Rajasthan High Court - Jaipur
Pappu @ Salim vs State Of Rajasthan Through P P on 22 July, 2019
Author: Goverdhan Bardhar
Bench: Sabina, Goverdhan Bardhar
HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR
D.B. Criminal Appeal No. 866/2017
Pappu @ Salim, Son of Shri Shakoor Khan, By Caste
Muslim, R/o Village Farah, District Mathura U.P. at present
he is serving sentence in Central Jail, Bharatpur
Rajasthan Since 24.10.1997.
----Petitioner
Versus
The State Of Rajasthan Through P.P.
----Respondent
For Petitioner(s) : Mr. J.R. Bijarniya
For : Ms. Rekha Madnani learned
Respondent(s) Public Prosecutor
HON'BLE SMT. JUSTICE SABINA HON'BLE MR. JUSTICE GOVERDHAN BARDHAR Judgment Date: 22nd July 2019 Goverdhan Bardhar,J.
Challenge in the instant criminal appeal has been made by the appellant to the judgment of conviction and sentence dated 07.03.2017 passed by the Court of learned Additional Sessions Judge, Bandikui, District Dausa (Rajasthan) [for short 'the learned trial Court'] in Sessions Case No. 12/2016, B.T. No.60/2016, State of Rajasthan Vs. Pappu @ Salim, whereby the learned trial Court has convicted and sentenced the appellant as under:-
U/s. 302/120B IPC:
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(2 of 50) [CRLDR-1/2016] Life imprisonment and fine of Rs.1,00,000/-, in default of payment of fine to further undergo three years rigorous imprisonment.
U/s. 307/120B IPC:
Life imprisonment and fine of Rs.1,00,000/-, in default of payment of fine to further undergo three years rigorous imprisonment.
U/s. 120B IPC:
Life imprisonment and fine of Rs.1,00,000/-, in default of payment of fine to further undergo three years rigorous imprisonment.
U/s. 4 PDPP Act:
Ten years rigorous imprisonment and fine of Rs.50,000/-, in default of payment of fine to further undergo two years rigorous imprisonment. U/s. 4 Explosive Substance Act:
Ten years rigorous imprisonment and fine of Rs.25,000/-, in default of payment of fine to further undergo one year rigorous imprisonment. U/s. 5 Explosive Substance Act:
Seven years rigorous imprisonment and fine of Rs.15,000/-, in default of payment of fine to further undergo six months rigorous imprisonment. U/s. 193 IPC:
Seven years rigorous imprisonment and fine of Rs.15,000/-, in default of payment of fine to further undergo six months rigorous imprisonment. All the sentences were ordered to run concurrently.
Facts of the case in nutshell are that on 22. 05.1996 at 4:00 p.m. a written report was submitted by complainant Ashok Kumar Sharma S/o Roshan Lal Sharma resident of village Narayana, Police Station Deeg, District Bharatpur, the then Operator Roadways Agra Bikaner to the S.H.O. Mahwa in District Hospital Mahwa, stating therein that he had proceeded from Agra to (Downloaded on 06/06/2021 at 03:33:41 PM) (3 of 50) [CRLDR-1/2016] Bikaner after taking Roadways Bus No. RJ-07-P-1038 at 11:00 a.m. The driver of that bus was Ramjilal. When the bus proceeded from Agra there were 49-50 passengers.
From Agra two passengers boarded for Jaipur. Both these passengers got down at Mahwa and returned the tickets to him stating to use them for the welfare of any poor person. The age of both the persons was about 27-28 years. Both were speaking in Hindi. At Mahwa two gents and one lady Constable sat in the bus towards the back seat. For issuing tickets to them he started towards back seat. When the bus had gone ahead for about 3-4 kms. towards Dausa from Mahwa near village Samleti, suddenly high level explosion occurred in the bus, on account of which the roof of the bus, windows and gate were flown away and tore into pieces. Passengers were torn into pieces. Articles got scattered in wide range and passengers were also flown away. Explosion was so high that he become hard of hearing. He suffered injury on his right arm and his legs. This occurrence took place on account of heavy bomb blast or explosive substance. In the said occurrence several men and women died on the spot and all passengers were injured. This occurrence was committed by criminal conspiracy for causing damage to life and goods.
On the basis of the aforesaid written report an FIR bearing No. 148/1996 was registered at Police Station (Downloaded on 06/06/2021 at 03:33:41 PM) (4 of 50) [CRLDR-1/2016] Mahwa for the offences under sections 302, 307, 120B I.P.C, sections 4/5 of the Explosive Substance Act and section 3 of the P.D.P.P. Act. Thereafter, investigation of the case was transferred to CID, CB, Jaipur. After investigation, On 12.09.1996 Investigating Officer presented charge-sheet against four accused (1) Javed Khan @ Javed Junior; (2) Abdul @ Asadullah @ Nurruddin @ Nikka, @ Umar @ Najib Khan, (3) Farooq Ahmad Khan @ Swaroop @ Baba @ Anwar Sadat and (4) Latif Ahmad Vaza, under sections 115, 117, 118, 176, 302, 307, 120B IPC, section 4/5 of the Explosive Substance Act and section 3 of the P.D.P.P. Act, on 16.10.1996 the charge- sheet was presented against Mohd. Ali Bhatt @ Mahmood and Mirza Nissar Hussain @ Naza under sections 115, 117, 118, 176, 302, 307, 12B IPC, section 4/5 of the Explosive Substance Act and section 3 of the P.D.P.P. Act and the investigation against accused Mahmood Kile and Naza was kept pending under section 173(8) Cr.P.C, on 18.06.1997 charge-sheet was presented against Riyaz Ahmad Sheikh @ Moulvi for the offences under sections 115, 117, 118, 176, 302, 307, 120B IPC, section 4/5 of the Explosive Substance Act and section 3 of the P.D.P.P. Act, on 23.09.1997 charge-sheet was presented against Dr. Abdul Hamid for the offences under sections 115, 117, 118, 176, 302, 12B IPC, section 4/5 of the Explosive Substance Act and section 3 of the P.D.P.P. Act. (Downloaded on 06/06/2021 at 03:33:41 PM)
(5 of 50) [CRLDR-1/2016] In FIR No.39/1996 pertaining to Jaipur Stadium Bomb Blast case, accused appellant Pappu @ Salim was arrested on 28.07.1997. Confessional statement of Pappu @ Salim was recorded under section 164 Cr.P.C. by Suresh Chand Sharma, ACJM, Jaipur City on 09.09.1997. Thereafter, in the present FIR No. 148/1996, Pappu @ Salim was arrested on 24.10.1997. On 18.11.997 a letter was received from Central Prison in the Court of Civil Judge (Sr. Division) & Chief Judicial Magistrate, Dausa that the accused appellant wants to become approver in the case pertaining to FIR No.148/1996. On 21.10.2002 confessional statement of approver Pappu @ Salim under section 164 Cr.P.C. was recorded by PW24- K.P. Saxena, ACJM, Dausa. Thereafter, on the application dated 11.01.2011 moved by one of the co-accused Dr. Abdul Hamid, statement of Pappu @ Salim was recorded in open Court on 19.02.2011 and he was also cross-examined. However, in this statement he stated the facts contrary to his previous confessional statement and Pappu @ Salim retracted his confessional statement which was recorded on 21.10.2002. On 19.09.2014 in connection with FIR No.145/1996, charge-sheet was submitted against accused Pappu @ Salim.
It is pertinent to note that while deciding Sessions Case No.35/2011, State of Rajasthan Vs. Javed Khan @ Ors., the trial court in its judgment dated (Downloaded on 06/06/2021 at 03:33:41 PM) (6 of 50) [CRLDR-1/2016] 29.09.2014 observed that Pappu @ Salim after filing application under section 306(1) Cr.P.C. did not fulfill the conditions of tendering pardon. Statements made in Ex.P174, Ex.D2 and Ex.3 and deposition made as PW95 are contradictory and under provision of Section 221 Cr.P.C. If any of the above made statement is false, the learned trial court passed order for separate trial of Pappu @ Salim under sections 120B read with 302, 307 IPC, section 3/4 PDPP Act, Sections 3,4, and 5 of the Explosive Act and section 193 IPC read with section 308 Cr.P.C.
On 08.06.2016 the learned trial court took cognizance against accused Pappu @ Salim for the offences under sections 302, 307, 115, 117, 118, 120B, I.P.C. sections 4/5 of the Explosive Substance Act, sections 3, 4 of the Prevention of Damage to Public Property Act and section 193 of the I.P.C.
On 10.06.2016 the learned trial court framed charges against the accused appellant for the offences under sections 302/120B, 307/120B, 120B, 193 I.P.C and sections 4/5 of the Explosive Substance Act, sections 3, 4 of the Prevention of Damage to Public Property Act. The prosecution in support of its case recorded the statements of twenty five witnesses and sixty three documents were exhibited. Thereafter, the accused/appellant was examined under Section 313 Cr.P.C. In defence the (Downloaded on 06/06/2021 at 03:33:41 PM) (7 of 50) [CRLDR-1/2016] accused appellant did not produce any evidence. The learned trial court after considering the evidence led during the course of trial convicted and sentenced the accused/appellant for the charges levelled against him vide impugned judgment/order dated 07.03.2017. The appellant aggrieved and dissatisfied with the impugned judgment/order of conviction and sentence has preferred the instant criminal appeal.
Learned counsel for the accused-appellant argued that the trial Court has committed grave illegality in holding the accused appellant guilty of the charges. The accused had nothing to do with the other co-accused and there was no question to involve in this case. The appellant has been falsely implicated in the case. On the contrary, the prosecution on the basis of the evidence has not succeeded in proving the case against appellant Pappu @ Salim. The trial court while coming to the conclusion has committed grave illegality in not going through the entire material on record. PW7- Pramod Kumar in his cross-examination deposed that he very well knows Pappu because he is resident of his village. He never saw Pappu involved in any activity against the Country. As such it is clear that he has falsely been entangled in the matter. In these circumstances whole trial of the case is vitiated and findings so arrived at by the learned trial Court suffer from serious error of law and the findings are without (Downloaded on 06/06/2021 at 03:33:41 PM) (8 of 50) [CRLDR-1/2016] judicious application of mind. Not even a single article is there which has been recovered at the instance of the accused appellant, nor there is any iota of evidence on record against the appellant proving his involvement in the alleged act. PW-8 Bhoop Singh, In-charge of Gaun Mandi yard, Roopwas admitted that no recovery has been made from Pappu. Without any recovery, connecting the appellant with the alleged crime itself indicates that the entire trial is vitiated. The trial court has miserably failed to consider that the offence cannot be said to be proved beyond reasonable doubt against the appellant until or unless the prosecution comes with a cogent evidence to prove the allegations regarding commission of offence at the instance of the appellant or his involvement in any manner in the alleged crime. Not only this, even according to the statement of PW21 Madan Mohan Attrey, Additional Superintendent of Police, CID, CB, Jaipur, no explosive substances were recovered at the instance of the appellant. Thus, it is clear that the case against the appellant at least has not been proved at all and on this count, the appellant stood entitled for benefit of doubt. Statements of prosecution witnesses are full of material contradictions and cannot be said to be reliable and should not have been made basis for conviction of appellant for the reason that charges remained disproved beyond all reasonable doubts. An important aspect of the (Downloaded on 06/06/2021 at 03:33:41 PM) (9 of 50) [CRLDR-1/2016] matter has been lost sight of the fact that FIR No. 148/1996 of this case was registered with the Police station, Mahwa (Dausa) and in Sessions Case No. 35/2011 (State versus Javed and others), the accused appellant has been examined as PW95. This witness deposed there before the court that 16-17 years ago from that day he was engaged in plying the vehicle of Uma Shankar- Advocate. The vehicle was being plied by him as taxi on hire. Without proving the offences, the liability directly or indirectly cannot be imposed on the appellant. There are several missing links. Thus the benefit of it should have been extended in favour of the appellant. But the trial court in the instant case has not considered this material aspect of the case while proceeding with the matter for holding the appellant guilty of the offence. From the entire material available on record, it is clear that there is not even a single iota of evidence to connect the accused appellant with the alleged crime directly or indirectly.
Learned Public Prosecutor opposed the appeal and supported the impugned judgment of conviction and sentence passed by the learned trial court.
We have heard learned counsel appearing for the accused appellant, learned Public Prosecutor appearing for the State and scanned and scrutinized the entire material made available to us.
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(10 of 50) [CRLDR-1/2016] PW1- Likayat Ali deposed that on 22.05.1996 he was posted as Addl. Superintendent of Police. Investigation was done by him in case No.148/1996 registered at police station Mahwa. After investigation he submitted charge-sheet in the matter.
PW2- Ashok Kumar deposed that on 22.05.1996 he was on duty at Roadways Depot, Bikaner. On that day at around 11 o' clock Bus No. RJ-07-P-1038 proceeded from Agra to Bikaner. In that bus there were 49-50 passengers. From Agra two passengers sat for Jaipur. Both these passengers got down at Mahwa and both returned their tickets stating to use them for welfare of any poor. From Mahwa two male members and one female Constable sat in the bus. So he went to the back side of the bus to issue them tickets. After proceeding from Mahwa at a distance of 3-4 km. ahead near village Samleti a high explosion took place. Due to high explosion, the roof of the bus including the windows flew away in open sky. Passengers were torn into pieces.
PW3-Giriraj Prasad deposed that on 01.08.1997 he was posted as SHO, police station Roopwas. A written report was presented before him which is Ex.P19. (Downloaded on 06/06/2021 at 03:33:41 PM)
(11 of 50) [CRLDR-1/2016] PW4-Chetan Das deposed that on 01.08.1997 he was working as Senior Scientist Officer in Forensic Science Laboratory. He examined the explosive substances seized at Roopwas.
PW5-Murarilal deposed that near about 20-22 years ago the police recorded his statement. In his village in Mohalla Karirpura, one Madarsa used to run, in which Abdul, Iqbal and Raees Ahmad used to visit. Pappu also used to visit there. There was a restaurant of Latifa, brother of Pappu, from where tea and meals used to come to Madarsa. He used to sit in the restaurant and Madarsa and they used to call mutually each other by name. Pappu used to drive a jeep.
PW6- Ashok Kuamr Saraswat deposed that about 20 years ago police visited his village and recorded the statement. This witness deposed that Pappu used to drive a vehicle.
PW7-Pramod Kumar deposed that 20 years ago, in his village the police visited with some accused persons. The police prepared before him a sketch map on highway of one Madarsa.
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(12 of 50) [CRLDR-1/2016] PW8- Bhup Singh deposed that on 01.08.1997 he was posted as In-charge in Gaud Mandi Yard Roopwas. On that day a person was arrested by the police who told his name as Pappu. On the side of his office, there was a go-down of Chandra Prakash Agrawal. Police opened the lock by getting its key from Chandra Prakash. From there some fuse wire, viral detonator and some boxes were recovered containing explosive substances. It's memo was prepared before him. Pappu had stated by going ahead on Dholpur Road about the house of Gopal Chandra from where amonial revolvers were recovered. It's memo was prepared by the police. Sketch map was prepared on the indication of accused Pappu, which is Ex.P-29. Chandra Prakash through memo gave information about 28 revolvers, which were seized. Sketch map of the spot was prepared, on which his signatures were from A to B portion. In cross-examination this witness has deposed that the memo's on which there are my signatures, those all memo's were of Gandhi Nagar Stadium Case. This witness deposed that no recovery of any kind was made from Pappu.
PW9- Phool Bahadur deposed that in year 1997 the police had visited transport Company. With the police there was a man with covered face who had shown the office of Transport Company to the Police. The sketch map (Downloaded on 06/06/2021 at 03:33:41 PM) (13 of 50) [CRLDR-1/2016] was prepared, which is Ex.P33. In cross-examination this witness deposed that the man who was seen with the police was with covered face and was not identified by him and if he will come before him, he cannot identify him.
PW10-Ashok RajKapur deposed that on 28.03.1995 he used to run a transport company in the name of Lakshmi Road Lines in Agra. On the said date Raees Ahmad got booked six small drums of paint weighting about 120 Kgs. Similarly on 13.4.1995 Raees Ahmad got booked eight small drums in the name of Red- Oxide Paint which were sent through Bill Ex.P35. On 04.05.1995 Raees Ahmad sent three small drums of paint through bill Ex.P36. Similarly on 02.08.1995 Raees Ahmad sent eight small drums of paint to Anantnag which is Ex.P37, on which there exists his signatures on A to B portion. The articles which were sent through four bills, all contained paints. The time at which articles were sent through the bills, that time he had seen the articles and the bills were prepared before him.
PW11-Ashok Kumar deposed that on 06.07.1997 he was posted as Dy. Superintendent of Police, C.I.D, C.B., Jaipur and investigation of the case no. 148/1996 P.S. Mahwa was pending in C.I.D, C.B. He was (Downloaded on 06/06/2021 at 03:33:41 PM) (14 of 50) [CRLDR-1/2016] in the Investigation Team. He recorded the statement of Neeraj by visiting V.C.C. Office in Delhi. On 06.07.1997 in Agra on the indication of accused Raees Beg, sketch map of the spot was prepared. On the same day on the indication of Abdul Hamid, the sketch map of the spot was prepared which is Ex.P39. On the same day sketch maps of the place disclosed by Raees Beg were prepared, which are Exs.P40 and P41.
PW12-Prem Sagar Manocha deposed that on 28.05.1996 he was posted as Dy. Director, State Forensic Science Laboratory, Jaipur. He inspected the place of occurrence and submitted the report to S.P, C.I.D, C.B, Jaipur.
PW13-Ramesh Chand Tyagi deposed that about 18-19 years ago he was working on the post of Manager in Amritsar Transport Company. At that time goods were booked for Anantnag. Some goods were also booked from Srinagar which were brought by some labour. At that time 3-4 police persons visited there. The Police prepared the sketch map of the company, which is Ex.P 33. This witness deposed that he had not seen Pappu Khan. The goods which were booked, were containing paints. PW-14 Rajendra Charan deposed that about 20 years ago, he used to work at Lakshmi Gold Line, which is in Moni Katar, (Downloaded on 06/06/2021 at 03:33:41 PM) (15 of 50) [CRLDR-1/2016] Agra. The police prepared the sketch map of Lakshmi Gold Line, on which his signatures bear on A to B portion.
PW15-Ashok Kumar s/o Phool Chand deposed that on 07.07.1997 before him the police had gone to the village and along-with him accused Abdul Matin was there, who while going ahead identified the house of Pappu @ Salim and he had also told that from December 1995, he had come in this house about 4-5 times. It's memo was prepared as Ex. P-23. Sketch map of the house was prepared which is Ex. P24, on which there bears his signature on A to B portion.
PW16-Himmat Singh deposed that on 28.07.1997 Mr. Madan Mohan Attrey, Addl. S.P. came in case no. 39/96. On that day from Transport Nagar Chowk accused Pappu @ Salim was arrested by the Addl.S.P, vide memo Ex.P56. On the same day personal search of Pappu @ Salim was conducted. In the search, plastic laminated identity card was recovered with photo and address of Mohd. Amin, having English language on it. Said Identity Card was Ex.P57. During the course of investigation accused Pappu @ Salim had indicated towards Amritsar Transport Company and its sketch map is Ex.P33. Accused Pappu @ Salim also indicated towards Lakshmi Road Lines, Moti Katra Agra and its map is Ex. P55 (Downloaded on 06/06/2021 at 03:33:41 PM) (16 of 50) [CRLDR-1/2016] PW17-Bhim Singh deposed that on 28.07.1997 he was posted as Police Inspector, in C.I.D, C.B, Jaipur. On that day accused Pappu @ Salim was arrested. On the same day personal search of Pappu @ Salim was made. In the search plastic laminated identity card was recovered. Said Identity card was taken into police custody as proof, which is Ex. P57. On the information given by Pappu @ Salim, he went Roopwas with the I.O. from go-down of Chandra Prakash.
PW18-Muktanand Agrawal deposed that on 11.09.2014 he was posted as Distt. Collector, Dausa. This witness deposed that prima facie case was found against accused Pappu @ Salim for the offence under section 4/5 of the Explosive Substance Act.
PW19-Kushal Singh deposed that on 12.09.2014 he was posted in ATS Record. Earlier an application was presented by accused Pappu @ Salim for recording his statement as approver and after recording his statement, he was made approver. In the matter of the State vs. Javed & ors., when approver Pappu @ Salim was summoned for deposition, he retracted his earlier confessional statement and turned hostile. (Downloaded on 06/06/2021 at 03:33:41 PM)
(17 of 50) [CRLDR-1/2016] PW20-Satya Prakash Khadkavat deposed that on 22.05.1996 he was posted as Addl.S.P. in Crime Branch, Jaipur. On that day, an explosion took place at Samleti in Bus No. RJ-07-P-1038 of the Rajasthan Roadways, which caused heavy loss to the life and wealth.
PW21-Madan Mohan Attrey deposed that on 22.05.1996 he was posted as Additional Superintendent of Police, in C.I.D,C.B., Jaipur. On 07.07.1997 during the investigation accused Raees Beg pointed towards Madarsa, where he used to meet Pappu @ Salim, resident of Farha.
PW22-Suresh Chand Sharma deposed that on 09.09.1997 he was posted as Additional Chief Judicial Magistrate No.06 in Jaipur City, Jaipur. On that day in FIR No.39/1996 registered at P.S. Gandhi Nagar he had recorded the statement of accused Pappu Khan @ Salim S/o Sakur Khan under section 164 of the Cr.P.C. Whatever statement was made by accused Pappu @ Salim Khan, same was recorded by him. Before recording his statement, accused Pappu Khan @ Salim Khan was told and explained that he was not bound to make confessional statement and if he does so, his confessional statement may be used against him. He made (Downloaded on 06/06/2021 at 03:33:41 PM) (18 of 50) [CRLDR-1/2016] confessional statement voluntarily. This confessional statement was written under his hand and it was read over to Pappu Khan and he has admitted its correctness. On every page of confessional statement, his signatures were taken. After recording the statement, vide letter no. 596 dated 09.09.1997 said confessional statement was sent in sealed envelop.
PW23-Pramod Sharma deposed that on 12.08.1997 he was posted as Jailor in Central Jail, Jaipur. Pappu @ Salim was in prison in Samleti Bomb Blast matter. For giving confessional statement, an application in the name of C.J.M. Jaipur City was presented before him. Accused Pappu had put his signatures on it. Thereafter the signatures of Pappu were identified by him. After attestation of signatures, the aforesaid application was sent to the Jail Office. This witness admitted that the application was not given to him in connection with F.I.R. NO.148/96 P.S.Mahwa.
PW24-K.P. Saxena deposed that on 21.10.2002 he was posted as A.C.J.M, Dausa. On that day before him for recording the confessional statement of accused Pappu Khan @ Salim S/o Sakur Khan under section 164 Cr.P.C, he was produced before him. Before recording his statement, accused Pappu Khan @ Salim Khan was told (Downloaded on 06/06/2021 at 03:33:41 PM) (19 of 50) [CRLDR-1/2016] and explained that he was not bound to make the confessional statement and if he does so, his confessional statement may be used against him. He had made confessional statement voluntarily, which was Ex.P71. The statement of this witness was recorded in his own words.
PW25-Urmila Verma deposed that from 01.11.20O13 to 13.05.2015 she was working as A.D.J, Camp Court, Bandikui. During her posting of Camp Court at Mahwa, on 25.07.2014 in Crime Case No. 35/2011, State vs. Javed & Ors., he was presented before her for trial. On that day, in the case Pappu @ Salim, who was approver, his statement was recorded on oath under her direction, which was Ex. P2.
On the basis of charges levelled against the accused appellant, issues arise for determination are ad- infra:-
1. Whether accused persons on 22.05.1996 had a common intention to cause a bomb blast for causing loss of public lives and property, and in furtherance of their agreement accused Dr. Abdul Hamid with the help of other co-accused caused a bomb blast in Rajasthan State Roadways Transport Corporation bus No. RJ-0-7P-1038 near Samleti village 3-4 kilometer from Mahwa towards (Downloaded on 06/06/2021 at 03:33:41 PM) (20 of 50) [CRLDR-1/2016] Dausa and knowingly and deliberately killed 14 passengers viz. Ku. Deepa, Ku. Sato, Mohanlal, Naval Devi, Mahesh Chand, Ramjilal, Vikesh Kumari, Jitender, Rattanlal, Satyawati, Naresh Chand Jain, Ku. Yaduvendra and two other unknown people, sitting in the above bus?
Thus, whether accused Pappu @ Salim has committed the offence punishable under section 302/120B of the IPC ?
2. Whether accused persons on the above date, time and place with a common intention to cause bomb blast caused loss to public lives and public property in India furtherance of the same, caused the said bomb blast in Rajasthan State Roadways Transport Corporation bus No. RJ-07-P-1038 and deliberately and knowingly which resulted in receiving injuries to the passengers viz., Renu, Sharda, Harswarup Kalyan Singh, Sunita, Sawai Singh, Mitthanlal, Govind Narayan, Rajesh Kumar, Jaganram, Vimala Kumar, Gurnan Singh, Ishwar Singh, Santosh, Ranvir Singh, Kallu, Ranu, Farida, Asif, Sabir, Israr Amar Singh, Bhup Singh, Maya, Gorvender Pinku, Dhirender Kumar, Bhagwan Singh, Dashrath Singh, Janki Prasad, Balkishan, Jai Prakash Khubi Ram, Rameswar, Smt Ramia, Jhakub @ Jhabbu and Ashok Kumar. If they had died in (Downloaded on 06/06/2021 at 03:33:41 PM) (21 of 50) [CRLDR-1/2016] the above act, whether accused would be guilty of causing murder of the above mentioned injured people?
Thus, whether accused Pappu @ Salim has committed the offence punishable under section 307/120B of the IPC ?
3. Whether the accused on the above mentioned date, time and place with a common intention to cause bomb blast caused loss to public lives and public property in India and in furtherance of the above caused loss to public property by blasting a bomb in Rajasthan State Roadways Transport Corporation bus No. RJ-07P-1038 ?
Thus, whether accused Pappu @ Salim has committed the offence punishable under section 3,4 of the P.D.P.P. Act ?
4. Whether accused, on the above mentioned date, time and place with a common intention to cause bomb blast, caused loss to public lives and public property in India and in furtherance of the above, caused bomb blast by using and keeping explosive substance in their possession and they kept and made their accomplice to keep the explosive substance in doubtful circumstances to fulfill their illegal objective?
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(22 of 50) [CRLDR-1/2016] Thus, whether accused Pappu @ Salim has committed the offence punishable under section 4, 5 of the Explosive Substance Act ?
5. Whether accused with other co-accused had common intention to cause loss to lives and properties in India and do illegal act of bomb blast and in furtherance of their objective on 22.5.1996 at 4.00 caused bomb blast in Rajasthan State Roadways Transport Corporation bus No. RJ-07-P-1038 and killed 14 passengers, attempted to kill 37 other passengers and to cause loss of public property of roadways Bus and to collect explosive substance of dynamite and detonator and ammonium nitrate hatched criminal conspiracy with the help of co-accused and, thus, caused the above crime?
Thus, whether accused Pappu @ Salim has committed the offence punishable under section 120B of the IPC ?
6. Whether the accused Pappu @ Salim by not complying with the conditions of pardon laid down by the Court of Additional Sessions Judge, Bandikui Camp- Mahwa, has given false evidence with this intent that he may escape the co-accused persons the punishment? (Downloaded on 06/06/2021 at 03:33:41 PM)
(23 of 50) [CRLDR-1/2016] Thus, whether accused Pappu @ Salim has committed the offence punishable under section 193 of the IPC?
In the case of conspiracy of organized crime, it is difficult to find direct evidence and thus, inference is required to be drawn from established facts on record and circumstances.
In Sessions case No.35/2011, State of Rajasthan vs. Javed & Ors., exhibits marked by the prosecution in support of documentary evidence as:-
Ex.P1 to Ex.P22 Ex.P24 to Ex.P168 Ex.P193 to Ex.P197 have been admitted by accused appellant Pappu @ Salim. Thus on account of being admission of these facts by accused Pappu @ Salim, there is no need of proving these documents in the light of provisions of section 58 of the Indian Evidence Act.
Undisputably, exhibits annexed with the original records of the trial of FIR. No. 148/96 P.S. Mahwa, Ex. P1 (Downloaded on 06/06/2021 at 03:33:41 PM) (24 of 50) [CRLDR-1/2016] to Ex.P22, Ex. P24 to 169, Ex. P193 to Ex.-197 are admitted as documentary evidence produced by the prosecution, out of which Ex. P4 is the sketch map of the place of occurrence, Ex. P5 is the memo of seized bus, bearing registration No. RJ-07-P-1038, Ex. P51 and Ex. P52 are F.S.L. receipts, Ex. P77 to Ex. P83 are memo of seizure, Ex. P 87 is chalk of FIR, Ex. P125 is the sketch map of spot of Madarsa at village Farah, Ex.P126 is the memo of sketch map spot, Ex. P137 is the sketch map of the place of conspiracy, Ex. P138 is the sketch map of the place of conspiracy indicated by Abdul Hamid, Ex. P139 is memo indicated by Raees Beg, Ex.P140 is memo indicated by Raees Beg, Ex. P141 is memo indicated by Raees Beg, Ex. P142 is memo indicated by Abdul Hamid, Ex. P143 is memo indicated by Raees Beg, Ex. P144 is memo indicated by Naice Beg, Ex.P145 is damage report of the roadways bus, Ex.P159 is memo of information given by Abdul Hamid about the secret place of mosque of Karimsah Salar, Ex. P160 is memo of information given by Raees Beg about the secret place of Salar in village Farah, Ex. P160 is memo of Information given by Raees Beg regarding purchasing clothes from Agra. Ex.P164 is memo of information given by Abdul Hamid.
The question for consideration in this case is as to whether the evidence as produced by the prosecution is (Downloaded on 06/06/2021 at 03:33:41 PM) (25 of 50) [CRLDR-1/2016] sufficient to fasten the liability upon appellant Pappu @ Salim for making conspiracy to commit the aforesaid offences.
PW5- Murarilal deposed that in his village, in Mohalla Karirpura, one Madarsa used to run in which Abdul, Eqbal and Raees Ahmad used to visit. Pappu also used to visit there. There was a restaurant of Latifa, brother of Pappu, from where tea and meals used to come to the Madarsa. He used to sit in the restaurant and Madarsa and they used to call each other by name. So he knew the name of Pappu. Pappu used to drive a jeep. Generally they used to meet in the evening. They used to come and go in the jeep of Pappu.
PW6- Ashok Kumar Saraswat deposed that the police visited his village and his statement was recorded. The police had asked about the visitors at the house of Pappu. He deposed that in Madarsa, Abdul Raees, Abdul Matin, a young lad, one blind person used to visit. One was a tailor. One was Dr. Abdul of Firozabad. All these persons used to meet in the Madarsa. In the same village there is a hotel of Shankar. In this hotel brother of Pappu @ Salim used to cook. So they used to sit in said Hotel. Pappu used to drive a vehicle. They used to come and go in the vehicle of Pappu. He had heard that for their (Downloaded on 06/06/2021 at 03:33:41 PM) (26 of 50) [CRLDR-1/2016] maintenance money used to come through Draft and it was heard that a draft of Rs.40,000/- was returned. They continued visiting from the year 1996 to 1997. He had disclosed the house of accused Pappu @ Salim vide memo Ex.P23, where they used to meet, and its sketch map was Ex. P24, and his signatures were from A to B portion. They used to say that we visit here for extension of our 'Jamat'. In cross-examination this witness has deposed that the memo on which he put signatures, were read over and explained to him. It bore signatures of Pramod also. These persons used to make mutual conversation.
PW7- Pramod Kumar has deposed that 20 years ago, police had visited his village with some accused persons. The police had prepared before him a sketch map on highway of one Madarsa. In cross-examination by the Senior Special Public Prosecutor, this witness deposed that it was correct to say that accused Raees Beg by walking upto the go-down of Qureshi through the 'Kachchi Pagdandi' had told that there was a hut made of iron- sheets. It was correct to say that in this house a man namely; Salar used to come to the Madarsa and Pappu also used to come there. On memo Ex.P21 from C to D portion, his signatures were taken. Its sketch map was Ex.P22. He had no information regarding visit by accused Abdul Matin in the house of Pappu Khan in (Downloaded on 06/06/2021 at 03:33:41 PM) (27 of 50) [CRLDR-1/2016] December1995. Memo Ex.P23 was got prepared on which from C to D portion bears his signatures.
PW8- Bhup Singh deposed that on 01.08.1997 he was posted as In-charge in Gaud Mandi Yard Roopwas. On that day a person was arrested by the police, who stated his name as Pappu. By the side of his office, there was go-down of Chandra Prakash Agrawal, which was disclosed by him. Police opened the lock by getting its key from Chandra Prakash. From there, some fuse Wire, viral detonator and some boxes were recovered, containing explosive substances. It's memo was prepared before him as Ex. P27 on which his signatures were on A to B portion. Pappu disclosed by going ahead on Dholpur Road about the house of Gopal Chandra from where amonial revolvers were recovered. It's memo was prepared by the police which was Ex.P28. Sketch map was prepared on the indication of accused Pappu, which was Ex.P29. Chandra Prakash through memo Ex.P30 gave information about 28 revolvers, which were seized. Sketch map of the spot was prepared, on which his signatures were on A to B portion. In cross-examination this witness deposed that the memos which were signed by him, all those memos were of Gandhi Nagar Stadium Case, which concerned case no.39/96. It was correct to say that from Pappu no recovery was made.
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(28 of 50) [CRLDR-1/2016] PW22- Suresh Chand Sharma deposed that on 09.09.1997 he was posted as Additional Chief Judicial Magistrate No.06 Jaipur City, Jaipur. On that day an F.I.R.
No.39/1996 was registered at Gandhi Nagar, Jaipur and he recorded the statement of accused Pappu Khan @ Salim S/o Sakur Khan under section 164 Cr.P.C. Whatever statement was made by accused Pappu @ Salim, the same was recorded by him. Before recording his statement, accused Pappu Khan @ Salim was told and explained that he was not bound to make confessional statement and if he does so, his confessional statement may be used against him. He had made confessional statement voluntarily. This confessional statement was written in his hand and it was read over to Pappu Khan and he had admitted its correctness. On every page of confessional statement, his signatures were taken. After recording the statement, vide letter no. 596 dated 09.09.1997 said confessional statement was sent in sealed envelop to the Chief Judicial Magistrate, Jaipur. In cross-examination, this witness has deposed that it was correct that in FIR registered at Police Station Mahwa, no confessional statement was recorded by him.
It is clear from the provisions of section 10 of the Indian Evidence Act that anything said or done or written, is relevant to prove a conspiracy or co-criminality (Downloaded on 06/06/2021 at 03:33:41 PM) (29 of 50) [CRLDR-1/2016] before or after involvement in it. Section 10 of the Indian Evidence Act reads as under:-
"10. Things said or done by conspirator in reference to common design.--Where there is reasonable ground to believe that two or more persons have conspired together to commit an offence or an actionable wrong, anything said, done or written by any one of such persons in reference to their common intention, after the time when such intention was first entertained by any one of them, is a relevant fact as against each of the persons believed to so conspiring, as well for the purpose of proving the existence of the conspiracy as for the purpose of showing that any such person was a party to it."
PW22-Suresh Chand Sharma recorded the confessional statement of accused Pappu @ Salim in FIR No.39/1996, registered at Police Station Gandhi Nagar, Jaipur dated 09.09.2017. In the statement the accused- appellant reveals as under:-
"I used to drive Jeep in villare-Farah. I am driving, Taxi since 8-9 years. Three years earlier from today, a Maulana namely-Salar, came to village-Farah. Salar used to come to read Namaj in the Mosque in the village Farah. We used to read Namaj. One day Maulana of our village- (Downloaded on 06/06/2021 at 03:33:41 PM)
(30 of 50) [CRLDR-1/2016] Mosque went on leave for three days, then Salar taught Namaj to us. When it was asked by Namaji from Salar that, where did he live, Salar had told us that, he lives in Moti Katra Agra. Thereafter, I learnt reading Namaj from Salar, because I was not aware how to read Namaj. Salar had asked me, how many mosques are here, and then I had told him that, there are four mosques. At this, he asked that, whether there is no Madarsa here, and I had told him that, here is one Madarsa. Salar went to see Madarsa with me.
Salar asked from me about the system of Madarsa and about the children reading in the Madarsa. I told Salar that, 50-60 children read in this Madarsa, and on Friday flour is collected from their homes and sold and book of Quran is bought for teaching them. Salar asked from me, whether I have got printed the receipts for collecting donation in name of Madarsa. I told him that, yes I have got printed receipts for the same. At this Salar asked to give him one booklet of receipts, so that, he might send me donation after collecting it. After two months of first meeting, Salar handed me Rs. 1300/- [thirteen hundred] as donation. I have also collected Rs.
800. Thus, with the help of this amount, in the Madarsa we got fixed a hand pump-set. Meantime I came into close contact with Salar. Once Salar came from Agra by (Downloaded on 06/06/2021 at 03:33:41 PM) (31 of 50) [CRLDR-1/2016] Scooter in my village- Farah and asked me that, we are going to Fatehpur Sikri for visiting. Are you willing to come with us? I also went with Salar to visit Fatehpur Sikri. When we came out from the Dargah at Fatehpur Sikri, Salar told me that, he is to meet his one friend in village-Roopvas, and we went to village-Roopvas, which is in Rajasthan near Fatehpur Sikri.
On reaching village-Fatehpur Sikri, Salar made me stand outside house and he himself entered the house of a Hindu and after talking for 15 minutes, he came back. When Salar came back, in hand of one person, who was Hindu, there was a small box. He handed over to me that small box, when I was on the pillion seat of the Scooter and we proceeded. After coming out of Roopvas, I asked Salar that, what is in this small box? At this, Salar told me that, there are spices for preparation of food grains of goats.
Retaining that small box, we came directly to village-Farah, where Salar asked me to get down from the Scooter, and after putting that small box in front portion of scooter, took it away to Agra. Thereafter, also Salar visited my village on the intervals of two months, when I was working as a driver on Jeep of Advocate Uma Shanker Agrawal. Salar asked me that, he is in need of (Downloaded on 06/06/2021 at 03:33:41 PM) (32 of 50) [CRLDR-1/2016] this vehicle, for visiting Roopvas. At this I told him that you may hire this vehicle from vehicle owner at the rent of at least four hundred and fifty rupees. Salar hired the vehicle at the rent of Rs. 400 and went to Roopvas in it with me.
In Roopvas Salar again went to the house of same Hindu and after half an hour he came back with a small box in his hand and one box was in the hand of Hindu and kept it in the said Jeep. He made me get down near village-Farah on Delhi-Agra Road. I do not know that how he had taken away these small boxes. In Roopvas Salar had told that Hindu that my brother will come or the driver and you hand over spices to them. After 20-22 days Salar, once again visited my village and he met me in the market. Then again Salar told me that his brother is coming from Delhi, I have given him address of Madarsa. Salar gave me his address of Agra by writing on piece of paper and old me that if he does not meet him at that address then I may ask about him from Islam opposite the Mosque. After three-four days of giving of his address by Salar, three persons visited Madarsa and they asked by name. At this I told him my name. Those persons told me that, Salar must have told you about us. I told them that, Yes! He had told me about you. When I asked their name and addresses, one of them told me his (Downloaded on 06/06/2021 at 03:33:41 PM) (33 of 50) [CRLDR-1/2016] name-Rahees Ahmad resident of Delhi and said that he is owner of a factory of grains for goats and he also told that I used to inspect Madarsa also. Other person told his name Zilani and he also told that he teaches in Aligarh Muslim University. Third person told that he is in service in Police Department.
I went to Agra to give information to Salar about visit of those persons in village-Farah. There Salar did not meet in the Mosque of Moti Katra. So I told Islam about visit of those persons in my village and then I returned to my village-Farah. After my return from Agra, Salar came to my village-Farah on a scooter with a fat man. That time I had left the service of Jeep Driver and I had purchased a car for Rs. 18,000/- from my former owner i.e. from Vakil Saheb. Salar asked me to visit to Mr. Hazi Rayees Ahmad by car to Fatehpur Sikri and also to Roopvas. I after settling the fare of Rs. 400/- took to Mr. Rayees Ahmad to Fatehpur Sikri and also to Roopvas to the house of that Hindu. Rayees Ahmad talked to that Hindu and he gave one bundle of Rs. 10,000/- to that Hindu, namely-Chandra Prakash. In return Chandra Prakash gave him five small boxes of spices and we returned to village-Farah. After delivering those boxes and after receiving fare, I returned home. In the morning, when I came to Madarsa, I did not find those (Downloaded on 06/06/2021 at 03:33:41 PM) (34 of 50) [CRLDR-1/2016] boxes in Madarsa. At this Rayees Ahmad told me that Salar has taken them to Agra. Next day Rayees Ahmed enquired fare for going to Ferozabad. The fare was settled at Rs. 400/-. At this he got ready and I took him to Ferozabad, where he got down at a doctor's clinic. After half an hour he called me to the shop and told me to lock the vehicle. He took me with himself. Thereafter we sat in a house, where doctor called a man namely Pappu. Two more persons were sitting there. I do not know their names.
Doctor asked to Rayees Ahmad that your Miya Saheb Salar has committed very dirty work. At this Rayees Ahmad said, we will punish him. You do your work. We returned back from there after taking tea. We returned to village-Farah. I left him at Madarasa. Next day, again said, same day Rayees Ahmad had sent Zilani, Salar and Police Man to Delhi. Next day Rayees Ahmad asked me - How is your Madarsa running? At this I told him that with the contribution of flour it is running. At this Rayees Ahmad asked me to give him booklet of donation receipt, he will send donation from Delhi. Rayees Ahmad took away two booklets of donation receipts. Next day, Rayees Ahmad settled fare of Rs. 400/- and took me to Ferozabad. In Ferozabad near a mosque, in shop of Almirah Rayees Ahmed had talked. My vehicle was (Downloaded on 06/06/2021 at 03:33:41 PM) (35 of 50) [CRLDR-1/2016] standing outside shop. I was sitting in my vehicle. I had heard talk of only Rs. 4000/-. Later on we returned to Agra. Rayees Ahmad gave me Rs. 400/- as my vehicle's fare and he got down from my vehicle in Agra itself. I returned to village-Farah in my vehicle. After two months, the doctor of Ferozabad with a man, came to my village- Farah at the hotel of my brother and he told me that Rayees Ahmad has called me to Delhi. I told him that I have no money for fare. At this doctor told me that man with you will pay the fare and go with him.
After telling at home, I went Delhi with that man. We reached Delhi at night at 11 'o' clock. That man managed the meals and they slept in a hotel near Guma Masjid. Thereafter, he went away, after leaving me in that hotel. That man came in hotel in the morning at 8 'o'clock and he told me that, after waiting for me, Rayees Ahmad had gone to Kashmir. That man took me to Kashmir. At night we reached Anantnag. We met Rayees Ahmed in a room. Rayees Ahmad asked me about the well-being of the Madarsa. Rayees Ahmad gave me ten thousand rupees and told me that a man namely Abdulla will meet me in Madarsa at Farah. Give him these rupees. When I demanded rupees for donation, he told me that I am collecting the same and we will send such amount which will be sufficient for construction of two rooms. In the (Downloaded on 06/06/2021 at 03:33:41 PM) (36 of 50) [CRLDR-1/2016] morning at 5 'o' clock he sent me to Jammu. Then I returned to village-Farah via Delhi.
After three-four days of my return, in the morning Salar and Abdulla came to village-Farah and Salar told me that whether ten thousand rupees had been given to you? At this I told him. Yes. Then he asked me to bring that rupees. When I came with Rupees Ten thousand, Salar had gone for toilet. I asked Abdulla where do you live. He told me that he studies in Aligarh University. I asked from him, where is the Factory of Salar and what he does with these spices. At this Abdula laughed and it slipped from his mouth that it is explosive. Meantime Salar returned from toilet. When Salar came to the village with Abdulla, he did not have beard, while earlier Salar used to keep beard. I gave ten thousand rupees to Salar. Salar given eight thousand rupees to Abdulla and he asked me to go with Abdulla and bring four packets of spices. I denied telling Salar that these are not spices rather these are explosive. At this Salar got annoyed with me and asked that who has told you about this. I told him that Abdulla had told me. At this Salar pointed revolver at Abdulla. Both started fighting. Abdulla was also having a Revolver. I came out from the Madarsa.
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(37 of 50) [CRLDR-1/2016] Salar again called me inside the Madarsa. He told me as now you are aware about this and if you will tell anyone about this, we will kill all members of your family and he pointed revolver at my head. Salar asked me, whether I will go or not to bring spices. I said yes. I went to Roopvas with Abdulla to the house of Chandra Prakash, where Abdula gave Rs. 8000/- to Chandra Prakash. Chadra Prakash gave four boxes of the spices. We after keeping those boxes in the Fiat Car returned to village-Farah. He did not give fare of my vehicle. Salar came with drum of Iron and filled up the drum with boxes of spices. Salar and Abdulla after keeping those drums in my car took it away to Lakshmi Transport Company near Moti Katra, Agra. After giving me Rs. 250/- they sent me to my village-Farah. On account of their fear, leaving village-Farah I went to Mathura. After about two months by searching my address Salar reached Mathura and he took me to village-Farah from Mathura. In the Madarsa of village-Farah one man with beard namely Abdul Samad and doctor of Ferozabad met me. When we reached Madarsa, both were counting rupees.
Abdul Samad gave ten thousand rupees and wrote address to doctor in the morning at 8 'o'clock for purchasing watch of plastic. Same day at ten 'o'clock Ekbal and Gilani also came in village-Farah. Salar asked (Downloaded on 06/06/2021 at 03:33:41 PM) (38 of 50) [CRLDR-1/2016] me to go Roopvas with Gilani to bring spices. When I denied, he threatened to kill all member of my family. Under fear I went to Roopvas with Gilani for bringing spices with Gilani. Gilani was having Pistol also. Gilani bought five boxes from Chandra Prakash. My vehicle went out of order at Achnera. On account of this after getting my car repaired we returned to Madarsa at 8-9 'o'clock at night. There Pappu of Ferozabad was also present at the Madarsa. Yusuf of Meerut was also sitting there. The doctor was also sitting there. The box from my car was brought to Madarsa. There was one more person, who was speaking like - Bengali. They were talking that, which place shall be proper. Same time the doctor brought out from his bag watch of plastic and a bundle of wire and handed over to Abdul Samad. During the course of there talk Salar told that, Bhopal shall be proper. At this Gilani said, I have visited Jaipur. It shall be proper. Same time Abdul Samad sent Ekbal and Dr. Hamid to look out the proper location. At that time, at that place there were Abdul Samad, Gilani, Ekbal, Yusuf, Pappu of Ferozabad, doctor of Ferozabad, Salar and one person like Bengali. I was also standing there. These persons asked me to go away. Same time, these persons asked Dr. Hamid and Ekbal to reach Ferozabad to the room of Abdulla day after tomorrow. They asked Yusuf also to (Downloaded on 06/06/2021 at 03:33:41 PM) (39 of 50) [CRLDR-1/2016] reach Ferozabad. Yusuf took away three boxes to Agra out of those spices.
After about three days, these persons called me from my home in the Madarsa, at Farah, and they asked me to come with vehicle. At this I reached Madarsa with my vehicle. There at the Madarsa one person namely Pappu Ferozabadi @ Abu Vakar came to Madarsa with three Plastic tins and two blankets. Thereafter Salar, Abdul Samad and Gilani kept the tin in my vehicle came to Ferozabad in a room above the shop of Dr. Hamid. In the room of Abdulla two tins were brought from the Market by Pappu. Later, I returned to my village-Farah in my vehicle. After about 7-8 days Ekbal came to Madarsa, because the diary of Ekbal was left there. Ekbal went away telling me that they had got success in Jaipur. After 4 month, Salar came and he was taking tea at the hotel of my brother and he was also reading Newspaper. Then he called me to read over the news to him. He told me that in a roadways bus there was a bomb blast. I asked, from where the bus had come, then he told me that, whether I had told or not to anyone about this. Salar told me that, he had come with timer of bomb from Kashmiri Hawaldar. Salar said that, in the bus in a kettle of water Abdulla and doctor had set the bomb.
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(40 of 50) [CRLDR-1/2016] I asked, that, how they had escaped? Salar told that they had got down at Mahuwa. Thereafter out of them no one was seen by me. After five to six months thereafter, Ekbal and Salim came to my village-Farah and they told me that, Salar has also came. Salar asked me to go with Pappu to bring boxes. Under fear, I went with them and came with six boxes of spices and after keeping those boxes in the iron drum, took it from Agra for Amritsar Transport Company. Ekbal came with forged bill of purchasing colour from an electricity house opposite the bus-stand. I handed over Drums to Amritsar Transport Company. Thereafter I returned to Farah. I was coming to Jaipur for to tell about this entire occurrence I was arrested at Jaipur Bus Stand. I got arrested Chandra Prakash. I am a poor man. Yusuf, Ekbal and Pappu had come to Jaipur to fix bomb."
PW22- Suresh Chand Sharma deposed that approver Pappu @ Salim voluntarily made the statement and he explained the procedure to approver Pappu that he was not bound to make any confessional statement and if he does so, it will be used against him. Thus, the confessional statement recorded by PW22-Suresh Chand Sharma is relevant which is thoroughly examined by the trial court and this Court in Stadium Bomb Blast Case. (Downloaded on 06/06/2021 at 03:33:41 PM)
(41 of 50) [CRLDR-1/2016] The retracted confession can be considered when it is corroborated by other evidence on record. It is not in dispute that in Sessions Case No. 35/2011, State of Rajasthan Vs. Javed Khan @ Javed Jr. & Ors., the appellant being accomplice was pardoned. The Hon'ble Supreme Court in the matter of Yakub Abdul Razak Memon v. State of Maharashtra, reported in 2013 (13) SCC 1, in para 312 held ad-infra:-
"312. The object of section 306 is to tender pardon in cases where a grave offence is alleged to have been committed by several persons that the offence could be brought home with the aid of evidence of the person pardoned. The legislative intent of this provision, is therefore, to secure the evidence of an accomplice in relation to the whole of circumstances, within his knowledge, related to the offence and every other person concerned."
The appellant is charged with the offence punishable under section 193 IPC which is proved by the prosecution. PW24- K.P. Saxena deposed that on 21.10.2002 he was posted as ACJM, Dausa. He deposed that accused appellant Pappu @ Salim made confessional statement voluntarily. Thus the statement of accused appellant Pappu @ Salim can be read in evidence if it (Downloaded on 06/06/2021 at 03:33:41 PM) (42 of 50) [CRLDR-1/2016] stands corroborated by other evidence in the present case also.
According to section 308 of the Code of Criminal Procedure, the statement of an accomplice may be given in evidence against him. Section 308(2) of the Code of Criminal Procedure provides that 'any statement made by such person accepting the tender of pardon and recorded by a Magistrate under section 164 or by a Court under sub-section (4) of section 306 may be given in evidence against him at such trial'. PW24- K.P. Saxena deposed that Pappu @ Salim voluntarily made the statement and he explained the procedure to the approver that he was not bound to make any confessional statement and if he does so, it will be used against him.
On analyzing the evidence on record, it is established that the accused appellant Pappu @ Salim participated in the crime of conspiracy. His involvement in the conspiracy is evident:-
(i) He went to Roopwas for taking explosives alongwith other co-accused;
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(ii) Participated in the meeting at the residence of Dr. Abdul Hamid in Firozabad with respect to collection of explosives and other material used for making bomb;
(iii) The transportation of explosives in the jeep/car belonging to the appellant;
(iv) He attended conspiratorial meetings which took place in his village at Madarsa in furtherance of the common motives of the conspirators which resulted in the bomb blast;
(v) The involvement of the appellant in conspiracy is evident from his own confession recorded in Sessions Case No. 39/1996, and he earned pardon in the case case, whereas his co-accused were convicted and sentenced.
(vi) The confessional statement recorded in Sessions Case No. 35/2011, State of Rajasthan v. Javed Khan @ Javed Jr. & Ors., wherein the appellant was accused of offences of the same kind and the confession made by the appellant in this case though retracted but stands corroborated by other evidence. The confessional statement recorded in the present case is voluntary and truthful and the prosecution witnesses deposed that Dr. (Downloaded on 06/06/2021 at 03:33:41 PM) (44 of 50) [CRLDR-1/2016] Abdul Hamid visited several times in Village Farah and participated in conspiratorial meeting held at Madarsa.
(vii) Co-accused Dr. Abdul Hamid kept on visiting in Village Farah and hatched the conspiracy of bomb blast in Village Farah.
The accused appellant had knowledge about the transportation of explosive substance. There being no material to show that it can be put to any legal use. The alleged fact that the jeep/car provided by the appellant for transportation of explosive substance shows that the appellant had aided the offence in question. The appellant kept silent despite knowing the aforesaid transportation. The factum of knowledge about transportation was further corroborated by confessional statement of the appellant.
The prosecution produced injured witnesses and the witnesses identified Dr. Abdul Hamid. All the injured witnesses have confirmed that they were travelling on 22.05.1996 in the Roadways bus bearing no. RJ-07-P- 1038. According to the injured witnesses the bus had started from Agra, it halted at Bharatpur on the way and then at Mahwa where some of the passengers got down and some passengers boarded the bus. The bus left from Mahwa towards Dausa and at a distance of 3-4 km. near (Downloaded on 06/06/2021 at 03:33:41 PM) (45 of 50) [CRLDR-1/2016] village Samleti, explosion occurred in the bus in which these witnesses got injured and some passengers died. The appellant has been charged for the offence of criminal conspiracy. Keeping in view the documentary evidence led on behalf of the prosecution, it succeeded in proving its case beyond all reasonable doubts against the appellant.
With regard to offence of criminal conspiracy, finding regarding direct evidence is not possible and generally the offence like conspiracy is committed by concealment and in a very confidential way. Hence, it is not necessary that all facts of conspiracy are within knowledge of every person involved in the conspiracy. Even in the matter of conspiracy express agreement is not necessary and it is also not necessary that every person should play active role at every stage. For offences like conspiracy it is also established law that a conspirator may appear at any stage of conspiracy and even at any stage a conspirator may separate himself from the conspiracy and despite it, he shall be liable for the acts of other conspirators.
In such situation on the basis of aforesaid discussion prosecution has proved its case beyond reasonable doubt under section 120B IPC and accused (Downloaded on 06/06/2021 at 03:33:41 PM) (46 of 50) [CRLDR-1/2016] Pappu @ Salim has been rightly held guilty by the trial court.
` Now we consider the offence under section 302/120 B and 307/ 120 B of 1.P.C. on the basis of evidence available on record.
The learned trial court has come to the conclusion that on the basis of evidence available on record, the prosecution has succeeded in proving its case beyond all reasonable doubt in the context of offence under section 120B of I.P.C. against accused Pappu @ Salim because in the matter pertaining to F.I.R. No.148/96 P.S. Mahwa Distt. Dausa, in the case of State vs. Javed etc. Sessions Case No. 35/2011 the accused appellant has admitted Ex.P1 to Ex.P22, Ex.P24 to Ex.P169, Ex.P193 to Ex.P197. Thus, the admitted documents by the appellant under section 58 of the Indian Evidence Act are not required to be proved.
On 22.05.1996 Bus no. RJ-07-P-1038 of the Rajasthan State Road Transport Corporation while going towards Dausa from Mahwa and at a distance of three- four kilometer near the village Samleti suffered explosion, in which 14 passengers in the bus, namely; Kumari Deepa, Kumari Santo, Mohan Lal, Gawal Devi, Mahesh (Downloaded on 06/06/2021 at 03:33:41 PM) (47 of 50) [CRLDR-1/2016] Chand, Ramjilal, vikesh, jitendra, rattan lal, satyavati, nareah Chand Kumari Yaduvenda and two other persons died and passengers namely Renu, Sharda, Harswaroop, Kalian Singh, Sunita Sawai Singh MithanLal, Govind Narayan, Rajesh Kumar, Jagan Ram, Vimla Kumara, Guman Singh, Maya, Gorendra @ Pinku, Dhirendra Kumar, Bhawan Singh, Dashrath Singh, Janki Prasad, BalKishan, Jai Prakash Khubiram, Rameshwar, Mrs. Ramia, Jhakub @ Jabbu And Ashok Kumar were seriously injured.
In view of above discussion and on basis of medical evidence on record the prosecution has succeeded in proving its case for the offence under section 302/120B and 307/120B of I.P.C. So the accused Pappu @ Salim was rightly held guilty by the trial court for the offence under section 302/120B and 307/120B of I.P.C.
In such situation the aforesaid findings of conviction do not require interference by this Court.
In the context of offence under section 3/4 of P.D.P.P. Act, on record, situation is that during the trial by the accused Pappu @ Salim, on account of admission of documents shown in the case of the State vs. Javed etc. Sessions Case No. 35/2011, context, documents like Ex.P5 memo of seized Bus no. RJ-07-P-1038 of the (Downloaded on 06/06/2021 at 03:33:41 PM) (48 of 50) [CRLDR-1/2016] Rajasthan State Road Transport Corporation and Ex.P145 Damage Report of the said Roadways bus were admitted. In such situation keeping in view facts and circumstances of the case, the prosecution succeeded in proving its case for the offence under section 4 of P.D.P.P. Act. Since the offence under section 3 of P.D.P.P. Act is minor form of the offence under section 4 of P.D.P.P. Act, on finding proof under section 4 of P.D.P.P. Act, there was no need of proving the offence under section 3 of P.D.P.P. Act.
So far as evidence in connection with offence under sections 4 & 5 of Explosive Act available on record is concerned, keeping in view the exhibits admitted by accused Pappu @ Salim in Sessions Case No.35/2011 titled State vs. Javed and others, admission of the facts by accused Pappu @ Salim on various occasions in his confessional statements it is on record that he has been involved in transporting explosive substances in his car/vehicle from one place to another. In view of these circumstances and the facts of the case, the trial court rightly convicted the accused appellant for the offence under section 4 & 5 of Explosive Substances Act beyond doubt.
As regards evidence in relation to offence under section 193 of I.P.C., it is found that as a result of above (Downloaded on 06/06/2021 at 03:33:41 PM) (49 of 50) [CRLDR-1/2016] analysis, the confessional statement made by accused Pappu @ Salim and his deposition as PW95 in FIR No.148/96 P.S. Mahwa titled State vs. Javed and ors., are contradictory to each other and such statements are on the file because one of the above statement is false according to section 221 Cr.P.C. and in this regard the case was submitted before the trial court for separate trial of Pappu @ Salim for the offences under sections 120B read with sections 302, 307 IPC, section 3/4 of the PDPP Act, sections 3,4 and 5 of the Explosive Substance Act, section 193 IPC read with section 308 IPC and it was ordered that the case may be submitted to this Court for permission under section 193 IPC for trial of the accused appellant. Letter addressed to this Court with certified copy of Ex.P174, P189, Ex.D13 and D14 and certified copy of deposition of accused appellant Pappu @ Salim was forwarded and the concerned jail authority was ordered to produce Pappu @ Salim from judicial custody for trial. Afterwards the accused Pappu @ Salim was produced from judicial custody before the trial court.
In these circumstances, it is proved beyond doubt from the evidence available on record that averments made by accused Pappu @ Salim in his confessional statements are correct which are also supported by other evidence available on record as found (Downloaded on 06/06/2021 at 03:33:41 PM) (50 of 50) [CRLDR-1/2016] on analysis of assertions made in Ex.D13 and Ex.D14, in connection with F.I.R. No.148/1996, registered at police station Mahwa, in Sessions Case No.35/2011, State vs. Javed & Ors., are incorrect. Thus, the learned trial court rightly convicted the accused appellant for the offence under section 193 IPC.
In view of the discussion made above, the criminal appeal filed by the accused appellant is bereft of merit and accordingly stands dismissed and the impugned judgment/order of conviction and sentence dated 07.03.2017 passed by the Court of learned Additional Sessions Judge, Bandikui, District Dausa (Rajasthan) [for short 'the learned trial Court'] in Sessions Case No. 12/2016, B.T. No.60/2016, State of Rajasthan Vs. Pappu @ Salim, are affirmed.
(GOVERDHAN BARDHAR),J (SABINA), JJJ
Sharma NK
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