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.