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Judgments of Supreme Court of India and High Courts

Union Of India vs Yasmeen Mohammad Zahid @ Yasmeen on 2 August, 2019

Crl. A Nos.1199 of 2019 arising out of SLP(Crl) No.461 of 2019
SectionUnion of India vs. Yasmeen Mohammad Zahid @ Yasmeen
1

Reportable
IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 1199 OF 2019
(Arising out of Special Leave Petition (Crl.) No.461 of 2019)

Union of India …Appellant

VERSUS

Yasmeen Mohammad Zahid @ Yasmeen …Respondent

WITH

CRIMINAL APPEAL NO. 1200 OF 2019
(Arising out of Special Leave Petition (Crl.) No.6899 of 2019)
(D.No.740 of 2019)

JUDGMENT

Uday Umesh Lalit, J.

1. Special leave to appeal granted.

2. The judgment and order dated 04.10.2018 passed by the High

Court of Kerala in Criminal Appeal No.506 of 2018 has given rise to these

two appeals, one by Union of India against acquittal of A2-Yasmeen

Mohammad Zahid @ Yasmeen in respect of offences punishable under
Signature Not Verified

Digitally signed by
MUKESH KUMAR
Date: 2019.08.02
Section 125 of the Indian Penal Code (“SectionIPC” for short), Sections 39 and Section40
Section17:20:13 IST
Reason:

of the SectionUnlawful Activities (Prevention) Act, 1967 (UAPA for short) and
Crl. A Nos.1199 of 2019 arising out of SLP(Crl) No.461 of 2019
SectionUnion of India vs. Yasmeen Mohammad Zahid @ Yasmeen
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also against reduction in sentence ordered by the High Court for offences

under Section 120B of IPC and Section 38 of the UAPA, while said A2–

Yasmeen is in appeal against her conviction and sentence under Section

120B IPC and Section 38 of the UAPA.

3. The case of the prosecution, in brief, was as under:

(a) Pursuant to complaint received on 10.07.2016 in Chandera Police

Station, Kasaragod preliminary investigation was undertaken which

revealed that 14 persons had left India to join Islamic State of Iraq and

Seria (ISIS) which is declared to be a terrorist organisation (Serial No.38 in

the First Schedule to the UAPA).

(b) During the course of investigation, A2–Yasmeen was arrested on

01.08.2016 at Indira Gandhi International Airport, New Delhi while she

was attempting to travel to Afghanistan along with her child.

(c) According to the prosecution, there was a criminal conspiracy

between original Accused No.1 (husband of A2-Yasmeen) and A2-

Yasmeen from 2015 pursuant to which conspiracy A1 and A3 to A15 left

India and joined ISIS in Afghanistan; and A2-Yasmeen was an active

participant supporting terrorist activities of ISIS; and she had raised funds

to further the activities of ISIS and had received funds which were utilised

for supporting the activities of ISIS.

Crl. A Nos.1199 of 2019 arising out of SLP(Crl) No.461 of 2019
SectionUnion of India vs. Yasmeen Mohammad Zahid @ Yasmeen
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4. Out of 15 accused named in the charge-sheet all the other accused

were declared to be absconding and A2-Yasmeen alone was sent up for

trial for the offences punishable under Section 120B IPC, Section 125 IPC

and under Sections 38, 39 and 40 of the UAPA. The charges were framed

against her in respect of said offences. The prosecution examined 52

witnesses and relied upon various documents and material objects. Insofar

as the role attributed to A2-Yasmeen was concerned, the relevant witnesses

were PWs 4, 6, 7, 8, 11, 12 and 13.

5) After going through the material on record, the Special Court for

the trial of NIA Cases, Ernakulam, found that the prosecution had

established the case against A2-Yasmeen and convicted her for the offences

punishable under Sections 120B and Section125 IPC and under Sections 38, 39

and 40 of the UAPA and sentenced her to suffer rigorous imprisonment for

three years, seven years, seven years, seven years and seven years

respectively under the aforesaid five counts. A2-Yasmeen was also

directed to pay fine in the sum of Rs.25,000/- under Section 120B IPC, in

default whereof she was directed to suffer three months rigorous

imprisonment. The judgment and order dated 24.03.2018 passed by the

trial court was the subject matter of challenge at the instance of A2-

Yasmeen in Criminal Appeal No.506 of 2018.

Crl. A Nos.1199 of 2019 arising out of SLP(Crl) No.461 of 2019
SectionUnion of India vs. Yasmeen Mohammad Zahid @ Yasmeen
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6. The High Court by its judgment under appeal, set aside the

conviction and sentence of A2-Yasmeen for the offences punishable under

Section 125 IPC, Sections 39 and 40 of the UAPA while upholding her

conviction for the offence punishable under Section 120B IPC and Section

38 of the UAPA. The High Court however reduced the substantive

sentence from three years and seven years to one year and three years

respectively on said two counts. The other elements, namely, sentence of

fine and the default sentence were not varied or modified by the High

Court.

7. During the course of its judgment, the High Court observed as

under:-

“The aforesaid evidence of PW4, PW6, PW18 and
PW21 who had attended the class of 1st accused
clearly proves the propagation of ideology of IS.
Therefore there is absolutely no difficulty in assuming
that the class attended by A2 in the house of PW7 and
PW8 and taken by A1 was with reference to IS and
the Jihad, which according to them was a war against
non Muslims………

The prosecution has thus proved that the account
ending with 251 is of Sonia Sebastian who is the wife
of the 1st accused and the amount was withdrawn from
the said account on various dates from 3.6.2016 to
22.07.2016 by the 2nd accused. Contention is that the
money was deposited by A1 in the account of Sonia
Sebastian and the ATM card given to Sonia Sebastian
was used by A2 for collecting the amounts. It is
stated that the CCTV footage would show that the 2nd
accused has withdrawn money from the bank
accounts.

Crl. A Nos.1199 of 2019 arising out of SLP(Crl) No.461 of 2019
SectionUnion of India vs. Yasmeen Mohammad Zahid @ Yasmeen
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The 2nd accused was arrested on 1.8.2016 and she
was under judicial custody in Kannur women prison.
At the time of admission, her personal belongings
were entered in a register. Among the articles, there
were two Idea SIM cards. The SIM cards were seized
by PW41 as per P29 mahazar and produced as MO13
and MO14. The articles also contained a memory
card marked as MO15. The memory card contained
revelation videos and videos relating to ISIS, audio
speech of Anwar Alwaki, a brief guide to Islamic
State and women of Islamic State. This according to
the prosecution further proved that she was preparing
to go to Afghanistan at the instance of the 1 st accused.
When these facts are proved, the question is whether
the accused had committed any such offence.”

In the backdrop of these proved facts, the High Court then

considered whether the offences alleged against A2-Yasmeen under the

aforesaid five counts were made out. It was observed that there was

evidence to prove that A2 had attended classes of Jihad propagating ISIS

ideology by original Accused No.1 but there was nothing to indicate that

she had taken any steps to wage a war or had attempted or abetted waging

of such war against any Asiatic Power in alliance with or at peace with

Government of India and as such there was no material to sustain the

charge under Section 125 IPC. As regards charge under Section 38 of the

UAPA it was observed as under:

“There is evidence to prove that the 2 nd accused was
associated with A1 who propagated ISIS ideology and
had gone even to the extent of joining him. Her
attempt to proceed to Afghanistan was with a clear
intention to meet 1st accused and to involve in IS
Crl. A Nos.1199 of 2019 arising out of SLP(Crl) No.461 of 2019
SectionUnion of India vs. Yasmeen Mohammad Zahid @ Yasmeen
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related activities. Therefore she is punishable under
Section 38(2).”

8. In respect of charge under Section 39 of the UAPA the High Court

found that though A2 was certainly influenced by the ideology professed

by A1, she herself had not arranged any of the acts falling under Clauses

(a) to (c) of Section 39. The High Court went on to observe as under:

“She had already become a member of the
organization as contemplated under Section 38 of the
Act. If a person is punishable under Section 38,
Section 39 becomes superfluous.”

9. As regards charge under Section 40 of the UAPA, the High Court

found that she was not raising any funds for terrorist organisation; the

amounts she received were for personal use and for purchasing tickets for

travel and other arrangements for herself and for her son and as such charge

under Section 40 of the UAPA was not made out.

10. Concluding that A2-Yasmeen was guilty of the offences punishable

under Section 120B IPC and Section 38 of the UAPA, the High Court

considered the case with a lenient view and reduced the substantive

sentences in respect of these two offences as stated hereinabove.

11. In these appeals we heard Mr. K.M. Natraj, learned Additional

Solicitor General for Union of India and Mr. Santosh Krishnan learned
Crl. A Nos.1199 of 2019 arising out of SLP(Crl) No.461 of 2019
SectionUnion of India vs. Yasmeen Mohammad Zahid @ Yasmeen
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Advocate for A2-Yasmeen. According to the learned Additional Solicitor

General, the material on record established the role played by A2-Yasmeen

beyond any doubt and her acquittal in respect of offences punishable under

Section 125 IPC and Sections 39 and 40 of the UAPA was incorrect and in

any case there was no reason to reduce the substantive sentence in respect

of offences under Section 120B IPC and Section 38 of the UAPA. Mr.

Santosh Krishnan, learned Advocate for A2-Yasmeen not only supported

the judgment of the High Court in respect of acquittal under Section 125

IPC and Sections 39 and 40 of the UAPA but submitted that A2 deserved

acquittal even in respect of Section 120B IPC and Section 38 of the UAPA.

Relying upon the decisions of this Court in SectionArup Bhuyan v. State of

Assam1 and SectionState of Kerala v. Raneef2 it was submitted that for an

offence under Section 38 of the UAPA to get attracted the prosecution must

establish requisite mens rea. He further submitted that in order to attract

Sections 39 and 40 of the UAPA there must be material indicating that the

acts in question were done by the accused in order to further the activity of

a terrorist organisation.

12. SectionIn State of Kerala v. Raneef2, a practising Dentist was alleged to

have given medical aid to a wounded accused and the matter arose from the

1 (2011) 3 SCC 377
2 (2011) 1 SCC 784
Crl. A Nos.1199 of 2019 arising out of SLP(Crl) No.461 of 2019
SectionUnion of India vs. Yasmeen Mohammad Zahid @ Yasmeen
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order of the High Court granting bail to said Dentist. While affirming the

order of the High Court, it was observed,

“7. At this stage we are not expressing any opinion as
to whether the allegations in the versions of the
prosecution or defence are correct or not, as evidence
has yet to be led. However, we would like to make
certain observations.

8. We are presently only considering the bail matter
and are not deciding whether the respondent is guilty
or not. Evidence has yet to be led and the trial yet to
commence. Hence the prosecution is yet to establish
by proof beyond reasonable doubt that the respondent
was part of a conspiracy which led to the attack on
Prof. Jacob. The case against the respondent is very
different from that against the alleged assailants.
There is no allegation that the respondent was one of
the assailants. We are of the opinion that at this stage
there is no prima facie proof that the respondent was
involved in the crime. Hence, the proviso to Section
43-D(5) has not been violated.

9. The respondent, being a doctor, was under the
Hippocratic oath to attempt to heal a patient. Just as it
is the duty of a lawyer to defend an accused, so also it
is the duty of a doctor to heal. Even a dentist can
apply stitches in an emergency. Prima facie we are of
the opinion that the only offence that can be levelled
against the respondent is that under Section 202 IPC,
that is, of omitting to give information of the crime to
the police, and this offence has also to be proved
beyond reasonable doubt. Section 202 is a bailable
offence.”

13. Mr. Krishnan, however relied upon certain observations in said

decision to submit that mere membership of an unlawful organization was

not enough and there must be clear proof that the accused intended to
Crl. A Nos.1199 of 2019 arising out of SLP(Crl) No.461 of 2019
SectionUnion of India vs. Yasmeen Mohammad Zahid @ Yasmeen
9

accomplish the aims of the organization by resort to violence. Those

observations were made while considering the matter in the context of

order of release on bail during trial which is clear from paragraphs 10 and

15 of the decision.

14. In the case of SectionArup Bhuyan v. State of Assam1, the only material

against the concerned accused was his confession to the police in which

he had identified the house of the deceased and it was observed:-

“7. In the instant case, the prosecution case mainly
relies on the alleged confessional statement of the
appellant made before the Superintendent of Police,
which is an extra-judicial confession and there is
absence of corroborative material. Therefore, we are
of the opinion that it will not be safe to convict the
accused on the basis of alleged confessional
statement.”

The subsequent portion of the decision, where the earlier decision

in SectionState of Kerala v. Raneef2 was considered, was relied upon by Mr.

Krishnan.

15. The evidence on record, as culled out by the High Court in the

observations quoted hereinabove establishes that A1 was propagating the

ideology of IS and advocating, among other things, war against non-

Muslims; that the classes were attended by A2-Yasmeen; that the videos

relating to such speeches were found on her person when she was
Crl. A Nos.1199 of 2019 arising out of SLP(Crl) No.461 of 2019
SectionUnion of India vs. Yasmeen Mohammad Zahid @ Yasmeen
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arrested; and that she was attempting to go to Afghanistan at the instance

of A1. These features definitely point the existence of mens rea. The

Courts below were therefore absolutely right in recording conviction

against A2 in respect of offences under Section 120B IPC and Section 38

of the UAPA. The submissions advanced by Mr. Krishnan, therefore,

cannot be accepted and the appeal preferred by A2-Yasmeen must fail.

16. We now turn to the appeal preferred by the Union to see whether

the acquittal of A2 for offences under Section 125 of IPC and Sections 39

and 40 of the UAPA was justified. As regards the offence under Section

125 of the IPC, the matter was rightly appreciated by the High Court and

we are in complete agreement with the view taken by the High Court.

Coming to Sections 39 and 40 of the UAPA, these provisions

require certain elements in respect of which there is no material evidence

on record. For Section 39 of the UAPA to get attracted, support to a

terrorist organisation must be within the meaning of either of three clauses

viz clauses (a), (b) and (c) of sub Section (1). Similarly, Section 40

requires certain elements on satisfaction of which a person can be said to

be guilty of raising funds for a terrorist organisation. None of those

features are established as against A2-Yasmeen. The acquittal in respect

of charges under Sections 39 and Section40 was therefore rightly recorded by the

High Court.

Crl. A Nos.1199 of 2019 arising out of SLP(Crl) No.461 of 2019
SectionUnion of India vs. Yasmeen Mohammad Zahid @ Yasmeen
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17. We must however state that the High Court was not right in

observing “if a person is punishable under Section 38, Section 39

becomes superfluous”. In our view, the scope of these two Sections and

their fields of operation are different. One deals with association with a

terrorist organisation with intention to further its activities while the other

deals with garnering support for the terrorist organisation, not restricted to

provide money; or assisting in arranging or managing meetings; or

addressing a meeting for encouraging support for the terrorist

organisation.

18. Lastly, we come to the quantum of sentence in respect of offences

where A2-Yasmeen has been found guilty by both the Courts.

19. The only ground that weighed with the High Court while reducing

the sentence was sympathy. The material on record indicates the role

played by A2-Yasmeen. Even at the time of her arrest, while leaving for

Afghanistan, certain objectionable material was found on her person. The

intensity of her participation and involvement were clearly made out. In

the circumstances, there was no room for invoking sympathetic
Crl. A Nos.1199 of 2019 arising out of SLP(Crl) No.461 of 2019
SectionUnion of India vs. Yasmeen Mohammad Zahid @ Yasmeen
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considerations. The quantum of sentence imposed by the trial court was

absolutely correct and adequate.

20. In the premises,

A] Appeal preferred by A2-Yasmeen challenging her

conviction and sentence under Section 120B IPC and Section 38 of the

UAPA is dismissed.

B] Appeal preferred by the Union challenging the acquittal of

A2-Yasmeen in respect of offences under Section 125 of the IPC and

Sections 39 and 40 of the UAPA is dismissed.

C] Appeal preferred by the Union as regards reduction of

sentence awarded to A2-Yasmeen for offences under Section 120B IPC

and Section 38 of the UAPA is allowed. The order passed by the High

Court in that behalf is set aside and the sentence imposed by the trial court

in respect of offences under Section 120B IPC and Section 38 of the

UAPA against A2 is restored.

21. Appeals stand disposed of, in aforementioned terms.

……………………..J.

[Uday Umesh Lalit]

……………………..J.

[Indu Malhotra]
New Delhi;

August 02, 2019.

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