonecanneverbeheldguiltyofcriminal conspiracy for the simple reason that one cannot conspire with oneself. If therefore, four named individuals were charged with having committed the offence U/s. 120(B) PenalCodeandthreeoutofthesefourwereacquittedofthe Charge,theremaining Accused, whowas Accused No.1in thecasebeforeus,couldneverbeheldguiltyoftheoffence ofcriminalconspiracy.
SanjeevkumarV/s.StateofH.P.A.I.R.1999S.C.782.

Inthatcaseitwasheldthat therewasnoiotaofmaterial to establish the alleged agreement between the Accused Sanjeevkumar and Accused Kamlesh. In the absence of such evidence, the mere fact that Sanjeevkumar was the nephewofKamleshcannotbeheldtobesufficienttoleadto aninferenceofconspiracy.........
JohnPandiyanV/s.State,2010(13)Scale13. Inthis

case several Judgments on the aspect of conspiracy are considered. The relevant para is reproduced thus: Other celebrated decisions on the question of conspiracy are YashpalMittalV.StateofPunjab1977(4)SCC540)asalso theStateofHimachalPradeshV.KrishanLalPradhanand Ors.1987(2)SCC17).IthasbeenheldinMohdKhalidV. StateofWestBengal2002(7)SCC334)andinMohammed UsmanMohd.HussainManiyarV.StateofMaharashtra1981 (2)SCC443)that theagreement amongsttheconspirators can be inferred by necessary implication. All these cases togethercametobeconsideredinStateofNCTofDelhiV. Navjot Sandhu @ Afsan Guru 2005 (11) SCC 600] where

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eventhecelebratedJudgmentsofV.C.ShuklaV.State1980 (2) SCC 665] came to be considered wherein it was observedbyFazalAliJ:Inmostcasesitwillbedifficultto getdirectevidenceoftheagreement,butaconspiracycanbe inferredevenfromcircumstancesgivingrisetoaconclusive orirresistibleinferenceofanagreementbetweentwoormore personstocommitanoffence.
C.B.I V/s. V. C.Shukla, A.I.R. 1998 S.C. 1406. In this

casetheprosecutionwasnotabletoprovethat oneofthe twoAccusedwaspartytoconspiracyanditwasheldthat the Charge of conspiracy cannot stand against other Accusedasinaconspiracytheremustbetwoparties.

Inthiscaseitwasobservedthat overallevidencegivenby prosecutionwouldonlyshowthatsomeagitationhadbeen going on against management of the Industries and deceasedwasspearheadingmanyoftheseagitationsand this by itself would not prove prosecution's case of conspiracy. Further, it was observed that no bills proving purchase of foreign made weapons from Nepal were recovered from any of the Accused persons and visit to NepalbytheAccusedpersonsandrecoveryofaBilldonot advance prosecution case to prove criminal conspiracy allegedagainstthem.

StateofM.P.V/s.PaltanMallah,A.I.R.2005S.C. 733.

189] Fromtheaforesaidrulings followingposition emergesinrespectofconspiracy. i]Gistoftheconspiracyisintheagreement. ii] Conspiracycanbeprovedfrominferencefoundon solidfactsestablishedbyreliableevidence. iii]Directevidencemaynotbeavailablealways. iv] It isnotnecessarythat alltheconspiratorsmust

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knoweachotherandeverydetailofconspiracy. v] Itisnotnecessarythatalltheconspiratorshould participatefrombeginningtotheendofconspiracy. vi]Conspiracyisacontinuingoffenceandcontinuesto becommittedsolongasthecombinationpersists. 190] Comingtothecaseinhand,itisprovedthat theexplosionatthe GermanBakery wastheterroristact, the association of the Accused with the absconding Accused,theAccusedseenwithabscondingAccusedNo.1 Yasin Bhatkal who planted the explosive in the German Bakery, shortly before the explosion and the Accused possessingexplosivesubstanceofthelikenaturewhichis usedtocausetheexplosionattheGermanBakerygoesto therootinestablishingtheinvolvementofthe Accusedin thecrime.Thesecircumstancesfurnishescogentevidence pointing the involvement of Accused in the crime. His purchasing unaccounted mobile phone from Mumbai, thoughmobilephoneiseasilyavailableanywhereassumes significance because the explosion is caused by use of mobilephoneasthetriggeringdevice.TheAccuseddidso many things to mislead his identity. His keeping the mobilephonesusedbyhimwithhisfriends,hisusingthe bankaccountstandinginthenameofanotherperson,his possessingthefalsedocumentsandusingthemobilesim cardsissuedinthenameofothersbecomesrelevantU/s.8

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ofEvidenceAct.AlltheaboveconductoftheAccusedare mostunnaturalandhasclosenexuswiththerelevantfact in issue. It is established that all the said acts were consciousactoftheAccused.Allthesaidconductofthe Accusedshowshisculpablemind.Hissubsequentstateof body/mind, after the explosion also becomes relevant U/s.14oftheEvidenceAct.Hehastherevengefulattitude anddangerousideasaboutthereligion.Thecircumstances cannotbeviewedseparatelyandbynostandardofcommon sense/understanding be termed as innocent acts. The conductof Accused pointtohisguiltandinvolvementin theconspiracy.Allthecircumstancestakentogetherforms a complete chain which links him with the incident of explosion at German Bakery.Theonly defenceis thatof falseimplicationbeingaMuslim.Theevidenceavailableon record is such that by no stretch of imagination it is possibletoholdthattheevidenceisfabricatedtoimplicate him falsely. Many of the witnesses are the persons who knowthe Accused, thoughinassumednameandthereis nothingtoshowthatevenasinglewitnesshaveanygrudge or enmity with the Accused or they had any motive to depose falsely against the Accused. Absence of any plausible explanation from the Accused in respect of the circumstances brought by the prosecution against him

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becomesonemorecircumstanceagainsttheAccused.One ofthecontentionoftheLd.defenceAdvocateisthathehad no motive to commit the crime or to be the part of the conspiracy.Inthisregarditwouldnotbeoutofplaceto refertheobservationsoftheHonourableApexCourtmade inpara17inthecaseof 1992A.I.R1175MulakhrajV/s. Satish Kumar .......... In cases of circumstantial evidence motivebearsimportantsignificance.Motivealwayslocksup inthemindoftheaccusedandsometimeitisdifficultto unlock.Peopledonotactwhollywithoutmotive.Thefailure todiscoverthemotiveofanoffencedoesnotsignifyit'snon existence.Thefailuretoprovemotiveisnotfatalasamatter of law. Proof of motive is never an indispensable for conviction. When facts are clear it is immaterial that no motive has been proved. Therefore, absence of proof of motivedoesnotbreakthelinkinthechainofcircumstances connectingtheaccusedwiththecrime,normilitatesagainst theprosecutioncase. Inthepresentcase, fromtheproved circumstancesitisclearthatthemotivewastoundermine the faith of public in good governance and create the atmosphereoffearandinsecurityinthemindsofcitizens ofthiscountryanddisturbthefinefabricofsocietyandit isdonebycausingthe explosionatthe GermanBakery. The circumstances brought on record by the prosecution

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shows that the Accused did everything to carry out the object of conspiracy of causing the terrorist act by explosion at German Bakery. The circumstances taken togetherorconsideredcumulatively,unerringlypointtothe involvementoftheAccusedinthecrimeandareconsistent withhisinvolvementintheconspiracy. 191] EvenifthecontentionofLd.DefenceAdvocate isacceptedthatitisnotprovedthatthemobilephoneused totriggertheexplosionat GermanBakery isoneandthe same which is purchased by the Accused, all the other circumstancesaresoimpeccablethattheyareconsistent with the hypothesis of guilt of the Accused. No other hypothesis is possible. Viewed from any angle, the only presumption or inference which comes out is that the Accused hadaclosenexuswiththeabscondingAccused personsandtheyallhatchedtheconspiracytocauseterror attackbykillinginnocentpeoplebyuseofexplosive.The actoftheAccusedisnothinglessthanfurtheringtheact of terrorism. The circumstances against the Accused clearlyshowthattheactsoftheAccused areconsistent with the functioning of the members of banned organizationasdeposedbyP.W.103inhisevidencewhere he says that while studying the functioning of banned organizationssuchasSIMI,IndianMujahiddin,LashkarE

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Toyba, it was revealed that their members function by hidingtheirpersonality,theymaketheuseofpseudonym, prepare false documents, do the financial transactions clandestinely,createfalseevidenceandfunctioninsucha waythattheyappeartobeatoneplacewheretheyactually are not present. The cumulative effect of the proved circumstances have unerringly established that the Accused was the member totheconspiracy tocausethe terrorist act pursuant to which, the explosion at the German Bakery, Pune is caused which killed 17 persons and injured 58 persons. The circumstantial evidence brought on record by the prosecution is cogent and sufficient to prove that the Accused is one of the co conspiratorintheconspiracytocausetheterroristactand killinnocentpeopleandcauseddamagetothepropertyof others.Thepunishmentfortheoffenceofconspiracyisthe same,asifhehadabettedsuchoffence.
OtherOffencesUndertheIndianPenalCode.

191] One of the Charge is under Section 302 of I.P.C. The offence of murder is defined in Section 300 of I.P.C.Itreadsthus:Exceptinthecaseshereinafterexcepted culpablehomicideismurder,iftheactbywhichthedeathis donewiththeintentionofcausingdeathor Secondly if it is done with the intention of causing such bodily injury as the offender knows to be likely to

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causethedeathofthepersontowhomtheharmiscaused or ThirdlyIfitisdonewiththeintentionofcausingsuch bodilyinjurytoanypersonandthebodilyinjuryintendedto beinflictedissufficient intheordinarycourseofnatureto causedeathor

FourthlyIfthepersoncommittingtheactknowsthatit

is so imminentlydangerous that it must, inall probability cause death, or such bodily injury as is likely to cause death,andcommitssuchactwithoutanybodilyinjuryasis likely to cause death, and commits such act without any excuseforincurringtheriskofcausingdeathorsuchinjury asaforesaid. Itwouldnotbeoutofplacetorefertheobservations oftheHonourableApexCourtinthecaseof State(N.C.Tof
Delhi) V/s. Navjyot Sandhu, (Parliament attack case)

reported in 2005 (11) SCC 600 made in reference to the offenceofmurderandconspiracy.Itisheldthus: Theconspiracytocommittheoffenceofmurderinthe courseofexecutionofconspiracyiswellwithinthescopeof conspiracy to which the Accused Afzal was a party. Therefore, he is liable to be punished under Section 120B read with Section302 I.P.C. The punishment applicableis the one prescribed under Section 109I.P.C. In view of the phraseology of Section 120B be punished in the same mannerasifhehadabettedsuchoffence.Section109I.P.C lays down that if the act abetted is committed in consequence of the abetment, and no express provision is madebythisCodeforthepunishmentofsuchabetment,a person abetting the offence shall be punished with the punishmentprovidedfortheoffence.Thustheconspirator,

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eventhoughhemaynothaveindulgedintheactualcriminal operationstoexecutetheconspiracy,becomesliableforthe punishmentprescribedunderSection302I.P.C. The evidence on record clearly establishes that the explosion at the German Bakery was the result of conspiracy.Itisalreadyseenthat17peoplediedhomicidal deathduetotheexplosioninjuries.Theaspectofhomicidal death isnotatalldisputed.Theconspiracytocausethe explosion and kill the innocent people in the course of execution of conspiracy comes within the scope of conspiracytowhichtheAccusedwasaparty.Causingthe explosion at the public place i.e German Bakery, clearly shows the intention to cause death or to cause bodily injury as would in all probability cause death. If the illustration'D' toSection300ofI.P.C.isseen,itisclear that evenifthereisnoparticularpersonasthetargetto kill, the offence is made out. Thus, the Accused isalso liableforpunishmentfortheoffenceofMurder. 192] One of the Charge is under Section 307 of I.P.C.Itreadsthus: Whoever does any act with such intention or knowledge,andundersuchcircumstancesthat,ifhebythat act caused death, he would be guilty of murder, shall be punishedwithimprisonmentofeitherdescriptionforaterm whichmayextendtoTenyearsandshallalsobeliableto fine and if hurt is caused toany personby suchact,the offendershallbeliableeithertoimprisonmentforlifeorto

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suchpunishmentasishereinbeforementioned. Causing explosion with the use of explosive in the publicplacebyanyangle,attributetheknowledgethatby thesaidactthepeoplewilldie.WhileconsideringthePoint No.1itisseenthat58peoplesustainedinjuriesduetothe explosion. However, theysurvivedluckily.Merely because theysurviveddonotmeanthattheywerenotlikelytodie due tothe explosion. Itisneedlesstostatethatcausing injuryisnot necessarytoattracttheoffencepunishable under this section. Causing explosion by using the explosives clearly shows the intention to kill and also attributestheknowledgethatbysuchact,deathislikelyto be caused. The analogy applicable for the offence of murderwouldalsobeapplicableforthisoffencePunishable U/s. 307 of I.P.C. Thus, the essential ingredients of this sectionareestablishedandtheChargeforthesaidSection is proved against the Accused beyond the reasonable doubt. 193] One of the Charge is under Section 435 of I.P.C.Thesectionreadsthus: Whoever commits mischief by fire or any explosive substance,intendingtocause,orknowingittobelikelythat hewilltherebycause,damagetoanypropertytotheamount ofonehundredrupeesoronwardsfor(wherethepropertyis agricultural produce ten rupees or upwards) shall be

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punishedwithimprisonmentofeitherdescriptionforaterm whichmayextendtosevenyearsandshallalsobeliableto fine. ThetermmischiefisdefinedinSection425ofI.P.C . whichreadthus: Whoever,withintenttocauseorknowing that heis likelytocausewrongfullossordamagetothepublicorto any person cause the destruction of any property, or any suchchangeinanypropertyorinthesituationthereofas destroys or diminishes its value or utility, or affects it injuriously,commitsmischief. While considering Point No.1 it is seen that P.W. 1 havestatedthatsheincurredthedamagesofRs.15Lakhs duetotheexplosionatthe GermanBakery.Theevidence onrecordclearlyestablishedthattherewasdestructionof the property and obviously, there is wrongful loss. The explosionisduetouseofexplosivesubstance.Causingof explosionatthepublicplaceclearlyattributesknowledge thatwrongfullossordamagetothepublicorpropertywill becaused.Beingoneofthememberofconspiracytocause terroristactsuchknowledgeisattributabletotheAccused. Thus, the essential ingredients of this section are establishedandtheChargefor thesaidSectionisproved againsttheAccusedbeyondthereasonabledoubt. 194] OneoftheChargeisunderSection153A(b)of I.P.C. The Section reads thus: Promoting enmity between different groups on grounds of religion, race,placeof birth, residence, language etc. and doing acts prejudicial to

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maintenanceofharmonyi]Whoevera]bywords,either spokenorwritten,orbysignsorbyvisiblerepresentations orotherwise,promotesorattemptstopromote,ongroundof religion, race, place of birth, residence, language, caste or communityoranyothergroundwhatsoever,disharmony,or feelings of enmity, hay trade or ill will between different religions, ratials, language or regional groups or castes or communitiesor b]commitsanyactwhichisprejudicialtothemaintenance ofharmonybetweendifferentreligious,racial,languageor regional groups or castes or communities and which disturbesorlikelytodisturbthepublictranquilityor c] ................. shall be punished with imprisonment which mayextendtothreeyearsorwithfineorwithboth. Whileconsideringthecircumstanceofmindsetofthe Accusedithascomeinsomanywordsfromthewitnesses thattheAccused usedtotalkoftakingrevengeofBabri Masjid,Gujratriotsandusedtotalkofcomingtogetherfor taking revenge against the people belonging to other religion.Suchtypeofopentalkisnothingbutpromoting enmity between different religion. The said act of the Accused squarely falls under this Section. Thus, the essentialingredientsofthissectionareestablishedandthe ChargeforthesaidSectionisprovedagainsttheAccused beyondthereasonabledoubt. 195] ThereareChargesunderSections465,467,468 and 474 of I.P.C. These are the offences relating to the documents. Section 465 is the punishment for forgery.

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ForgeryisdefinedunderSection463ofI.P.C.which says thatforgerymeanstomakeanyfalsedocumentwithintent tocausedamageorinjurytothepublicortoanypersonor tosupportanyclaimortocauseanypersontopartwith propertyortoenterintoanyexpressorimpliedcontractor with intent to commit fraud or that fraud may be committed.Section467isinrespectofforgeryofvaluable security,Willetc. Section468isinrespectofforgeryfor purpose of cheating. The evidence available on recorddo not show that the Accused himself had forged the documents which were found in his bag. It is fairly submittedbyLd. SpecialP.Pthatthereisnoevidenceto showthattheAccusedhimselfhadforgedthedocuments and used them. He submitted that only Section 474 is made out against the Accused. Admittedly, the only evidenceinrespectofforgeryisthattheforgeddocuments such as caste certificate, handicap certificate, domicile certificateandcopyofrationcardwerefoundinoneofthe bag belonging to the Accused. Through the evidence of variousgovernmentofficersitisestablishedthatthesaid documents are not genuine and are false. The said documentsareofsuchanaturewhicharepurportedtobe madebythepublicservantinhisofficialcapacity.Section 474makespossessionoftheforgeddocumentwithintent

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thatthesameshallbeusedfraudulentlyordishonestlyas genuineasoffence.ThereisnoexplanationbytheAccused as to for what purpose he was possessing the aforesaid forgeddocuments.Fromthecircumstancesprovedbythe prosecution it is clear that with intent to use them as genuinethe Accused hadkepttheforgeddocumentwith him. Thus, the essential ingredients of section 474 are provedagainsttheAccusedandthechargeforsaidsection is proved beyond reasonable doubt. The essential ingredientsfortheoffenceUnderSection465,467,468are notprovedbytheprosecutionagainsttheAccused.

OffencesunderUnlawfulActivities(Prevention) Act,1967.

196] Assomeofthewordshavecomeinmostofthe

sections,theirdefinitiongivenintheActisnecessarytobe seen. ThetermTerroristgangisdefinedU/s.2(l)oftheAct which reads thus:Terrorist gang means any association, other than terrorist organization, whether systematic or otherwise,whichisconcernedwith,orinvolvedinterrorist act. Theterm'Terroristorganization'isdefinedU/s2(m)of theActwhichreadsthus:Terroristorganizationmeansan organization listed in the Schedule or an organization operatingunderthesamenameasanorganizationsolisted.
TerroristsOrganization. TerroristGang

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Unlawfulassociation

Theterm'UnlawfulAssociation'isdefinedU/s2(p)of theActwhichreadsthus: i] which has for its object any unlawful activity, or which encourages or aids persons to undertakeanyunlawfulactivity,orofwhichthemembers undertakesuchactivityor ii]whichhasforitsobjectany activitywhichispunishableundersection153Aorsection 153B of the Indian Penal Code ( 45 of 1860) or which encouragesoraidspersonstoundertakeanysuchactivity, orofwhichthemembersundertakeanysuchactivity.
197] OneoftheChargeisunderSection10(a)&(b)

oftheUnlawfulActivities(Prevention)Act,1967.Thesaid Sectionreadthus:
Penaltyforbeingmemberofanunlawfulassociation, etc: Where an association is declared unlawful by a

notification issued under section 3 which has become effectiveundersubSection(3)ofthatsection a]Apersonwho i]isandcontinuedtobeamemberofsuchassociation or ii]takespartinmeetingofsuchassociationor, iii]contributesto,orreceivesorsolicitsanycontribution forthepurposeofsuchassociationor, iv]inanywayassiststheoperationofsuchassociation shall be punishable with imprisonment for a term whichmayextendtotwoyearsandshallalsobeliable tofineand, b] Aperson,whoisorcontinuestobeamemberof suchassociationorvoluntarilydoesanactaidingor promoting in any manner the objects of such associationandinothercaseisinpossessionofany unlicensed fire arms,ammunition,explosive or other instrument or substance capable of causing mass destructionandcommitsanyactresultinginlossof

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humanlifeorgrievousinjurytoanypersonorcauses significantdamagetoanyproperty i] andifsuchacthasresultedinthedeathofany person, shall be punishable with death, or imprisonmentforlifeandshallalsobeliabletofine; ii] in any other case, shall be punishable with imprisonmentforatermwhichshallnotbelessthan fiveyearsbutwhichmayextendtoimprisonmentfor life,andshallalsobeliabletofine. Itissubmittedby Ld.defenceAdvocatethatthereis noevidencetoshowthatthe Accused isthememberof unlawfulassociation.IfthecontentsofaboveSectionare seen, even assisting or aiding or promoting the object of such association is an offence. While considering Point No.2as to whethertheexplosionistheterroristact,the evidence of police officers is considered wherein it is establishedthattheplanteroftheexplosiveintheGerman Bakery is the abscondingAccusedYasin Bhatkal,who is the member of banned organization. The organizations whicharebannedarementionedintheSchedulegivenat the end of the Act andP.W.103,the Investigatingofficer alsodeposedaboutthesame.Theevidenceonrecordhave clearly established that the explosive capable of causing mass destruction was found in possession of Accused. Further, the evidence on record goes to show that the Accused was seen with the planter of explosive, shortly

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before the explosion in which 17 persons lost their lives. The circumstances clearly establishes that the Accused assisted and voluntarily aided the operation of unlawful association.Thus,theessentialingredientsofthissection are established and the Charge for the said Section is provedagainsttheAccusedbeyondreasonabledoubt. 198] OneoftheChargeisunderSection13(1)&(2) of Unlawful Activities (Prevention) Act, 1967. The said Sectionreadsthus: a]Takepartinorcommits,or b]advocatesabets,advicesorincitesthecommission ofanyunlawfulactivity,shallbepunishableforaterm whichmayextendtoSevenyears,andshallalsobe liabletofine. 2] Whoever, in any way, assists any unlawful activity of any association declared unlawful under section3,afterthenotificationbywhichithasbeenso declaredhasbecomeeffectiveundersubsection(3)of thatsection,shallbepunishablewithimprisonmentfor atermwhichmayextendtofiveyears,orwithfine,or withboth. Theterm'unlawfulactivity'isdefinedinSection2(O) ofheUnlawfulActivities(Prevention)Act,1967.whichreads thus: 'Unlawful Activity' in relation to an individual or association, means any action taken by such individualorassociation(whetherbycommittinganact orbywordseitherspokenorwrittenorbysignsorby
PunishmentforUnlawfulactivities1]Whoever

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visiblerepresentationorotherwise.) i]whichisintendedorsupportsanyclaim,tobring about,onanygroundwhatsoever,thecessionofapart oftheterritoryofIndiaorthesecessionofapartofthe territoryofIndiafromtheUnion,orwhichincitesany individualorgroupofindividualstobringaboutsuch cessionorsecessionor, ii]whichdisclaims,questions,disruptsorisintended to disrupt the sovereignty and territorial integrity of Indiaor iii]whichcausesorisintendedtocausedisaffection againstIndia. WhileconsideringthepointNo.2itisseenthatthe explosion is the activity of banned organization. In cross examination of P.W.103 the Investigating officer, it has come that LET is the Pakistan based Organization. The evidenceofP.W.103furthershowsastohowthemembers of banned organization function. Further, the circumstances established against the Accused are consistentwiththefunctioningofthebannedorganization. The evidence on record have clearly established that Accused not only advocated abetted and incited the commissionoftheunlawfulactivitiesbutalsotookactive partingivingeffecttotheunlawfulactivityofcausingthe explosionattheGermanBakery,theobjectofwhichcanbe nothing but to cause disaffection against India. The notificationimposingbanontheorganizationsisbrought

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on record. Further, the banned organizations are mentionedintheScheduleoftheAct.Thus,theessential ingredientsofthissectionareestablishedandtheCharge forthesaidSectionisprovedagainsttheAccusedbeyond reasonabledoubt. 199] OneoftheChargeisunderSection16(1)(a)of the Unlawful Activities (Prevention) Act, 1967. The said Sectionreadthus: Punishment for terrorist act (1) Whoever commits a terroristactshall a]Ifsuchacthasresultedinthedeathofanyperson bepunishablewithdeathorimprisonmentforlifeandshall alsobeliabletofine. ItissubmittedbyLd.Spl.P.PthatunderSection43 (E)ofUnlawfulActivities(Prevention)Act,1967,iftheArms orexplosivesarerecoveredfromthepossessionofAccused andthereisreasontobelievethatsucharmsorexplosives wereusedinthecommissionofsuchoffence,presumption isrequiredtobedrawnthatthe Accused hascommitted such offence. Ld. defence Advocate submitted that under the Criminal Law, no presumption can be raised against the Accused and cited the Judgment in the case of
Harendra V/s. State of Assam reported in AIR 2008 S.C. 2467. Perusal of the said Judgment shows that it is

pertainingtothe offenceofmurderandthepresumption

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referredthereinwasunderSection114ofEvidenceActand it was observed that the Court may or may not raise a presumptionthatanofficialacthavingbeendonewasnotin due course of business, but, in a criminal case, no presumption should be raised which does not have any origininanystatutebutwouldcausegreatprejudicetothe Accused. It is further observed that wherever Parliament intendedtolayadifferentstandardofproofinrelationtothe certainoffencesorcertainpatternofcrime,itdidsoandin suchacasesubjecttoestablishingsomeprimaryfact,the burden of proof has been caste on the Respondent s and therearealargenumberofstatuteswherethedoctrineof 'reverse burden' has been applied. Save and accept those caseswheretheParliamentarystatutesapplythedoctrineof reverse burden, the Courts should not employ the same whichpersewouldonlybeviolativeofuniversaldeclaration of human rights but also the fundamental rights of an accused as envisaged under article 21 of Constitution of India.Thesaidlegalpositioniswellsettled. 200] Section 43 (E) of the Unlawful Activities ( Prevention) Act, 1967 shows that the presumption is havingtheorigininthe statuteitself.TheSectionreads thus:43EPresumptionastooffencesunderSection15In aprosecutionforanoffenceundersection15,ifitisproved

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a]thatthearmsorexplosivesoranyothersubstances specified in the said section were recovered from the possessionoftheaccusedandthereisreasontobelievethat such arms or explosives or other substances of a similar naturewereusedinthecommissionofsuchoffence,or b] thatbytheevidenceoftheexpertthefingerprints oftheaccusedorany otherdefinitiveevidencesuggesting theinvolvementoftheaccusedintheoffencewerefoundat the site of the offence or on anything including arms and vehicles used in connection with the commission of such offence theCourtshallpresume,unlessthecontraryisshown, thattheaccusedhascommittedsuchoffence. Perusal of the saidprovision shows that once the aspectofpossessionofexplosivesisestablished,anditis shown that similar nature of substance is used in commissionofoffence,themandatorypresumptioncomes intoplay.TheLd.Spl.P.PcitedtheJudgmentinthecase ofM.NarsinghaRaoV/s.StateofA.PreportedinA.I.R2001
S.C. 318 on the point of discretionary presumption and

mandatorypresumption.Inpara13ofthisJudgmentitis observed that the expression 'may presume' and 'shall presume'aredefinedinSection4oftheEvidenceActand the presumption falling under the formal category are compendiously known as 'factual presumptions' or 'discretionary presumptions' and those falling under the latteras'legalpresumptions'or'compulsorypresumptions'.

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AscanbeseenfromtheaforesaidprovisionsofSection43 (E) of Unlawful Activities (Prevention) Act, 1967, the presumption is the compulsory presumption as the word used is 'shall presume'. It is cogently established by the prosecutionthattheExplosive(RDX)isfoundinpossession of Accused. Except denial thereisno explanation by the Accused on the aspect of possessing the explosive substance.Thereisreasontobelievethatthesaidexplosive isused in theexplosioncausedat GermanBakery Pune because the forensic evidence brought on record by the prosecutionhaveestablishedthattheexplosivesubstance usedincausingthe explosion at GermanBakery andthe explosivesubstanceseizedattheinstanceofAccusedisof similar nature. Therefore, the presumption U/s. 43 of Unlawful Activities (Prevention) Act, 1967 gets attracted againsttheAccused.Thus,theessentialingredientsofthis section are established andtheChargefortheoffenceof terrorist act is proved against the Accused beyond reasonabledoubt. 201] OneoftheChargeisunderSection18ofthe UnlawfulActivities(Prevention)Act,1967.ThesaidSection readthus:
Punishmentforconspiracyetc Whoeverconspiresor

attempts to commit, or advocates,abets, advises or [incites,directsorknowinglyfacilitates]thecommissionof,a

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terroristactoranyactpreparatorytothecommissionofa terrorist act, shall be punishable with imprisonment for a termwhichshallnotbelessthanfiveyearsbutwhichmay extendtoimprisonmentforlife,andshallalsobeliableto fine. The aspect of conspiracy is already discussed while dealing with the charge U/s. 120B of I.P.C. The circumstancesagainsttheAccusedclearlyestablishesthat heisoneofthecoconspiratortocausetheTerroristAct. Thereisnodifferenceinthewordconspiracyappearingin Section120(B)ofI.P.CandappearinginthisSection.Thus, theessentialingredientsofthissectionareestablishedand the Charge for the said Section is proved against the Accusedbeyondreasonabledoubt. 202]OneoftheChargeisunderSection20ofthe UnlawfulActivities(Prevention)Act,1967.ThesaidSection readthus:
Punishment for being member of terrorist gang or organization

Anypersonwhoisamemberofaterroristgang,ora terroristorganization,whichisinvolvedinterroristact,shall be punishable with imprisonment for a term which may extendtoimprisonmentforlife,andshallalsobeliableto fine. The definition of Terrorist gang isalready quoted. It means any association concerned with or involved in Terroristact.ItisprovedthattheAccusedassociatedwith the absconding accused who planted the explosives. The

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associationoftheAccusedwiththeabscondingAccusedis nothing but the gang. Thus, the essential ingredients of thissectionareestablishedandtheChargefor thesaid Section is proved against theAccused beyondreasonable doubt.

OffencesundertheExplosiveSubstancesAct,1908

203] OneoftheChargeis underSection3ofthe ExplosiveSubstancesAct,1908ThesaidSectionreadthus:

Section3:Punishmentforcausingexplosionlikelyto endangerlifeorproperty Anypersonwhounlawfullyand

maliciouslycausesby a] anyexplosivesubstanceanexplosionofanature likelytoendangerlifeortocauseseriousinjurytoproperty shall, whether any injury to person or property has been actuallycausedornot,bepunishedwithimprisonmentfor lifeorwithrigorousimprisonmentofeitherdescriptionwhich shallnotbelessthanTenyearsandshallalsobeliableto fine. b] any special category explosive substance an explosion of a nature likely to endanger life or to cause seriousinjurytopropertyshall,whetheranyinjurytoperson or property has been actually caused or not,be punished withdeath,orrigorousimprisonmentforlife,andshallalso beliabletofine. Itisestablishedbytheprosecutionthattheexplosion at the German Bakery was caused by using research developmentexplosives(RDX).Further,thesimilarkindof explosive is seized from the possession of the Accused.

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Underthedefinition2(b)ofExplosiveSubstancesAct,1908 RDXcomesinspecialcategoryexplosivesubstance.Itis alreadyestablishedthattheAccusedisoneofthemember oftheconspiracytocausetheterroristactwhichwasgiven effect by causing explosion at the German Bakery. From the circumstances proved by the prosecution, the participationoftheAccusedincausingthesaidexplosion which resulted in loss of lives is proved. The act of the accusedfallswithintheambitofsubsection(b)ofSection 3oftheExplosiveSubstanceActandthisChargeisproved againsttheAccusedbeyondreasonabledoubt. 204] OneoftheChargeisunderSection4(a)&(b) of the Explosive Substances Act,1908 The said Section readthus:
Punishment for attempt to cause explosion, or for makingorkeepingexplosivewithintenttoendangerlifeor propertyAnypersonwhounlawfullyandmaliciously

a] doesanyactwithintenttocausebyanexplosive substance or special category explosive substance, or conspires to cause by an explosive substance or special categoryexplosivesubstance,anexplosionofanaturelikely toendangerlifeortocauseseriousinjurytopropertyor b]makesorhasinhispossessionorunderhiscontrol any explosive substance or special category explosive substance with intent by means thereof to endager ife, or cause serious injury to property, or to enable any other personbymeansthereoftoendangerlifeorcauseserious injurytopropertyinIndiashall,whetheranyexplosiondoes ordoesnottakeplaceandwhetheranyinjurytopersonor

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propertyhasbeenactuallycausedornot,bepunished i] in the case of any explosive substance, with imprisonment for life, or with imprisonment of either descriptionforatermwhichmayextendtotenyears,and shallalsobeliabletofine ii] in the case of any special category explosive substance, with rigorous imprisonment for life, or with rigorousimprisonmentforatermwhichmayextendtoten years,andshallalsobeliabletofine. The seizure of Specialcategoryexplosivesubstance fromthepossessionofAccused isestablished.The said possessionisadmittedlyunlawfulastheAccused hadno licencetokeepitandthecompositionisthesameasused incausingtheexplosionat GermanBakery. Thequantity ofexplosivefoundinpossessionoftheAccusedissuchthat itisclearthatitwaskeptmaliciouslywiththeintentionto endanger the life. Thus, the essential ingredients of this sectionareestablishedandtheChargeforthesaidsection isprovedagainsttheAccusedbeyondreasonabledoubt. 205] OneoftheChargeis underSection5ofthe ExplosiveSubstancesAct,1908ThesaidSectionreadthus:
Punishmentformakingorpossessingexplosives undersuspiciouscircumstancesAnypersonwhomakesor

knowinglyhasinhispossessionorunderhiscontrolany explosivesubstanceorspecialcategoryexplosivesubstance undersuchcircumstancesastogiverisetoareasonable suspicionthatheisnotmakingiotordoesnothaveitinhis possessionorunderhiscontrolforalawfulobject,shall, unlesshecanshowthathemadeitorhaditinhis

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possessionorunderhiscontrolforalawfulobject,be punished a] in the case of any explosive substance, with imprisonmentforatermwhichmayextendtotenyears,and shallalsobeliabletofine. b] in the case of any special category explosive substance, with rigorous imprisonment for life, or with rigorousimprisonmentforatermwhichmayextendtoten years,andshallalsobeliabletofine. The seizure of specialexplosivesubstanceweighing 1200gramsfromthepossessionoftheAccusedhasbeen established beyond reasonable doubt and there is absolutelynoexplanationforpossessingthesame.Byno stretchofimaginationitcanbesaidtohavebeenpossessed for a lawful object. There is no authorization or licence with the Accused to possess the explosive. The forensic evidencehaveestablishedtheuseofsamekindofspecial explosive substance in causing the explosion at German Bakery.Allthisgiverisetoareasonablesuspicionthatthe special category explosive was not possessed by the Accused for any lawful object. Thus, the essential ingredientsofthissectionareestablishedandtheCharge for thesaidsectionisprovedagainsttheAccusedbeyond reasonabledoubt. 206] Fromtheevidenceadducedbytheprosecution, the charges punishable under sections 120(B),302,307,

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435,153(A),474ofIndianPenalCode1860,undersections 10(a)&(b),13(1)&(2),16(1)(a),18,20ofUnlawfulActivities (Prevention)Act,1967and undersections3,4(a)&(b),5of Explosive Substances Act, 1908 are proved beyond reasonable doubt, the Accused is convicted for all the aforementionedoffences.TheAccusedisacquittedforthe offencesundersections465,467and468ofIndianPenal Code. As the offences which are proved against the Accused,inviteseverepunishment,itisnecessarytohear the Accused on the point of sentence. The Accused is informed about this and some time is given to him for making submissions on the quantum of sentence. The matterisadjournedto18042013forhearingtheparties onthepointofsentence.

Date:15042013

(N.P.Dhote) Addl.SessionsJudge,Pune.

207] Heard Ld.Spl.P.P ShriRajaThakreandLd. AdvocateforDefenceMr.ARehmanandtheAccused Mirza Himayat Baig @ Ahmed Baig Inayat Mirza @ Hasan @ Yusufonthepointofsentence.Itistobenotedthatthere arefiveoffencesforwhichtheAccusedmaybevisitedwith the death sentence. The offence U/s. 16 and 10 of Unlawful Activities (Prevention) Act, 1967, offences U/s.

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302, 120(B) of the I.P.C and Section 3 of the Explosive Substances Act 1908 are punishable with death or imprisonmentforlife. 208] The Accused stated that he belongs to poor familyandateacherbyprofessionandhehadnointention to kill anyone and was never absconding. He submitted that he believe in Allah and the judicial system of this country. He submitted that he has no concern with the crimeinhandandhasbeenfalselyimplicatedinthiscase by the Anti Terrorist Squad. He has given two pages in writing in which he has stated the aforementioned submissionsandalsocommentedonthemeritofthecase. Accordingtohim,thecircumstancesarenotprovedagainst him. 209] Itissubmittedby Ld.DefenceAdvocate that as per the settled position in law the mitigating circumstances and aggravating circumstances are to be weighed andthereafterthequantumofpunishmentisto be decided. He submitted that the Accused neither had gonetotheGermanBakery,norhadplantedtheBomb.It isfurthersubmittedthattheAccusedhadnomotiveand intention to commit the crime and there is no direct evidencethatthe Accused manufacturedthebomb.Itis further submitted that the Accused is of young age,

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qualifiedasB.A.D.Ed.andateacherandbelongtopoor familyhavingoldparents,twobrothersandtwosisters.It isfurthersubmittedthatthereisnopreviousconvictionon theAccusedandheisnotresponsiblefortheincident.It is submitted that leniency be shown to the Accused. He citedfollowingsevenrulings i]A.I.R.1983S.C.957(1),ii]2010Cr.L.J905(S.C), iii]2009(6)S.C.C.498,iv]1999(3)S.C.C.19, v]2011Cr.L.J1639(S.C),vi]2003(7)S.C.C.141, vii]1996Cr..L.J4308.

210] On the other hand it is submitted by Ld. Spl.P.P that the case in hand is of terrorist activity committed by conspiracy and using the special category substance(RDX)duetowhich17personsincludingsome foreign nationals are killed and the Accused is found guilty for the various sections. He submitted that the explosive substance was seized from the possession of Accused.Hesubmittedthatinthefactsandcircumstances ofthecase,theage,professionandthefamilybackground of the Accused cannot become the mitigating

circumstances. He submitted that the Accused is preaching and advocating the objects of banned organizations. He submitted that case falls under the

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categoryofrarestofrarecaseandonlycapitalpunishment isappropriatepunishmentforthe Accused. Hecitedthe followingrulings. i]1994(2)SCC220. ii]unreportedcaseofthe

HonourableApexCourtinDevendrapalsinghBhullarV/s. StateofN.C.T.,Delhi,deliveredon12042013.

211] It is needless to state that the extreme punishment of death sentence can only be awarded in rarestofrarecase,aspertheprovisionsofsection354(3)of
Cr.P.C,1973, when the conviction is for the offence

punishable with death or in the alternative with imprisonmentforlifeorimprisonmentforatermofyears, theJudgmentshallstatethereasonsforsentenceawarded andinthecaseofsentenceofdeath,thespecialreasonsfor such sentence. The landmark Judgments in the field of sentencingareoftheHonourableApexCourtinthecaseof BacchansingV/s.StateofPunjab,A.I.R.1980,S.C898 andinthecaseofMachchisingV/s.Stateof Punjab, A.I.R 1983 S.C. 957. Even the submissions of both the sidesrevolvedaroundthesaidtwolandmarkJudgments.It wouldbepropertoconsidertherelevantobservationsmade intheaforesaidtwoJudgments. 212] In Bachchansing's case followingguidelines

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arelaiddown (a) Theextremepenaltyofdeathmaybe inflicted in gravest cases of extreme culpability; (b) While imposing death sentence the circumstances of the offender are also require to be taken into consideration alongwiththe circumstancesofthecrime; (c) Deathsentencebeimposedonlywhen life imprisonment appears to be an altogetherinadequate punishment having regardtothe relevant circumstances of thecrime;and (d) Extremepenaltycanbeimposedafter striking thebalancebetweenaggravating and mitigating circumstances found in the case. Aggravatingcircumstancesinclude: (a) Ifthemurderhasbeencommittedafter previousplaningandinvolvesextreme brutality;or (b)Ifthemurderinvolvesexceptional depravity, Mitigatingcircumstancesinclude: (a) Thattheoffencewascommittedunder the influence of extreme mental or emotional disturbance; (b) Theageoftheaccused.Iftheaccused isyoung orold,heshallnotbesentenced todeath; (c) Theprobabilitythattheaccusedwould

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not commit criminal acts of violence as would constitute a continuing threat to society; (d) Theprobabilitythattheaccusedcanbe reformed and rehabilitated. The State shall by evidence prove that the accused does not satisfytheconditions(c)and(d)above; (e) Thatinthefactsandcircumstancesof thecase theaccusedbelievedthathewas morejustified incommittingtheoffence; (f) That the accused acted under the duressor dominationofanotherperson;and (g) That the condition of the accused showedthat he was mentally defective andthatthesaid defect impaired his capacitytoappreciatethe criminality of his conduct. 213] In Machchising's case following additional guidelinesarelaiddown. (1) Whenthemurderiscommittedin extremely brutal,grotesque,diabolical, revoltingordastardlymannersoasto arouseintenseandextremeindignationof thecommunity. (2) Whenthemurderiscommittedfora motivewhichevincestotaldepravityand meanness;e.g.murderbyhiredassassin formoneyorreward;orcoldbloodedmurder forgainsofapersonvisaviswhomthe murdererisinadominatingpositionor inapositionoftrust;ormurderis

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committedinthecourseforbetrayal ofthemotherland. (3) Whenmurderofamemberof ScheduledCasteorminoritycommunityetc., iscommittednotforpersonalreasonbut incircumstanceswhicharousesocialwrath; orincasesofbrideburningordowry deathsorwhenmurderiscommittedin ordertoremarryforthesakeofextracting dowryonceagainortomarryanother womanonaccountofinfatuation. (4) Whenthecrimeisenormousin proportion.Forinstancewhenmultiple murders,sayofalloralmostallthe membersofafamilyorlargenumber of personsofaparticularcaste,community, orlocality,arecommitted. (5) Whenthevictimofmurderisan innocentchildorahelplesswomanorold orinfirmpersonorapersonvisavis whomthemurdererisinadominating position,orapublicfiguregenerallyloved andrespectedbythecommunity.

214] FurtherinthecaseofDhananjayChaterjee@ Dhana V/s State of West Bengal, 1994(2) S.C.C 626 following are the observations made by Honourable Apex Courtinpara15. Inouropinion,themeasureofpunishment inagivencasemustdependupontheatrocityofthe crime,theconductofthecriminalandthedefenceless andunprotectedstatedofthevictim.Impositionof

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appropriatepunishmentisthemannerinwhichthe courtsrespondtothesociety'scryforjusticeagainst thecriminalsJusticedemandsthatcourtsshould imposepunishmentfittingtothecrimesothatthe courtsreflectpublicabhorrenceofthecrime.The courtsmustnotonlykeepinviewtherightsof thecriminalbutalsotherightsofthevictimof crimeandthesocietyatlargewhileconsidering impositionofappropriatepunishment.

215] Further,itwouldnotbeoutofplacetotake note of the observations made by the Honourable Apex Courtinthecaseof DevendrapalsingBhullarV/sState of N.C.T of Delhi in W.P. (Cri) D. No. 16039/2011 deliveredon12thApril,2013.Though,thesaidcasewas forcommutingthedeathsentencetolifeimprisonmentdue to the long delay in executing the death sentence, the observationsareinrespectofterrorismandtherefore,are relevant. 8] EvenafterthejudgmentsinBachanSinghscase andMachhiSinghscase,Juristsandhumanrightsactivists havepersistedwiththeirdemandfortheabolitionofdeath penaltyandseveralattemptshavebeenmadetopersuade theCentralGovernmenttotakeconcretestepsinthisregard. Itisadifferentstorythattheyhavenotsucceededbecause inrecentyearsthecrimescenariohaschangedalloverthe world.Whilethereisnoabatementinthecrimescommitted

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due to personal animosity and property disputes, people acrosstheworldhavesufferedonaccountofnewformsof crimes.Themonsterofterrorismhasspreaditstentaclesin most of the countries. India is one of the worst victims of internalandexternalterrorism.Inthelastthreedecades, hundredsofinnocentliveshavebeenlostonaccountofthe activitiesofterrorists,whohavemercilesslykilledpeopleby using bullets, bombs and other modern weapons. While upholding the constitutional validity of the Terrorist and DisruptiveActivities(Prevention)Act,1987(TADA)inKartar Singhv.StateofPunjab(1994)3SCC569,thisCourttook cognizanceofthespreadofterrorismintheworldingeneral andinIndiainparticular,inthefollowingwords: From the recent past, in many parts of the world, terrorismanddisruptionarespearheadingforonereasonor another and resultantly great leaders have been assassinated by suicide bombers and many dastardly murdershavebeencommitted.Deplorably,determinedyouth lured by hardcore criminals and underground extremists andattractedbytheideologyofterrorismareindulgingin committingseriouscrimesagainstthehumanity.Inspiteof thedrasticactionstakenandintensevigilanceactivated,the terrorists and militants do not desist from triggering lawlessness if it suits their purpose. In short, they are

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waging a domestic war against the sovereignty of their respectivenationsoragainstaraceorcommunityinorderto createanembryonicimbalanceandnervousdisorderinthe society either on being stimulated or instigated by the national, transnational or international hardcore criminals orsecessionistsetc.Resultantly,thesecurityandintegrityof thecountriesconcernedareatperilandthelawandorderin manycountriesisdisrupted.Tosaydifferently,thelogicof thecultofthebulletishoveringtheglobecompletelyrobbing off the reasons and rhymes. Therefore, every country has nowfelttheneedtostrengthenvigilanceagainstthespurtin the illegal and criminal activities of the militants and terroristssothatthedangertoitssovereigntyisavertedand thecommunityisprotected. Thus, terrorism and disruptive activities are a worldwide phenomenon and India is not an exception. Unfortunatelyintherecentpastthiscountryhasfalleninthe firm grip of spiralling terrorists' violence and is caught betweenthedeadlypangsofdisruptiveactivities.Asseen from the Objects and Reasons of the Act 31 of 1985, Terrorists had been indulging in wanton killings, arson, looting of properties and other heinous crimes mostly in Punjab and Chandigarh and then slowly they expanded their activities to other parts of the country i.e. Delhi,

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Haryana, U.P. and Rajasthan. At present they have outstretchedtheiractivitiesbyspreadingtheirwingsfarand widealmostbringingthemajorpartofthecountryunderthe extreme violence and terrorism by letting loose unprecedented and unprovoked repression and disrup tionunmindfulofthesecurityofthenation,personalliberty andright,inclusiveoftherighttolivewithhumandignityof the innocent citizens of this country and destroying the imageofmanyglitzycitieslikeChandigarh,Srinagar,Delhi andBombaybystrangulatingthenormallifeofthecitizens. Apartfrommanyskirmishesinvariouspartsofthecountry, there were countless serious and horrendous events engulfing many cities with bloodbath, firing, looting, mad killing even without sparing women and children and reducing those areas into a graveyard, which brutal atrocities have rocked and shocked the whole nation. Everyday, there are jarring pieces of information through electronicandprintmediathatmanyinnocent,defenceless peopleparticularlypoor,politicians,statesmen,government officials, police officials, army personnel inclusive of the jawans belonging to Border Security Force have been mercilesslygunneddown.Noonecandenythesestarkfacts and naked truth by adopting an ostrich like attitude completelyignoringtheimpendingdanger.Whatevermaybe

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thereasons,indeedthereisnonetodenythat. 39]........ Time and again, (Machhi Singhs case, Ediga Anammascase,SherSinghscaseandTrivenibenscase),it hasbeenheldthatwhileimposingpunishmentformurder andsimilartypeofoffences,theCourtisnotonlyentitled, butisdutyboundtotakeintoconsiderationthenatureofthe crime,themotiveforcommissionofthecrime,themagnitude of the crime and its impact on the society, the nature of weaponusedforcommissionofthecrime,etc..Ifthemurder is committed in an extremely brutal or dastardly manner, whichgivesrisetointenseandextremeindignationinthe community,theCourtmaybefullyjustifiedinawardingthe death penalty. If the murder is committed by burning the brideforthesakeofmoneyorsatisfactionofotherkindsof greed, there will be ample justification for awarding the death penalty. If the enormity of the crime is such that a largenumberofinnocentpeoplearekilledwithoutrhymeor reason,thentoo,awardofextremepenaltyofdeathwillbe justified......................... 40]Wearealsooftheviewthattheruleenunciatedin Sher Singhs case, Trivenibens case and some other judgments that long delay may be one of the grounds for commutationofthesentenceofdeathintolifeimprisonment cannotbeinvokedincaseswhereapersonisconvictedfor

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offenceunderTADAorsimilarstatutes. Suchcasesstand on an altogether different plane and cannot be compared with murders committed due to personal animosityoroverpropertyandpersonaldisputes.The seriousnessofthecrimescommittedbytheterrorists can be gauged from the fact that many hundred innocentciviliansandmeninuniformhavelosttheir lives. At times, their objective is to annihilate their rivals including the political opponents. They use bullets,bombsandotherweaponsofmasskillingfor achievingtheirpervertedpoliticalandothergoalsor wagewaragainsttheState.Whiledoingso,theydo notshow any respectforhumanlives.Beforekilling thevictims,theydonotthinkevenforasecondabout theparents,wives,childrenandothernearanddear onesofthevictims.Thefamiliesofthosekilledsuffer the agony for their entire life, apart from financial andotherlosses. 216] Now,letmeexaminewhetherthecaseinhand falls under the category of rarest of rare case on the aforesaid principles and after considering the mitigating andaggravatingcircumstances.

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MitigatingCircumstances. 1] 2] 3] 4] 33yearsofage. Teacherbyprofession. Nopreviousconviction. Poorfamilybackground.

Aggravatingcircumstances. Inthepresentcaseallaggravatingcircumstancesare presentandtheyaresummarizedasfollows: 1]Provedcircumstancesshowthattheterroristact isdoneafterplanningorhatchingtheconspiracy. 2] Theterroristactiscommittedbyusingexplosive substance. 3] Proved circumstances show that the Accused possessedthespecialexplosivesubstance(RDX).This showsthattheAccusedactedasthecustodianofthe explosive. 4] Provedcircumstancesshowthatthe Accused activelyparticipatedincausingtheterroristactwhich resultedinthedeathof17personsandcausinginjury to58persons. 5] Provedcircumstancesshowthatalltheactsof the Accused were hidden or clandestine and calculated. This shows that he is fully trained in givingeffecttosuchdastardlyactbymisleadinghis presence. 6] ThecrimeofwhichtheAccusedisthepartand parcelisofutmostgravity.

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7] The Accused didnotshowanyremorseatany pointoftime. 8] Thechoiceoflocality/placei.eGermanBakery, KoregaonPark,whichisthecrowdedplaceandthe timetocausetheterroristactissuchthatwhenthere aremoreprospectsofthepublicgatheringanditis such a place where the foreigners came in large numbers since they come to stay in nearby Osho Ashram.Thisshowsthatsuchplaceischosenforthe explosionwhichwouldensuremaximumlossofthe lifeincludingthatofforeignersandproperty. 9] Themotivebehindthecrimeistostriketerrorin thepeopleofthiscountryandtothreatenthesecurity ofthecountry. 10] Thepersonswhogotkilledandgotinjuredwere not even known to the Accused andthey allwere innocentpeople.Noneofthemwerehavinganyenmity withhim. 11] The proved circumstances shows that the mannerofterroristactwasdiabolicinnature. 12] Crime of terrorism is in itself an aggravating circumstance as observed by the Honourable Apex Court in para 503(4) in the case of Yakub Memon V/s. State of Maharashtra in Criminal Appeal No. 1728/2007. 13] The crime is such, which has shaken the collectiveconsciousofthesociety.

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217]

Iftheabovereferredaggravatingandmitigating

circumstancesareconsideredagainsteachother,itisclear thattheaggravatingcircumstancesarefarmoreweightyas comparedtothemitigatingcircumstances.Themitigating circumstancesgetscompletelyshadowedbytheaggravating circumstances.Thecrimeinquestionisnotarisingoutof anypersonalenmityorfromthepropertydisputeoroflike nature. The balance of aggravating and mitigating circumstancesdonottiltinfavouroftheAccused.Perusal oftheauthoritiescitedbytheLd.DefenceAdvocateshow thattheyarethecasesfortheoffenceofmurderandwere heldnottocomeunderthecategoryofrarestofrarecases. ItisrightlysubmittedbyLd.Spl.P.Pthatnoneofthecase cited by the Ld. Defence Advocate is pertaining to the offence of Terrorist Act. The said cases pertains to the offenceofmurdercommittedoutoffamilyfeud,outoflove affair, outof kidnappingandmurder forransom,outof dispute over small house, out of money invested in lottery/moneycirculationscheme,outofrivalryandoutof outcasting from participation in the affairs of the community.Thefactsandcircumstancesofthesaidcases aretotallydifferent.Whatistobelookedistheaggravating andmitigatingcircumstanceswhileawardingthesentence. 218] ThesubmissionsmadebytheAccusedareon

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the merits and demerits of the case and so, have no bearing at this stage of the case. The court has already cometotheconclusionthattheAccusedwasthepartof the same conspiracy which was executed by way of explosionattheGermanBakery.Thereisnothingtoshow thattheAccusedwasunderthehonestandbonafidebelief that he was morallyjustifiedincommitting terroristact whichkilled17personsandinjured58persons.Thereisno materialtoshowthattheAccused wasunderanyduress ordominationtocommitthecrime. Provedcircumstances showthatthe Accused voluntarilyindulgedinconspiracy and the terrorist act. Theevidenceon recordshowsthat the Accused is greatly influenced by the ideology of terrorismandheisheldguiltyfortheconspiracy.Thereare no chances of his reformation. From the proved circumstances it is established that the Accused also participated in the heinous terrorist act of causing the Bomb Blast leaving several innocent Indians and foreign nationalsdeadandinjuredleavingtheinjuredvictimtolive miserable remaining life and also miserable lives of the families of the victims who were killed. Undoubtedly, the presentcrimeisgraveandalsoagainstthehumanityand committed to undermine the image and security of the country.AstheAccusediscitizenofthiscountrythereis

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betrayalofmotherlandduetohisinvolvementinthecrime. Thecrimeiscommittedbytheuseofexplosivewhich,by allmeansattributestheknowledgeaboutthedestructionit wouldcause. Asseenfromtheprovedcircumstancesthe Accuseddideverythinginacalculatedmannerandheis also the threat for the society. From the proved circumstances, the offence falls under the category of rarest of rare case. In view of the proved facts and circumstances of the case and taking into consideration the observations madebythe HonourableApex Court in the aforementioned Judgments, the only punishment which the Accused deserves is that of death penalty. Hence, by answering the points, I proceed to pass the followingorder.

ORDER

1]

TheAccusedMirzaHimayatBaig@AhmedBaig

InayatMirza@ Hasan@Yusufisconvictedfortheoffence punishableundersection16(1)(a)oftheUnlawfulActivities (Prevention)Act,1967andsentencedtodeathandtopay fineofRs.500/(Fivehundredonly),indefaulttopayfine, toundergoimprisonmentforonemonth.TheAccused be

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hangedbythenecktillheisdead. 2] TheAccusedMirzaHimayatBaig@AhmedBaig

InayatMirza@Hasan@Yusufisconvictedfortheoffence punishable under section 10(b) of the Unlawful Activities (Prevention)Act,1967andsentencedtodeathandtopay fineofRs.500/(Fivehundredonly),indefaulttopayfine, toundergoimprisonmentforonemonth.TheAccused be hangedbythenecktillheisdead. 3] TheAccusedMirzaHimayatBaig@AhmedBaig

InayatMirza@Hasan@Yusufisconvictedfortheoffence punishable under section 10(a) of the Unlawful Activities (Prevention) Act, 1967 and sentenced to suffer Imprisonmentfortwoyearsandtopay fineofRs.500/ (Five hundred only), in default to pay fine, to undergo imprisonmentforonemonth. 4] TheAccusedMirzaHimayatBaig@AhmedBaig

InayatMirza@Hasan@Yusufisconvictedfortheoffence punishable under section 18 of the Unlawful Activities (Prevention) Act, 1967 and sentenced to suffer imprisonment for life andto pay fineof Rs. 500/ (Five hundred only), in default to pay fine, to undergo imprisonmentforonemonth. 5] TheAccusedMirzaHimayatBaig@AhmedBaig

InayatMirza@Hasan@Yusufisconvictedfortheoffence

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punishable under section 20 of the Unlawful Activities (Prevention) Act, 1967 and sentenced to suffer imprisonment for life and topay fine of Rs. 500/ (Five hundred only), in default to pay fine, to undergo imprisonmentforonemonth. 6] TheAccusedMirzaHimayatBaig@AhmedBaig

InayatMirza@Hasan@Yusufisconvictedfortheoffence punishableundersection13(1)(b)oftheUnlawfulActivities (Prevention) Act, 1967 and sentenced to suffer imprisonmentforSevenyearsandtopayfineofRs.500/ (Five hundred only), in default to pay fine, to undergo imprisonmentforonemonth. 7] TheAccusedMirzaHimayatBaig@AhmedBaig

InayatMirza@Hasan@Yusufisconvictedfortheoffence punishable under section 13(2) of the Unlawful Activities (Prevention) Act, 1967 and sentenced to suffer imprisonmentforFiveyears. 8] TheAccusedMirzaHimayatBaig@AhmedBaig

InayatMirza@Hasan@Yusufisconvictedfortheoffence punishableundersection120BofIndianPenalCodeand sentenced to death and to pay fine of Rs. 500/ (Five hundred only), in default to pay fine, to undergo imprisonmentforonemonth.TheAccused behangedby thenecktillheisdead.

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9]

TheAccusedMirzaHimayatBaig@AhmedBaig

InayatMirza@Hasan@Yusufisconvictedfortheoffence punishable under section 302readwith120BofIndian PenalCodeandsentencedtodeathandtopayfineofRs. 500/ (Five hundred only), in default to pay fine, to undergo imprisonment for one month. The Accused be hangedbythenecktillheisdead. 10] TheAccusedMirzaHimayatBaig@AhmedBaig InayatMirza@Hasan@Yusufisconvictedfortheoffence punishable under section 307 read with 120B of Indian PenalCodeandsentencedtosufferimprisonmentforlife andtopayfineofRs.500/(Fivehundredonly),indefault topayfine,toundergoimprisonmentforonemonth. 11] TheAccusedMirzaHimayatBaig@AhmedBaig InayatMirza@Hasan@Yusufisconvictedfortheoffence punishable under section 435 read with 120B of Indian Penal Code and sentenced to suffer imprisonment for Seven years and to pay fineof Rs. 500/(Fivehundred only),indefaulttopayfine,toundergoimprisonmentfor onemonth. 12] TheAccusedMirzaHimayatBaig@AhmedBaig InayatMirza@Hasan@Yusufisconvictedfortheoffence punishableundersection153AofIndianPenalCode and sentencedtosufferimprisonmentforThreeyears.

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13] TheAccusedMirzaHimayatBaig@AhmedBaig InayatMirza@Hasan@Yusufisconvictedfortheoffence punishable under section474of Indian Penal Code and sentencedtosuffer imprisonmentforSevenyearsandto payfineofRs.500/(Fivehundredonly),indefaulttopay fine,toundergoimprisonmentforonemonth. 14] TheAccusedMirzaHimayatBaig@AhmedBaig InayatMirza@Hasan@Yusufisacquittedfortheoffences punishableundersections465,467and468oftheIndian PenalCode. 15] TheAccusedMirzaHimayatBaig@AhmedBaig InayatMirza@Hasan@Yusufisconvictedfortheoffence punishable under section 3(b) of Explosive Substances Act,1908readwithsection120BofIndianPenalCodeand sentenced to death and to pay fine of Rs. 500/ (Five hundred only), in default to pay fine, to undergo imprisonmentforonemonth.TheAccused behangedby thenecktillheisdead. 16] TheAccusedMirzaHimayatBaig@AhmedBaig InayatMirza@Hasan@Yusufisconvictedfortheoffence punishableundersection4(a)&(b)ofExplosiveSubstances Act,1908andsentencedtosufferrigorousimprisonmentfor life and to pay fine of Rs. 500/ (Five hundred only), in default to pay fine, to undergo imprisonment for one

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month. 17] TheAccusedMirzaHimayatBaig@AhmedBaig InayatMirza@Hasan@Yusufisconvictedfortheoffence punishable under section 5 of Explosive Substances Act,1908andsentencedtosufferrigorousimprisonmentfor life and to pay fine of Rs. 500/ (Five hundred only), in default to pay fine, to undergo imprisonment for one month. 18] Allthesesentencesshallrunconcurrently. 19] The Record & Proceeding and the Muddemal property be preserved for the trial of the absconding Accused. 20] The Proceedings shall be submitted to the HonourableHighCourtandsentenceofdeathshallnotbe executed, until it is confirmed by the Honourable High Court.

Pune. Date:18042013

(N.P.Dhote) Addl.SessionsJudge,Pune.

IaffirmthatthecontentsofthisP.D.FfileJudgmentare thesamewordforwordaspertheoriginalJudgment. NameoftheStenographer:Sou.S.U.Duraphe StenographerH.G. JudgmentsignedbyP.O.on22042013 Judgmentuploadedon:29042013

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