Criminal Appeal Nos. 488, 520 and 778 of 2006. Case: Shaikh Iliyas Shaikh Yousuf and Ors. Vs The State of Maharashtra. High Court of Bombay (India)

Case NumberCriminal Appeal Nos. 488, 520 and 778 of 2006
CounselFor Appellant: Smt. A.N. Ansari, Adv. in Criminal Appeal No. 488/2006, Mr. Joydeep Chatterji, Adv. in Criminal Appeal No. 778/2006 and Mr. K.G. Patil, A.P.P. for State in Criminal Appeal No. 778/2006 and For Respondents: Mr. K.G. Patil, A.P.P. for State in Criminal Appeals No. 488 and 778/2006
JudgesK.U. Chandiwal and M.T. Joshi, JJ.
IssueCode of Criminal Procedure, 1973 (CrPC) - Sections 164, 31, 313; Explosive Substances Act, 1908 - Sections 4, 4(a), 4(b), 5; Indian Evidence Act, 1872 - Sections 10, 27, 31(2); Indian Penal Code (45 of 1860) (IPC) - Sections 120B, 121, 121A, 122, 123, 153A, 201, 34
Judgement DateDecember 23, 2013
CourtHigh Court of Bombay (India)

Judgment:

M.T. Joshi, J., (Aurangabad Bench)

  1. Heard learned counsel for both sides. All the present six appellants four (in Criminal Appeal No. 488/2006 and two in Criminal Appeal No. 520/2006) were convicted while two of the respondents (in Criminal Appeal No. 778/2006, filed by the State) were acquitted by the learned 2nd Ad hoc Additional Sessions Judge, Jalgaon in Sessions Case No. 126 of 2002, vide judgment and order dated 12th May, 2008. Therefore, the present respective appeals are filed.

  2. These appellants (in Criminal Appeal No. 488/2006 and Criminal Appeal No. 520/2006) and the respondents (in Criminal Appeal No. 778/2006) alongwith two other accused were tried for the offences punishable under section 153-A, 120-B, 121, 121-A, 122, 123, 201, 506-B read with section 34 of the Indian Penal Code and also under section 4(a), 4(b) and 5 of the Explosive Substances Act, 1908 (for short, "the E.S. Act").

  3. The State of Maharashtra filed appeal against the acquittal of original accused No. 6 Sk. Siddik Sk. Ajij and accused No. 7 Khalid Asadkhan Ajamalkhan but did not file appeal against accused No. 4 Sharifkhan Sarfaraj khan and accused No. 10 Sayyad Shah Hasib Raja @ Tasib Raja @ Hasibbhai @ Hasif Raja s/o Firdosh Rajah.

  4. In Criminal Appeal No. 488/2006, we have the original accused Nos. 1, 3, 5 and 9 while in Criminal Appeal No. 520/2006, the appellants are original accused Nos. 2 and 8. For the sake of convenience, the appellants/accused in two of the criminal appeals and the respondents/accused in the State Appeal would be termed as "accused" by their serial numbers as arrayed before the learned Sessions Court.

  5. Accused No. 1 Shaikh Ilias Shaikh Yusuf was convicted for the offences punishable under section 120-B of the I.P. Code and under section 4(b) and 5 of the E.S. Act. He was sentenced to suffer rigorous imprisonment for ten years and to pay fine of Rs. 10,000/-, in default to undergo rigorous imprisonment for one year, for the offence punishable under section 4(b) of the E.S. Act, and for the offence punishable under section 5 of the E.S. Act, he was sentenced to suffer rigorous imprisonment for ten years and to pay fine of Rs. 10,000/-, in default, to undergo rigorous imprisonment for one year.

    Accused No. 2 Sk. Shakil Ahmad Abdul Annan was convicted for the offences punishable under section 153-A and 506-B of the I.P. Code. He was sentenced to suffer rigorous imprisonment for three years and to pay fine of Rs. 3000/-, in default to undergo rigorous imprisonment for one month for the offence punishable under section 153-A of the I.P. Code. He was sentenced to suffer rigorous imprisonment for seven years and to pay fine of Rs. 3000/-, in default to undergo rigorous imprisonment for one month, for the offence punishable under section 506-B of the I.P. Code.

    Accused No. 3 Sk. Irfan Abdul Rauf was convicted for the offences punishable under section 4(b) and 5 of the E.S. Act and under section 120-B of the I.P. Code. On each count, he was sentenced to suffer rigorous imprisonment for ten years. So far as his conviction for the offence punishable under section 4(b) of the E.S. Act is concerned, he was directed to pay a fine of Rs. 10,000/-, in default to undergo rigorous imprisonment for one year.

    Accused No. 5 Sk. Rijwan Sk. Rashid was convicted for the offence punishable under section 4(b) and 5 of the E.S. Act and sentenced to suffer rigorous imprisonment for ten years and to pay a fine of Rs. 10,000/-, in default to undergo rigorous imprisonment for one year. He was further convicted for the offence punishable under section 120-B of the I.P. Code and sentenced to suffer rigorous imprisonment for ten years.

    Accused No. 8 Wakarul Hussen Mujaffar Hussen was convicted for the offence punishable under section 506-B of the I.P. Code and sentenced to suffer rigorous imprisonment for seven years and to pay fine of Rs. 3000/-, in default to undergo rigorous imprisonment for one year.

    Accused No. 9 Guljar Ahmad Gulam Mohammad was convicted for the offence punishable under section 4(b) and 5 of the E.S. Act and sentenced to suffer rigorous imprisonment for ten years and to pay fine of Rs. 10,000/-, in default to undergo rigorous imprisonment for one year. He was further convicted for the offence punishable under section 120-B of the I.P. Code and sentenced to suffer rigorous imprisonment for ten years. He was also convicted for the offence punishable under section 5 of the E.S. Act and sentenced to suffer rigorous imprisonment for ten years and to pay fine of Rs. 10,000/-, in default to undergo rigorous imprisonment for one year.

  6. So far as the accused who were convicted for the offences punishable under section 4(b) and 5 of the E.S. Act, the sentences, as awarded by the learned Sessions Judge, on account of the said offences were directed to run consecutively.

  7. The prosecution, in short, has alleged that for a period of about 4/5 years preceding to 25th July, 2001, all the present accused, alongwith the acquitted accused and some other absconding accused, being active members of Students Islamic Movement of India (for short, hereinafter called as "SIMI"), which is later on declared as unlawful organization, started promoting feeling of enmity and hatred between Hindu and Muslim communities, either by participating in meetings with provocating speeches, publishing posters and attending weekly meetings. As a part of the said strategy, some of these accused had arranged for explosive substances from Kashmir, liaisoning with certain terrorist organizations, sending personnel for training for abetting war against the Indian Army in Doda and Kashmir and attempted to cause bomb-blasts at Nagpur on 20.05.2001. These activities were carried to overawe the State by means of criminal force. Specifically, accused No. 1 Shaikh Ilias Sk. Yusuf, accused No. 3 Sk. Irfan Abdul Rauf, accused No. 5 Sk. Rijwan Sk. Rashid, accused No. 7 Khalid Asadkhan Ajamalkhan and together conspired, prepared, used and concealed the explosive substances used for facilitating the waging of the war. They by concealing the explosive substances, concealed the evidence.

    Further, some of the youths from Jalgaon were sent for training purposes in Pakistan. Probably some of them have died in encounters and when their guardians made enquiries with accused No. 2 Sk. Shakil, accused No. 8 Wakaraul Hussen, they gave criminal intimidation by threats to their life or their family members with intention to cause alarm. Further by procuring explosive substances and concealing them, the respective accused have committed the offences punishable under section 4(a), 4(b) and 5 of the E.S. Act.

    The allegations in nutshell are that all the present accused alongwith acquitted accused and absconding six accused being office bearers or active members of SIMI, the general line that emerges in the investigation as per the prosecution would show that accused No. 3 Sk. Irfan, accused No. 7 Khalid Asadkhan, accused No. 5 Sk. Rijwan alias Mustak had prepared a pipe bomb on 18.05.2001 in the house of one Jainoddin. While explosives were secured from Jammu and Kashmir with the aid of accused No. 9 Guljar Ahmad, other material like iron pipe, iron balls, 9 volt batteries were secured from the various shops of Jalgaon. The pipe was welded at a shop of one of the acquaintance and the pipe bomb was prepared. Further, by going to Nagpur, in the month of May, 2001, one of the bombs was planted at Nagpur near R.S.S. headquarters. However, the said bomb was recovered before it could be exploded. In that view of the matter, the police action started and therefore, all these accused persons had conspired to hide the remaining explosive substances alongwith iron balls, etc. Accused No. 1 Shaikh Ilias accordingly hid those articles in polythene bags under one tree in a field of Meherun village nearby Jalgaon and in an abandoned well.

    Besides this, during the house-search of these accused, incriminating literature like posters, diaries, magazine, wire, diagram circuit, passport, etc. were found. The diagram was prepared by accused No. 9 Guljar Ahmad. Further, it was found that some of the accused had visited Nagpur and Patna by reserving seats in railway in pseudo names.

  8. Before the trial Court, in all 48 witnesses were examined. Bulk of the witnesses were the panch witnesses in whose presence house-search of the respective accused was taken, the statements of some of them under section 27 of the Evidence Act leading to recovery were recorded and seizure of railway reservation slips, etc. was done. As certain written documents like the preparation of diagram, literature, etc. were found, the documents were sent to the handwriting expert alongwith the specimen signatures and the said handwriting expert was examined. Since the posters and magazines seized during the search were in Urdu script, the translator PW-47 was examined.

  9. On the other hand, from the side of accused No. 1 Shaikh Ilias, accused No. 2 Sk. Shakil Ahmad, accused No. 3 Sk. Irfan, accused No. 5 Sk. Rijwan and accused No. 8 Wakarul Hussen, eight witnesses were examined. They were mostly relating to the education and financial conditions of the relevant accused.

  10. The learned Sessions Judge considered the cases qua each of the accused independently to find out the material against them.

  11. The defence of the accused is that of total denial. According to them, they were falsely roped in a false case.

  12. Mrs. A.N. Ansari, learned counsel, advanced the argument on behalf of the appellants in Criminal Appeal No. 488/2006 i.e. accused Nos. 1, 3, 5 and 9. All these accused, except accused No. 9 Guljar Ahmad, are released on bail upon remaining in custody for a period of about six years. Accused No. 9 was also ordered to be released on bail but since he could not arrange for surety, he continued to remain in jail.

  13. Mr. Joydeep Chatterji, learned counsel, made submissions on behalf of the appellants in...

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