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Yasmeen Mohammad Zahid @Yasmeen vs Union Of India on 4 October, 2018

IN THE HIGH COURT OF KERALA AT ERNAKULAM

PRESENT

THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE

THE HONOURABLE MR. JUSTICE P.SOMARAJAN

THURSDAY, THE 04TH DAY OF OCTOBER 2018 / 12TH ASWINA, 1940

CRL.A.No. 506 of 2018

AGAINST THE JUDGMENT DATED 24.3.2018 IN SC 1/2017 of SPECIAL COURT
FOR TRIAL OF NIA CASES,ERNAKULAM

APPELLANT/ACCUSED:

YASMEEN MOHAMMAD ZAHID @YASMEEN
AGED 30 YEARS
D/O. MOHAMMAD ZAHID, MUROUL VILLAGE SITHAMARHI,
BIHAR,(BAJPATTY POLICE STATION),PRESENTLY UNDERGOING
SENTENCEIN VIYYUR CENTRAL PRISON.

BY ADVS.
SRI.SUNIL NAIR PALAKKAT
SRI.K.N.ABHILASH
SRI.M.A.AHAMMAD SAHEER
SRI.M.M.ALIYAR

RESPONDENT/COMPLAINANT:

UNION OF INDIA
REP. BY NATIONAL INVESTIGATION AGENCY, KOCHI.

BY ADVS.
SRI.M.AJAY, SPL. P.P FOR NIA

THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 13.08.2018, THE
COURT ON 04.10.2018 DELIVERED THE FOLLOWING:
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Crl.A.No.506 of 2018

JUDGMENT

SHAFFIQUE, J.

This appeal is filed by the 2nd accused in S.C.No.1/2017 (NIA) by which

the 2nd accused has been convicted to undergo rigorous imprisonment for 3

years for the offence punishable under Section 120 B of the IPC, and also to

undergo rigorous imprisonment for 7 years and to pay a fine of Rs.25,000/-

and in default of payment of fine amount, rigorous imprisonment for three

months for the offence punishable under Section 125 of the IPC, and further to

undergo rigorous imprisonment for 7 years each for the offence punishable

under Sections 38, 39 and 40 of Unlawful Activities (Prevention) Act, 1967

(hereinafter referred to as ‘the UAP Act’ for short). The sentence of

imprisonment shall run concurrently.

2. A complaint was received by the Station House Officer of Chandera

Police Station, Kasaragod on 10.7.2016 from Sri. Abdulla T.P, stating that his

son along with his wife and their child was missing for more than 1½ months

after they left to Mumbai. Crime 534/2016 was registered by the police. Forty

other persons were also missing from the locality for which also crime was

registered.

3. A preliminary investigation revealed that the persons missing had

left India to join Islamic State of Iraq and Syria (ISIS) which is declared as a

terrorist organization. The District Police Chief, Kasaragod ordered

investigation and all the missing cases were clubbed together. During

investigation, the address of the accused/appellant was also obtained. She

was arrested on 1.8.2016 while attempting to travel to Afghanistan along with
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her child. Taking into account the gravity of the situation, the Ministry of Home

Affairs, Government of India entrusted the investigation with National

Investigation Agency (NIA). The case was re-registered as RC

02/2016/NIA/KOC on 24.8.2016. Investigation revealed the criminal

conspiracy between accused 1 and 2 from 2015 onwards at Padanna and

surrounding areas of Kasaragod District and various other places. It is stated

that pursuant to the conspiracy, accused 1 and 3 to 15 left India and joined

ISIS in the Nangarhar province of Afghanistan. Investigation revealed that the

2nd accused/appellant herein was an active participant, supporting terrorist

activities of ISIS and trying to leave India with her child. It was also found

that in order to further the activities of ISIS, they had raised funds and had

received funds for utilising the same for the activities to the support the

objectives of ISIS.

4. The prosecution case as evident from the records is that the

accused entered into a criminal conspiracy with the other accused for raising

funds for a terrorist organization. Some part of the funds were transferred to

the accused who in turn transferred the same to the 1 st accused to arrange

their travel to Islamic State controlled territory. It is also the prosecution case

that the accused tried to exit India through Indira Gandhi International Airport,

New Delhi.

5. The Special Court had framed charge against the accused under

Seciton 120B of the IPC read with Section 125 of IPC and Sections 38, 39 and

40 of UAP Act. The accused denied the charges. The prosecution therefore

examined PW1 to PW52 and placed reliance upon Exts.P1 to P124. MO1 to
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MO30 were the material objects produced and identified. After completing the

procedural formalities, the 2 nd accused was sentenced and convicted as stated

above.

6. Learned counsel for the appellant stated that the entire evidence

brought on record by the prosecution by examining 52 witnesses were

basically against the 1st accused. The role of 2nd accused/appellant herein was

not proved. The prosecution was unable to bring forth any incriminating

evidence against the appellant in order to arrive at a conclusion that the

appellant was involved in any of the aforesaid activities as alleged. It is

pointed out that criminal conspiracy by attending secret classes is sought to be

proved by examining PW 4, 6, 7, 8, 18 and 21. PWs 4, 6, 8 and 21 were the

persons who attended the classes conducted by the 1 st accused. PWs 4 and 6

who were alleged to have attended such classes in the house of PW8 has

specifically deposed that the appellant was not available in the said house at

the relevant time. PW18 and PW21 also deposed that they had attended the

classes of 1st accused. But they did not depose to the fact that the appellant

had attended the classes. Learned counsel submits that PW7 is the only

witness who stated about the attendance of the accused/appellant in the secret

class in the house of PW8, which evidence is self contradictory and cannot be

believed. It is pointed out that court below had relied upon Ext.P31 mahazar

which indicates that the appellant had shown to the Investigating Officer, the

hall where the classes were conducted. In the absence of any confession

statement, learned counsel submits that, the said material cannot be relied

upon against the appellant. It is submitted that the evidence of DW1 has not
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been properly considered by the court below. Evidence of DW1 would show

that the appellant was at Kollam during the month of Ramzan, in 2015 and

therefore the statement that she is in the house of PW8 is clearly belied.

7. Learned counsel argued that the electronic record that has been

produced has not been certified in terms of Section 65B of the Indian Evidence

Act and therefore the court below is not justified in placing reliance upon the

same. Learned counsel further submits that the prosecution has a case that

the 2nd accused had married the 1st accused which is belied by the fact that

there is no evidence to prove such a marriage. Learned counsel further argued

that the travel arrangement made by the appellant by taking a ticket to

Afghanistan does not indicate that the tickets were taken at the instance of the

appellant. The appellant pleaded ignorance regarding the visa and e-ticket to

Afghanistan. Her intention was to go to Saudi Arabia to meet her parents.

There is also no evidence to prove the fact that the 1 st accused had transferred

funds to the appellant. The court below had relied upon video footage from

ATM counter which by itself will not prove the allegations raised by the

prosecution. Learned counsel therefore pointed out that there is absolutely no

evidence to implicate her in any of the offences and the court below committed

serious error in placing reliance on the documents which lack clarity and they

ought to be discarded.

8. On the other hand learned Special Standing Counsel appearing on

behalf of NIA while supporting the judgment of the trial court pointed out that

the court below had taken note of the entire evidence as such, and had clearly

come to a conclusion that the accused was involved in propagation of ISIS
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ideology and she was even arrested by the police while attempting to leave

India to Afghanistan with her child. Enough evidence has been adduced by the

prosecution to prove the involvement of the 1 st accused, and the 2nd accused

acting in tune with the ideology propagated by the 1 st accused. Otherwise

there is no reason for her to attend the classes of the 1 st accused wherein ISIS

ideology was propagated. She had also no reason to receive money collected

for the said purpose and to expend the same.

9. The court below after evaluating the evidence has arrived at a

finding that the 1st accused was taking classes with respect to Hijra, violent

jihad etc and there is proof to indicate that the appellant/2 nd accused also

attended certain classes as stated by PW7 and PW8. Another finding of the

court below is that the CCTV footage produced by the prosecution proves that

the appellant was withdrawing money through ATMs of different banks. It was

also found that procurement of visa and e-ticket to Afghanistan for the

appellant is a fact within her knowledge for which prosecution may not be in a

position to adduce evidence. It is also found that 1 st accused had transferred

funds from Afghanistan which is proved by PW46. There is also evidence to

show that the appellant purchased Ext.P23 Air India e-ticket for proceeding to

Afghanistan. The accused could not prove as to how she had come in

possession of large amount of money.

10. What is to be considered is whether the finding rendered by the

Court below was substantiated by the materials placed on record. First let us

examine the evidence of PW7 and PW8. PW7 identified the accused.

According to her, 1st accused along with certain other friends used to come to
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the house. The appellant also used to come to their house. When the friends

come 1st accused Rashid used to take classes in the hall in 1 st floor. Classes

were taken after closing doors and windows and closing the curtains. PW7 and

others were not permitted to go inside the hall. Appellant had come and

resided for 3 days and used to interact with them. At that time A1 had taken a

class. Class was regarding Hijra to IS. He had overheard A2 mentioning the

same to CW15 Jasmine. Thereafter the Accused had come twice and she had

come to attend the class of A1. During cross examination she reiterated the

fact that she heard the accused telling Jasmine that she will go to IS. A2 and

Jasmine were speaking in English. Evidence of PW7 proves two facts. One is

that the appellant had visited the house of PW7 on three occasions. Initially

she stayed there for three days. At that time 1 st accused had taken a class.

The class was about Hijra to IS. She heard the 2 nd accused mentioning the

same to CW15. Thereafter also she had come to their house and it was for

attending A1’s class.

11. PW8 had identified the 2nd accused. He deposed that Ashwak,

Rashid, Aysha and Yasmeen (A2) were friends and they used to come to their

house and discuss matters in the hall on the top floor. A1 and Aysha were

giving leadership. Class was regarding Jihad. Quran classes were taken in

open. A2 had resided in the house for two-three days. He scolded Rashid (A1)

for taking such classes and even attempted to assault him. Rashid had taken

his children and wife to Afghanistan. He received message from there. He

could identify A1’s voice. The MO6 DVD was played in a laptop. He identified

the voice of Rashid. He also stated that he had received voice messages in
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Whatsapp. During cross examination the suggestion was that the accused did

not reside at their house nor did she attend the classes, which he denied. He

was mentioning that it was IS class, since he heard so.

12. One of the contentions urged by the counsel for the appellant is

that neither PW7 nor PW8 had attended the class of 1 st accused which was held

in a closed room. Then how could they know that it was a class propagating

ISIS ideology. PW7 only states about a conversation she heard between

accused and CW15. CW15 has not been examined. Therefore it amounts to

hearsay. PW8’s evidence is self contradictory in so far as he stated that

accused had resided there only for two days. As to what was the topic of

classes taken by A1 in the house of PW7 and PW8 is not known.

13. PW4 is Yasir Moideen. He deposed that he knew A1. He deposed

that A1 was a close friend of him. He knew him since 2011. A1 and his wife

were working in Peace School. He also deposed that he knew CW36 Syed

Ahamed, who was working in Peace School, Kottackal. He joined there during

2012. Syed Ahamed’s wife was Yasmeen who was also working in the same

school. He identified A2-Yasmeen. A2 had problems with her husband. PW4

used to discuss with Rashid regarding IS Hijra etc. IS used to publish a

magazine by name Dabiq. Rashid (A1) had shown PW4 the said magazine in

his tab. One Abubacker Al Baghdadhi is the Ameer of IS. PW4 had discussed

about him with Rashid (A1). A1 was in Peace School upto January, 2016. A

closed group was discussing about IS. Yasmeen (A2) had told him that A1 was

discussing about the ideology of IS. According to A1, Hijra means to proceed

to Syria where IS is functioning. He further deposed that he had gone to
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Ashwak’s house at Thrikarippur during the Ramzan month of 2015. About 10

persons were there. A1 had taken class. He was discussing about the “book

of Jihad” and a portion of the Jihad is holy war. M.M Akbar had warned them in

conducting anti Muslim discussion and asked to carry on the moral life of

Islam. He also refers to various messages he had received. In cross

examination he had stated that during 2014-2015-2016, A2 had discussed

with him about IS.

14. PW6 had deposed that A1’s attitude was in support of IS. He also

stated that during the month of Ramzan in 2015 Rashid had taken a class in

the house of Ashraf. Including Yasmeen there were about 9 persons. He also

attended the class on a day. The class was relating to the “book of Jihad”. His

idea of Jihad was to kill non Muslim and if so, they will get a better position in

heaven. He was propagating to go to IS to conduct Jihad.

15. PW18 also referred to a class taken by A1 about IS and Hijra.

PW21 also deposed that he had attended a class of Abdul Rashid in the house

of Doctor Ijas. Reference was made to “book of Jihad”. Jihad was the war

against non Muslims. He was also shown video of IS in the laptop.

16. 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.

17. Yet another evidence that had been relied upon by the court below
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to arrive at a finding against the accused is regarding the close association

between A1 and A2. Prosecution establishes the fact that A1 and A2 resided

together in Lavish Hotel, Patna along with a child for two days i.e., on

10.5.2016 and 11.5.2016. The 1st accused had given his ID card and the

phone number given was 9744447733. PW24 receptionist of the hotel

identified A2 as the person who was residing with A1. Similarly, they stayed

together in hotel President, Patna on 23.5.2016 to 25.05.2016. PW25 Accounts

Manger of the President hotel identified A2 as the person with A1. The number

given was again 9744447733. The aforesaid fact will prove the close

association 2nd accused had with the 1st accused.

18. Yet another evidence relied upon by the prosecution is that of

PW26 Immigration Officer. Ext.P14(a) and P15 are the passports of A2 and

that of her son Yousuf Ahammed. PW26 had stamped Afghan visa dated

29.7.2016 in both the passports. PW26 questioned her regarding the purpose

to proceed to Afghanistan. Her answer was that she was going for Ziyarath in

Afghanistan. He had doubt regarding her answer, as Ziyarath was in Iran.

When he checked passport in computer, he found a look out circular from

Kerala police. Accordingly, the matter was informed to Police. The purpose of

her travel to Afghanistan along with the child, apparently, was to meet A1.

The fact that A1 had sent money to A2 for her travel is further evidenced by

the following facts:

19. PW23 manager of the ICICI bank Trikarippur having produced

Exts.P41 and P42, the bank account details of the 1 st accused and Sonia

Sebastian (wife of A1) respectively, deposed that the following amounts had
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been transferred from the account of 1st accused to Sonia Sebastian on the

date mentioned hereunder: Rs.75,000/- on 30.5.2016, Rs.40,000/- on

18.06.2016, Rs.50,000/- on 12.07.16, Rs.48,400/- on 14.07.2016. He also

deposed that the said amount had been withdrawn through ATM on various

dates from 03.06.2016 to 22.7.2016. PW27 is the manager of HDFC Bank in

Patna. He produced MO20 the pen drive of the CCTV footage obtained as per

Ext.P50 mahazar. The CCTV footage is of ATM counter of the HDFC Bank

Sitamarhi in Bihar on the date 16.7.2016. PW28 is the Manager of Punjab

National Bank, Patna, who produced the CCTV footage of ATM counter located

at Rajendra Nagar railway station at Patna. He produced MO17, the compact

disk containing the CCTV footage dated 4.6.2016. It contained 31 images. He

deposed that on that day at 16.09 hours, the person in the photo had

withdrawn Rs.2,000/- from the account ending with xxx251. PW31 is the

Zonal Risk Manager of ICICI Bank, who supplied the CCTV footage of ICICI

ATM at Sitamarhi, Bihar. MO18 is the compact disk containing the images

dated 11.07.2016. He deposed that at 10.48 am Rs.5,000/- was withdrawn

from the SB account of Sonia Sebastian bearing number 267601500251.

PW36 is the Branch Manager SBI Bank, Sitamarhi, Patna. He produced MO19

DVD in respect of the transaction on 3.6.2016. Rs.10,000/- was withdrawn on

3.6.2016 at 15.54.50 hours using card No. 53596902676000010 with

transaction No.9534 from account ending with xxxx251. PW47 is the manager

of the ICICI Bank Trikarippur. He had produced the ATM transaction details of

the account No.267601500251 belonging to Sonia Sebastian. He deposed that

the ATM card no. 53596902676000010 was issued to the account holder.
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Rs.10,000/- was withdrawn on 3.6.2016 from SBI ATM at Sitamarghi Branch.

Rs.2,000/- was withdrawn from PNB ATM on 4.6.18 at Sitamarhi. Rs.5,000/-

was withdrawn from ICICI Bank Sitamarhi on 11.7.2016, Rs.10,000/- was

withdrawn on three occasions from HDFC Bank ATM at Sitamarhi. The

prosecution has thus proved that the account ending with 251 is of Sonia

Sebastian who is the wife of the 1 st accused and the amount was withdrawn

from the said account on various dates from 3.6.2016 to 22.07.2016 by the 2 nd

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.

20. 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.

21. Section 125 of the I.P.C., Section 38, 39 and 40 of UAPA Act reads

as under:

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Section 125 of the IPC

“Section 125. Waging war against any Asiatic
Power in alliance with the Government of India.–

Whoever wages war against the Government of any
Asiatic Power in alliance or at peace with the
Government of India or attempts to wage such war, or
abets the waging of such war, shall be punished with
imprisonment for life to which fine may be added, or
with imprisonment of either description for a term
which may extend to seven years, to which fine may be
added, or with fine.”

Sections 38, 39 and 40 of the Unlawful Activities (Prevention) Act, 1967

“38. Offence relating to membership of a terrorist
organisation.–(1) A person, who associates himself, or
professes to be associated, with a terrorist organisation with
intention to further its activities, commits an offence relating to
membership of a terrorist organisation:

Provided that this sub-section shall not apply where the person
charged is able to prove–

(a) that the organisation was not declared as a terrorist
organisation at the time when he became a member or began to
profess to be a member; and

(b) that he has not taken part in the activities of the organisation
at any time during its inclusion in the Schedule as a terrorist
organisation.

(2) A person, who commits the offence relating to membership of
a terrorist organisation under sub-section (1), shall be
punishable with imprisonment for a term not exceeding ten
years, or with fine, or with both.

39.Offence relating to support given to a terrorist
organisation.–(1) A person commits the offence relating to
support given to a terrorist organisation,–

(a) who, with intention to further the activity of a terrorist
organisation,–

(i) invites support for the terrorist organization;and

(ii) the support is not or is not restricted to provide money or
other property within the meaning of section 40; or
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(b) who, with intention to further the activity of a terrorist
organisation, arranges, manages or assists in arranging or
managing a meeting which he knows is–

(i) to support the terrorist organization;or

(ii) to further the activity of the terrorist organization;or

(iii) to be addressed by a person who associates or professes to
be associated with the terrorist organisation; or

(c) who, with intention to further the activity of a terrorist
organisation, addresses a meeting
for the purpose of encouraging support for the terrorist
organisation or to further its activity.

(2) A person, who commits the offence relating to support given
to a terrorist organisation under sub-section (1) shall be
punishable with imprisonment for a term not exceeding ten
years,or with fine, or with both.

40.Offence of raising fund for a terrorist organisation.–(1)
A person commits the offence of raising fund for a terrorist
organisation, who, with intention to further the activity of a
terrorist organisation,–

(a) invites another person to provide money or other property,
and intends that it should be used, or has reasonable cause to
suspect that it might be used, for the purposes of terrorism; or

(b) receives money or other property, and intends that it should
be used, or has reasonable cause
to suspect that it might be used, for the purposes of terrorism; or

(c) provides money or other property, and knows, or has
reasonable cause to suspect, that it would or might be used for
the purposes of terrorism.

[Explanation.–For the purposes of this sub-section, a reference
to provide money or other property includes–

(a) of its being given, lent or otherwise made available, whether
or not for consideration; or

(b) raising, collecting or providing funds through production or
smuggling or circulation of high quality counterfeit Indian
currency.]
(2) A person, who commits the offence of raising fund for a
terrorist organisation under sub-section (1), shall be punishable
with imprisonment for a term not exceeding fourteen years, or
with fine, or with both.”

22. In order to prove the offence under Section 125 of the I.P.C.,

prosecution ought to prove that the accused wages war against the

Government of any Asiatic Power that are in alliance with the Government of

India or even attempts to wage such war, or abets the waging of such war.
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Here the contention of the prosecution and even the charge is that A2 had a

criminal conspiracy with Abdul Rashid and other absconding A3 to A6 with the

intention of furthering the activities with ISIS, waging war against Asiatic

nations that are in alliance with the Government of India. Though there is

evidence to prove that she had attended classes of Jihad propagating IS

ideology by A1, there is absolutely nothing to indicate that she had taken any

steps to wage a war or attempted to or abetted waging of such war against

any Asiatic Power in alliance with or at peace with Government of India. So

conviction of the appellant under Section 125 cannot be sustained without any

such material.

23. From the available evidence, what we could deduce is that she had

maintained a relationship with A1 and supported his ideology. Supporting an

ideology of a banned organization of course is different from waging a war or

attempting to wage a war or abetting to wage a war. There is no evidence to

prove that she was involved in any such activity.

24. Section 38(1) of the UAP Act clearly indicates that any person who

associate himself or professes to be associated, with any terrorist organization

with intention to further its activities, commits an offence relating to

membership of a terrorist organization. There is no doubt about the fact that

ISIS is a terrorist organization declared to be so as per item 38 of the 1 st

schedule. 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 related activities. Therefore she is punishable
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under Section 38(2).

25. As far as Section 39 of the UAP Act is concerned, a person is

deemed to have committed an offence by giving support to a terrorist

organization if he commits any of the acts mentioned in sub clauses a, b and c

that is inviting support for the terrorist organization and the support would be

anything falls outside Section 40 who arranges manages or assists to support

the terrorist organization or to further the activities of the organization or to be

addressed by a person who associated or professed by the terrorist

organization. Clause (b) applies only if such a person arranges or manages or

assists to mange a meeting which is intended to support the organization,

further its activity or make a person address. Looking at the scope of Section

39 and the evidence adduced in the case we could only find that the accused

was influenced by the ideology professed by A1. She herself has not arranged

any of the acts falling under Clause (a) to (c) of section 39. Sections 38 and 39

are distinct offences. Section 39 applies to a case where a person may not

have direct dealing with the organization but supports the said organization as

mentioned in clauses (a) to (c). As already stated, the accused in this case

was not doing any such activity. There is no evidence to prove that she was

involved in any such activity. 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 become superfluous.

26. Section 40 relates to raising funds for terrorist organization. Here

the contention of the prosecution is that she had collected money which was

funded by the 1st accused. Evidence is that she had received money from the
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1st accused. This is not a case where she was raising funds for a terrorist

organization. There is no such evidence. The evidence is that she received

funds from A1. Clause (b) of Section 40(1) has been relied upon by the

prosecution. The said provision applies only if a person receives money which

is intended to be used or it might be used for the purpose of terrorism. The

amounts received by A2 in India is only for her use and probably for

purchasing a ticket for the travel and other arrangement for herself and for her

son. There is no material to indicate that she had utilised the said amount for

the purpose of terrorism.

27. From the facts of the case and the evidence tendered, we are of

the view that the 2nd accused can be made punishable only under Section 38 of

the Act. The other penal provisions against her is under Section 120 B of the

IPC. What we find from the facts involved in the case is that there was an

agreement between the 1st accused and the 2nd accused by which the 2nd

accused agreed to join him to become a member of a terrorist organization.

Any agreement to commit an illegal act amounts to conspiracy and the

agreement is clear from the closed door classes in which A2 also participated

and other materials including the fact that A2 decided to join A1 along with her

child.

28. Therefore we are of the view that the finding of the Court below

regarding the guilt of the accused under Section 120B of the IPC and under

Section 38 of the UAP Act, are justifiable and we confirm the said view.

However the finding of the court below that the accused is guilty of offence

under Section 125 of the IPC and Sections 39 and 40 are liable to be set aside.
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29. Now coming to the sentence, the offence under Section 38 of the

Act attracts a maximum term of 10 years or with fine or with both. The

accused has been in custody from 1.8.2016. From the facts of the case, what

we find is that she had fallen for the ideology of ISIS by the influence of 1 st

accused and had slowly become a member of the terrorist organization. She

also intended to proceed to Afghanistan to join the 1 st accused. In her

statement under Section 313 Cr.P.C., she had denied the allegations against

her. According to her, she intended to join her parents in Saudi Arabia. A3

was her colleague and friend while working in Peace School and occasionally

they had contacts through telephone and social media till May, 2016.

According to her, she had not attended any of the said classes and she has no

connection whatsoever with ISIS or any other organization. From the evidence

it seems that the whole episode happened at the influence of A1 who was

preaching the ideology of IS since 2014. The fact that she was moving around

with A1 is also proved by the prosecution. Her intention was to join him on

account of the relationship she maintained with him or may be influenced by

the ideology propagated by him. At any rate, she is not the one who started

propagating the ideology. Therefore, we are of the view that a lenient view

has to be taken in the case of the appellant as far as the sentence is

concerned.

The appeal is therefore partly allowed as under:

i. The conviction and sentence of the accused/appellant under Section 125 of

IPC, Section 39 and 40 of the UAP Act are set aside.

ii. The conviction of the accused/appellant under Section 120B of the IPC and
19
Crl.A.No.506 of 2018

Section 38 of the UAP Act are sustained and sentence is modified.

iii. Accused/appellant is convicted and sentenced to undergo rigorous

imprisonment for 1 year for the offence punishable under Section 120B of the

IPC and rigorous imprisonment for 3 years for offence under Section 38 of the

Act. The sentence shall run concurrently and set off is allowed as directed by

the trial Court.

Sd/-

A.M.SHAFFIQUE

JUDGE

Sd/-

P.SOMARAJAN

JUDGE
kp

True copy

P.A. To Judge.

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