By A Mirsab, TwoCircles.net,
Mumbai: Possibly for the first time in India, intellectuals, advocates, politicians, social activists and even some judges prayed for mercy for a man convicted under terrorism charges for the 1993 Mumbai serial bomb blasts. But this was not enough to claim clemency for Yakub Memon due to a strong judicial stamp that established his pivotal role in the case.
At a time when people were only looking at mitigating factors to obtain mercy for Memon from going to the gallows, it is important to focus on the legal aspect of his case that shows how the CBI left no stone unturned to see him going to the gallows in its investigative papers and the subsequent prosecution proceedings before TADA court.
The CBI contention was that the main provocation for such a fatal act of serial bomb blasts in Mumbai was the demolition of Babri Masjid at Ayodhya on December 6, 1992 followed by the violence that broke out throughout the country causing huge losses to Muslims. Sufferings of Muslims agitated two main brains sitting outside India – Dawood Ibrahim and Tiger Memon – who then conspired and successfully orchestrated serial blasts in Mumbai, it said in the charge sheet.
On March 12, 1993, the commercial hub of the country witnessed an unprecedented terrorist act sending shock waves throughout the world. In a span of about two hours – i.e., between 13:33 to 15:40 hours – a series of 12 bomb explosions took place one after the other at 12 places in Mumbai.
Investigation began but no concrete evidence emerged to uncover entire episode of conspiracy behind the blasts until Memon was arrested by CBI, which claimed he was arrested at New Delhi railway station on August 5, 1994.
However, Memon claimed that he had surrendered to police in Nepal on July 28, 1994 – a claim he failed to prove till he was hanged on the morning of July 30, 2015.
Memon was mainly alleged of:
1. Conspiracy to avenge Babri demolition and the subsequent sufferings of Muslims by causing bomb blasts in Mumbai
2. Arranging air tickets to enable the co-conspirators and accused in the case to undergo weapons training in Pakistan and for having made arrangement for their lodging and boarding
3. Managing ill gotten money of his brother Tiger
4. Purchasing motor vehicles for the purpose of preparing them for being used as bombs and for planting those at designated places
5. Requesting some accused persons to store suitcases containing hand grenades, arms and ammunition
The CBI, to prove these charges, relied upon the confessional statements of other co-accused persons, testimony of prosecution witnesses and documentary evidence on record. And it could successfully establish all the above allegations before the TADA court.
The main driving force that enabled CBI to obtain Memon’s conviction along with 99 others out of total 123 accused in the case was the application of stringent Terrorist and Disruptive Activities (Prevention) Act, 1987 in the case that had put prosecution to ease in proving the allegations simply by extracting confession of accused persons.
The Act was so stringent that even the confession of one accused implicated others and conviction was relied upon by the TADA court on the basis of such confessions. This was the reason that investigation agency obtained confessional statements from 77 accused persons out of total 123.
In effect, the agency did not win the case when TADA court pronounced judgement on July 27, 2007 but it had won it the day it extracted confessional statements under sections of TADA of nearly 63 % of the accused persons in the case.
Memon was not the one who had confessed but there were many accused who had implicated him in their confessions exhibiting his strong role in the case. The prosecution agency also made full use of legal technicalities and turned two accused persons as prosecution witnesses (approvers) applying to the court to show clemency to them if they testify against other accused persons. This made its case further muscular, especially against Memon as approver’s testimony was required to establish his role in all the events alleged by CBI in its charge sheet.
Mohammad Usman Ahmed Jan Khan, the approver categorically testified that Memon, at the instance of Tiger Memon, had handed over air-tickets to some accused. Khan identified him before the court and also stated all minute details implicating Memon concluding in the end that he (Memon) and other accused were actively involved in planning, conspiracy, training, landing and planting of bombs.
Memon was found guilty and sentenced to death along with 11 more persons by TADA judge P D Kode on July 27, 2007. There was nothing in the judgement that was a weak inference drawn by court but was fully fortified under the legal boundaries and hence the chances of him to find lesser punishment from Supreme Court was meek from the beginning itself.
There is no High Court for appealing against orders coming from TADA court but every order of this court can be challenged only before the Supreme Court. So all his hopes rested on the apex court.
His appeal before the Supreme Court was based on weak grounds – sentenced announced but was not provided with immediate judgment copy, relying mainly on approvers, co-accused persons’ confessions and no specific role assigned to him. The grounds were weak because there were no grounds, legal or meritorious, to claim that TADA court’s finding was wrong.
The Supreme Court had a long consideration on the arguments placed before it by Memon’s counsel and the state of Maharashtra but rejected all the grounds of Memon’s appeal upholding the decision of the TADA court.
Finding him culprit of the conspiracy, the then Chief Justice of India P Sathashivam and Justice B S Chauhan said in their judgment dated March 21, 2013, “Al-Hussaini building, where the major part of the plans have been made and executed, is established, and his active involvement has also emerged from the evidence on record as to how he was dealing with the so called men of Tiger, managing the ill-gotten money of Tiger, booking tickets and actively working for confirming them for the conspirators.”
The Supreme Court established Memon’s role in the case beyond doubt and said that bomb blasts could not have happened if he and other absconding accused would not have entered into such a conspiracy.
“ … it can safely be concluded that no offence might have taken place at all but for the instigation by the absconding accused and Yakub (Memon),” it said adding, at another place, “If we say it in a metaphoric style, Yakub (Memon) and all the absconding accused were the archers whereas rest of the appellants were the arrows in their hands.”
The Supreme Court heavily relied upon the testimony of approver in establishing Memon’s pivotal role in the case. It used confessional statements of some other accused persons to corroborate approver’s testimony.
While critically analyzing Khan’s (approver) testimony, the Supreme Court reached a conclusion: “… it (Khan’s testimony) clearly proves the involvement of Yakub (Memon) in the conspiracy as well as in subsequent events and actions along with his brother and other accused.” To make its finding strong it further said, “Apart from the evidence of approver, several accused persons in their confessional statements and other witnesses examined on the side of the prosecution clearly implicate Yakub (Memon).”
It had also rejected Yakub’s contention that he was sentenced to death because he is the brother Tiger Memon – the main conspirator of the case.
It said, “Essentially, Yakub’s deeds can’t be viewed distinct from the act of Tiger Memon, hence, both owe an equivalent responsibility for the blasts. They were the architects of the blasts, without whom the plan would have never seen the daylight. From this conduct, it is not hyperbole to state that he was one of the ‘driving sprit’ behind the plan of the 1993 blasts.”
With this judgment his hope of finding clemency from Supreme Court died. Considering the fact that he was a key factor in execution of deadly blasts and there was no doubt left over his complicity in the blasts, it was obvious that he would not be shown clemency by President and by state governor.
However, what is more pertinent in all this legal battle till Memon’s death is he would be remembered for being convicted under the sections of TADA act that was repelled only two years after the bomb blasts had taken place in Mumbai.
The major reason for revocation of TADA Act in 1995 was the gross misuse of its harsher section that enabled police officers to extract confession from accused persons and base whole case upon those confessional statements.
This blasts case too had 77 confessions – CBI claimed all were voluntary – in the absence of which prosecution would have never achieved Memon’s conviction leave apart the total 100 convictions it obtained in the case.
Nevertheless, the repelled stringent TADA Act engulfed Memon in the absence of which, perhaps he would not have to file so many pleas seeking life.
Also, it seems perhaps a tad unbelievable that nearly 63% of accused in the case voluntarily agreed to confess showing remorse over blasts when they were up for it voluntarily to avenge Babri demolition and Muslim sufferings.