Kerala High Court
Abdul Jaleel, S/O.Moosa vs State Of Kerala on 9 May, 2022
CR
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN
&
THE HONOURABLE MR.JUSTICE C. JAYACHANDRAN
MONDAY, THE 9TH DAY OF MAY 2022 / 19TH VAISAKHA, 1944
CRL.A NO. 1575 OF 2013
AGAINST THE JUDGMENT IN SC 1/2010 OF SPECIAL COURT FOR TRIAL OF NIA
CASES,ERNAKULAM
APPELLANTS/ACCUSED NOS.2,3,11,15,21&22:
1 M.H.FAISAL,AGED 29 YEARS
S/O.ABDUL RAHMAN, CHANDINTEVIDA HOUSE,
KANNUR AMSOM, URUVACHAL.
2 NASEER T THADIYANTAVIDA NASEER @[email protected] HAJI
@ USTAD @ HAJI USTAD,AGED 37 YEARS
S/O.ABDUL MAJEED,BAITHUL HILAL,
KANNUR AMSOM, TAYYIL
3 EBRAHIM MOULAVI,AGED 48 YEARS
S/O.MOIDU, PATHUNGAN HOUSE,
PADINJARETHARA,NEAR PADINJARETHARA POLICE STATION,
WAYANAD.
4 ABDUL [email protected]@SATHAR,AGED 40 YEARS
S/O.KUNJI BABA @ BAVAN, TAYATIL HOUSE,
MUTTANNOOR,VALAMARUTHOOR, KARANCHERI, MALAPPURAM.
5 [email protected] BHAI,AGED 62 YEARS
S/O.MUHAMMED, EDAKANUTHODI HOUSE, PERUVALLOOR,KONDOTTI
(BANNDALAGUDA, ISMAIL NAGAR-18-13-132/1/9HYDERABAD)
6 UMMER FAROOQ, AGED 35 YEARS
S/O.CHEKUTTY HAJI, BAIN KANNAKATHU HOUSE,PUTHUKKULLAM,
CHETTIPPADI, PARAPPANAMGADI
BY ADVS.
SRI.NANDAGOPAL S.KURUP FOR R1
SRI.ABHIRAM T.K.
SRI.SURESH BABU THOMAS FOR R2
SRI.S.RAJEEV FOR R4
SRI.K.K.DHEERENDRAKRISHNAN
SRI.V.VINAY
RESPONDENT:
STATE
REPRESENTED BY SUPERINTENDENT OF POLICE,
NATIONAL INVESTIGATION AGENCY NEW DELHI REP. BY ITS
PROSECUTOR,HIGH COURT OF KERALA, ERNAKULAM - 682 031.
Crl.A Nos.1575/2013&con.cases
2
BY ADVS.
SRI.M.AJAY, SPL. P.P FOR NIA
SRI.M.AJAY SPL. P.P FOR NIA
ASG
SRI.MANU S., ASG OF INDIA()
OTHER PRESENT:
SRI.S.MANU, ASGI assisted by SMT.MINI GOPINATH, CGC
AND SRI.ARJUN AMBALAPATTA Senior GP for NIA cases
THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 19.04.2022,
ALONG WITH CRL.A.474/2014, 1567/2013 AND CONNECTED CASES, THE COURT
ON 09.05.2022 DELIVERED THE FOLLOWING:
Crl.A Nos.1575/2013&con.cases
3
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN
&
THE HONOURABLE MR.JUSTICE C. JAYACHANDRAN
MONDAY, THE 9TH DAY OF MAY 2022 / 19TH VAISAKHA, 1944
CRL.A NO. 474 OF 2014
AGAINST THE JUDGMENT IN SC 1/2010 OF SPECIAL COURT FOR TRIAL OF NIA
CASES,ERNAKULAM
APPELLANT:
NATIONAL INVESTIGATION AGENCY
REPRESENTED BY ITS DEPUTY SUPERINTENDENT OF POLICE, KOCHI
BRANCH OFFICE, NO. 28/443, GIRINAGAR, KADAVANTHRA,
KOCHI - 682020.
BY ADVS.
SRI.M.AJAY, SPL. P.P FOR NIA, SC,
SRI.MANU S., ASG OF INDIA()
SRI.SUVIN R MENON
SRI.JAISHANKER V NAIR
RESPONDENTS/ACCUSED A1,A2,A3,A4,A5,A11,A12,A14,A15,A16,A21,A22&A23
AND STATE:
1 ABDUL JALEEL(A1), AGED 38/08, S/O. MOOSA, KARIPPAYIL,
PUTHIYAPURAYIL VEEDU, KADAMBOOR, KOTTOOR,
KANNUR - 670 663.
2 M.H. FAISAL (A2), AGED 24/08, S/O. ABDUL RAHMAN,
CHANDINTEVIDA HOUSE, KANNUR, AMSOM, URUVACHAL - 670 702.
3 NASEER T(A3) @ THADIYANTAVIDA NASEER @ HAJI @ UMMAR HAJI
@ USTHAD @ HAJI USTHAD, AGED 32/08, S/O. ABDUL MAJEED,
R/O. BAITHUL HILAL, KANNUR AMSOM, TAYYIL - 670 003.
4 P. MUJEEB (A4), AGED 26/08, S/O. MOIDEEN, R/O MUNEERA
MANZIL, MUTHUKUTTI, CHEMPILOTU AMSOM MOLLANCHERI,
CHAKARACKAL POLICE STATION LIMIT- 670 003.
5 SHAFAS SHAMSUDIN (A)5, AGED 24/08, S/O. SHAMSUDIN,
SHAFNAS, KANNUR AMSOM, THAYYIL, POUNDUVALAPPU, KANNUR -
670 003.
6 IBRAHIM MOULAVI (A11), AGED 43/08, S/O. MOIDU, R/O.
PUTHUNGAN HOUSE, PADINJARETHARA, NEAR PADINJARETHARA
POLICE STATION, WAYANAD - 673 575.
7 FIROZ (A12), AGED 28/08, S/O. PAKKAI, R/O. VELLARKODATHU
Crl.A Nos.1575/2013&con.cases
4
VEEDU, KOONAMTHAI, AMBALAM ROAD, KALAMASSERY,
ERNAKULAM - 683 104.
8 MUHAMMED NAVAS (A14) @ NAVAS, AGED 30/08, S/O. ABDUL
RAHMAN, R/O. KOLLARATHU MUTHARAKANDI, RAHMANIYA
PONDAVALAPPU, KANNUR- 670 003.
9 ABDUL JABBAR (A15) @ ANOOP, @ SATHAR AGED 35/08, S/O.
KUNJI BABA @ BAVAN, R/O. TAYATIL HOUSE, MUTTANNOOR,
VALAMARUTHOOR, KARANCHERI, MALAPPURAM - 679 581.
10 SABIR P. BUHARI @ SABIR (A16), AGED 29/08, S/O. BUHARI,
R/O. MUNDAKATTU VEEDU, PARAPPURAM, PERUMBAVOOR VILLAGE,
KUNNATHUNADU TALUK, ERNAKULAM- 683 593.
11 SAINUDHEEN (A21) @ SATHAR BHAI, AGED 57/08, S/O.
MUHAMMED, R/O. EDAKKANUTHODI HOUSE, PERUVALLOOR, KONDOTTI
- MALAPPURAM DISTRICT -673 638, (BANNDALAGUDA, ISMAIL
MAGAR - 18-13-132/1/19, HYDERABAD)
12 UMMER FAROOQ (A22), AGED 30/08, S/O. CHEKUTTY HAJI, R/O.
BAIN, KANNAKATHU HOUSE, PUTHUKULAM, CHETTIPADI,
PARAPPANANGADI - 676 319.
13 SARFURAZ NAVAS (A23) @ HAKKIM @ SANJU @ SUFUR NAVAS, AGED
35/12, S/O. P.K. HASSAN, R/O. KANNIYATT KUDIYIL VEEDU,
PALLIKKARA, ERNAKULAM - 683 562
(RESPONDENTS 1 - 13 ARE NOW INCARCERTATED IN CENTRAL
PRISON - POOJAPURAM, THIRUVANANTHAPURAM)
14 STATE OF KERALA, REPRESENTED BY ITS PUBLIC PROSECUTOR,
HIGH COURT OF KERALA, ERNAKULAM - 682 018.
BY ADVS.
SRI.ABHISHEK KURIAN
SRI.K.GOPALAKRISHNA KURUP SR.
SRI.SADER E.REAZ
SRI.S.RAJEEV FOR R1,R9 R11
SRI.NANDAGOPAL S KURUP FOR R2&R4
SRI.SURESH BABU THOMAS FOR R3 &R13
SRI.C.K SREEDHARAN, FOR R5
SRI.SUNNY MATHEW FOR R5
SRI.ISSAC SANJAY FOR R6&R12
SRI.T.K.KUNHABDULLA FOR R7&R8
SRI.S.SREEKUMAR SR. FOR R10
SRI P.PRAJITH FOR R10
OTHER PRESENT:
SRI.S.MANU, ASGI assisted by SMT.MINI GOPINATH, CGC
AND SRI.ARJUN AMBALAPATTA Senior GP for NIA cases
THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 19.04.2022,
ALONG WITH CRL.A.1575/2013 AND CONNECTED CASES, THE COURT ON
09.05.2022 DELIVERED THE FOLLOWING:
Crl.A Nos.1575/2013&con.cases
5
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN
&
THE HONOURABLE MR.JUSTICE C. JAYACHANDRAN
MONDAY, THE 9TH DAY OF MAY 2022 / 19TH VAISAKHA, 1944
CRL.A NO. 1567 OF 2013
AGAINST THE JUDGMENT IN SC 1/2010 OF SPECIAL COURT FOR TRIAL OF NIA
CASES,ERNAKULAM
APPELLANT/ACCUSED NO.5:
SHAFAS SHAMSUDDIN,AGED 29 YEARS
S/O.SHAMSUDDIN, SHAFNAS, KANNUR AMSAM, THAYYIL,
POUNDUVALAPPU, KANNUR.
BY ADVS.
SRI.SUNNY MATHEW
SRI.C.K.SREEDHARAN
RESPONDENT:
THE SUPERINTENDENT OF POLICE
NATIONAL INVESTIGATION AGENCY, NEW DELHI, REPRESENTED BY
THE SPECIAL PUBLIC PROSECUTOR, HIGH COURT OF KERALA,
ERNAKULAM - 682 031.
BY ADVS.
SRI.Sunny Mathew
ASG
SRI.MANU S., ASG OF INDIA()
OTHER PRESENT:
SRI.S.MANU, ASGI assisted by SMT.MINI GOPINATH, CGC
AND SRI.ARJUN AMBALAPATTA Senior GP for NIA cases
THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 19.04.2022,
ALONG WITH CRL.A.1575/2013 AND CONNECTED CASES, THE COURT ON
09.05.2022 DELIVERED THE FOLLOWING:
Crl.A Nos.1575/2013&con.cases
6
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN
&
THE HONOURABLE MR.JUSTICE C. JAYACHANDRAN
MONDAY, THE 9TH DAY OF MAY 2022 / 19TH VAISAKHA, 1944
CRL.A NO. 1574 OF 2013
AGAINST THE JUDGMENT IN SC 1/2010 OF SPECIAL COURT FOR TRIAL OF NIA
CASES,ERNAKULAM
APPELLANT/ACCUSED NO.1:
ABDUL JALEEL, AGED 43 YEARS
S/O.MOOSA, KARIPPAYIL, PUTHIYAPURAYIL VEEDU, KADAMBOOR,
KOTTOOR, KANNUR.
BY ADVS.
SRI.S.RAJEEV
SRI.K.K.DHEERENDRAKRISHNAN
SRI.V.VINAY
RESPONDENT:
STATE
REPRESENTED BY SUPERINTENDENT OF POLICE, NATIONAL
INVESTIGATION AGENCY, NEW DELHI, REPRESENTED BY ITS
PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM - 682 031.
BY ADVS.
ASG
SRI.MANU S., ASG OF INDIA()
OTHER PRESENT:
SRI.S.MANU, ASGI assisted by SMT.MINI GOPINATH, CGC
AND SRI.ARJUN AMBALAPATTA Senior GP for NIA cases
THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 19.04.2022,
ALONG WITH CRL.A.1575/2013 AND CONNECTED CASES, THE COURT ON
09.05.2022 DELIVERED THE FOLLOWING:
Crl.A Nos.1575/2013&con.cases
7
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN
&
THE HONOURABLE MR.JUSTICE C. JAYACHANDRAN
MONDAY, THE 9TH DAY OF MAY 2022 / 19TH VAISAKHA, 1944
CRL.A NO. 1576 OF 2013
AGAINST THE ORDER/JUDGMENT IN SC 1/2010 OF SPECIAL COURT FOR TRIAL OF
NIA CASES,ERNAKULAM
APPELLANT/ACCUSED NO.14:
MUHAMMED NAVAS @ NAVAS
AGED 35 YEARS
S/O. ABDUL RAHMAN, KOLLARATHU MUTHARAKANDI, RAHMANIYA
POUNDAVALAPPU, KANNUR.
BY ADV SRI.T.K.KUNHABDULLA
RESPONDENT:
STATE
REPRESENTED BY SUPERINTENDENT OF POLICE, NATIONAL
INVESTIGATION AGENCY, NEW DELHI, REPRESENTED BY ITS
PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM-682 031.
BY ADVS.
SRI.M.AJAY, SPL. P.P FOR NIA
SRI.M.AJAY SPL. P.P FOR NIA
ASG
SRI.MANU S., ASG OF INDIA()
OTHER PRESENT:
SRI.S.MANU, ASGI assisted by SMT.MINI GOPINATH, CGC
AND SRI.ARJUN AMBALAPATTA Senior GP for NIA cases
THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 19.04.2022,
ALONG WITH CRL.A.1575/2013 AND CONNECTED CASES, THE COURT ON
09.05.2022 DELIVERED THE FOLLOWING:
Crl.A Nos.1575/2013&con.cases
8
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN
&
THE HONOURABLE MR.JUSTICE C. JAYACHANDRAN
MONDAY, THE 9TH DAY OF MAY 2022 / 19TH VAISAKHA, 1944
CRL.A NO. 1577 OF 2013
AGAINST THE JUDGMENT IN SC 1/2010 OF SPECIAL COURT FOR TRIAL OF NIA
CASES,ERNAKULAM
APPELLANT/ACCUSED NO.12:
FIROZ, AGED 33 YEARS , S/O.PAKKAI
VELLARKODATHU VEEDU, KOONAMTHAI, AMBALAM ROAD,
KALAMASSERY, ERNAKULAM.
BY ADV SRI.T.K.KUNHABDULLA
RESPONDENT:
STATE
REPRESENTED BY SUPERINTENDENT OF POLICE, NATIONAL
INVESTIGATION AGENCY, NEW DELHI, REPRESENTED BY ITS
PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM-682 031.
BY ADVS.
ASG
SRI.MANU S., ASG OF INDIA()
OTHER PRESENT:
SRI.S.MANU, ASGI assisted by SMT.MINI GOPINATH, CGC
AND SRI.ARJUN AMBALAPATTA Senior GP for NIA cases
THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 19.04.2022,,
ALONG WITH CRL.A.1575/2013 AND CONNECTED CASES, THE COURT ON
09.05.2022 DELIVERED THE FOLLOWING:
Crl.A Nos.1575/2013&con.cases
9
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN
&
THE HONOURABLE MR.JUSTICE C. JAYACHANDRAN
MONDAY, THE 9TH DAY OF MAY 2022 / 19TH VAISAKHA, 1944
CRL.A NO. 1578 OF 2013
AGAINST THE ORDER/JUDGMENT IN SC 1/2010 OF SPECIAL COURT FOR TRIAL OF
NIA CASES,ERNAKULAM
APPELLANT/ACCUSED NO.16:
SABIR P. BUHARI @ SABIR,AGED 34 YEARS
S/O. BUHARI, MUNDAKATTU VEEDU, PARAPURAM, PERUMBAVOOR
VILLAGE, KUNNATHUNADU TALUK, ERNAKULAM.
BY ADVS.
SRI.S.SREEKUMAR (SR.)
SRI.P.MARTIN JOSE
SRI.P.PRIJITH
SRI.THOMAS P.KURUVILLA
SRI.R.GITHESH
SRI.MANJUNATH MENON
SRI.HARIKRISHNAN S.
SRI.AJAY BEN JOSE
SRI.SACHIN JACOB AMBAT
RESPONDENT:
STATE
REPRESENTED BY SUPERINTENDENT OF POLICE, NATIONAL
INVESTIGATION AGENCY, NEW DELHI, REPRESENTED BY ITS
PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM-682 031.
OTHER PRESENT:
SRI.S.MANU, ASGI assisted by SMT.MINI GOPINATH, CGC
AND SRI.ARJUN AMBALAPATTA Senior GP for NIA cases
THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 19.04.2022,
ALONG WITH CRL.A.1575/2013 AND CONNECTED CASES, THE COURT ON
09.05.2022 DELIVERED THE FOLLOWING:
Crl.A Nos.1575/2013&con.cases
10
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN
&
THE HONOURABLE MR.JUSTICE C. JAYACHANDRAN
MONDAY, THE 9TH DAY OF MAY 2022 / 19TH VAISAKHA, 1944
CRL.A NO. 873 OF 2014
AGAINST THE JUDGMENT IN SC 1/2010 OF SPECIAL COURT FOR TRIAL OF NIA
CASES,ERNAKULAM
APPELLANT/ACCUSED NO.23:
SARFURAZ NAVAS @ HAKKIM @ SANJU @ SUFUR NAVAS
AGED 35 YEARS
S/O. P K HASSAN, R/A.KANIYATTU KUDIYIL HOUSE, PALLIKKARA,
ERNAKULAM
BY ADVS.
SRI.PRAKASH P.GEORGE
SRI.SADER E.REAZ
SRI.SURESH BABU THOMAS(S-1369)
RESPONDENT:
STATE
REP BY THE SUPERINTENDENT OF POLICE, NATIONAL
INVESTIGATION AGENCY, NEW DELHI
OTHER PRESENT:
SRI.S.MANU, ASGI assisted by SMT.MINI GOPINATH, CGC
AND SRI.ARJUN AMBALAPATTA Senior GP for NIA cases
THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 19.04.2022,
ALONG WITH CRL.A.1575/2013 AND CONNECTED CASES, THE COURT ON
09.05.2022 DELIVERED THE FOLLOWING:
Crl.A Nos.1575/2013&con.cases
11
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN
&
THE HONOURABLE MR.JUSTICE C. JAYACHANDRAN
MONDAY, THE 9TH DAY OF MAY 2022 / 19TH VAISAKHA, 1944
CRL.A NO. 1638 OF 2013
AGAINST THE JUDGMENT IN SC 1/2010 OF SPECIAL COURT FOR TRIAL OF NIA
CASES,ERNAKULAM
APPELLANT/ACCUSED NO.4:
P. MUJEEB, AGED 31 YEARS
S/O.MOIDEEN, MUNEERA MANIZIL, MUTHUKUTTI, CHEMPILOTU
AMSAM MOLLANCHERI, CHAKARACKAL POLICE STATION LIMIT
BY ADVS.
SRI.ISAC SANJAY
SRI.T.M.JOSEPH SHYLAN
SMT.T.S.REMYA
SRI.V.G.SREEJITH
RESPONDENT:
STATE REPRESENTED BY SPERINTENDENT OF POLICE, NATIONAL
INVESTIGATION AGENCY, NEW DELHI REPRESENTED BY ITS
PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM - 682 301.
BY ADV ASG
OTHER PRESENT:
SRI.S.MANU, ASGI assisted by SMT.MINI GOPINATH, CGC
AND SRI.ARJUN AMBALAPATTA Senior GP for NIA cases
THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 19.04.2022,
ALONG WITH CRL.A.1575/2013 AND CONNECTED CASES, THE COURT ON
09.05.2022 DELIVERED THE FOLLOWING:
Crl.A Nos.1575/2013&con.cases
12
CR
K.VINOD CHANDRAN & C. JAYACHANDRAN JJ
-----------------------------------------
Crl.Appeal Nos.1575 of 2013, 1567 of 2013,
1574 of 2013, 1576 of 2013, 1577 of 2013,
1578 of 2013, 1638 of 2013, 474 of 2014 &
873 of 2014
-----------------------------------------
Dated, this the 09th May, 2022
JUDGMENT
Vinod Chandran, J.
Lured by the pleasures of a heavenly paradise,
achieved only by killing human brethren and fellow
nationals, five young men journeyed to the 'Paradise
on Earth', only to embrace death before becoming its
messengers. Whether the dead, now enjoy the pleasures
of the elusive paradise is a moot question, but they
sure created a living hell for their families who were
plunged in grief, coupled with shame. The trial saw
the kith and kin breaking down and a sister narrating
how her studies, abruptly ceased. The accused are
alleged to have conspired to incite young men,
radicalise them and recruit them into terrorism to
wage war against their own country. The sole recruit
left alive, developed cold feet, ran back to the bosom
of his own country; the very same country against
Crl.A Nos.1575/2013&con.cases
which he waged war, which gave him a fair trial and
convicted him with some others arraigned. We are
called upon to decide the legality of the conviction
and the propriety of the sentence, in the appeal by
the accused. The National Investigation Agency (NIA),
which filed the final report has filed an appeal
against the acquittal under Sections 120(B), 122,
124(A), 465 & 471 of the Indian Penal Code, of those
who were convicted under the other offences alleged.
I. THE PROLOGUE:-
2. The prosecution case is that A7 to A10 and
A15 were instigated and radicalised in the 'Jihadi'
Classes conducted at the behest of the various
accused, particularly A3 and financed by A23,
recruited to wage war against India, in pursuit of
which common goal A7 to A10 met with death, having
been shot dead in three separate encounters at
Kashmir. Originally there were 24 accused of which A7
to A10 lost their lives in Kashmir, A20 and A24 are
still absconding and 18 stood trial. A6, A13 and A17
to 19 stood acquitted by the trial court. The
appellants 13 in number were convicted for various
Crl.A Nos.1575/2013&con.cases
offences under the IPC and the Unlawful Activities
(Prevention) Act, 1967 (UA(P)A). A15 stands convicted
under S.121 IPC and S.16 UA(P)A for which he was
sentenced to life imprisonment on both counts and
Rs.50000/-, as fine, also on both counts. Accused
Nos.1 to 5, 11, 12, 14, 15 16, 21,22 and 23 were
convicted under S.121A IPC and S.18 UA(P)A with
sentences of imprisonment for life on both counts with
a fine of Rs.50000/- each. A23 was further convicted
under S.17 and sentenced to imprisonment for life and
fine of Rs.50,000/-. A16 was also convicted under S.19
of UA(P)A to undergo imprisonment for life and fine of
Rs.50,000/-. Appropriate default sentences for
various periods, to run on default of payment of fine
were also indicated.
3. The genesis of the case is from the
surveillance of A1 and the FIR registered suo motu by
PW158, Sub Inspector, Edakkad Police Station, Kannur
as Crime No. 356/2008 (Ext.P397). A1, arrested on the
same date was kept under surveillance for his
involvement with a banned organisation by name
Students Islamic Movement of India (SIMI). A1 was
Crl.A Nos.1575/2013&con.cases
found using two mobile numbers 97443 82047 and 96057
49262 alternatively. PW158 obtained the call details
of the first mobile number, which, on examination
revealed that number to have been deactivated after
05.10.2008 and ten calls having been received by A1 on
the 1st and 2nd of October, 2008 from Jammu & Kashmir
(J&K). Inquiries with the intelligence agencies
revealed that the calls could be related to
terrorists, shot dead in Kashmir. PW158 took A1 for
questioning and initially A1 feigned ignorance and
asserted innocence. Later, he pleaded for a pardon
with the Officer; being the first instance, and
promised that he would not indulge in any such
activities, thereafter. A1 was arrested and FIR was
registered on 18.10.2008. A phone diary (Ext.P123),
mobile phone (MO.3) and the SIM Card (MO.3A) in the
phone, were seized from him. Later the house of A1's
wife was searched and by Ext.P117 search list,
Ext.P400 passport and MO.22 SIM card were seized.
Considering the ramifications, a Joint Investigation
Team (J.I.T) was constituted under PW174. PW158
arrested A14 on 11.11.2008 and A18 on 19.12.2008.
Crl.A Nos.1575/2013&con.cases
After investigation, a final report dated 19.01.2009
was submitted by PW174 as against A1 to A22. On the
very same day an application for further investigation
was filed under S.173(8) Cr.PC and later a
supplementary final report dated 17.08.2009 was
submitted, adding A23 to the array of accused. Due to
the nature of the case, it was transferred to the
National Investigation Agency (NIA) who registered
Crime No.2/2010 on 21.01.2010 by FIR marked as
Ext.P473. PW170 is the officer of the NIA who filed
the final report dated 16.02.2011 against A1 to A24.
4. The prosecution examined 186 witnesses and
marked Exhibits P1 to P607; many in series, being
connected documents, extracts, recitals, calls between
specified numbers and so on. The defence marked Exts.
D1 to D32, more in the form of contradictions. The
CDRs and other digital data, except that of the CDR
from Kashmir, are supported by Section 65B
certificates and the documents are seized by different
officers of the Joint Investigation Team. We are not
referring to the seizures individually as they have
been referred to by the trial Court. The defence has
Crl.A Nos.1575/2013&con.cases
also not singularly objected to any of the seizures;
except the admissibility of the call data records of
the BSNL number, alleged to be of Kashmir. The learned
Counsel appearing for the different accused are:
Sri.S.Rajiv for A1, A15 & A21, Sri.Nandagopal S. Kurup
for A2 & A4, Sri.Suresh Babu Thomas for A3 & A23, Sri.
C.K.Sreedharan for A5, Sri.Isaac Sanjay for A11 & A22,
Sri.P.K Kunjabdulla for A12 and A14, Sri.S.Sreekumar,
Senior Counsel instructed by Sri. Prijith.P for A16.
Sri. S. Manu, learned Assistant Solicitor General
appeared for the NIA, ably assisted by Smt. Mini
Gopinath, Central Government Standing Counsel, and a
host of officers of the NIA.
II. THE DEFENCE:-
5. On behalf of A1, it was argued that he was
implicated on the sole flimsy premise of having
received some telephone calls from Kashmir. A suo motu
FIR was registered on the allegation of connection
with terrorist outfits,investigation taken over by JIT
and after two final reports, handed over to the NIA.
The allegation in the final report is only with
respect to a conspiracy based on the phone calls to
Crl.A Nos.1575/2013&con.cases
and from his mobile. The witnesses examined to prove
the conspiracy did not even establish his involvement
in the Thareeqath movement nor was he identified as a
participant in their classes. The mere fact that he
had received ten calls from Kashmir and he had regular
contact with the other accused cannot implicate him,
either in the conspiracy or with the alleged
recruitment into terrorist organisations. All the
accused were alleged to be part of a conspiracy to
wage war against India and A2, in addition, of having
abetted A7's movement to Kashmir. None of the
witnesses spoke anything incriminating about A2 and
not even a participation in the religious classes. The
depositions regarding involvement of A2 in the
Thareeqath classes in Neerchal and A2's mind set to
meet evil with evil were marked as omissions in the
prior statements. Many of the witnesses examined to
prove the conspiracy spoke nothing about A2 nor was he
identified. As for abetting A7 to join 'Jihadi'
classes and wage war against India, the only
allegation was that A2 travelled along with A7 and A8
to Hyderabad. Admittedly A2 came back after two days
Crl.A Nos.1575/2013&con.cases
as has been deposed by the sister of A7. There is
nothing to show that A2 was aware of A7's further
travel to Kashmir nor is there anything to indicate
that A2 was instrumental in A7 going to Kashmir.
6. On behalf of A3, it was contended that the
entire allegations are based on the death of A7 to A10
who along with A15 went to Kashmir to wage war against
India. The first paragraph of the Court charge is read
over to indicate that there is nothing to show the
recruitment having been made by A3. CWs. 39,99 & 100
who figured in the final report, to speak on such
recruitment, were not examined, warranting an adverse
inference against the prosecution. As far as the
reference to 'Jihad' in PW1's evidence, it is argued
that the observations were only the opinion of PW1 and
not the statements of A3. There is in fact nothing to
establish a conspiracy in Kerala and if at all the
others were involved in a conspiracy, it was only at
Hyderabad, for which A3 is not responsible. The trial
court had taken the testimony of A,B & C
(PWs.35,36&39) as a dying declaration under S.32 of
the Evidence Act. Reading S.32, it is urged that the
Crl.A Nos.1575/2013&con.cases
death of A7 to A10 is not the subject of trial in the
present proceedings and hence the trial court erred in
treating the statements as dying declaration. Bhairon
Singh v. State of Madhya Pradesh [(2009) 13 SCC 80]
was placed to urge the above proposition. There is
nothing to prove the telephone call of A1 to A3 and in
the context of conspiracy having not been proved,
there is no question of invoking S.10 of the UA(P)A.
7. The charge against A4 is again of
conspiracy and the conduct and arrangement of 'Jihadi'
classes under the guise of Thareeqath classes. A4 has
not travelled out of Kerala; not even to Hyderabad,
and PW1 did not identify A4 as a person who attended
his classes. There was again no reference to A4 or a
worthy identification by any of the witnesses. The
only circumstance proved against A4 is the handwriting
in the reservation slip (Ext.P34), for the train
journey of A2, A7 & A8. A4 did not accompany them and
there is no allegation that tickets were booked in
fake names. Admittedly the accused hail from the same
locality and they are acquainted with each other. Even
the fact that A15's wife stayed with A4 does not
Crl.A Nos.1575/2013&con.cases
incriminate him in either the activities carried on by
A15 or the death of the others in Kashmir. The
allegation of a phone call from Kashmir to the number
of A4 has not been substantiated. The trial Court has
erroneously found that the telephone number given at
Salim Manzil and noted in the train ticket reservation
form were that of A4. The learned Counsel would place
reliance on K.R Purushothaman v. State of Kerala
2005(12) SCC 631 to rubbish the allegation of
conspiracy. In defence of A5, paragraphs 461 to 471 in
the impugned judgment were seriously assailed. The
only testimony against A5 is the participation in
Thareeqath classes, which is not the conspiracy
alleged. A8's father and sister merely made a bland
allegation that A8 left home for an employment in
Bangalore arranged by A5. A8 went to Hyderabad and
then to Kashmir where he was shot dead; which
endeavour was not in the knowledge of A5. The mere
fact of renting out a house from PW15 and allowing
A15's wife to stay with A5's family does not make him
privy to the activities of A15. The alleged transfer
of money by A23 is one year prior to the incidents
Crl.A Nos.1575/2013&con.cases
which led to the present investigation. The only
allegation proved against A5 is that he was arrested
along with A3 from the Indo- Bangladesh border.
8. As far as A11 is concerned, he is a native
of Wayanad and the allegation is regarding convening
of Thareeqath Classes. PW126 who identified him as the
person who had contact with a Kashmir number was a
witness brought before Court with no prior statement
under Section 161. The prosecution has also failed to
establish that A1 called A11 after he received a call
from Kashmir, from the CDR, Ext.P290. A11 never
stepped out of Kerala and there is nothing to show
that he had been instrumental in recruiting people to
join terrorist groups. A12's position is similar to
that of A13 who stood acquitted. PW1, though
identified A12, did not speak of A12 having attended
any religious classes. His connection with A10 as
spoken of by PW5 and PW6, the father and brother of
A10, was only friendship and there is nothing to show
any influence having been exerted on A10 to convert or
to proceed to Kashmir. The sole allegation against A12
is of abetting A7 to move to Kashmir; which was not
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proved. The alleged role of A14 is similar to that of
A6, who stood acquitted. A14 had absolutely no role to
play in the conspiracy.
9. A15, it is argued, had no involvement in
the conspiracy and even his presence in Kashmir, in a
terrorist camp, is not proved. The only evidence is of
his presence at Hyderabad, without anything to show
his company with the other accused. The handwriting in
the reservation form from Hyderabad to Delhi was not
that of A15, as spoken of by PW29. It is specifically
emphasized that there is no evidence of A15 having
handled a weapon or used it against the security
forces which alone could establish an overt act of
terrorism. It is pointed out that the Senior
Superintendent of Police, PW124, who registered the
three FIRs, two in Lalpura Police Station and one in
Sogam Police Station, does not even speak of A15. The
CD produced from Salim Manzil at Delhi is not
acceptable in evidence. The so called extra judicial
confession to PW1 cannot be relied on since the
prosecution has not proved that PW1 is a close
confidant of A15. The evidence of PW 72, who too spoke
Crl.A Nos.1575/2013&con.cases
of an extra judicial confession cannot be believed. As
far as A16 is concerned, the allegations are of
harbouring A15's wife and receiving money from A23.
The documents relating to the account of A16 does not
prove the receipt of money. The testimony of PW71
about his involvement in some cash transactions on the
directions of A16, is exculpatory. The testimony of
PW71 is not at all believable, looking at the
relationship between A16 and PW71, as spoken of by
PW71 himself. The prosecution has utterly failed to
connect A16 with A15 and the latter's stay and
employment in Perumbavoor.
10. A21 has been roped in only because he is
the father in law of A9. The identification of A21 by
PW19 arises from a lunch to which the witness was
invited by A9, where A9 was present; quite natural
given the relationship with A21. The money transaction
between PW59 and A21 was testified to be in the
presence of A3, which was proved to be an omission by
PW179. A21's letter was produced through PW75, the
contents of which was not proved and there is no proof
of the handwriting. A22 has only been proved to be a
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regular in Thareeqath classes. His friendship with A9
as spoken of by PW85, is only natural since both of
them were engaged in the work of 'light and sound' as
testified by PW17. A23 was arrested and certain
material objects were recovered from his suitcase. The
mere fact that he send money to some of the accused
does not prove his involvement in the conspiracy; the
execution of which or even his knowledge of the use to
which the said money was put to, are not proven. In
fact, there is absolutely no evidence as to the money
sent by him having been used for any terrorist
activities.
III. THE PROSECUTION:-
11. The learned Assistant Solicitor General,
emphasized the conspiracy to carry out anti-national
activities, which developed over a long period and
occurred in various places and at different points of
time; not necessarily with the knowledge of all the
accused regarding every single activity. The endeavour
commences with the financial transactions starting in
2007, with the money sent to India by A23 who was
working abroad. A pivotal role is played by A3, who
Crl.A Nos.1575/2013&con.cases
arranged the meeting of the various persons involved
at different places and co-ordinated the activities,
which culminated in the death of four persons,
recruited and send to Pakistan through Kashmir. The
specific purpose of their recruitment was to be
trained in arms and ammunition and then wage war with
India by spreading terror within India. The fact that
five recruits joined a terrorist camp, received
training in arms and fought against their own country
is clear from their death at the hands of the security
forces in Kashmir. The decision of the Honourable
Supreme Court in Firozuddin Basheeruddin v State of
Kerala (2001 (7) SCC 596) is placed before us to urge
that there is no requirement that, to prove
conspiracy, the presence of all at one place at one
time has to be established. If the circumstances
cumulatively show the close interaction of the various
persons associated with the conspiracy and the roles
they played; each one of them, having acted with a
common mind-set, would stand implicated for the
offences committed in furtherance of the conspiracy,
even if they had no active role in the culminating
Crl.A Nos.1575/2013&con.cases
act.
12. The arrest of A1, a known member of a
proscribed organisation, by name SIMI, resulted in the
examination of call records of the two mobile phones
held by A1, which led to the arrest of all the
accused. The learned ASG took us meticulously through
the call records and supporting evidence to show the
connection of various accused and especially, A23, who
is said to have funded the furtherance of the
conspiracy. The details of SMS to the mobile phone
number seized from A23 on his arrest clearly indicates
his connection with a terrorist at Pakistan. The
mobile phone MO3 seized from A1, as is evidenced from
Exts.P309, P310 and P321 produced and proved by PW133,
has been used by A3 and A8. Likewise Ext.P338 produced
and proved by PW128 evidence the use of MO3 mobile
instrument by A4 with his SIM number. All these
factors were put to the respective accused under S.313
of the Cr.PC for which no answer was given. Ganesh Lal
v. State of Rajastan [(2002) 1 SCC 731] and Dr.Sunil
Clifford Daniel v. State of Punjab [(2012) 11 SCC 205]
was relied on to contend that in a case based purely
Crl.A Nos.1575/2013&con.cases
on circumstantial evidence, the falsity or the total
absence of a valid explanation, under Section 313
questioning, forms a link in the chain of
circumstances. A1 was identified as a relative of A3
by PW13.
13. A2's conduct is not above board as argued
by the defence. It has been proved that he went along
with A7 and A8 to Hyderabad for 'Chilla' which extends
to the whole of the Ramzan month. They boarded a train
from Kerala on 10.09.2008 as proved by the ticket
recovered from his possession and except A2 the other
two proceeded to Delhi on 12.09.2008. As per the
unchallenged testimony of the sister of A7, A2
returned two days later. The intention was hence only
to send A7 and A8 to their death at Kashmir. The
omission marked from the testimony of PW14, that A2
and A7, were persons who wanted to meet 'evil with
evil' is only a slight variation from the S.161
statement. PW174, I.O, deposed that PW14 spoke ill of
the character of both A2 and A7. Minor discrepancies
cannot be treated as omissions as held in State of
Madhya Pradesh v. Dal Singh [(2013) 14 SCC 159] and
Crl.A Nos.1575/2013&con.cases
Takdir Samsuddin Sheikh v. State Of Gujarat [(2011)(10)
SCC 158]. The evidence led by the prosecution proves
unequivocally that A2 was one spoke in the wheel of
conspiracy as has been observed in Firozuddin
Basheeruddin (supra).
14. A3 according to the prosecution, is the
kingpin, the person referred to as the Commander in
Kerala. PW1's evidence clearly indicates the divisive
attitude of A3 and the venom spewed in Thareeqath
classes; to which PW1 took strong objection. A3 has
been identified to have harboured divisive and
destructive thoughts and shared it in the Thareeqath
classes as spoken of by PWs. 1, 13, 14, 19 & 72. These
witnesses also spoke of A3 being known as Ummar Haji
and Haji Usthad. The deposition of a number of
witnesses were pointed out to show the close
association of A3 with A9, A15 and A23. Learned ASG
asserts that what was stated by PW1 is not his opinion
but what A3 spoke in the classes after PW1's sermon.
PWs.35,36&39 who were present along with A7 to A10 in
Kashmir had specifically spoken of the killed
terrorists having referred to the Commander in Kerala.
Crl.A Nos.1575/2013&con.cases
There is nothing wrong in the said statements being
treated as dying declarations under S.32. Patel
Hiralal Joitaram v. State of Gujarat [(2002) 1 SCC 22]
held that Section 32 cannot be taken in a very
restricted sense and the circumstance however remote,
ultimately resulting in the death of a person, is
admissible. The other circumstances against A3 are
said to be the conversion of A10 which was in A3's
presence, the close association of A3 with A23, the
messages between them as proved by the Call Data
Records (CDR) produced, the financing for the
operation sourced from A23, the use of the mobile
instrument of A1 and recovery of another instrument
used by A3 from A15's house and he having absconded on
07.10.2008 and later arrested from Meghalaya on
06.12.2009. The learned ASG also specifically pointed
out that both the mobile numbers used by A3 were
obtained in other people's identity as has been proved
by PW 139 and PW87.
15. As far as A4 is concerned it has been
proved that it was in his handwriting that the
reservation form for the travel of A2, A7 and A8 to
Crl.A Nos.1575/2013&con.cases
Hyderabad from Kannur was filled up. A4 also harboured
A15's wife and there were two mobile numbers
deciphered from call records of the mobile instruments
seized from his house. The CDR of the said mobile
numbers indicates his close connection with A3 and he
has also used the handset MO3, in which A1 received
calls from J&K. A5, A11 and A12 were identified by PW1
as regulars in Thareeqath classes. Many witnesses
spoke of the association of these accused with the
other accused. A5's presence in Hyderabad and later
harbouring of A15's wife has been established. A5
received amounts in the year 2007 from A23 which
stands proved by the testimony of PW76. There is no
explanation offered in S.313 with respect to the
financial transaction with A23; which provides a link
in the circumstances against A5. Further A5 also
absconded from Kerala and was later arrested from
Meghalaya along with A3.
16. A11 was working in PW63's Mosque and then
in another Mosque as revealed from PW98's evidence.
PW126 had clearly pointed out the telephone calls
received by A11 in his telephone booth. As to no prior
Crl.A Nos.1575/2013&con.cases
statement under S.161 having been taken from PW126,
the learned ASG relied on a number of decisions of
High Courts, wherein it was held that the
prosecution's right to examine witnesses under Section
213 Cr.P.C and the power of the Court under Section
311 cannot be curtailed(Ram Achal v. State of U.P 1990
Cri.LJ 111, Bhima Muduli v. State of Orissa 1996
Cri.LJ 1899, Om Prakash v. State of Rajastan, 2003
Cri.LJ 4704 and Ravichandran K v. Inspector of Police
2019 Cri.LJ 144). PW174, the I.O deposed that he was
unaware of PW126, which is only because there was a
JIT and the statement was taken by another officer of
the JIT. The connection between A12, A1 and A11 is
brought out from the CDR produced. A12 was
instrumental in the conversion of A10 and had also
accompanied A10 to the place where the conversion was
carried out. His phone also stood switched off after
07.10.2008. As far as A14 is concerned, he had rented
out the rooms in various places, where the 'Jihadi'
classes were conducted under the guise of Thareeqath
classes.
17. The involvement of A15 in the conspiracy
Crl.A Nos.1575/2013&con.cases
and the terrorist camp stands unequivocally
established. A15 travelled with A7 to A10, to
Nizamuddin and then to Kashmir, where they joined a
terror camp. A7 to A10 were shot dead in separate
encounters and A15 escaped and came back to Kerala,
for a time stayed in Perumbavoor in an assumed name
and later returned to Hyderabad from where he was
arrested. At Hyderabad he made a confession to PW1,
whose deposition of the earlier conduct of A15
clinchingly proves the role of A15 in the conspiracy.
The CDR of A15 also is a pointer to his close
association with the other accused and the part played
in the conspiracy. A16 assisted A15 when he stayed at
Perumbavoor, under cover, and aided the financial
transaction with A23. A16 conversed with A23 on
crucial days and the CDR further established his links
with the conspiracy and by harbouring A15, involved in
the furtherance of the same.
18. A21 was the father-in-law of A9 and the
husband of the sister of A15's wife, who maintained
close links with all the accused. He was involved in
other terror activities and was well versed in the
Crl.A Nos.1575/2013&con.cases
making of explosives; as revealed from the letter of
A23. A21 also was involved in financial transactions
with A23, the financier; who was also described by
PWs.35,36 & 39 as the Commander at Dubai, aiding the
recruitment of youth to terrorist camps to wage war
against India. A22 was also argued to have ties with
the accused. He was close friends with A9, a regular
presence in the religious classes both in Kerala and
at Hyderabad; which often were converted to 'Jihadi'
classes by A3. This is sufficient to uphold the
conviction of A22. The materials seized from A23 at
the time of his arrest and the financial transactions
from abroad makes him one of the kingpins of the
operation. The learned ASG, with reference to the time
in which the amounts were send from abroad, the
persons who received it and the contextual relevance
to the connected activities in India, sought to
establish the guilt of A23. The FSL report at Ext.
P588, which dealt with the various narratives in the
digital mode, as ferreted out from the devices seized
on his arrest, was put forth to further establish the
culpability of A23.
Crl.A Nos.1575/2013&con.cases
19. The learned ASG while asserting the
legality of the conviction and sentence of the
appellant/accused, prayed for reversing the trial
court's order to the extent of acquittal in some of
the offences charged under the IPC. When the other
offences stand established there is no perceivable
reason why they were acquitted under the offences
charged of criminal conspiracy, collection of arms
with the intention of waging war against India,
sedition, forgery of ID cards and use of such forged
documents for availing services; where mandatory
disclosure of the true ID of the user was necessary.
The learned ASG argued for dismissing the appeals
filed by the accused and allowing the appeal of the
NIA.
IV. Preliminary Objection On Sanction:-
20. A preliminary objection has been raised
by the learned counsel for the appellants/accused that
the sanction of the Kerala Government produced as
Ext.P574 and P567 were not in accordance with the
Unlawful Activities (Prevention) (Recommendation and
Sanction of Prosecution) Rules, 2008 and that even the
Crl.A Nos.1575/2013&con.cases
subsequent sanction by the Central Government dated
03.02.2011 is in violation of the Rules of 2008. It
was also argued that once cognizance has been taken
by the Special Court, on the basis of a defective
sanction, it does not stand cured, even if the further
sanction by the Central Government is proper. The
learned Counsel specifically relied on our decision in
Crl.Rev.Pet Nos. 732 to 734 Roopesh v. State of Kerala
dated 17.03.2022.
21. As far as the sanction of the State
Government, we see that there is no reference made to
the Authority, appointed by the Government for making
an independent review of the evidence gathered in the
investigation. The orders issued, soon after Amendment
Act 35 of 2008 incorporating sub-section (2) of
Section 45 of UA(P)A was brought into force; violate
the mandate of the new provision and the cognizance
taken at that stage was bad.
22. As for the sanction of the Central
Government, after the investigation was transferred to
the NIA, the ground urged is of the time stipulation
as prescribed in the Rules of 2008 having not been
Crl.A Nos.1575/2013&con.cases
complied with. We called for the files from the
Central Government, which is produced before us. We
have perused the files in the presence of the learned
Counsel for the defence. We see from the files that
the Central Government had addressed the Authority
constituted under Section 45(2) by a letter dated
04.02.2011, requesting the Authority; consisting of a
retired High Court Judge and a retired Secretary to go
through the report and evidence collected and evaluate
the same and consider, recommending the sanction
sought for prosecution. The Authority, we find, has
taken up the matter on 13.01.2011, considered the
issue elaborately and recommended prosecution of
twenty of the twenty four accused; four having
expired. We do not find any date of receipt or date of
dispatch of the orders from the files. But still, the
letter seeking consideration was dated 04.01.2011 and
the Authority considered the same on 13.01.2011. We
find that 05.01.2011, 08.01.0211 and 09.01.2011 were
public holidays. Hence the Authority had definitely
considered the issue and made the recommendation
within seven working days from the date of the request
Crl.A Nos.1575/2013&con.cases
made by the Central Government.
23. Subsequently, after the report was
received by the Central Government, on 21.11.2011, a
decision has been taken to sanction the prosecution.
We find from the decision taken on 21.11.2011 that
the Investigation Report of the NIA has been gone
through and eleven points have been discussed
recommending sanction for prosecution. The same was
kept for vetting by the Ministry of Law and Justice.
The Ministry of Law and Justice vetted the same and
confirmed it on 25.11.2011, which was placed before
the Minister for approval and on 02.02.2011, the same
has been approved and the order dated 03.02.2011
issued.
24. We have to note that the requirement as
per Rule 3 of the Rules of 2008, is for the Authority
constituted under sub-section (2) of Section 45 to
make report containing recommendation within seven
working days of the receipt of the evidence gathered
by the Investigating Officer; which we already found,
has been complied with. As per Rule 4, the Central
Government is obliged to take a decision regarding
Crl.A Nos.1575/2013&con.cases
sanction for prosecution within seven working days
after receipt of the recommendation of the Authority.
We emphasize that the requirement is not of issuance
of the order, but the decision being taken by the
Central Government. From the files we see that the
decision was taken on 21.01.2011, which is just eight
days from the date on which the recommendation has
been made by the Authority under Section 45(2); the
date of receipt being not discernible. We also take
note of the fact that 14.01.2011, 15.01.2011 and
16.01.2011 were holidays. The decision hence was
taken within five working days. The decision was
vetted by the Ministry of Law and Justice and then
approved by the Minister and stood issued on
03.02.2011; which was produced before the trial Court
and marked in evidence as Ext. P574. We find that the
decision of the Central Government to sanction
prosecution is in accordance with Rule 4 of the Rules
of 2008. We also see from the decision taken, as
available in the files that there has been
comprehensive consideration of the matter, showing
clear application of mind. Ext. P574 is less elaborate
Crl.A Nos.1575/2013&con.cases
but reflects an application of mind with reference to
the specific provisions alleged. The cited decision is
not applicable.
25. The next contention is with respect to the
cognizance being first taken by the Special Court on
the sanction issued by the Government of Kerala. We
found from the sanction orders that there has been no
reference to the Authority and sanction is not in
accordance with Section 45(2) r/w Rules of 2008.
However, after the investigation was handed over to
NIA, the NIA had filed a fresh final report along with
sanction for prosecution by the Central Government,
which sanction is with respect to all the twenty
accused; barring those who expired. We do not find
any irregularity in such cognizance being taken by the
Special Court. The earlier cognizance taken, even if
it is irregular, the judicial acts of the Special
Court, after production of the sanction of the Central
Government is perfectly in order. We reject the
preliminary objection.
V.THE PLOT:-
26. Conspiracy as has been held in Saju v.
Crl.A Nos.1575/2013&con.cases
State of Kerala (2001) 1 SCC 378 is always hatched in
private and in secrecy, for which direct evidence
would rarely be available. But that does not absolve
the prosecution from producing evidence that each of
the accused had knowledge of the object of the
conspiracy, to which end, they acted in cohort. It is
difficult to trace the precise contribution of each
member of the conspiracy, but there has to be cogent
and convincing evidence that each of the accused acted
in furtherance of the conspiracy and there was a
meeting of minds to carry out the conspiracy, though
they may not have been associated with every material
aspect as has been declared in Firozuddin Basheeruddin
(supra). The allegation against the accused are that,
they conspired together to incite and instigate Muslim
youth to wage war against the Country, for reason of
the presumed atrocities perpetrated on the community,
for which end, they chose A7 to A10 and A15 to proceed
to Kashmir and kept ready another 180 young men; under
the leadership of A3. The intention was to infiltrate
into Pakistan, to get training in arms and ammunition
and then come back to Kerala, to wage war against
Crl.A Nos.1575/2013&con.cases
India through terrorist activities. The five persons
joined a terrorist camp at Kashmir, commenced training
in arms and ammunition, while awaiting to infiltrate
into Pakistan; but died in an encounter with the
security forces of India. Though the case originated
with the suo motu FIR registered against A1, the
gravamen of the accusations originate from the
encounter between the security forces and the members
of a terrorist group, 'Lashkar-e-Thaiba' ('LeT') at
Kashmir, a proscribed group, in which A7 to A10 were
killed. What has hence, to be first looked at is the
evidence led and the circumstances leading to the
travel of A7 to A10 and A15 to Kashmir, where they
were killed and later identified by the security
forces through the Police of the Kerala State. As far
as A15 is concerned, he came back and stood trial
which aspects have to be considered separately. Even
before that, the evidence of PW1 has to be considered,
whom even the defence describe as the star witness of
the prosecution.
VI. THE PATH - Straight or Crooked ?
27. Thareeqath, the word, is an indigenous
Crl.A Nos.1575/2013&con.cases
improvisation of the Arabic Word 'Tariqah' which means
'Way'. PW1 is a Muslim Scholar and Teacher who
conducts Thareeqath classes in Kerala, Hyderabad and
Maharashtra, who is also a native of the State of
Kerala, but permanently residing and employed in
Hyderabad. 'Nurisha Thareeqath' according to PW1 is
another name for the Sufi movement, teaching the
spiritual aspects of 'Quran'. He identified A2-
Faisal, A3-Nazeer, A5-Shafaz, A11-Ibrahim Moulavi,
A12-Firoz, A14-Nawaz, A15-Abdul Jabbar, A19-Abdul
Hameed, A21-Sainudheen Haji, and A22-Ummer Farooq from
the dock. He has no acquaintance with A4-Mujeeb, A13-
Badarudheen, A16-Sabir, A17-Anas and A23-Sarfuras
Nawas. Those he identified from the dock were persons
who were attending his classes at various places
within Kerala and at Hyderabad. He identified A10,
Yasin @ Ringmon from the photocopy of a photograph in
Ext.P1. Fayis, A8 was identified from the photograph
in the driving licence produced as Ext.P2. A20, who is
absconding was identified from his passport
application registration form produced as Ext.P3. A9,
Abdul Rahim, was identified, from the Election I.D
Crl.A Nos.1575/2013&con.cases
produced as Ext.P4 which has the name 'Shakeer' S/o
Mohammed'. A3, an active participant in his classes
was deposed to be a person hailing from Kannur.
28. The manner in which Thareeqath classes were
conducted was explained by the witness. The classes
commence with a prayer and then a sermon is delivered,
followed by clearance of doubts and the audience are
also encouraged to interact. Both A3 & A9 were active
participants and A3 often expressed his personal
emotions in the interaction. He often expressed
concern over the atrocities on Muslims in India, for
which, according to A3, there were no legal remedies.
A3 proclaimed the need to make Muslims conscious of
the necessity to react, that too violently. A3 often
used the expression 'jihad', which however the
witness, a scholar himself, says is not a term for
such retaliatory measures. According to PW1, in the
12 years, before the Muslims fled from Mecca to
Madeena under the Prophet, there were a lot of
atrocities committed on them, but there was no call
for 'jihad'. Only when, after establishing a Muslim
State in Madeena, there were attacks by the enemies,
Crl.A Nos.1575/2013&con.cases
there was a call for 'jihad', which call can arise,
only from the Muslim King. As far as A3 was
concerned, PW1 deposed, 'jihad' meant retaliation by
organising young men, to beat those who beat and kill
those who kill, Muslims. The exhortation of A3 for
retaliation, were with weapons and to instigate, A3
specifically alleged atrocities committed on Muslims
in Gujarat and various parts of India. PW1 resisted
A3's radical views and pointed out that in India there
is more freedom for the Muslims than even in the
Muslim countries.
29. Twice in an year, in Hyderabad there is a
congregation of Muslims called the 'Chilla', which is
attended by about 3000 people, one of which is in the
Ramzan Month. It was in one of these camps that PW1
met A10, who was brought there by A9. PW1 saw A10 last
on September 10th, when he said that he was going on a
trip. When PW1 asked him, why he digressed from his
earlier resolve to study (obviously religious
studies), he said there was an emergency and that A3
was calling him. On the same evening, A15 also came to
him to bid farewell and promised him that the loan
Crl.A Nos.1575/2013&con.cases
availed, of Rs.1,500/-, would be repaid by A3. A15,
A9, A8 and A7 requested PW1 to do 'dua' for them
before departing from Hyderabad. They did not tell him
where exactly they were going and hence PW1 refused to
pray for them; obviously suspicious of their
intentions. The next day, 11th, was a Friday, and on
that day there was a prayer at the Jaram of Noorisha
Thangal. This was a regular affair and everybody
including A7 to 10 and A15 participated after which
they left. A3 also participated and left Hyderabad
around 13th, along with Ummar Farooq (A22) and
Badarudheen (A13).
30. To a specific question as to whether PW1
saw A15 after that, he answered that on the 10th of
November he was informed by his son, at his residence,
that A15 had come to see him. PW1 refused to see him,
but A15 persisted, upon which, PW1 asked him to come
near the lake. PW1 asked him about the news that A7 to
A10 were killed in Kashmir, when A15 told him that
during 'Chilla', the five of them proceeded to Kashmir
through Delhi along with Sabir and Hayaz. Sabir (A20)
was to take them to a camp in Kashmir and come back.
Crl.A Nos.1575/2013&con.cases
Kashmiris, who were in the camp, went out and was
apprehended by the Police, since they did not have
valid papers. This alerted the security forces and in
the ensuing encounters A7 to A10 were killed. A15,
according to PW1 told him that first Yasin (A10) and
Abdul Rahim (A9) were killed and then Fayaz (A7) and
Fayiz (A8); but A15 escaped. PW1 scolded A15 and send
him away and informed the authorities. In cross-
examination PW1 was unshaken, though certain omissions
were pointed out from his prior S.161 statement. He
explained that he had stated everything he remembered
at that time. PW1, we find, is a truthful witness,
whose evidence can be believed. PW1's S.164 statement,
Ext.P3 was marked by himself and proved by PW112, the
Magistrate who recorded the same. There is no
substantial variance pointed out in cross-examination
and it fully corroborates the testimony.
31. PW13 is the younger brother of PW1 who
identified almost all of the accused. He first
identified A14 as a person who used to regularly
assist him to reach Neerchal where he used to take
Thareeqath classes. A11 was identified as another
Crl.A Nos.1575/2013&con.cases
person who arranged the classes while A2, A4, A6 & A22
were regular attendees. A1 was identified as a
relative of A3 and A21 was the relative of the witness
himself, known as 'Sathar Bhai'. A17 & A18 were
identified on sight, but PW13 did not know their
names. A12 and A13 have not attended the classes of
PW13 and A15, though has come to his residence had not
attended any classes. PW13 identified A8 from Ext.
P15, the Electoral ID Card in the name of Rebi S/o
Kurian and A9 from Ext. P4, the Electoral ID Card in
the name of Shakeer S/o Muhammed. These were fake ID
cards in the name of real people, with the photographs
of A8 & A9. They also travelled from Hyderabad to
Nizamuddin in these assumed names; as we would later
detail. PW14 is yet another person having the title of
'Khilafath' (Religious Teacher), as is PW1 & PW13;
which confers the authority to take Thareeqath
classes. He identified A2, A4, A5 and A14 as regular
attendees in the classes.
32. We remind ourselves that Thareeqath is not a
proscribed movement and the evidence of PW1 discloses
that they have never taken any extreme line and they
Crl.A Nos.1575/2013&con.cases
do not support the concept of 'jihad' as propounded by
the accused. In fact PW1 categorically states that the
retaliatory measures contemplated by A3 and propounded
by him in the religious classes is not 'jihad'; which
in any event A3, has no authority to call for. The
evidence of the above witnesses clearly establish the
close association of all the accused and it has to be
highlighted that the very accusation raised by the
Prosecution is the holding of 'Jihadi' classes in the
guise of Thareeqath. PW1 & PW13 speaks of their
sermons being followed by others, especially A3 who
towed an extremist line. PW1's evidence also reveals
very incriminating material against some of the
accused which we will discuss at a later point. The
testimonies discussed above disclose the accused
having used the Thareeqath movement to spread
subversive and divisive thoughts and thus diverting
even the Thareeqath classes into crooked ways intended
at radicalising Muslim youth to spread terror amongst
the people of ones own nation.
VII. THE 'JIHADIS'- A7 to A10:-
33. The journey to the northern most State of
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Jammu & Kashmir commenced from the southern most State
of Kerala. PW20, PW21 and PW22 are railway officials,
respectively, the Chief, Clerk and Supervisor of
Kannur Railway Reservation Office. Ext.P33 marked
through PW20, is the Seizure Mahazar of Ext.P34
reservation form and Ext.P35 marked through PW21, is
the ticket for the journey from Kannur through Shornur
to Hyderabad for A7, A8 and A2, allegedly booked by
A2, the journey commencing on 10.09.2008. PW22 also
produced Ext.P36 & P37 reservation forms filled up by
one Rizwan seized as per Ext.P36 Mahazar. As per
Ext.P37, A3 along with five others were scheduled to
travel to Hyderabad and Ext.P38 is the application for
booking tickets for three others, again to travel to
Hyderabad, which journey commenced on 31.08.2008.
34. PW29 is the Senior Divisional Operations
Manager of the South Central Railways, Hyderabad
Division at Secunderabad. He produced the reservation
requisition for Ext.P48 by which Shakeer (A9's assumed
name), Jabbar (A15), Anaz (A17? - but acquitted),
Ringmon (A10), Rebi (A8's assumed name) and Fayaz(A7)
booked tickets from Secunderabad to Nizamuddin.
Crl.A Nos.1575/2013&con.cases
However Ext.P49, PNR history indicates that only five
of them, excluding A7-Fayaz travelled on 12.09.2008 in
the sleeper class, one in a confirmed ticket and the
others in RAC. Ext.P50 is the document evidencing
cancellation of the booking for Fayaz. Here we have to
immediately notice that though the travel of A7 has
not been established with documentary proof, his death
in Kashmir stands confirmed. The reservation chart at
Ext.P51, proved through the TTE, PW62, confirms the
journey and the seat numbers of the other five persons
who travelled as per ticket issued on Ext. P48. The
other travel details as evidenced from Ext. P51 relate
to persons who travelled from Hyderabad back to
Kerala. Relevant is the fact that one of the persons
in Ext. P52 ticket is the wife of A15, who was a
resident of Hyderabad. Equally relevant is the fact
that Ext. P48 & P52 shows the applicant as Jabbar and
Abdul Jabbar (A15) with addresses shown respectively
of that at Hyderabad and Kerala. The mobile numbers as
shown in the reservation forms, respectively are 99126
61040 and 97466 22350; of which the first one has a
significance, as proved to be carried by A7 to A10 and
Crl.A Nos.1575/2013&con.cases
A15 to Delhi.
35. According to the prosecution, the five
persons who travelled from Hyderabad to Delhi stayed
at Salim Manzil, near the Nizamuddin Dargha. PW32, in
charge of Salim Manzil spoke of the procedure by which
guests are given rooms which require an ID proof, the
photocopy of which is retained with them and entries
made in the register. Ext.P60 register as seized by
the Investigating team was identified and Entry 97
(Ext.P60(a)) was pointed out, which bears the
residential address and the name, 'Shakeer, S/o
Muhammed, age 32, mobile no.99126 61040'. Shakeer is
the assumed name of A9 and the mobile number,
identical to that in Ext.P48 reservation form signed
by Jabbar (A15). The entry in the register was on
13.09.2008 at 6.30 p.m and the purpose shown was to
visit 'Khabar'. The guests vacated the room on the
next day at 4 p.m. The photocopy of the ID card of
Shakeer, S/o.Muhammed, retained with Salim Manzil and
seized as per Ext.P62 on 30.12.2008, along with
Ext.P60, was produced and marked as Ext.P61. The
witness also spoke of the reception area of Salim
Crl.A Nos.1575/2013&con.cases
Manzil being covered by a CC TV, the hard discs
and CPO of which, were handed over to the police who
seized it as per Ext.P63 mahazar. The hard discs
contained the numbers FO2173245Y(Ext.P64) and OF9-
OMAXTOR (Ext.P65). Among the six persons, only the
person whose photograph is seen in the ID, A9, spoke
Hindi according to the witness, who did not identify
A15 from the dock.
36. The DVD received from C-DAC was played in
open court, marked as Ext.P66, from which Shakeer was
identified as the person who was standing in front,
who caused Ext.P60(a) entry to be made and spoke to
the witness. The witness identified himself, from the
video footage, as the person sitting in the counter
with a ring on his right hand; which ring he was
wearing in Court too (clear from the recorded
deposition). His head and right hand were visible from
the DVD. PW32 identified the person who took the room,
from the photograph in Ext.P61 ID Card. Ext. P61 is
identical to Ext P4 ID card. PW33 the room-boy of
Salim Manzil, confirmed that PW32 is the Manager.
Though he could not identify any of the accused, he
Crl.A Nos.1575/2013&con.cases
affirmed witnessing the seizure made from PW32.
37. PW150 is the Assistant Director of C-DAC
(Centre for Development of Advanced Computing) who
examined the hard disc seized from Salim Manzil. The
objection raised by the defence with regard to Ext.P66
DVD was that in re-examination, it was stated that
Annexure I in Ext.P386 showed that the file was
created in the hard disc on 31.12.2008, the day of
seizure and the last access was also on the very same
day. The hard discs as identified by PW32, Ext.P64 and
P65 were identified by PW150 as sent by the police
through Ext.P374 forwarding note. As rightly pointed
out by the trial court, the factum of PW32's presence
along with A9,killed in Kashmir; identified by PW32
from Ext.P61, in the reception area of Salim Manzil
establishes the fact that A9 along with others resided
for a day in Salim Manzil as is evident from Ext.P60
register. There are certain circumstances which
surpass even an expert opinion and death is one of
them. If a handwriting in a document with a specific
date thereon is said to be that of a person, who died
before its execution, the expert opinion of the
Crl.A Nos.1575/2013&con.cases
handwriting, being that of the deceased, can only
satisfy the Court of its execution before death and
not on the date shown in the document. Likewise the
video cannot be taken to be one after death of A9.
Again, coupled with the testimony of the Manager of
Salim Manzil, as also the documentary proof, the video
can only be of the date on which the five stayed at
Salim Manzil, just prior to the death of A9.
38. PW73, who was the Tahasildar, Thirurangadi
produced Ext.P169, page 19 of Electoral Voters List in
which was marked Ext.P169(a) entry having the details
and photo of Shakeer S/o Muhammed with ID No. of CSK
1220797, the original ID card of which was produced as
Ext. P171. The ID card No. is identical to that in
Ext.P4 and Ext. P161, but with a different photograph.
PW74 is the real Muhammed Shakeer, who identified Ext.
P169 (a) and 170 as his own ID. PW74, who was
acquainted with A9 also identified him from Ext.P4
Electoral ID card, which had PW74's name, fathers name
and address. The photo in the fake ID card Ext.P4 was
also identified by PW75, the business partner of A21,
as that of A9, son-in-law of A21.
Crl.A Nos.1575/2013&con.cases
39. PW35, PW36 and PW39 are natives of
Kashmir, forced to join terrorist camps, from which
they escaped and surrendered before Police. All of
them speak of having joined a Camp where the Lashkar
Commander was one Abdulla, who trained them in 'AK47'.
While they were in the terror camp, a lady by name
Parveen brought five boys who were handed over to
Abdulla. After some days, Abdulla gave a phone to
Shakeer @ Rahim, one of the said boys, who called
Ummar, their Commander in Kerala. The other persons
who accompanied Shakeer were Yassin(A10), Fayaz(A7),
Fayiz(A8) and Jabbar(A15). PW35 and PW36 also spoke of
Shakeer (A9) having informed them that they had two
other Commanders in Dubai, by name Wali and Sarfuraz
and that approximately 180 boys were kept ready in
Kerala, by Ummar, recruited for training in terror
camps at Kashmir. Walli and Sarfuraz were accumulating
contributions in Dubai and sending it to Ummar. After
about 20 days, the Army surrounded the terror camp and
in encounters, A10 and A7 were killed. Again, there
was an encounter with the Army in which three
militants were killed, one Pakistani and two others
Crl.A Nos.1575/2013&con.cases
from Kerala, ie: Shakeer and Fayiz, A9 and A8. It was
later that PW35 escaped from the terror camp and went
to the Police Station, Lalpura. PW35 identified A15
from the dock and A15, A9 and A8 from Ext.P66 DVD.
From Ext.P1 photograph, A10 was identified and again
from Ext.P4, fake electoral card in the name of
Shakeer S/o Muhammed, A9 was identified with A8 being
identified from Ext.P15, a fake electoral ID card in
the name of one Rebi S/o Kurian. Shakeer and Rebi are
the names we find in Ext.P48 reservation application
form and Ext.P51 reservation chart for the journey
from Hyderabad to Delhi on 12.09.2008. As noticed
earlier, A8 and A9 travelled in the fake ID's of Rebi
and Shakeer, A10 in his name before conversion and
A15, in his own name.
40. PW35 also categorically stated that all
the said persons from Kerala were given training in
'AK47' and their intention was to go to Pakistan and
come back to Kerala to spread terror in the State. In
cross examination, PW35, when confronted; with his
prior statement, that '... being fed up he ran away,
after which the encounter killing of two boys occurred
Crl.A Nos.1575/2013&con.cases
and then later three boys were killed ...', responded
that he did not remember. A further statement in his
prior statement that he surrendered before Lalpura
Police Station on 24.10.2008 was also not confirmed.
PW36 also had an identical version to recite regarding
the terror camp, the arrival of five persons from
Kerala, brought by Parveen, to the terror camp under
Abdulla. PW36 specifically spoke of picking a fight
with Abdulla since Kashmiris were always used for
frontal attacks, with Pakistanis taking up the rear.
He too surrendered at Lalpura Police Station on
04.10.2008 and as per the directions of the police, he
led them to Devar Margi where there was an encounter
in which A10 and A7 were killed. Again, an encounter
took place after three days when A9 and A8 were
killed, along with a Pakistani militant. PW36
identified four persons, except Fayaz (A7), from the
documents, as were earlier identified by PW35. In
cross examination, Ext.D6 contradiction was marked
from his prior statement, which read as, himself
coming to know of the encounters on 4 th, 6th, 10th and
11th of October after he escaped from the terror camp.
Crl.A Nos.1575/2013&con.cases
More significantly, A9 speaking about a Commander by
name Ummar Haji @ Nazeer in Kerala, was marked as an
omission from his S.164 statement to the Magistrate.
Obviously, no such omission was marked from the prior
statement to the police. In cross examination, he
also said that he was taken to Badibera after three
days of escaping from the terror camp, when he
identified the bodies of two Malayalees and one
Pakistani; killed in the third encounter. PW39
identified A15, from the dock and A9 from Ext.P4 ID
Card in the name of Shakeer (A9). He spoke of five
Keralites who joined the terror camp under the command
of Abdulla. He too spoke of A9 having spoken of an
Usthad in Kerala by name Ummar who had kept ready 180
boys to become militants. He did not speak of being in
the encounter in which the four Keralites were killed.
41. There is some confusion from the testimony
of PW35 & PW36 as to whether they witnessed the
killing of Keralites and were in the terror camp when
the encounters occurred. However, it is clearly
established that all three of them saw the five
persons being brought to the camp by Parveen and being
Crl.A Nos.1575/2013&con.cases
entrusted with Abdulla; the Lashkar Commander. Their
intention, as spoken of, by A9, who is now dead, also
comes out clearly in the identical testimony of the
three witnesses. PW35 and PW36 identified A8 to A10
from photographs and A15 from the dock; the latter of
whom along with A9 was identified by PW39 also. The
statement made by A9, of a Commander in Kerala was
spoken by all the three and an omission was marked
from the prior statement to the Magistrate by PW36.
But the S.164 statement of PW35 & 36 taken by PW129,
CJM, Shopian, Kashmir corroborated the arrival of five
Malayalees in the terror camp, the 180 boys kept ready
by Omar and the training imparted to them. Ext.P71,
S.164 statement of one of the said witnesses, PW35,
spoke of Ummar, as a representative of Lashkar in
Kerala and not as a Commander. PW36, in his S.164
statement, from whom the omission was marked, spoke of
the Commanader in Kerala, Ummar, and the two at Dubai,
Walli and Sarfuraz. That five Keralites joined the
terror camp, were given training in 'AK47', their
association with the terrorists, their death in three
separate encounters with the security forces stand
Crl.A Nos.1575/2013&con.cases
established. Their narration of the activities carried
on by A3 & A23, from inside Kerala and outside the
Country were consistently stated by the witnesses.
Worthy corroboration is available from the
identification by the near relatives of the killed
militants and from the records maintained by the
police in their native State, which are discussed
below.
42. The evidence of the witnesses from the
Army and the Police in Kashmir offers further proof of
the death of A7 to A10 in encounters. PW38 was working
as DSP Head Quarters, Kupwara, on 07.10.2010 when he
handed over three sets of documents to NIA. The memos
were marked as Ext.P73, P83 and P93 relating to three
FIRs; two registered at Lalpura Police Station and one
at Sogam P.S. The documents were true copies of the
original as verified and certified by the witness. By
Ext.P73, Ext.P74 to Ext.P82 were handed over. Ext.P74
is FIR No.34 of 2008 of Lalpura P.S, Kupwara
registered on 07.10.2008 and Ext. P75, the FIS.
Ext.P76 is the Report of the Unit of 28 Rashtriya
Rifles(JAK RIF) intimating the joint operation carried
Crl.A Nos.1575/2013&con.cases
out by themselves and J&K Police in Demnari Area, on
input received of presence of terrorists and an
encounter in which one terrorist was killed on
06.10.2008 at 13.55 hours. The AK47 Rifle and
ammunitions seized from the body of the killed
terrorist were also noticed in Ext.P76. Ext.P77 is the
handing over of cadaver, Ext.P78 seizure memo of
weapon and ammunition and other personal effects,
Ext.P79 a re-seizure memo, Ext.P80 post mortem report,
Ext.P81 photograph of the killed militant (who was
later identified as Fayaz [A7]), Ext.P82 is the letter
of the father of the killed militant (A7) requesting
burial in some mosque at J&K. Ext.P10 is the original
photograph of a shot militant marked also as Ext.P81
which was categorically identified to be that of A7,
by his mother and sister, PWs.2&3.
43. Ext.P83, is the memo by which Ext.P84 to
Ext.P92 documents were handed over to NIA relating to
FIR 33 of 2008. Ext. P84 to Ext. P91 are respectively
the FIR dated 4/5.10.2008, the FIS, the application
for lodging FIR with respect to the encounter on
05.10.2008 in Bodnar area carried out jointly by Unit
Crl.A Nos.1575/2013&con.cases
of 9 Para (SF) and J&K Police, handing over of the
body, seizure memo of one Rifle AK(MS) and ammunition,
re-seizure memo, photograph of the killed militant and
the post mortem report. Ext.P92 is the letter of the
father of A10 informing the SP, Kupwara that he had
identified the photograph of his second son
K.J.Varghese @ Ringmon who converted to Islam three
months back and left his home with the name of
'Muhammed Yassin'. Ext.P92 also requested burial of
the body at J&K. The encounter occurred on the morning
of 05.10.2008. Ext.P12 is the original photograph of a
shot militant marked also as Ext.P90 which was
categorically identified to be that of A10, by his
father and brother, PWs.5&6.
44. Ext.P93 is the memo, handing over documents
relating to FIR No.46 of 2008 dated 11.10.2008 of
Sogam P.S. Ext.P94 to Ext.P99 are the FIR dated
11.10.2008, three post mortem reports, request for
lodging FIR regarding encounter on 11.10.2008 at 00.15
hrs when three unidentified terrorists were eliminated
in general area Badibari jointly by Unit of 9 Para
(SF) and J&K Police and the handing over of three
Crl.A Nos.1575/2013&con.cases
bodies. Ext.P100 is the seizure memo indicating the
name of Rebi, S/o.Kurian & Abu Saquib, both from
Kerala and Abu Hafiz from Pakistan, all belonging to
LeT. It also indicates seizure of three rifles and
ammunition. PW38 also marked Ext P4 Electoral ID Card
of Shakeer S/o Muhammed (A9) and Ext. P15 photocopy of
Electoral ID Card in the name of Rebi S/o Kurien (A8).
This clearly indicated the ID cards having been
recovered from the dead bodies of the militants, shot
dead, clearly enabling identification from the
photographs. It has been clearly established by the
identification from the photographs in the ID Cards
that A9 was impersonating Shakeer S/o Muhammed; the
real Shakeer being PW74. So was A8 impersonating Rebi
S/o Kurien; the real Rebi being PW82. The translation
of the FIS by PW117 are produced as Ext.P238,
Ext.P234A and Ext.P233A.
45. Ext.P233A is the translated FIS of FIR 33
of 2008, which indicates that on 05.10.2008, when
operation was conducted in the Bodnar general area,
movement of terrorists were detected, and on challenge
they opened fire, which was retaliated by the security
Crl.A Nos.1575/2013&con.cases
forces killing one terrorist and recovering a rifle
and ammunition. Ext.P234A is the FIS of FIR 34 of
2008, when a similar encounter occurred at 13.55 on
06.10.2008 killing one terrorist and recovering a
rifle and ammunition from the shot militant. FIS of
FIR 46 of 2008, P234A, is yet another encounter that
occurred on 11.10.2008 killing three LeT militants in
the retaliatory fire leading to recovery of three
numbers of rifles and ammunition from those shot dead.
The FIRs and the seizure mahazar establish the death
of A7 to A10 and another Pakistani militant in the
three encounters and also the recovery of arms and
ammunition from each of them, which obviously were
used to fire at the security forces, to counter which,
retaliatory fire was unleashed by the security forces.
PW68,PW69 & PW70 spoke of the post mortem conducted on
the unknown dead bodies, the first two having
conducted post mortem of one each and PW70 of two
bodies.
46. PW104 was working as 'Selection Grade
Constable and Munshi' in Lalpura Police Station, where
FIR 33 of 2008 was registered based on an application,
Crl.A Nos.1575/2013&con.cases
the certified copy of which is marked as Ext.P185. On
04.10.2008 on being informed of the presence of
militants, the same was intimated to the Army and
PW104 was a member of the joint operation carried out.
He spoke of detection of terrorists, the demand raised
for surrender, opening of fire and retaliatory action
taken by the security forces in which one militant was
killed. Again on 06.10.2008 the security forces in a
similar encounter killed another militant. He also
spoke of another incident at 2 a.m on the 11 th where
three militants were killed. According to him the
killed militant in the first encounter was A10, the
second, A7 and the third to fifth, A9, A8 and a
Pakistani. He identified three of the deceased from
the photographs of the dead bodies; Ext.P12 of A10,
Ext.P174 of A9 and Ext.P10 of A7. Ext.P12, P174, P10
and Ext.P16 photographs are of the shot militants; the
last of A8. These photographs were send on requisition
by Superintendent of Police, Kupwara to PW180 Asst.
Commissioner Special Bureau, Mumbai, as deposed by
him.
47. PW83 is a Major from the '9 Para (Special
Crl.A Nos.1575/2013&con.cases
Forces), who carried out the operation on 11.10.2008.
According to him, at around 2 O'Clock in the morning
the security forces detected three militants; who,
when challenged, opened fire. In self defence and
retaliation, the security forces fired back killing
three unidentified militants. Three AK47 weapons,
ammunition and magazines were seized from the dead
bodies of the militants. The operation was led by PW84
and the witness identified MO9, MO10 & MO11; AK47
rifles with registration numbers as seen from the
weapons. The six magazines and the ammunition were
also identified as MO12 & MO13 series. MO14 'under
barrel grenade launcher' was identified as recovered
from the body of one militant. He confirmed that on
information received from the J&K Police, earlier
operation was lodged in Bodnar area in Dewar Margi,
J&K, on the midnight of 04.10.2008 (FIR 33 of 2008
Ext. P84) when an encounter occurred, in which a
militant was killed. The rifle seized was identified
as MO15, which is a variant of 'AK47' called the
'AKMS', proved by Ext. P86 application for lodging FIR
and Ext. P88 Seizure Memo both relating to FIR 33/08.
Crl.A Nos.1575/2013&con.cases
The magazines and ammunitions were marked as MO16 &
MO17. PW84 is a Lieutenant Colonel, who confirmed the
two encounters, which took place on 05.10.2008 &
06.10.2008 under his command with PW83, his junior
officer leading the contingent. PW84 was an Officer,
who had 18½ years of commissioned service; of which
except three years, the entire period was spent at
Kashmir.
48. PW2 is the mother of A7 and PW3, his
sister. They testified that on the 10th day of Ramzan
while they were sleeping after having their morning
food, they woke up to the sound of somebody shaking
the grill. It was A2, who woke them up and A7 went
along with him. Later, on further enquiry with A2, he
told them that A7 had gone to Hyderabad and that he
would return a reformed man. It was also admitted by
the mother and sister that A7 was involved in some
petty crimes. PW2 identified her son from the
photographs in Exts. P7, Electoral ID Card & P8
photograph, both seized from her house by Ext.P6
search list. She spoke of having seen the photograph
of her son shot dead in Kashmir; shown to her by the
Crl.A Nos.1575/2013&con.cases
Police and identified the photograph at Ext.P10, of a
shot militant. Despite searching cross-examination,
she stuck to her version and a mere reading of the
deposition brings out the grief of a lamenting mother,
who lost her son to a hollow cause. There were
suggestions made as to no complaints having been given
to the Police about the missing of PW2's son, which we
find irrelevant. As far as the family of A7 was
concerned, he had gone to reform himself, though they
had certain doubts. There is no question of a missing
man complaint being raised, because A2 who took him
from the house, knew about his whereabouts and assured
the family that A7 would comeback. PW3, sister of
Fayas made a categoric identification of her brother
from Ext.P10 and despite needling in cross-
examination, kept her cool and affirmed the identity
of her brother, who, she said she had been seeing from
his birth. Ext.P10 is the photograph of the shot
militant.
49. PW8 & PW9 are respectively A8's father and
sister. Both the witnesses identified A8 from the
photograph in Ext. P15 (Ext.P102) copy of Electoral ID
Crl.A Nos.1575/2013&con.cases
Card of Rebi S/o Kurian, which was recovered from
Kashmir. A8 was also identified from Ext P16, the
photo of the shot militant, which PW8 selected out of
a group of photos. It was the deposition of the
witnesses that A8 had left his house on the 10th day of
Ramzan to Bangalore allegedly to join an employment
offered through A5, Shafaz, who was his close friend.
Both of them confirmed the death of A8, having been
informed to them by the police and PW8 stated that he
did not want the dead body to be brought back. A8 was
inclined to follow religious practices and classes and
was said to be a close follower of one Abdul Bari
Usthad. PW9 identified A8 from his photograph in the
passport marked as Ext.P18. She spoke of having
discontinued her studies after the death of Fayiz, due
to the circumstances of her family surrounding the
death of her brother. PW9 was again summoned and she
identified her brother from Ext.P326, Customer
Application Form of Airtel connection and P327,
Electoral ID Card, as also from the footage displayed
in Court from Ext.P66 DVD.
50. Rebi S/o Kurian, as we saw, was the
Crl.A Nos.1575/2013&con.cases
assumed name of A8, in which he travelled from
Hyderabad to Nizamuddin. PW79, Thahasildar explained
the process of entering the name of fresh voters in
the voters list on their attaining majority and the
procedure for issuing ID Cards. He marked Ext.P178
Electoral ID Card and the photocopy of the relevant
page of the Voters List containing the details of
Rebi. This was verified with the fake ID card,
Ext.P15, which contained the identical number
('KL/10/077/474298') of the original ID card of Rebi,
Ext. P178; but with a different photograph, identified
to be of A8. PW82, Rebi Kurian deposed that he had
given a copy of his Electoral ID Card for the purpose
of subscribing a mobile connection. However, on the
next day the shopkeeper told him that the ID proof was
not clear and hence he gave a copy of his driving
license. He did not receive back the earlier copy, of
the electoral ID card, given at the shop; presumably
used to create the fake one. He identified Ext. P178
ID card as his original one and disputed the photo in
Ext. P15; which however had his name and details
similar to that in the original.
Crl.A Nos.1575/2013&con.cases
51. PW4 is the mother of A9, who turned
hostile. She even went to the extent of saying that
she does not know the father-in-law of her son, who
was none other than A21. Despite PW4 admitting to have
made enquiries about A9, along with his mother-in-law,
she refused to identify A21. PW7 is the wife of A9,
who also turned hostile. She definitely identified
A21, her father who was in the dock. PW4 and PW7
nurtured and expressed the hope that A9 is still
alive. PW85, father of A9 identified his son from Ext.
P32, the copy of the Electoral ID Card of one Shakeer
S/o Muhammed. Ext.P32 was marked through PW18, witness
to the seizure as per Ext.P31 Mahazar, carried out by
PW172, a member of the JIT. The said copy of the
Electoral card was received by e-mail from J&K, at the
Office of the Superintendent of Police, Malappuram
District, which was handed over by PW18, the
Confidential Assistant of the DSP, to PW172. PW23 took
on rent a room of one Yousuff, whose caretaker is
PW17. Ext.P28 agreement of renting out to PW23, is
executed by the caretaker PW17. PW23 admitted Ext. P28
agreement and was a frequenter in Thareeqath classes
Crl.A Nos.1575/2013&con.cases
conducted once a week. He spoke of Sharafudeen, Ummar
Farooq, Rahim, Yoosuf and Naushad being regulars in
the class. A22 was identified and he admitted that A9
was no more. He was a regular visitor to 'Chilla' at
'Nooriya Maskan' in Hyderabad and identified A3, whom
he knew as Ummer Haji . He knew A9 from childhood and
identified his photo from Ext.P32. In addition A9 was
identified by PW75, a former business associate of
A21, who is the father-in-law of A9. PW75 identified
A9 from the photograph at Ext.P4. He also picked out
the photograph of A9 from the four photographs of the
shot militants and marked A9's as Ext.P174. The other
photographs of the shot militants were already
identified and marked as Exts. P10, P12 & P16. PW75
also identified A3 & A15 and also affirmed the alias
of A3, Ummer Haji. PW138, the first cousin of A9, was
a follower of Thareeqath and a regular in the classes
at Kerala and Hyderabad. He identified A9 from Ext.P66
DVD and also from Ext.P143(a). PW138 identified and
spoke of A3, A5, A22 and A10 as having been present at
Hyderabad along with A9.
52. PW5 is A10's father, who identified him
Crl.A Nos.1575/2013&con.cases
from Ext.P1 photograph. Though he spoke of Firoz and
Badaruddin (A12 & A13) being close friends of A10, he
did not identify them. He spoke of his son having
converted to Islam, upon which PW5 sent him out of his
house after which A10 was living separate. PW5 came to
know of his son's death in Kashmir through the Police
and he conveyed his desire not to see the body,
especially since the son was involved in anti-national
activities. PW6 is A10's brother who corroborated
PW5's testimony and identified A12 and A13 as his
brother's friends. According to PW6, his brother A10
converted to Islam, two to three months before his
death. He identified his brother from Ext.P1 and also
Ext.P12, the photo of one of the slain militants,
which he selected from a group of four photographs
handed over to him. An omission was marked in his
cross examination that he did not mention about A12
and A13 having frequently come to their house in
search of his brother, in his prior statement. The
witness was again summoned to identify his brother
from Ext.P140, P143(a) P304, and P305.
53. A10 was converted at one Therbiyath Islam
Crl.A Nos.1575/2013&con.cases
Sabha at Kozhikkode, the Manager of which was PW56.
PW56 claimed the Sabha was entitled to give
certificate of conversion to Islam. Ext.P140 is the
application given by A10, which also contains his
photo. The details of the person who seeks conversion
and the by-stander accompanying him are written in a
Book, Ext. P141; where the relevant entries regarding
A10 is at serial no. 327 marked as Ext. P141(a). The
bystander of A10 was A3 and the telephone numbers
shown are 99953 25748 and 97450 02528 (Firoz) (A12).
Ext P142 is the register maintained at the gate
wherein the entry separately marked as Ext.P142(a) is
the name of A3. Ext.P143 is the Discharge certificate
issued to A10, which also contains his photo
[Ext.P143(a)] and the new name on conversion. While A3
was identified by PW56, A12 could not be identified.
PW56 deposed that the phone number of Firoz also was
spoken to by Ummar, A3.
54. PW34 is the Assistant Scientific Officer,
FSL Srinagar who took the finger prints of the four,
who died at different encounters at Kashmir. The
computer print outs of the finger prints so taken of
Crl.A Nos.1575/2013&con.cases
A8, Robin (sic), involved in FIR No.46 of 2008 was
marked as Ext.P67, that of A10, Yassin involved in FIR
No.33 of 2008 was marked as Ext.P68, that of A7, Fayaz
involved in FIR No.34 of 2008 was marked as Ext.P69
and of Abu Saquib (@Shakeer-A9) in FIR No.46 of 2008
was marked as Ext.P70. PW153, the police man who took
the finger prints from Abdul Rahim (A9) in Crime
No.469 of 2005 of Ernakulam Town Police Station, being
the crime registered on the 'Kalamassery Bus Burning'
produced Ext. P357, fingerprint impressions. He
identified Abdul Rahim from the video footage played
from Ext.P66 in Court. PW154, a Senior C.P.O
identified Ext.P354 as the finger prints of A7 taken
by him in connection with Crime No.11 of 2008 of
Chakkarakkal Police Station. A7 was A1 in that crime
and the witness identified A7 from Exts. P7 & P8
photographs. PW155, Inspector of Police affirmed that
PW154 took the finger print of A7 on his instructions.
He also identified Fayaz (A7) from Exts.P7 & P8.
55. PW121 was the Director of the Finger Prints
Bureau under the Kerala Police who produced Ext.P281
report. He had compared the finger prints, of the
Crl.A Nos.1575/2013&con.cases
four dead bodies, handed over to him by the ADGP,
Intelligence. The finger print in FIR No.34 of 2008
relating to Fayaz, was identical to that taken in
Crime no.111 of 2008 of Chakkarakkal Police Station.
Likewise, the finger print from the dead body under
the name Abu Saquib was identified to be that of Abdul
Rahim involved in Crime No.469 of 2005 of Kalamassery
Police Station. The other two finger prints from the
dead bodies could not be traced. As we noticed, the
finger prints produced were computer print outs and
the learned Public Prosecutor after examining PW121,
submitted before Court that the original finger prints
are being produced along with an application to send
it to the Finger Print Bureau, Thiruvananthapuram for
comparison and opinion, which was recorded by the
learned trial Judge in the deposition of PW121.
56. PW145 made the further comparison of the
originals as evident from his deposition. The
original finger print of Yassin (A10) was marked as
Ext.P68(A), of Fayaz (A7) as Ext.P69(A), of Abu Saquib
(A9) as Ext.P70(A) and of Robin (sic) (Rebi-A8) as
Ext.P67(A). The expert opinion was produced and marked
Crl.A Nos.1575/2013&con.cases
as Ext.P350. The opinion in paragraph A of the report
was regarding the comparison of the photographic
enlargement of the finger print made on 19.04.2008 at
Tharbiathul Islam Sabha, Kozhikode produced as
Ext.P114 which is the admission form No.209 of 2008 in
the name of Rin K.J, the original name of Yassin. This
is the document produced through PW56; the application
of A10, when he was admitted to the said institution
for conversion to Islam. The comparison made of the
above finger print with that received under code name
Yassin in FIR No.33 of 2008 of Lalpura Police Station
revealed it to be identical. The photographs of the
finger prints were marked as Ext.P352 and Ext.P353.
Similarly, the finger print under code name Fayaz in
FIR No.34 of 2008 of Lalpura Police Station was
identical to that taken in Crime No.111 of 2008, from
A7 at Chakkarakkal Police Station. Ext.P354 original
document and Ext.P355 and Ext.P356 finger print
impressions were also marked. The finger print under
code name Abu Saquib in FIR No.46 of 2008 of Sogam
Police Station was identical to that of Abdul Rahim
arrested in Crime No.469 of 2005 of Kalamassery Police
Crl.A Nos.1575/2013&con.cases
Station. The relevant documents having fingerprint
impressions were marked as Ext.P357 to Ext.P359.
57. The finger print evidence regarding the
three accused A7, A9 and A10, corroborate the
testimonies of the various witnesses discussed above.
The identification made by PW8 and PW9 of A8 from the
photographs also establish the fourth person who died
in Kashmir to be A8. That A7 to A10, along with A15
and another travelled to Delhi from Hyderabad, has
been fairly established by the evidence of PW29 and
PW62 who produced Ext.P48 reservation application and
Ext.P51 reservation chart of the train. A7, who had
also booked along with the others, cancelled his
ticket, but obviously made the journey. The telephone
number in Ext.P48 reservation application form, we
already found, was identical to that noted in Ext.P60
register seized from Salim Manzil, the entries
indicating the fake ID assumed by A9. The presence of
A7 to A10 in Hyderabad is established from the
testimonies of the various witnesses, especially that
of PW1, PW13, PW14, PW19 and PW23. A7 and A8 had also
travelled from Kannur to Hyderabad as revealed from
Crl.A Nos.1575/2013&con.cases
Ext.P34 reservation application form and Ext.P35
ticket dated 10.09.2008 recovered from A12.
58. From the above evidence, coupled with the
fact that A7 to A10 met with their death in Kashmir,
it is established beyond doubt that they were killed
in three separate encounters, that they were in a
terrorist camp and were carrying weapons which were
recovered from their bodies along with ammunition. A7
to A10 waged war with India and lost their lives in
the encounters, thus escaping from the long arm of
law. That the five young men from Kerala travelled to
Hyderabad, associated in a spiritual congregation and
then went all the way to Kashmir, where they met their
end is established and what remains is the conspiracy
alleged to have been hatched which resulted in their
journey, with the intention of waging war against
India, ultimately culminating in their death. That
they were misled by indoctrination, under the guise of
Thareeqath classes, is fairly established and what
remains is the evidence led against the other accused.
If the role of the conspirators are established; then
the several acts of inciting, instigating and
Crl.A Nos.1575/2013&con.cases
recruiting the five to obtain training in arms in
terror camps at Kashmir or Pakistan for unleashing
terror in their native State, ropes the other accused
also under the offence of waging war against India;
their own Country.
VII.CALL DATA RECORDS of A7, A8 & A10:-
59. A7 was using the mobile number 98950 94609.
PW133 Nodal Officer of AIRTEL proved Ext.P324 Customer
Application Form (CAF) and Ext.P325 ID proof with the
photograph of A7, from which photo A7 was identified
by PW3, the sister of A7. Ext.P320 CDR of the said
number shows three calls to A4 on 06.09.2008 and
08.09.2008 as per Ext.P320(a) to (c). A4 is the person
who booked the tickets of A7 & A8 to Hyderabad from
Kannur. A8 used 97466 91814, the CAF and ID proof of
which number was produced as Ext.P326 and Ext.P327 by
PW133. The photograph in the said documents were
proved by PW9, sister of A8 who also confirmed the
last digits of the mobile number of her brother as
'814'. Ext.P310 is the CDR of the said phone which
shows nine calls with A1, Ext.P310(a) to (i), 65 calls
to A3, Ext.P310(j) to (bv), 43 calls to A4,
Crl.A Nos.1575/2013&con.cases
Ext.P310(bw) to (dm), 18 calls to A15 Ext.P310(fe) to
(fv), two calls to A11 Ext.P310(ep) and (eq), 3 calls
to A16 Ext.P310(fw)to (fy),9 calls to A21 Ext.P310(gy)
to (hg) and 22 calls to 99126 61040, the phone number
given by A9 at Salim Manzil; Ext. P310(hh) to (ic).
The SIM card of A8 was also used in 6 instruments, the
IMEI numbers of which are evidenced from Ext.P310.
IMEI number 35088 81092 29770 in which was used A8's
number on 13.08.2008 is found to have been used for
operating 97461 86452 (A3) as evidenced from Ext.P338,
to receive two SMS but the calls of the same day were
made from another instrument. The handset with the
above noted IMEI number was also recovered from the
residence of A15 at Hyderabad evidenced by search
list, Ext.P151. The second IMEI number used by A8 is
that of MO3 mobile which was used by A1 and A3. The
third IMEI number 35293 50241 36670 is reflected in
Ext.P309 and Ext.P338 the CDR of 97461 86452 (A3) and
97471 83033 (A4). In addition to the above, PW164 one
of the I.Os of JIT had recovered Ext.P137 hard disc
from the house of A8, as per Ext.P19 search list
witnessed by PW53. PW150 from the C-DAC, retrieved the
Crl.A Nos.1575/2013&con.cases
contents from the hard disc and the DVD, Ext.P387 was
played in Court. The trial court had noticed that the
contents were highly fanatic and anti-national,
exhorting Muslim youth to join 'LeT' and to wage war
against India for the cessation of Kashmir from India.
The CDRs have to be looked at, also in the context of
PW14's evidence that A3, A4, A7 and A8 had very close
association and they were persons who wanted to meet
'evil with evil' as also harboured violent tendencies.
It is also very pertinent that Ext. P320 CDR of A7
shows the operation having ceased on 07.09.2008 and
then resumed on 27.09.2008 and again switched off.
Ext.P310 of A8 shows the operation having ceased on
10.09.2008; both A7 & A8 having left for Delhi
immediately after that.
60. Mohammed Yasin @ Rinmon (A10) used the
number 93880 32889, the CAF and ID proof of which were
produced as Ext.P304 and Ext.P305, by PW122 Nodal
Officer of RELIANCE. Ext.P284 is the CDR which shows
respectively 18 and 11 calls to A12 and A13 in their
numbers 97450 02528[A12]-Ext.P284(a) to (r) and 97446
85556 [A13] - Ext.P284(s) to (ac). It also showed one
Crl.A Nos.1575/2013&con.cases
call to A3 at Ext.P284(ad) and 3 calls to A21 at
Ext.P284(ah) to (aj). The CDR also shows that on
07.08.2008, Ext.P284(ah) to (aj) are calls to A21,
made between 2 & 4 in the after noon, after A10
reached Hyderabad. It also indicates A10 having
contacted A12, Ext.P284(o) to (p) (24.08.2008) at the
time when he was in Hyderabad earlier. The connection
of the dead militants with other accused, is further
established and the exchange of handsets makes it
incriminating to those accused in connection with
these four.
IX. THE COMMANDER-A3:-
61. Nazir (A3), who went by the alias of
Ummer Haji and Haji Usthad was the 'Usthad', the
Commander in Kerala who played the pivotal role,
according to the prosecution, in the conspiracy to
wage war with India, which conspiracy attracts the
provisions of the UA(P)A and the IPC. As we found, A8
to A10 & A15 travelled from Hyderabad to Delhi on
12.09.2008. At Hyderabad they were attending 'Chilla';
along with many of the other accused as has been
proved from the testimony of the witnesses, of which
Crl.A Nos.1575/2013&con.cases
the presence of A3 is undisputed. A3 has travelled to
Hyderabad from Kannur through Shornur as per Ext.P37
railway ticket proved through PW22. A3 having
travelled on 31.08.2008 from Kannur to Hyderabad, was
at Hyderabad when the five desperadoes proceeded to
Kashmir. The defence argued that there is nothing to
show the recruitment by A3 or the role played by him,
in recruiting the five persons or their journey to
Kashmir, or the association with the terrorist group.
It was also urged that the non examination of CW39, 99
and 100, who were to speak on recruitment, as seen
from the final report warrants an adverse inference
against the prosecution.
62. As has been found in Saju (supra), direct
evidence would be rarely available when a conspiracy
is hatched in private and in secrecy. More so, when
the conspiracy is with respect to a terrorist act, the
very execution of which depends upon the stealth with
which it is carried out. As for drawing an adverse
inference, for not examining certain charge witnesses,
there is no rule that the prosecution should examine
all the witnesses cited before Court. The prerogative
Crl.A Nos.1575/2013&con.cases
of the prosecution to examine those witnesses in
favour of the prosecution and to give up those, whose
testimony would only be repetitive or even in
derogation of the prosecution case is declared in
Hukam Singh v. State of Rajasthan (2000) 7 SCC 490;
noticed by the trial Court. The above proposition is
held to be flowing from the words employed in Section
231 Cr.P.C, even in cases where the prosecution has to
choose between independent and related witnesses;
which discretion could be exercised when the former
are sure to turn hostile. It is in this context that
we have looked at the evidence against A3. The
testimony as to the general outlook of A3, his manner
of speech, especially in the spiritual classes and the
attendant circumstances could definitely lead us to a
reasonable inference of conspiracy.
63. PW1's testimony speaks volumes on the
conduct, outlook and attitudes of A3. We have already
discussed the identification made of the many accused
by PW1, who have been regularly attending his
Thareeqath classes; which though not constituting any
offence; the prosecution accuses it to be a cover to
Crl.A Nos.1575/2013&con.cases
push the 'Jihadi' concept and incite the youth to take
up arms against their own nation. The defence argued
that what is spoken of by PW1 is just an opinion,
certainly not possible of being ascribed to A3. On a
reading of the testimony of PW1 we find the said
contention to be feeble, frivolous and totally
unacceptable. PW1 after explaining the mode of taking
classes, spoke of the main sermon being followed with
interactions; where those active disciples themselves
deliver talks to others. A3 was one of such persons,
who used to elaborate on the main sermon; interspersed
with his own emotions. A3 used to emotionally speak of
the sufferings of Muslims and atrocities committed on
them, all over the country, for which, according to
him sufficient legal remedies were absent. He spoke of
the need to make the Muslims conscious about such
atrocities, which included those perpetrated in
Gujarat and other parts of India. He exhorted the
Muslim brethren to retort; which retort he termed as
'jihad'. PW1 specifically spoke of 'jihad' not being
that propounded by A3; which we discussed earlier.
What A3 intended was a retaliation by enrolling young
Crl.A Nos.1575/2013&con.cases
men, to strike back and kill, those who raised their
hands against Muslims and killed them. The above
testimony of PW1 regarding the radical views of A3 is
sufficiently corroborated by PW14, who spoke of A3
having the outlook to meet evil with evil, and of
PW19, according to whom the sermons of A3 proceeded on
terrorist lines. PW19 also spoke of an instance when
A3 took classes in a house at Hyderabad where A3 was
staying with the other accused. A3 is said to have
exhorted the audience to join the people with black
turbans and later started weeping. PW19 being unhappy
with the manner in which the class was proceeded with
went back to 'Khan Gavu' where the others who
congregated for 'Chilla' were residing. Pertinently A3
along with some of the other accused, were staying
outside the 'Khan Gavu'.
64. PW1 specifically spoke of A3 having been
restrained from speaking in those terms and having
reminded A3, that India, home to crores of Muslims,
ensured freedom for religious gatherings and
educational institutions, far more than even Muslim
countries. PW1 deposed that he had warned A3 against
Crl.A Nos.1575/2013&con.cases
speaking or acting in such terms within the country,
which clearly indicates A3 having incited the
community to take up arms and retaliate against the
motherland. A7 to A10 were regulars in the Thareeqath
classes, where A3 also spoke and they were together at
Hyderabad, just before their journey to embrace death.
In addition to this, A10, who was a recent convert to
Islam, travelled along with close associates of A3;
A8, A9 & A15 to Kashmir from Hyderabad, where he too
was attending 'Chilla'. PW1 testified that he saw A10
last on September 10th, when he was brought to 'Chilla'
by A15, where the Ramzan month was spent in fasting
and learning. A10 approached PW1 and told him that he
is proceeding on a journey, contrary to his earlier
resolve expressed, to learn; presumably the religion,
as he was a new entrant. PW1 specifically asked him
why he is leaving early, to which A10 replied that
there is a reason and A3 is calling him. PW1
specifically reiterated that A10 told him that, for an
emergency A3 is calling him. A10 confided the said
fact to PW1, since PW1 was the hierarchical 'Usthad'
at 'Noori Maskan', where 'Chilla' is held and since A3
Crl.A Nos.1575/2013&con.cases
had a special relationship with PW1. A3 hence had an
overbearing influence in A10 proceeding for the so
called 'jihad' and he acted as the prime motivator in
the conversion of A10; which we discussed in the
portions dedicated to A10. It was the call of A3 that
motivated A10 to travel to Kashmir and enroll himself
in terror camps where he was trained in arms and
ammunition and met his death in an encounter. The
proclaimed intention of the youth who went to Kashmir,
as spoken to the witnesses (PWs.35,36 & 39) who were
also available in the camp, was to infiltrate into
Pakistan, obtain further training and then come back
to Kerala to retaliate.
65. The conversation with A10, occurred on the
evening of 10.09.2008 and on the same night A15
approached PW1 and informed him that he too was
proceeding on a journey. A15 also informed PW1 that
the loan of Rs.1,500/- taken from PW1 would be
returned by A3; clearly indicative of A3's commanding
role. A9, A10, A7 & A8 later came to PW1 and informed
him of their journey and requested him to pray for
them. When PW1 enquired about their destination, they
Crl.A Nos.1575/2013&con.cases
did not disclose and PW1 did not pray for them. On the
next day morning, when prayers were held near the
'Jaram' of 'Noorisha Thangal', near the Mosque, all of
these persons were present. Later, they left and were
not seen thereafter, but A3 continued and along with
A22 & A13 left on September, 13th, the day after the so
called 'jihadis' departed; another link in the chain
of circumstances against A3. PW1 subsequently saw A15
on the 10th of November. A15 came to PW1's residence
when he was at the Mosque. His son informed him that
A15 wanted an audience with him, which was declined by
PW1. Again his son approached him and informed that
A15 refused to leave his house; when PW1 asked A15 to
come to the lake. The interactions between PW1 and A15
can be addressed in the portion dealing with A15.
Suffice it to notice that the testimony of PW1 speaks
specifically on the general conduct of A3, his
divisive attitudes, which came out as emotional
outbursts during the Thareeqath classes; definitely
intended at inciting Muslim youth, his presence at
Hyderabad where the so-called 'jihadis' convened
before they went on their journey and his departure
Crl.A Nos.1575/2013&con.cases
immediately thereafter from Hyderabad, after which he
also absconded. A10 & A15, in their conversation with
PW1 had spoken of the pivotal role played by A3, on
whose motivation they left for Kashmir; very
reasonably presumable, on the totality of the
circumstances proved.
66. PWs.35,36 & 39 are the persons who were in
the terrorist camp, closely associated with A7 to A10
& A15, who joined their camp at Kashmir. Their
testimony has been elaborately discussed by us in the
preceding paragraphs. They spoke of A7 to A10 having
spoken of a Commander in Kerala and two in Dubai;
those in Dubai being the hub of finances. The
Commander in Kerala referred to as 'Ummer Haji' was
responsible for recruitment. This is clearly
discernible from the testimonies of the misguided
youth from Kashmir, who were forced into terrorism,
but later escaped. PWs.35,36 & 39 deposed that
according to the five Keralite boys, about 180 youth
were kept ready in Kerala, by A3, for being sent to
Pakistan for training in arms and ammunition, with the
specific intention of coming back to their home state,
Crl.A Nos.1575/2013&con.cases
Kerala, to carry out terrorist activities within the
State. That A3 went by the alias of 'Ummer Haji' was
spoken of by PW19, PW72 and PW13. PW13, the brother of
PW1, deposed that A2, A3 & A4 were close confidants,
who attended the Thareeqath classes together and A3
was known as 'Ummer Haji' and 'Haji Usthad'. According
to PW19, who too identified A3 and spoke of his alias,
A3 was staying outside the 'Nooriya Khan Gavu' along
with A15, A5 & A22. Ten days before 'Chilla', there
was a class in the house of Ummer Haji, when, after
the Ustad, Ummer Haji took a class on Thareeqath and
towards the end, spoke of the need to join people with
the black turbans and then sat motionless for a long
time, shedding tears. PW19 deposed that he was not
happy with the style of speech and he had left from
the house of A3 to go back to 'Nooriya Khan Gavu'. He
also said that he had not heard of such speeches from
either Areefuddhin Jilani, his spiritual Guru and the
other Usthads, who were Khalifas of the Thareeqath
movement. To a specific question as to what was the
essence of the speech of A3, PW19 replied that he felt
it was a terrorist measure that was propounded. The
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defence marked an omission, of there being no
reference to terrorist measures, in the prior
statement of PW19 to the Police. We do not think that
the statement made has to be treated as inadmissible,
especially since PW19 had in the S.161 statement
expressed his displeasure, of the manner in which A3
spoke at the Thareeqath classes, which also was not in
tune with the vision of Thareeqath. It was to a
specific question in chief-examination of what
according to him the innuendo of the speech made by A3
was, that the said statement was made, which according
to us is quite acceptable in evidence.
67. The next question raised by the defence
is on the treatment of the statements made by A9 to
PWs35,36 & 39, about the Commander in Kerala, as dying
declaration under S.32 of the Evidence Act. PW35,36 &
39 spoke of "Shakeel'(A9) having told them about the
Commander in Kerala who has kept 180 boys ready for
training in Kashmir, who will come to Kashmir after
them(the five). Obviously the five who joined the
terror camp were the advance party. PW39 also said
that he was talking only to A9. Here, we have to
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notice that PW32, the Manager of Salim Manzil deposed
that only A9 spoke to him in Hindi. Obviously A9
alone, among the five, was fluent in Hindi. Bhairon
Singh [supra] arose from a conviction under S.498A
IPC, where the death of the wife occurred accidentally
after ten years of marriage. The only evidence against
the accused was the testimony of two sisters of the
deceased, to whom the deceased made complaints of
torture and demands for dowry by the husband. The
Hon'ble Supreme Court held that the statement of a
dead person would be admissible in law, only if it is
with reference to the cause of death or as to any
circumstance which resulted in the death, that too in
a case in which the cause of death comes into
question. The death in that case was accidental and
the circumstances did not relate to the death nor even
was the death, a relevant issue under S.498A.
68. In this context we have looked at Patel
Hiralal Joitaram (supra); paragraph 29 of which is
extracted hereunder:
29. The above provision relates to the
statement made by a person before his death. Two
categories of statements are made admissible in
evidence and further made them as substantive
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evidence. They are: (1) his statement as to the
cause of his death; (2) his statement as to any of
the circumstances of the transaction which
resulted in his death. The second category can
envelop a far wider amplitude than the first
category. The words "statement as to any of the
circumstances" are by themselves capable of
expanding the width and contours of the scope of
admissibility. When the word "circumstances" is
linked to "transaction which resulted in his
death" the sub-section casts the net in a very
wide dimension. Anything which has a nexus with
his death, proximate or distant, direct or
indirect, can also fall within the purview of the
sub-section. As the possibility of getting the
maker of the statements in flesh and blood has
been closed once and for all the endeavour should
be how to include the statement of a dead person
within the sweep of the sub-section and not how to
exclude it therefrom. Admissibility is the first
step and once it is admitted the court has to
consider how far it is reliable. Once that test of
reliability is found positive the court has to
consider the utility of that statement in the
particular case.
[underlining by us for emphasis]
69. Obviously the death of A7 to A10 occurred in
Kashmir in an encounter between the terrorists and the
Security Forces and they were among the terrorists. A7
to A10 hailing from the southern most tip of the
country travelled all the way to the northern most
State, to infiltrate into Pakistan, which has a
history of hostility with India, the main area of
dispute being Kashmir. The deposition of PW84, a
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Colonel, who has spent 18 ½ years out of his 21 years
service, in Kashmir, explicitly describes the
situation in Kashmir. PW84 has been part of many
operations in Kashmir against the terrorists and says
that the situation since 1998 to 2008, was very grim.
The population was living in fear and normal day to
day activities, even of livelihood were restricted.
According to him the situation was fomented by
Pakistan to destabilize the peace and tranquillity in
J&K. The design was to divert the minds of innocent
people with the aim of breaking away from India. The
then existing conditions were life threatening for not
only the soldiers, but the entire population. Frequent
attacks of army camps, civil installations and local
population were reported and many soldiers under his
command had lost their lives in trying to protect the
sovereignty of India. He also spoke of various terror
organisations, including Lashkar-e-Thoiba; which are
supported by Pakistan. The testimony of PWs.35,36 & 39
clearly show the five Keralites, A7 to A10 and A15
having joined the terror camp under the Lashkar
Commander Abdulla; which was not at all coincidental
Crl.A Nos.1575/2013&con.cases
and was part of the larger conspiracy as we discern
from the digital evidence recovered from A23, the
financier.
70. The intention of A7 to A10 & A15, who were
also members of the conspiracy, is very clear and it
was in the process of carrying out such intention to
infiltrate into Pakistan, be trained in arms and
ammunition and then to travel back to India, to wage
war against India, that their journey commenced from
Kerala through Hyderabad. They joined a terrorist camp
in Kashmir again in furtherance of the conspiracy, got
trained in weapons and was killed in an encounter with
Security Forces; when they were armed, as revealed
from the seizure of weapons and ammunition, carried
out from their dead bodies. The conspiracy alleged and
the culmination in death are inextricably linked,
though the plan to infiltrate into Pakistan and come
back did not fructify. The cause of death as medically
spoken of, with reference to the history, is by reason
of the injuries sustained on being shot in an
encounter as revealed from the post mortem reports, we
referred to earlier. Every activity in furtherance of
Crl.A Nos.1575/2013&con.cases
the conspiracy to wage war with India has a nexus with
the death of A7 to A10 and their death is a direct
result of such measures taken in furtherance of the
conspiracy. The death of A7 to A10 while waging war
with the Security Forces of India is a relevant issue
in the instant case and it is an important
circumstance proved, in establishing the charges
against the various accused. In fact, even in this
judgment the first aspect we considered was that of
the death of the four militants and their
identification. The death of the four, is very much a
relevant fact which comes into question in the trial
of the present case, of whom one is A9 who spoke of
the circumstances leading to the five joining the
terror camp.
71. The deaths occurred in shoot-outs, in the
course of three encounters, which is the direct cause.
But, though distant in time, the conspiracy to join
divisive forces to fight against India led to the
death of the four persons. The reference to the
Commander in Kerala who has kept ready 180 young
enlists to terror, makes it clear that the five are
Crl.A Nos.1575/2013&con.cases
the advance party send for training in arms and
ammunition for which they joined the terror camp;
which resulted in their death, on being challenged by
security forces. The conspiracy is a very important
circumstance which led to the transaction which
resulted in their death. A Division Bench of the
Karnataka High Court in Ameer Jan vs. State of
Karnataka MANU/KA/0684/2003 held: " For a statement to
be attracted under Section 32(1) of Evidence Act it is
neither necessary that the death should have nexus in
terms of fixed time with the statement nor that the
victim who made the statement should essentially be in
apprehension of immediate death. On the other hand,
such statement should relate to circumstances
surrounding the event (assault) which ultimately led
to death. There should be nexus between the
circumstances stated by victim and his/her
death"(sic). We are in respectful agreement with the
above declaration of law. We are convinced that the
reference to the Commander from Kerala, Ummer Haji,
established to be an alias of A3, Nazeer, and the
preparations made by him to keep ready 180 persons to
Crl.A Nos.1575/2013&con.cases
be sent for terrorist training after the five who
already reached there, unequivocally establish the
charges against A3. There can be a reasonable
inference drawn that A7 to A10 & A15 were the persons
sent by the said Commander and others were expected
to be sent, as we will see when discussing the
evidence of the other accused; specifically that
against A23.
72. We cannot but notice here, the one fact
from the CDR of the mobile phone numbers, proved to
have been used by A3. They were used from different
instruments, specifically from MO3, recovered from A1
and the other, MO26, recovered from A15's residence.
Pertinent is also the fact that the said phone number
97461 86452 ceased operation immediately after the
death of A7 to A10, as per Ext.P309 CDR of the said
number. A3 absconded from the State and was later
apprehended from the Indo-Bangladesh Border at
Meghalaya on 02.12.2009, by PW93, Company Commander of
the BSF and subsequently arrested by PW91, the Police
Officer from Shillong. It was PW93's testimony that
the two apprehended, A3 & A5 were thrown from the
Crl.A Nos.1575/2013&con.cases
Bangladesh side.
X. THE DESERTER-A15:-
73. According to the defence there is nothing
to show that A15 at any time handled arms and
ammunition or travelled to Kashmir along with A7 to
A10 or came back from J&K. A15 was one of the five
persons who travelled by a ticket taken as per
Ext.P48, as evidenced from Ext.P51 reservation chart,
proved respectively by PW29 and PW62. Ext.P48 shows
the application having been made in the name of A15.
PW1 identified A15 and spoke of having known him from
2003 and he was a regular person in the Thareeqath
class. We have, while discussing the evidence against
A3 referred to the testimony of PW1, wherein A15
informed PW1 about the journey he was to undertake and
the promise of the loan taken by him, being repaid by
A3, on 10th of September just prior to the departure to
Delhi on 12.09.2008. We have also elaborately dealt
with the evidence of PWs.35,36 & 39 in the earlier
paragraphs. PWs.35,36 & 39 identified A15, from the
dock, as one of the Keralites who came to the terror
camp in Kashmir and who had been imparted training in
Crl.A Nos.1575/2013&con.cases
weapons from the Lashkar Commander Abdulla. As was
noticed, all the four, shot dead in encounters, were
carrying weapons and A15; who was also in the terror
camp along with the others and who confessed to PW1
about the flight of the terrorists to a nearby
mountain after the first encounter and also of the
later encounters, definitely would have been carrying
weapons. The direct testimony is further corroborated
by the following evidence.
74. PW1 spoke of a confession made by A15 near
the lake as to A7 to A10 having been killed in Kashmir
in an encounter with the Military. When PW1 asked him
about A7 to A10's death at Kashmir, A15 explained that
all of them, who were in Hyderabad during Chilla, went
to Kashmir through Delhi. A20 and one Hayas were also
with them. A20 took them to a camp in Kashmir and
returned. Some Kashmiris in the camp went out and were
apprehended, who led the Police to the camp. When the
Military came near the camp, they moved to the top of
a mountain where there was an encounter in which first
A9 and A10 were killed and later A7 and A8, but A15
escaped. There is some contradiction, in the
Crl.A Nos.1575/2013&con.cases
deposition, as to when the respective accused died. We
have however found from the other evidence, especially
documentary, that first A7 & A10 died in the two
encounters on the 5th and 6th of October 2008 and then
A8 & A9 in the encounter on the 11th of the same month.
However that is not very relevant as this could be a
mistake in the narration, either of A15, or occurred
when PW1 recounted. This clearly indicates the actions
of A15 which attracts the offences charged against
him. The defence argued that the trial court erred in
treating the statements alleged to have been made by
A15 to PW1 as extra judicial confession especially
since there is nothing to prove that PW1 was a close
confidant of A15.
75. PW1 was the Usthad or the Spiritual
Teacher, first in the hierarchy of such teachers, who
was based at Hyderabad and who used to carry out
classes in Kerala and Maharashtra also. PW15, 19 and
23 are persons who identified A15 having participated
in Chilla at Hyderabad in the year 2008. PW23 in
addition to that, spoke of A15 having arranged a room
in Chettipadi for conducting Thareeqath classes. PW75
Crl.A Nos.1575/2013&con.cases
was a person who had a mosque in his property where A3
was the Usthad. A3 had conducted Thareeqath classes in
which A15 had attended. According to PW75, A15 was
very closely associated with A3 and A21. PW138 spoke
of the Thareeqath classes, held in many places in
Kerala and also the Chilla at Hyderabad wherein he
identified A15's presence. A15 being closely
associated with Thareeqath and PW1 being the first in
the hierarchy of the living teachers, would definitely
be a confidant of A1. All the accused who left for
Kashmir, including A15, sought the blessings of PW1,
by way of 'dua' ie: prayers to the almighty;
presumably in the backdrop of the risk and seriousness
involved in the mission for which they were deputed.
It is only natural that having seen the death of his
companions and having escaped by the skin of his
teeth, from the terror camps and the jaws of death, he
would have first approached his spiritual teacher to
confide and repent. Whether A15 repented is not a
question which we have to go into, which would be
answered by a higher Court in the nether life,
probably by denying him entry into the elusive
Crl.A Nos.1575/2013&con.cases
paradise. But what he confided to PW1 is admissible
evidence as an extra judicial confession in the real
world and its Courts of law.
76. CD Field's Commentary on Law of Evidence 13 th
Edition in Volume 2 at page 2058 has the heading
'Influence of a religious or moral nature'; which
quotes Mr.Joy. The reference obviously is to the book;
'On the Admissibility of Confessions and Challenges of
Jurors in Criminal Cases in England and Ireland' by
Henry Holmes Joy. The learned author opined that law
admits a confession for the purpose of obtaining the
truth and only when the circumstances under which it
is obtained, have a tendency to falsehood, it is not
relied on, since the object is likely to be
frustrated. It was opined: 'It seems difficult to
imagine that a man under spiritual convictions and the
influence of religious impressions would therefore
confess himself guilty of a crime of which he was not
guilty; or that a man, under a strong sense of his
spiritual relation with God, could hope to please God
by a falsehood... Such spiritual conviction, or
spiritual exhortation, seem, from the nature of
Crl.A Nos.1575/2013&con.cases
religion, the most likely of all motives to produce
truth. They are, therefore of a class entirely
different from those that exclude confession'(sic)
(reference- Kindle Locations 822-967. A.Milliken.
Kindle). The learned author stated that only temporal
hopes, lead to falsehood and spiritual hopes, can lead
to nothing but the truth. In the case before us, PW1
is in the status of a spiritual teacher to A15, who
was a regular in his classes and was also a follower
of the Thareeqath movement. PW1 did not hold out any
temporal inducement or even a spiritual one. PW1s
testimony clearly indicates that when A15 asked for an
audience, he refused to comply and only on further
insistence he agreed to a meeting, but outside his own
home and the 'Nuriya Muskan'. It is in this context we
have to approach, A15s revelation to PW1, about the
failed mission of the five persons to spread terror in
the country; abruptly culminating with the shooting
down of four and himself escaping, both from the
terrorist camp and the security forces. Even if it is
not a confession made to a spiritual teacher it does
qualify as a confession 'tanquam quilibet', as made to
Crl.A Nos.1575/2013&con.cases
an ordinary acquaintance without the confidence or the
seal of a religious duty; as would Mr. Joy proclaim.
We find immense force in the propositions put forth by
Mr.Joy. The confession we are dealing with is made
without any inducement and can definitely be admitted
in evidence. The extra judicial confession made by A15
to PW1 is further corroborated by the testimony of
PW72. The credibility of PW1 is impeccable, and
together with the circumstances in which and the time
at which the confession was made and the manner in
which the same was made, as testified by PW1,
definitely commends us to accept the same. It has been
held that the Courts cannot approach an extra judicial
confession with a presumption that it is a weak type
of evidence -State of Rajasthan v. Raja Ram (2003) 8
SCC 180 & Sivakumar v. State by Inspector of Police
(2006) 1 SCC 714.
77. Ext.P48 and P52 are reservation application
forms showing the name and address of the applicant,
which is Jabbar and Abdul Jabbar (A15) but the
handwriting on the mere perusal is different. PW137
examined the handwritings in Exts.P48 and P52
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reservation application forms with that of the sample
taken from A15; Ext.P318 taken by PW164. As per the
opinion at Ext.P398 though the handwriting in Ext.P48
did not tally with that of A15, that in Ext.P52
tallied. We have also examined the same and found
ourselves in agreement with the expert opinion.
Ext.P52 is relevant insofar as on 07.09.2008 even
before Chilla was over, the wife of A15, Naziya, along
with two others were sent to Kerala; while she was a
resident of Hyderabad. We accept the contention of the
learned ASG that the journey to Kerala on 07.09.2008
just a few days before the onward journey of A9 to
Kashmir, which commenced on 12.09.2008, is an
important circumstance in the chain of circumstances.
We have also seen the DVD at Ext.P66 which is the
footage recovered from the hard disc at Salim Manzil,
from which PW150, the uncle of A15, identified A15
clearly.
78. According to the prosecution, after A15
came back from Kashmir, he was in Perumbavoor under
the assumed name of Anoop. PW27 is the Accountant of
one Kanampuram Veneers, from whose possession, Ext.P46
Crl.A Nos.1575/2013&con.cases
diary was seized as per Ext.P45 on 01.12.2008.
Ext.P46(a), entry marked from the diary is the name
and address of Anoop, who was appointed as the
Security Guard in the Company, on the direction of
PW42, the owner of the factory. PW27 also said that
the person who accompanied the Police at the time of
seizure made, as per Ext.P45, was Anoop, who had
worked as a Security Guard for 3 or 4 days; a month
before the day on which the Police came. Anoop,
according to the witness, was specifically asked to
produce the ID proof, which he said he will bring on
Sunday, when he returns from home. However, on Monday,
Anoop did not turn up. PW27 could not identify A15
from the dock. PW41 is another Accountant of the very
same factory, who wrote the name and address of Anoop
in Ext.P46 diary. He also did not identify A15 from
the dock and said that Anoop worked for only four days
in the factory. PW42 is the owner of the factory, who
deposed that it was PW71 who introduced Anoop, but he
was not sure as to the number of days Anoop worked in
his factory and he had not seen him, when he was
working there.
Crl.A Nos.1575/2013&con.cases
79. PW71 identified A17, A16 & A15 from the
dock. A17, acquitted by the trial Court, is his
neighbour and A15 was introduced to him by A16. A16
requested an employment for A15; which he arranged at
the unit of PW42. PW71 identified his signature on
Ext.P107, which is the receipt for an amount of
Rs.49,950/- sent by Sarfaras Navas; received on
29.10.2008. According to PW71, he received the money
as instructed by A16. He went to the Post Office,
showed his Election I.D Card and received the money
which came from Oman. The secret code for identifying
the recipient was given to him by A16. He deposited
the money in the Perumbavoor Branch of S.B.T as per
Ext.P167 in the name of Sabir along with some more
money given by Sabir, who is A16. He confirmed his
handwriting in Ext.P167.
80. PW71, admitted a dispute with A16
regarding a missing car. PW71 made a complaint
regarding the missing car and A16 was one of the
accused. However, PW71 did not remember whether the
dispute arose before or after the money transaction.
PW71 denied the suggestion that he was inimical
Crl.A Nos.1575/2013&con.cases
towards A16. The defence also did not attempt to prove
the exact time when the other crime was registered.
Here, it is relevant to recall that PW42, deposed that
he employed Anoop on the request of PW71, providing
sufficient corroboration. PW43 & PW44 are respectively
the Postmaster and Postman of Perumbavoor Post Office.
PW43 explained the manner in which money is
transferred from abroad through Western Union Money
Transfer. The sender deposits the money at the Western
Union Office, abroad and sends a ten digit number,
given by the Western Union, to the recipient. The
recipient approaches the Post Office with I.D proof
and the secret number, on the strength of which the
Post Office pays the amount to the recipient. She
identified the TRM form marked as Ext.P107 and also
Ext.P108 Register, from which Ext.P108(a) marked, was
the subject transaction. PW44 was the mahazar witness.
The transaction is alleged to be the money paid by A23
to A15 through A16, which was received by PW71. There
is nothing to disbelieve the testimony of PW71 and the
presence of A15 in Perumbavoor stands established. The
arguments addressed by the Senior Counsel appearing
Crl.A Nos.1575/2013&con.cases
for A16 against the veracity of the money transaction
will be addressed at a later point; which, we assert,
does not find favour with us.
81. PW80 is the Deputy Tahsildar, who marked
and proved Ext.P118 voters' list and Ext.P181 seizure
mahazar. From the above documents it is proved that
Ext.P157 I.D Card of Anoop is forged and PW65, who is
the brother of Anoop as seen from Ext.P180 voters'
list specifically stated that the photograph in
Ext.P167 is not that of his brother Anoop. PW125, the
real Anoop, was also examined fully corroborating his
brother's testimony. PW115 is the relative of A15; son
of elder sister of PW115's wife. He pointed out the
room in which A15 was residing and witnessed Ext.P268
mahazar by which were seized Ext.P126, Ext.P224, P225,
Ext.P227 & Ext.P229; documents with photographs. He
identified A15 from Ext.P66 video also. Ext.P224 was
the driving licence and Ext.P225-the learner's
licence, from which the photograph of A15 was
identified, which is identical to that of Ext.P125,
the fake I.D of Anoop.
Crl.A Nos.1575/2013&con.cases
82. PW45, PW46 & PW77 are respectively the
Managing Director, the Doctor, and the nurse of one
Vathiyat Hospital at Perumbavoor. As per Ext.P111
mahazar, Ext.P112 file from the hospital was seized;
from which Anoop's name is seen in relation to 'O.P
No.23708 and I.P No.3830', which portion was marked as
Ext.P112(a). Anoop hence was first treated as an
outpatient and then admitted to the hospital as an
inpatient. He also identified the burned bills marked
as Ext.P113 to Ext.P116, which were issued by the
hospital, to the patient named Anoop. These burnt
bills were seized by PW172, the I.O, as per search
list Ext.P151 from the house in which A15 had resided
at Hyderabad; which was witnessed by PW61. Ext.P42
seizure relied on by the prosecution as a recovery
under S.27 of the Evidence Act, did not lead to the
disclosure of any fact relevant to the crime and is
not admissible under Section 27. But it is definitely
relevant to establish the presence of A15 at
Perumbavoor. PW46, the Doctor & PW77, the Nurse who
attended to Anoop, did not identify him. PW77 however
said that the patient named Anoop was admitted on
Crl.A Nos.1575/2013&con.cases
26.10.2008 and discharged on 28.10.2008. This date
corresponds to the date seen from one of the burnt
bills and also is just before the day on which the
money transfer from A23 occurred; on 29.10.2008, after
which A15 was not seen in Perumbavoor. Moreover the
fake Electoral ID of Anoop, with A15's photograph was
another seizure made through Ext. P151 search list,
marked as Ext.P157. The recovery of the burnt bills,
we reiterate along with the Electoral ID card used by
A15 is yet another circumstance confirming A15's
presence at Perumbavoor.
83. PW72 is the friend of A15 who identified
A15, A3 & A13 from the dock. A15, according to PW72
was his neighbour in the year 2007 when A15 stayed,
near the residence of the witness, under the assumed
name of Sathar and was engaged in contract work. PW72
got acquainted with A3 from A15's house and they also
attended Mosque and religious classes together. A3
took classes and often spoke of the harassment Muslims
were subjected to, in India and exhorted the youth to
protest against it. PW72's deposition is crucial in so
far as the confession made to him by A15. A15 called
Crl.A Nos.1575/2013&con.cases
PW72 and expressed a desire to see him and in private
showed him a paper cutting, carrying the news of the
death of four Malayalees in Kashmir; Yassin, Faiz,
Fayaz & Rahim. He also said that he was the Abdul
Jabbar who escaped from Kashmir and said that the
injury to his knee was caused when he fell while
coming down a mountain. He also spoke of the arms
training and plan to infiltrate to Pakistan. These
statements made, qualify as another extra judicial
confession of A15, corroborating the earlier one to
PW1 and the other attendant circumstances as revealed
from the evidence led in the trial.
XI. CALL DATA RECORDS of A1 & A3:-
84. The Call Data Records or the CDR is a
literal labyrinth of facts relating to mobile numbers,
the subscribers, the International Mobile Equipment
Identity (IMEI) numbers of the instrument used, the
location and the incoming and outgoing calls. We
strove hard to go through the maze without loosing our
way and record here the facts ferreted out especially
applicable to A1 and A3 and their links to the other
accused. We discuss the individual incriminating
Crl.A Nos.1575/2013&con.cases
circumstances with respect to the other accused,
available from their CDRs, in those portions dedicated
to each of them. The defence for A1 is that merely on
account of some calls sourced from J&K he is
arraigned, without anything more.
85. On arrest of A1 by PW158, MO3 mobile
phone, with IMEI No. 35197 01290 7931 and MO3A SIM
card, having number 96057 49262 were seized from him
as per Ext. P122 Mahazar. Likewise, on search of the
house of the wife of A1 by PW158, SIM card (MO22)
having number 97443 82047 was recovered by Ext P117,
witnessed by PW47. PW128, Nodal Officer of Idea
Cellular Ltd. proved Ext.P343(7) Customer Application
Form (CAF) of MO3A and Ext.P343(9) CAF of MO22; both
in the name of A1 along with Ext.P343(8)&(10) ID proof
of A1, which is the Electoral ID Card. PW110 is the
AGM, Vigilance of BSNL, Kerala who produced Ext.P264
CDR of mobile number-94694 02387, deposed to be a J&K
number, between 01.10.08 and 07.12.08. The J&K number
is said to be in the name of one Manzoor Ahmed Lone.
On 01.10.2008 between 14:02:46 and 16:46:34 there were
ten calls from the J&K number to MO22 number belonging
Crl.A Nos.1575/2013&con.cases
to A1, marked as Ext. P264 -(c)to(g) and (j)to(n). The
tower location of the J&K number was identified to be
in J&K at the time the calls were made within tower
number 04F42606413FD5. The tower location is at
Wawoora (Sogam) Kupwara Sector 1 in J&K as per
Ext.P486 certificate proved by the Divisional Engineer
of BSNL at J&K, PW173. Ext P290, is the CDR of MO22
number, between 01.08.2008 and 31.10.2008, proved
through PW128, which shows the above 10 calls from the
J&K number at Ext. P290 (A) to (J). The ten calls
were of different duration varying from 11 to 152
seconds, necessarily not a mistaken call to a wrong
number; which when put to A1, in S.313, there was no
explanation offered. He also denied using the number,
the SIM card of which was seized from him and further
proved by the CAF and ID produced by the service
provider. The defence argument that Manzoor Ahmed Lone
was not proved to be a terrorist, is not very relevant
considering the fact that the period synchronizes with
the period when A7 to A10 were proved to have been
shot dead in Kashmir, while attached to a terrorist
camp. There was no explanation coming forth from A1 as
Crl.A Nos.1575/2013&con.cases
to the source of the said calls, which has been proved
to be from J&K. It is also very unlikely that a
terrorist would take a SIM card in his own name and we
have ample evidence in the case of the accused itself
of SIM cards obtained on the strength of ID cards of
others. Coupled with the total absence of an
explanation, this becomes a very incriminating factor
against A1.
86. The defence, stiffly opposed acceptance of
Ext.P264, not supported by a S.65B certificate.
Ext.P264 CDR was issued from J&K, BSNL and transmitted
to BSNL, Kerala thorough e-mail, a print out of which
is marked before Court. The learned ASG filed an
application seeking permission to examine the officer
who issued Ext.P264. We allowed the said application
especially looking at Arjun Panditrao Khotkar v.
Kailash Kushanrao Gorantyal (AIR 2020 SC 4908). While
holding that the requirement of a certificate under
S.65B is mandatory, it was also noticed that S.65B has
created huge judicial turmoil, with the law swinging
from one extreme to the other in the past 15 years. It
is hence their Lordships laid down that the
Crl.A Nos.1575/2013&con.cases
certificate could be produced at any time and hence we
allowed the application filed by the ASG relying on
the cited decision. We are justified in this regard by
virtue of the specific enabling provision under S.391,
read with S.311, CrPC. The ends of justice certainly
requires acceptance of that additional evidence in the
form of S.65B certificate and we find no prejudice
having been caused to the accused persons on account
of the same. We issued summons and the witness
appeared on 19.04.2020 before us. The witness was
examined by the Prosecutor for NIA, Sri Arjun
Ambalapatta and was cross-examined by two learned
Counsel, appearing for the accused, on behalf of all.
87. PW187 produced Ext.P608 certificate under
S.65B issued by him, which is dated 06.04.2022 in
which context, the defence raised a contention that
related CDR would not be retained in the system on the
said date and the witness is also now retired. However
the testimony of PW187 is categoric that he was in
charge of the system of the BSNL, when Ext.P264 was
issued. The certificate though anti-dated is related
to the date on which the CDR was issued pertaining to
Crl.A Nos.1575/2013&con.cases
which the certification is made. It was PW187 who
generated the certificate from the system, as deposed
by him. The S.65B certificate, according to PW187, a
retired official was issued after permission from the
General Manager, BSNL, J&K and countersigned by the
Nodal Officer, who is now in charge. PW187 has
specifically spoken of the calls made from the J&K
number to the mobile numbers of A1 and A12 as seen
from the call records, which were earlier marked. In
cross-examination PW187 has denied the suggestion made
by the defence that he has tampered with the CDR. The
suggestion was made since PW187 agreed with the
defence lawyer that both the IMEI numbers of the SIM
cards, in conversation, would be reflected in the CDR.
Though PW187 answered in the affirmative, a mere
perusal of the various CDRs produced herein, would
indicate that only the IMEI number of the phone, for
which the CDR is issued, would be reflected. We hence
accept the evidence of PW187 and the S.65B certificate
produced as Ext.P608 to the files of the above
appeals. We have also questioned the accused, under
S.313 Cr.P.C, who were before us on Video Conferencing
Crl.A Nos.1575/2013&con.cases
from the Parappana Agrahara Central Prison, Bangalore
and two of them who were on bail; physically present
before us.
88. We have to pertinently notice that even if
Ext.P264, the CDR of J&K number, 94694 02387 is
ignored, the CDR of MO22 number of A1 produced as Ext.
P290 shows the ten calls from the J&K number to the
SIM card of A1. The said CDR is accompanied by S.65B
certificate and has been produced and proved by PW110,
the AGM of BSNL, Kerala. It has also been deposed that
the number from which the calls came to A1 & A12 is a
J&K number. Here we also have to notice the connection
of A1 with the other accused as revealed from the CDR
of his SIM number and the use of the same equipment,
the phone, by others. Ext.P588 is the report of the
CFSL, after examination of the various MOs recovered
from A23, on his arrest by PW182, ACP, B'lore Central
Crime Branch. The SIM cards and other digital devices
recovered from A23 were subjected to extraction of
data. Ext.P588(ar) marked by PW183, the official of
CFSL is a message giving the J&K number with which A1
conversed 10 times, to A23; send from a Shameem Pak
Crl.A Nos.1575/2013&con.cases
and the senders mobile number was of Pakistan. The
said J&K phone number ie: 94694 02387, was saved in
two of A23's SIM cards as 'Mujahid Kashmiri' as per
Ext.P588(s)&(bc). PWs.35,36 & 39, surrendered
terrorists had spoken of A9 having talked in Malayalam
in the mobile of Abdulla (Lashkar Commander) and the
only inference is that the contact was made to the
number of A1 by A9 who joined the terrorist camp. Here
it has to be pertinently noticed that PW84, army
officer, had stated in cross-examination that pre-paid
mobile connections from outside states were not
allowed to be used in J&K. A23 obviously was aware of
the number from which the contact was established
which was saved in his SIM cards as that of 'Mujahidi
Kashmiri'; the connection unmistakable. A23's
involvement is clear from the further messages
received from the Pakistan number and the literature
seized from him, all of which were spoken by PW183;
which we will discuss at the time of discussing the
evidence against A23.
89. A1 immediately after receiving the calls
in MO22 number called 98476 14811 (A11) as revealed
Crl.A Nos.1575/2013&con.cases
from Ext.P290 at Ext.P290(fl),(fm)&(fn) which were
respectively the next calls from Ext.P290(D),(F)&(H);
those from the J&K number. SIM card 98476 14811
belongs to one Najib, as is proved from Ext.P212 CAF
and Ext.P213 ID proof as made available by the IT
Officer, Vodafone, PW143; who was examined as PW97.
Ext.P336 CDR of the phone number 98476 14811 produced
by PW143 shows the corresponding incoming calls at
Ext.P336(b)to(d) which are immediately after the calls
to A1's, MO22, from the J&K number. There is a further
call from A1 to 98467 14811 (A11), on the next day
marked as Ext.P366(d). PW97 is Najeeb, who affirmed
that he had a number in Kerala, while he was regularly
employed in B'lore in his father's shop, which had the
number 98467 14811. He identified A11 who was his
teacher in a Madarasa, who took his SIM card with cell
number 98467 14811 assuring him that it will be given
back for his use, when he is in Kerala. PW97 deposed
that A11 never gave back the number. A11 did not have
any explanation regarding the calls made to that
mobile number, proved to be in his use, in close
proximity to the calls received from J&K, in the
Crl.A Nos.1575/2013&con.cases
number of A11 from A1's number. There is a further
accusation that A11 immediately after the call from A1
called the J&K number from a booth owned by PW126.
However there was no prior statement from PW126 and
the I.O, PW174, categorically deposed that he was not
aware of the witness or the facts deposed by him. The
learned ASG sought to dispel our doubts, reminding us
that the investigation was by a JIT and another
officer would have taken the statement. But there is
no attempt made to produce that officer and make him
testify to this aspect. We hence place no reliance on
PW126.
90. A1 used his other number 96057 49262 only
between 20.09.2008 and 25.10.2008 as revealed from
Ext.P342 CDR, proved through PW128. Ext.P342 CDR also
is that between 01.08.2008 and 31.10.2008. The said
number of A1 was used in three instruments, those with
IMEI numbers:- 35189 70129 07930, 35555 80134 27330
and 35867 00166 43040. The instrument having IMEI No.
35189 70129 07930 was used to operate SIM numbers
99953 25748 and 97461 86452 both used by A3, 97471
83033 used by A4 and 974666 91814 used by A8. In Ext.
Crl.A Nos.1575/2013&con.cases
P141 book of Therbiyath Islam Sabha, telephone numbers
of A3 & A12 who accompanied A10 is entered as 99953
25748 (A3) and 97450 02528-Firoz (A12). Ext.P342
(a)to(e) are calls between 96057 49262 (A1) and 97450
02528 (used by A12). A1's instrument with IMEI No.
35189 70129 07930 was used to operate 99953 25748,
one of the numbers used by A3, as proved from Ext.P321
on 20.04.2008 between 07.40 and 17.20.
91. The CDR Ext.P321 also reveals the tower
location of the number 99953 24748 on 19.04.2008. The
said number, according to PW56, the Manager of
Therbyath Islam Sabha, to which A10 was taken for
conversion to Islam; was given by A3 and entered in
the Book, the extract of which is Ext P141, kept at
the Sabha on 19.04.2008 evident from Ext.P141(a)
entry. A3 and A12, it is alleged, accompanied A10 and
their telephone numbers were noticed in the Book
maintained at the Sabha at entry No.327 separately
marked as Ext.P141(a). Ext.P142 the register
maintained at the gate, at Ext.P142(a) shows the name
of A3. A3 was identified by PW 56 and the phone
numbers were said to have been given by A3. The number
Crl.A Nos.1575/2013&con.cases
99953 24748 is in the name of one Suraj Mohan whose
CAF and ID proof were marked respectively as Exts.P330
and P331. Suraj Mohan who was examined as PW139
deposed that though he took the above SIM and had used
it for sometime, he had lost it along with a purse in
which he had kept the SIM card. It is the number of
this SIM card that A3 gave to PW56 as his number at
the time of admitting A10 to the Sabha for the purpose
of conversion. According to PW133, Ext.P321 contains
the call details of the said number from 01.04.2008 to
10.06.2008. From 01.04.2008 to 18.04.2008 as is
evidenced from Ext.P321 the phone was being operated
from Ernakulam. On 19.04.2008 the date on which A10
was taken for conversion, the phone had travelled from
Kalamassery; its location on the previous day, to
Kozhikode and from there on the same day to Kannur,
which coincides with the movement of A10, a resident
of Ernakulam, upto Kozhikode, where the conversion
centre is located. This clearly indicates that A3 was
with A10, upto the Conversion Centre, which is another
link of proving the allegation of recruitment carried
out by A3. Here we have to remember that at Hyderabad,
Crl.A Nos.1575/2013&con.cases
before he travelled north, A10 had confided to PW1
that he was on a journey, to which he was urgently
summoned by A3.
92. A3's association with the other accused
also is proved from Ext.P321, CDR of 99953 25748 (A3)
proved through PW133. Ext.P321(a) &(b) are calls with
A1 in his number 97443 82047. There were 27 calls
marked as Ext.P321(aa) to (ba) with 97450 02528
belonging to A12 as revealed from the testimony of
PW56. ExtP321(aa) & (ac) are two calls made on
18.04.2008 from the telephone of A3 at Ernakulam and
then at Kozhikode. A12's involvement in taking A10 to
the Sabha at Kozhikode for conversion is also crystal
clear. Ext.P321 also reveals 26 calls, Ext.P321(bb) to
(ca) to A16 in his number 93880 81080, 21 calls to A21
in 92465 47313 at Ext.P321(ch) to (db), 4 calls to
A23, Ext.P321(dc) to (df) and 14 more calls to A23
itself at Ext.P321(dg) to (dt). Very pertinent are the
20 calls at Ext.P321(du) to (en), with 99126 61040,
between 21.04.2008 and 27.04.2008 the number of A9,
given at Salim Manzil, Delhi.
93. It is also seen from Ext.P321 that the
Crl.A Nos.1575/2013&con.cases
number 99953 25748 now established to be that of A3,
having been used from six different IMEI numbers, one
of which; 35189 70129 07930, used on 20.04.2008, as
deposed by PW133 is the instrument belonging to A1
(MO3). PW133 also testified that the first 14 digits
of the IMEI number alone is relevant and that alone
would be reflected/seen in the CDR. The very same
instrument with that IMEI number has been used to
operate number 97461 86452 (A3) as seen from Ext.P309
from the 1st to 6th and then from 11th to 31st of August
2008, 15th to 17th of September and also on 2nd of
October. In these months the said number was used
alternatively with instrument having IMEI number 35088
81092 29770. Very pertinently 97461 86452 was used in
instrument having IMEI number 35088 81092 29770 on the
6th and 7th of October 2008 and then both instrument and
mobile number ceased operation, as indicated from
Ext.P309, which is the CDR of 97461 86452 which was
for the period 01.08.2008 to 31.10.2008. IMEI number
35189 70129 07930 is that of MO3 seized from A1 and
IMEI number 35088 81092 29770 is that of MO26, seized
from where A15 was residing at Hyderabad, by PW172 as
Crl.A Nos.1575/2013&con.cases
per Ext. P151 search list. A3 absconded on 07.10.2008
and was then arrested from the border by the Meghalaya
Police along with A5 on 02.12.2009; as deposed by PW91
& PW93. In Ext.P588 report of the contact list in the
SIM card recovered from A23, at page number 117, 97461
86452 (A3) is saved as one belonging to 'Omer' in Q9-
SIM and in Q13-mobile phone, as 'Omer Khaleef'. The
entry in Q9-SIM is ExtP588(l) and that in Q13-mobile
phone is Ext.P588(bd). The phone with number 97461
86452 according to PW133 as revealed from Ext.P309 was
on roaming between 01.09.2008 to 15.09.2008 and was
not used in Kerala. Ext.P36 reservation form contains
the name of 'Umer' who according to PWs.35,36 & 39 is
the Commander in Kerala. It has also come out in
evidence that Nazeer @ 'Umer' (A3) was in Hyderabad
during the period the mobile number was said to be in
roaming mode. A3 was present in Hyderabad for 'Chilla'
where many of the accused congregated and on 12 th of
September 2008, A7 to A10 & A15 commenced their
journey by Train, with destination Nizamuddin, and on
the very next day A3 returned without waiting for
'Chilla' to conclude.
Crl.A Nos.1575/2013&con.cases
94. The mobile number 97461 86452 (A3) was in
the name of PW87 who deposed that he lost his purse
along with the ID proof. Ext. PW133 proved Ext.P322
CAF and Ext.P323 ID proof allegedly of PW87. The CDR
of 97461 86452 (A3), Ext.P309 however reveals constant
contact with the other accused while the IMEI numbers
in Ext.P321 of 99953 25748 (A3) and Ext.P309 of 97461
86452 (A3) are common, indicating use of same
handsets. Ext. P309 CDR is that between 01.08.2008 and
31.12.2008. The contacts too are common and A23 has
saved 97461 86452 (A3), in his devices, as that of A3,
in his aliases. Ext.P309 reveals more than 100 calls
to 97443 82047 (A1) 5 calls to A4 in 97475 98471, 63
calls in 97466 91814 of A8, 46 calls in 97471 83033 of
A4 then numerous to A11, A12, A13, A15, A16, A18 to
A21 and A23. The web woven by the NIA, with the CDR's
clearly draws both A1 & A3, and the other accused in
its intricate meshes and provides no mitigation from
the inevitable consequence of their involvement in the
conspiracy, to the hilt. The CDRs discussed in the
above paragraphs were all between 01.08.2008 and
31.12.2008; except Ext. P321 which was of the earlier
Crl.A Nos.1575/2013&con.cases
period pertaining to that of the conversion of A10.
The contemporaneous telephone calls and the exchange
of mobile instruments is a very relevant circumstance
pointing to the involvement of the accused in the
conspiracy as has been held in State (NCT of Delhi) v.
Navjot Sandhu @ Afsan Guru (2005) 11 SCC 600. This
equally applies to the frequent calls made between the
accused during the said period as discussed in the
following paragraphs. A1 offered no explanation for
the frequent calls from the J&K number. There is also
no explanation forthcoming from the various accused
regarding the telephone calls, as disclosed from the
CDRs; which again provides a strong link in the chain
of circumstances (Ganesh Lal v. State of Rajasthan
(2002) 1 SCC 731 and Dr. Sunil Clifford Daniel v.
State of Punjab (2012) 11 SCC 205).
XII. THE CONSPIRATORS:
95. A2, according to the defence, had only
accompanied A7 to Hyderabad, which does not by itself
prove any conspiracy. A2 in fact did not have any
knowledge about the further journey undertaken by A7,
Crl.A Nos.1575/2013&con.cases
is the contention. PW1, PW14, PW19 & PW72 spoke about
A2 being a regular to Thareeqath classes. PW2 & PW3,
the mother and sister of A7, deposed that A7 had gone
along with A2 on 10.09.2008 and A7 was not seen after
that. A2 came back after two or three days, when he
informed the family of A7 that A7 had gone to reform
himself. That A2 travelled with A7 & A8 is admitted
and Ext.P33 ticket of the said journey was seized from
A2 on his arrest on 25.10.2008 as per Ext.P118 by
PW48. PW24 had also spoken of the close association of
A2 & A7. The handwriting in Ext.P34 was proved to be
that of A4 as per the deposition of PW137, who
produced and marked Ext.P319 report. PW14 had deposed
that A2 harboured the opinion that 'evil has to be met
with evil', which was proved as an omission through
PW174. However, PW174 specifically spoke of PW14
having stated in his prior statement that A2 did not
have a good character. As has been held in Dal Singh
[supra] and Takdir Samsuddin Shaikk [supra] minor
discrepancies in the deposition of witnesses from
their prior statements are not very significant. The
very same words need not be used in the prior
Crl.A Nos.1575/2013&con.cases
statement and the deposition. PW14 had spoken of the
character of A2, which was declared to be bad in the
prior statement but there was nothing more to show
A2's involvement in the conspiracy. He is not shown to
have any contact with the other accused and but for
his journey to Hyderabad with A7 & A8 there is nothing
to show his involvement. He also came back within two
or three days. Statements of a broad and general
nature to the effect that one's character is not good
hardly constitutes an incriminating material,
particularly to supplement a relevant omission
signifying a statement of specific impact. Mere
suspicion, however grave, is not sufficient to find
the guilt of an accused. We are unable to find any
incriminating material to arrive at the guilt of A2
and he has to be acquitted.
96. A4 was another regular in the Thareeqath
classes, in which the other accused also actively
participated, as deposed by PW1, PW13 & PW14. PW14, an
accredited teacher of Thareeqath, specifically spoke
of the close association between A3, A7, A8 & A4. In
cross-examination, it was deposed that A3, A4 & A8
Crl.A Nos.1575/2013&con.cases
were persons who wanted to meet 'evil with evil' and
that they had violent tendencies. Ext.P35 ticket
recovered from A2 was taken as per the reservation
application form produced as Ext.P34. Ext.P34 had the
handwriting of A4. PW174, the I.O, as per Ext.P317
took the sample handwriting of A4 and the same was
compared with Ext.P34 by PW137, the handwriting
expert. Ext.P319 is the report filed by PW37, which
revealed that on comparison of the handwritings;
Ext.P317 & Ext.P34, they are found to be by the same
person. In addition to this, is the evidence
forthcoming, from the call data records linking him
closely to A3, A8, A16, A21 and the mobile number
given by A9 at Salim Manzil.
97. On his arrest by PW174, on 03.11.2008, A4
was found in possession of two mobile hand sets and
two SIM cards, which were recovered from him. The IMEI
number of one of the mobile hand sets was 3572 7501
380 3280, in which, was used the mobile number 97471
83033 as proved by PW128 from Ext.P338 CDR. There were
six IMEI numbers from which the said SIM card was
operated. 97471 83033 stands in the name of PW95,
Crl.A Nos.1575/2013&con.cases
Lijith as proved from Ext.P343(1) and (2), the CAF and
ID proof of PW95. However, PW95 denied having made
such an application and deposed that the signature in
the CAF was not put by him. One of the mobile hand
sets from which the above SIM number was used, with
IMEI no. 35088 81092 29770, MO26, was recovered from
the residence of A15 on 19.11.2008 by PW172, as per
search list, Ext.P151. MO26 was also used to operate
the number used by A4 (subscribed by Lijith-PW95);
from Ext.P338 CDR. As per Ext.P338 there were 47 calls
with A3, between 6.8.2008 and 6.10.2008, in the number
97461 86452 and similarly between 8.8.2008 to
12.9.2008 there were 47 calls with 97466 91814 used by
A8, Fayiz. There were also six calls with A13 (97446
85556), 15 calls with A18 (99958 83549), 13 calls with
A21 in the number 92465 47313, one call to A16 in his
number 93880 81080 and 8 calls between 6.9.2008 to
10.9.2008 to the number 99126 61040 which is the
number given by A9 at Salim Manzil, Nizamuddin. The
other number seized on the arrest of A4, 97475 98471
was used by A4 in three hand sets, two of which having
IMEI number 350 888 104 22180 and 35293 5024 136670
Crl.A Nos.1575/2013&con.cases
were used to operate the SIM number subscribed in the
name of Lijith. Ext.P344 the CDR of 97475 98471 also
shows contact with A3 in his number 97461 86452 on
27.09.2008 (Ext.344(a)). The CDR of the two numbers
used by A4 reveals the close ties of A4 with the other
accused especially with A3, A1, with A8 who was shot
dead in J&K and the mobile number given by A9 at Salim
Manzil.
98. It is in this context that the evidence of
PW57 & PW58 has to be examined. PW57 was a resident of
NPC Quarters at Athazhakunnu, Kannur who spoke of
Mujeeb (A4) and his wife Sibina, having stayed in a
nearby house in the same Quarters. She also spoke of
one Naziya having stayed there with two children along
with Mujeeb & his family. She identified Mujeeb from
the dock as A4 and also Naziya from Ext. P126
photograph; the wife of A15. Naziya had told her that
her husband's name is Jabbar and he was working in
Delhi. In cross-examination she also said that though
she does not remember the exact date, the residence of
Naziya with Mujeeb occurred in October-November of
2008. PW58 another resident of the same Quarters,
Crl.A Nos.1575/2013&con.cases
whose residence there was spoken of by PW57, fully
corroborated PW57's testimony. Both the witnesses
spoke about the said Naziya being conversant with
Hindi and her native place declared to be Hyderabad.
A15's wife-Naziya, is a native of Hyderabad, but she
opted to stay with A4 and A5 in Kerala. Though for
short periods, it corresponds to the period when A15
was at Kashmir after which he hid in an assumed name
at Perumbavoor. The circumstance hence is clearly of
harbouring the family of a terrorist; which though is
not by itself a crime, clearly establish the meeting
of minds in designing and executing the conspiracy
hatched. The aspect of harbouring A15's wife has to be
considered along with the facts revealed from the call
records, the use of a SIM subscribed in another
person's name, the exchange of handsets; all
incriminating circumstances.
99. A5's presence in the Thareeqath classes
has been proved by PW1, PW13, PW14, PW78 and PW106.
PW106, the nephew of absconding A20, who identified
A20 from the photographs in Exts.P3, P161, P197, P199
and P237, also identified A3, A5 and A14, as close
Crl.A Nos.1575/2013&con.cases
friends of his Uncle, A20. PW138, who was in Hyderabad
during the Ramzan of 2008, identified A3, A9, A5 and
A22 as having been present at Hyderabad. PW8 and PW9,
the father and sister of A8, identified A5 from the
dock. It was deposed that A8 had left his house last,
informing them that he was going to join an employment
at Bangalore arranged by A5, a close friend of A8;
which by itself cannot be an incriminating
circumstance. However, his close association with the
other accused, especially A3, and the absconding A20
have been established. Further, PW50 testified that
she had rented a house to A5 and his wife where they
were staying along with a Hindi speaking lady, who was
identified from the photo in Ext.P126; the wife of
A15. Ext.P125 diary of A5 & Ext P126 photograph was
recovered from PW50's house and PW50 stated that A5
was introduced to her by A11 who was also identified
from the dock. A5 stayed along with the Hindi speaking
lady, seen from Ext.P126, only for 11 days, deposed
PW50. Both A5 and A11, who introduced A5 were
identified by PW50. PW51, a neighbour witnessed the
seizure, by Mahazar-Ext.P124, and affirmed the seizure
Crl.A Nos.1575/2013&con.cases
from PW150's house. As in the case of A4, harbouring
the wife and children of a terrorist, viewed in the
attendant circumstances becomes a crucial,
incriminating material fact, which also coincides with
the money transaction between A23 and A20 at Kalpetta;
which is discussed as an incriminating circumstance of
A23.
100. In addition to this, is the circumstance
pointed out by the prosecution, of A5 having received
Rs.49,500/- sent by A23 from Oman on 26.11.2007. The
prosecution contended that the said transaction
occurred just prior to the 'Bangalore blasts'; but the
defence argued that there is no such evidence led and
it has not been proved that the money was used for any
clandestine activity much less a terrorist activity.
The connection with A3, the Commander in Kerala,
charged with the recruitment to wage war against
India, is proved. The further charge of A23, being the
financier and Commander at Dubai, definitely is also
an established relevant fact. In that context,
especially considering the fact that A5 had absconded
along with A3, after the death of A7 to A10 and was
Crl.A Nos.1575/2013&con.cases
later arrested from the Bangladesh boundary; A5's role
cannot be swept under the carpet.
101. PW76 was a franchisee of Western Union
Money Transfer who proved the receipt of Rs.49,950/-
by A5, as per Ext.176 carbon copy of the TRM form
signed by his staff whose signature was also
identified. Ext.P127 is the copy of the driving
license of A5 produced to identify himself with the
franchisee, from the photograph in which, PW76
identified A5 from the dock. The driving license
produced to prove the identity, was proved by PW92 an
Assistant in the Mahe Transport Office, who also
produced the register maintained at that office,
Ext.P207; in which the relevant entry of A5 was marked
as Ext.P207(a). The photograph in the driving license
was identified to be that of A5 by PW50, the owner of
the house in which A5 stayed along with his family and
A15's wife. Similar identification was made by PW114,
an aunt of A5, who was declared hostile. It is
pertinent to note that A5 had no explanation for
having absconded from the State, as also his
subsequent arrest from the Bangladesh border, that
Crl.A Nos.1575/2013&con.cases
too, along with A3. A5 definitely was involved in the
activities alleged by the prosecution against the
accused and was an integral part of the conspiracy.
102. A11 was identified from the dock by
PW1 as a follower of Thareeqath and PW63 identified
him as having worked as 'Mukree' at Kanhangad 'Kotta
Palli'. The copy of the pages of the register marked
as Ext.P154, after verifying the original register,
indicated A11 having worked in the Mosque between
16.3.2006 and 31.01.2008. The evidence of PW63 is
crucial in so far as he having identified A3 from
among the accused standing in the dock; who had
visited the Mosque to see A11. The evidence regarding
the use of SIM number 98467 14811 by A11 has been
established by the evidence of PW97 who stated that
the said SIM taken in his name was handed over to A11.
Ext.P212 and Ext.P213 were marked as the CAF and ID
proof of the said SIM number which establishes the
subscriber as PW97. It has also come out from the
testimony of PW98 that in October 2008, A11 was
working in one 'Khadya Rehma' Church near the Hotel
owned by PW98. PW98 also confirmed the use of the
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above SIM number by A11 and deposed that A11 used to
work in his Hotel, at times. Ext.P290 CDR of 97443
82047 (A1) indicates a call having been made to A11's
phone immediately after A1 received a call from J&K.
Ext.P290 (a) to (c) are the two calls received by A1
at 2:02:30, 2:06:11 and 2:09:46. Immediately after
that, A1 called A11 at 2:14:14 which is marked as
Ext.P290(fk). Again, at 2:33:00 there was another call
from J&K to A1 marked as Ext.P290(d). Immediately
after that, a call was made by A1 to A11 on 2:37:31
marked as Ext.P290(fl). All these calls were made on
01.10.2008 and on the next day, A1 received a call
from the J&K number at 10:47:37, Ext.P290(f); after
which as seen from Ext.P290(fm) at 10:49:32 again A1
called A11. This was repeated on the same day at
1:04:51, as per Ext.P290(fn) just prior to which A1
received a call from the J&K number at 1:01:05
[Ext.P290(h)]. These calls are also reflected in the
CDR of the SIM number of A11 at Ext.P336 marked and
proved by PW143. The corresponding calls made from
A1's number are Ext.P336(b)to(e). There is further
evidence led in the form of PW126, who identified A11
Crl.A Nos.1575/2013&con.cases
from the dock as the person who used the telephone
booth of PW126 to call the J&K number. We, however,
place absolutely no reliance on the same, since there
was no prior statement taken from him and even the I.O
was not aware of the investigation having revealed
that particular witness. Though the number of a public
telephone booth was referred to by PW126, there was
nothing to show that the number was subscribed by
PW126 or that the said witness had owned such a
telephone booth.
103. Ext.P336 is the CDR of 98461 14811 as
proved by PW143, Nodal Officer of Vodafone between
01.08.2008 and 31.10.2008. The five calls with A1 are
discussed above; in addition to which there were 52
calls with A3 on his number 97461 86452 marked as
Ext.P336 (f) to (be), two incoming calls from A8 from
his number 97466 91814 [Ext.P336(bl)&(bm)]. Twenty
seven calls with A20, the absconding accused, marked
as Ext.P336 (bo) to (co) and four incoming calls
from 99126 61040 the number given by A9 at 'Salim
Manzil'; between 06.09.2008 and 11.09.2008
[Ext.P336(cp)to(cs)].
Crl.A Nos.1575/2013&con.cases
104. We have also discussed the evidence of
PW50, who had rented out a house to A5, wherein the
wife of A15 resided along with A5 and his family and
the recovery made from the said house. PW50
specifically identified A11 as the person on whose
request accommodation was arranged for A5 who is
proved to have harboured the wife of A15. A11 hence is
drawn into the web of conspiracy from which he has no
escape.
105. A12 and A13 were close friends of
A10, from among whom A12 alone was identified by PW1,
as having attended his classes. PW5 and PW6, the
father and brother of A10 also spoke of A12, as the
close friend of A10, as was A13. A13 was acquitted and
this is projected as a compelling reason for
acquitting A12 also. However, the involvement of A12
does not stop with a mere acquaintance or even a
friendship with A10. We have already discussed the
evidence regarding A10's conversion and the telephone
number 97450 02528 having been given at the Conversion
Centre as the number of A12, by A3. A10 hence was
accompanied by A3 and A12 when he approached the
Crl.A Nos.1575/2013&con.cases
Conversion Centre and there are calls between A2 and
A12 as proved by the CDRs which we discussed above.
The said mobile number alleged to be used by A12 was
in the name of one Sajan, PW116. PW116 admitted
Ext.P270 and P271 CAF and ID proof submitted by him to
Vodafone which documents were produced by PW143, an
Official of Vodafone. Though PW116 turned hostile, it
has come out in cross examination that A12 was a
neighbour and close friend and he was identified. What
is pertinent is that PW116 did not identify any of the
other witnesses, but however the CDR of 97450 02528
clearly indicated communications with A1, A3, A16,
A18, A20 and A21, revealing the close ties of whoever
used the said number, with the said accused.
106. The further corroboration for the use of
the number 97450 02528 by A12, comes from PW148 and
PW171 who were employees of Sri Ram Finance Company.
Ext.P273 is a loan application for a vehicle submitted
by one Shamsudheen before the Company's branch at
Edappally on 04.06.2008. A12 stood as a guarantor and
his name and address as also the above mobile number
were explicitly recorded at the space kept for
Crl.A Nos.1575/2013&con.cases
reciting the details of the guarantor. PW148 affirmed
that the details of the loanee and the guarantor would
be verified before processing the loan application.
PW171, the Manager of the Branch, verified the loan
application and he stated that the verification was
done personally by him. The photo given by the
guarantor was at Ext.P273(b) and the copy of the
driving license of A12 [Ext.P273(c)], was the ID proof
submitted before the Finance Company. PW116, the
hostile witness also identified the photo of A12 from
Ext.P273 application at Ext.P273(b). The above
evidence categorically establish the number having
been used by A12; proving his assertion to the
contrary to be a deliberate falsehood.
107. Ext.P264, the CDR of the J&K number shows
three calls from that number to 97450 02528 on the
first and second of October, 2008. They are marked as
Ext.P264(a),(b)and(i). The tower location of the J&K
number was at Sogham in Kupwara as proved by PW173.
The CDR of A12's number also confirms the call from
the J&K number at Ext.P335(hr),(hs)and(ht). The
evidence of PWs.35,36 & 39 specifically indicates A9
Crl.A Nos.1575/2013&con.cases
having talked over the mobile in Malayalam and very
interestingly the CDR Ext.P335 of 97450 02528, though
is upto 31.10.2008, the calls ceased on 7.10.2008
after which the said number has not been operated.
The date is relevant in so far as A7 & A10 were shot
dead just prior to that date. Obviously the
conspirators came to know of their death before a
proper identification of the dead bodies were made by
the security forces at Kashmir.
108. Ext.P335 CDR of 97450 02528 also
indicates 45 calls with A1(97443 82047) at
Ext.P335(a)to(bs), 6 calls to A1 (96057 49262) at
Ext.P335(bt)to(by), 63 calls to A3 (97461 86452) at
Ext.P335(bz)to(ec), 18 calls to A10 (93880 32889), at
Ext.P336(ej)to(fa), 22 calls again to A10 (92881
47980) at Ext.P335(fb) to (fw), 8 calls to A16 (93880
81080) at Ext.P335(gw) to (hd), 3 calls to A20 (97471
36360) at Ext.P335(hf) to (hh), one incoming call from
A21(92465 47313) at Ext.P335(hi) and 8 incoming calls
from (99126 61040) at Ext.P335(hj)to(hq), the number
given by A9 at Salim Manzil in Delhi. The evidence
based on the CDR of the phone used by A12, led by the
Crl.A Nos.1575/2013&con.cases
prosecution, clearly inculpates A12 in the conspiracy
as evidenced from the constant communications with the
other accused, especially the ones who travelled to
J&K to wage war with India who were shot dead in that
very process. We are persuaded to attach critical
significance to the above data unfolded by CDR for
three reasons; ie: (i) the period during which inter
se calls were made (ii) the persons with whom A12
conversed vide the calls afore referred and (iii) the
abrupt cessation of calls after 07.10.08, immediately
after A7 & A10 were shot dead at Kashmir.
109. A14 was roped in for his connection
with Thareeqath classes; which alone is not an
incriminating circumstance. Many of the witnesses too
were followers of Thareeqath and some accredited
teachers. The evidence against A14 does not prove his
involvement in the conspiracy and only indicates the
renting of a room from PW10 for the purpose of taking
Thareeqath classes. PW10's evidence was corroborated
by PW1, PW13, and PW14 who deposed that they took the
Thareeqath class at Neerchal in a room taken on rent
by A14. A2, A3, A5 and A8 also participated in the
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classes at Neerchal. It has come out in evidence that
A3 had propounded violence in the Thareeqath classes,
but nothing has come out regarding A14 having
encouraged it. There is also nothing to establish
A14's connection with the conspiracy other than the
renting out of a room, which again is for carrying out
Thareeqath classes.
110. A16 is the person who arranged the
stay of A15 at Perumbavoor in the name of Anoop. PW54,
with whom A3 stayed even before that, identified A16 &
A3 from the dock. He also identified A23 as Hakkim.
According to PW54, who identified A3 as Ummer Haji, A3
stayed in a shed behind his house; where his wife
arranged 'Quran' classes. A16, a timber merchant had
introduced A3 & A15 to the witness. At the request of
A16, A3 with his family was permitted to stay in the
shed in which religious classes were held. PW54 also
spoke of frequent visits of A16 and A23 and his 164
statement (Ext.P138) corroborated this evidence.
According to PW54, A3 stayed at Perumbavoor for about
one year. A16, as was earlier noticed, also arranged a
job for A15 which he left after four days. The
Crl.A Nos.1575/2013&con.cases
impersonation of A15 as Anoop while at Perumbavoor,
which he was privy to and ably assisted, coupled with
the financial transaction with A23; inculpates A16.
111. PW71 identified both A16 and A15 from the
dock and his evidence has been discussed earlier when
A15's role was evaluated. According to PW71, A16
requested him to receive the money sent from abroad,
from the post office. PW71 received Rs.49,950/- from
the post office at Perumbavoor after furnishing his ID
proof and the secret code given by A16. Ext.P107 is
the receipt of the above transaction in which PW71 had
signed, which signature was admitted in his testimony.
The sender of the said amount was one Surfraz Navas
and the originating country is Oman. PW71 further
deposed that he deposited the said amounts along with
further amounts given by A16, in A16's account at the
SBT Perumbavoor. Ext.P167 is the pay-in-slip signed by
PW71; admitted in his testimony. PW43 the Post Master
of the Perumbavoor Post Office spoke about the manner
in which money is transferred from abroad, through
'Western Union Money Transfer'; about the ten digit
code number and the requirement of ID proof, of the
Crl.A Nos.1575/2013&con.cases
person receiving the money. Ext.P107 is a computer
print out of the TRM form by which one Surfraz Navas
sent the money to Subair; A23 and A16 respectively.
The deposit of money as proved by Ext.P167 pay-in-slip
is further corroborated by Ext.P447 statement of A16's
account at the SBT Perumbavoor. The specific entry is
seen at Ext.P447(a), of deposit of Rs.880000/- which
according to PW71 included Rs.49950/- received from
the Post Office.
112. The learned Senior Counsel appearing for
A16 had first disputed the deposit having included the
money transferred from abroad pointing out that the
deposit is seen to have been made on 25.10.2008, as is
seen from the statement of account of A16, which is
prior to the receipt of money as proved by Ext.P107,
on 29.10.2008. We have verified the original and
compared it with the copy supplied to the parties. We
see from the original that the deposit is made on
29.10.2008 itself. A further contention was raised
that the money having been sent at 04:10:00 on
29.10.2008 there is no possibility of a deposit having
been made in the bank on the same day after its
Crl.A Nos.1575/2013&con.cases
receipt from the post office. We see from the original
of Ext.P107 that the date and time noted is '(EST)
29.10.2008 04:10:00'. Eastern Standard Time is 9.30
hours behind Indian Standard Time(IST). Hence when the
time showed is 04.10 EST of 29th it would have been
13:40 IST of 29th itself. The payment as per the seal
of the post office at Perumbavoor in Ext.P107 has also
been made on 29.10.2008. The pay in slip showed the
handwritten date as 28.10.2008 which obviously is a
mistake since the credit has come to the account only
on 29.10.2008 as is seen from the original of Ext.P447
at P447(a). Cash deposits figure in the account on the
very same date. We hence find that the evidence of
PW71 to be fully corroborated by the documents
produced in proof of the said transaction.
113. The mobile phone No.93880 81080 is a
Reliance connection belonging to A16 as proved by
Exts.P297, 298 and 299 CAFs and ID proof of A16.
Initially the number allotted to A16 was 93870 38510
which according to PW151, the Nodal Officer of
Reliance Communication was changed to 93880 81080
evidenced by Ext.P363 certificate. On the arrest of
Crl.A Nos.1575/2013&con.cases
A16 by PW166 on 05.12.2008 a seizure mahazar was drawn
up as Ext.P442 seizing a mobile phone which contained
the said SIM number. The aforesaid evidence clearly
establish the said SIM number as subscribed to and
used by A16. Ext.P285 is the CDR of the said number
proved through PW122. It indicates two calls between
04.09.2008 and 06.09.2008 marked as Ext.P285(a)&(b)
from 99126 61040; the number given by A9 at Salim
Manzil, Nizamuddin, evidencing the direct link to the
five persons who joined the terrorist camp. In
addition to this there are 24 calls with A3 (97461
86452) at Ext.P285(c) to (z), 3 calls with A8 (97466
91817) at Ext.P285(aa) to (ac), 8 calls with A12(97450
02528) at Ext.P285(ad) to (ak), 5 calls with A23
(96892 979762) at Ext.P285(ev) to (ez), 10 calls with
A23(968244 75727) at Ext.P285(fb) to (fk), one call
with A4 (97471 83033) at Ext.P285(fl) and 11 calls
with A15(97466 22350) at Ext.P285(fm) to (fw).
114. Further corroboration of what was stated
by PW71 about the money from abroad, is available from
Ext.P285 CDR of No.93880 81080, the number of A16,
which indicates two calls on 28.10.2008 from 96824
Crl.A Nos.1575/2013&con.cases
475727 as evidenced from Ext.P285(fj)&(fk). The said
number has been saved as 'My office' in Ext.P588, at
page 145; the CFSL report of the data recovery from
the digital and electronic devices recovered from A23
on his arrest. A23 has also saved the number of A16 as
'Sabir Parappuram' in page 166 of Ext.P588. The 'To
Send Money form' of the above transaction is also
recovered from the possession of A23 on his arrest by
PW182 which is marked as Ext.P597. A16's role in the
conspiracy is crystal clear and his close acquaintance
with A3, harbouring of A15, in an assumed name and the
receipt of money from A23, immediately after which A15
disappeared from Perumbavoor are sufficient
circumstances to find him guilty.
115. A21 was assisted by PW59 in business and
was closely acquainted with the family of A21. He
identified the sister-in-law of A21 from Ext.P126, who
is the wife of A15. PW59 identified the signature in
Ext.P146, a receipt dated 10.09.2008. Ext.P146 was a
receipt of Western Union dated 10.09.2008 for an
amount of Rs.20,000/-. According to PW59, the said
amounts were sent for A3 and he was entrusted with the
Crl.A Nos.1575/2013&con.cases
task of collecting the money. He is said to have
collected the money and handed over the same to A21,
in the presence of A3. The presence of A3 was not
spoken by him in his previous statement and was marked
as an omission. As per the testimony of PW59, A21 had
enquired with him about the transfer of money from
Gulf countries and he had suggested that it could be
done through Western Union or UAE exchange.
Subsequently, PW59 had called him and asked him to
receive the money since he was unwell. PW59 received
the money by proffering his Electoral ID card
(Ext.P147) and furnishing the 10 digit code number
given to him by A21. He identified A3 and A15 and
deposed that it was A15's wife, Nazia that he
identified from the photograph. PW59 also deposed that
A21 was using the number 92465 47313. The
corresponding 'To send money for' was recovered from
the possession of A23 on his arrest by PW182; which
was marked as Ext.P519. Even if the presence of A3 at
the time the money was handed over is not proved, the
money transaction between A23 and A21 incriminates
A21. The CDR of the SIM used by A21 was produced by
Crl.A Nos.1575/2013&con.cases
PW123. The call details disclose the following
contacts:-59 calls with A3 (9746186452) at Ext.P286(a)
to (bg), 2 calls with A1(9744382047) at Ext.P286(bh)
and (bi), 13 calls with A4(97471 83033) at
Ext.P286(bj) to (bv), 13 calls with A8(97466 91814) at
Ext.P286(bw)to (cg), 1 call with A12(97450 02528) at
Ext.P286(ch), 9 calls with A20(97471 36360) at
Ext.P286(cx) and (cy) and 23 calls with 99126 61040,
the number given by A9 at Salim Manzil. The
involvement of A21 in the conspiracy is discernible
from these circumstances, the regular contacts over
telephone with the other accused and also with A8 and
A9. A9, of course is his son-in-law and he would have
been definitely privy to the journey of the five to
Kashmir. There is also evidence of receipt of money
from the Commander, abroad, in the name of A15, which
transfer was just prior to the journey of the
militants from Hyderabad to Kashmir; on 12.09.2008.
116. A22 had close association with others
and had participated at Chilla in Hyderabad as spoken
by PW19 and PW138. PW1 and PW13 also identified A22
and has confirmed his presence at Chilla. PW19 spoke
Crl.A Nos.1575/2013&con.cases
of A22's presence in a class taken at Hyderabad at the
separate residence of A3, when, after the speech, A3
wept profusely. PW85, the father of A9, also spoke of
the close friendship between A9 and A22. But for this
association, A22 has not been established to be a part
of the conspiracy.
XIII. The Financier-A23:-
117. A23's presence in India was spoken of
only by PW54, who addressed him as Hakhim, but his all
pervading presence as the financier and an active
participant in the subversive activities, is
discernible from the money transactions and the data
recovered from the digital devices recovered from his
briefcase at the time of his arrest. PW35 and PW36
spoke of two Commanders who were abroad, involved in
financing the recruitment operations of A3; the
Commander in Kerala who had kept 180 boys ready for
training in Kashmir. The Commanders in Dubai were said
to be Walli and Sarfuraz; the latter A23. The
financial transactions of A23 links him with the
various accused; which were also noticed in our
discussions with respect to each of the accused as
Crl.A Nos.1575/2013&con.cases
incriminating material against them. These inculpate
A23 in the conspiracy, involving recruitment and
waging war against India, hand in hand with the
terrorists in Kashmir. The instances of financial
transactions, as unearthed on investigation, relevant
to us are specifically five in number i.e: on
26.11.2007 of Rs.49,950/- to A5, on 10.09.2008 of
Rs.20,000/- to A21, on 23.10.2008 of Rs.20,000/- to
A20, on 29.10.2008 of Rs.50,000/- to A16 and on
05.11.2008 of Rs.25,000/- to A20.
118. PW76 runs a franchisee of Western Union
money transfer called 'Foremost'. Money transfers from
abroad are paid over to customers who furnish the 10
digit MTCN number and ID proof. When money is paid, a
receipt is taken from the recipient in the TRA form.
Two copies of the said form are got signed by the
party, one of which is retained with the franchisee
and the other sent to the Head Office at Ernakulam,
'Wisemen Forex', the latter of whom sends monthly
statements. He identified Ext.P175 seizure mahazar by
which three documents were seized; carbon copy of TRA
form kept at the franchisee-Ext.P176, statement from
Crl.A Nos.1575/2013&con.cases
Wisemen Forex-Ext.P177, and the ID proof of the
recipient-Ext.P127. Ext.P176 is the TRA form dated
26.11.2007 for Rs.49,950/-. The same was signed by the
recipient and also by the employee of PW76, one Nishal
whose signature was identified. From the statement of
the Head Office dated 17.12.2007, the particular entry
was separately marked as Ext.P177(a). Ext.P127 was the
ID proof, the driving license of Shafaz Shamsudheen,
A5. PW76 identified A5, from the dock, as the person
whose driving license was produced as Ext.P176. PW76
also deposed that he is acquainted with A5, who is a
resident of the same City; within 1 km. True, the
transaction was in the year 2007 and subject
investigation was with respect to an incident which
occurred in the year, 2008, almost an year later. The
connection between A5 and A23 long before the death of
the militants in Kashmir, is clear from the above
transaction, which is a relevant link, especially when
such operations are commenced and executed, neither in
a day or two nor in an year or two. The perilous
nature of the conspiracy and the secrecy to be
employed requires patient planning and time is not of
Crl.A Nos.1575/2013&con.cases
significant import; since the war waged, is against
the establishment and is intended to have a lasting
impact. The time gap hence is of no consequence and
does not offer any mitigation to the accused. There is
also no explanation as to why the money was
transferred by A23 to A5, coming forth from either of
the said accused.
119. The next transaction occurred on
10.09.2008, just before A7 to A10 and A15 commenced
their journey to Kashmir from Hyderabad on 12.09.2008.
We have specifically referred to the evidence
regarding the said transaction as spoken of by PW59, a
close associate of A21, who received the money on
behalf of A21, at his request. Ext.P146 is the receipt
dated 10.09.2008 for Rs.20,000/- signed by PW59 and
PW147 is the copy of the Electoral ID card of PW59,
retained at the franchisee of Western Union Money
Transfer. The transfer was from S.Navaz, Oman. PW141
is the franchisee who detailed the procedure of
payment of money transfer, which is identical to that
noticed in the earlier transaction. PW141 admitted to
have handed over Exts.P146 and P147 retained with the
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franchisee, to the police, in the course of
investigation. PW59 also specifically spoke of the
amounts having been handed over to A21.
120. The money transfer on 23.10.2008 was to
one Shameer Kollamkudy as seen from Ext.P149 receipt
proved by PW67 Deputy Post Master, Head Post Office,
Kalpetta. PW67 confirmed that the amount came from
Oman sent by one Navaz and the ID proof, furnished was
a passport bearing No. E-7080305. The receipt
Ext.P149, contained the number of the passport as the
ID proof of the recipient. Ext.P148 is the register
for Western Union Money Transfer maintained in the
Post Office and Ext.P148(a) is the entry showing the
address of the party, the amounts and the details of
ID proof. However PW67 admitted that the copy of the
ID proof furnished was not retained at the Post
Office. PW60 proved the production of these documents
and the mahazar.
121. PW88 is Shameer Kollamkudy, who is a
loading and unloading worker. He deposed that
Kollamkudy Alikutty Shameer as seen in Ext.P3 passport
application form is himself, but the photograph in the
Crl.A Nos.1575/2013&con.cases
application as not his. He had taken a passport in
1994 which was pledged and lost from that person. He
also denied Ext.P149, the receipt issued on payment of
Rs.25,000/-. He denied the signature in Ext.P149 and
also the photograph in Ext P3 application for passport
and Ext.P161 passport issued in his name. Here we have
to reiterate that it was from Ext.P3 passport
application that PW1 identified A20's photograph.
Ext.P161 passport copy, furnished for receipt of
another Money Transfer at Mumbai, also contained the
photo of A20, described as Shameer Kollamkudy, which
was identified by PW106 as the photograph of his
Uncle, A20. The name of the father and mother in the
passport application form was confirmed to be that of
PW88's parents. PW88 denied the photographs in
Ext.P196 application and P197 copy of passport,
submitted as ID proof. He also denied the receipt of
money as per Ext.P198.
122. PW89 was the Dy.V.P (Complaints & Risk)
of Wall Street Finance Ltd, which is a master agent of
Western Union Money transfer, with license from the
RBI. She produced the receipt Ext.P198 of a money
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transfer and the computer print out of the MTCN
number which has the copy of passport furnished by the
recipient-Ext.P161. These documents were seized by
PW180 by Mahazar Ext.P201. The above transfer was on
05.11.2008 at Mumbai. PW109 is an agent of Western
Union Money Transfer who paid the money as per
Ext.P198 application form and affirmed the receipt by
Shameer Kollamkudy, paid as per Ext.P161 ID proof. Ext
P161 is the passport of Shameer Kollamkudy having
photograph of A20; as identified by A20's nephew.
PW90 is the Director at Mumbai in the office of
Western Union Money Transfer. He confirmed that
Western Union Money Transfer has ten approved agents
to process their transfers. He specifically spoke of
details of transactions collected by their Subpoena
Team in the U.S. The Certificate was marked as
Ext.P202. Ext.P202(c) is Rs.20,000/- sent from Oman to
India by S.Navaz to Shameer Kollamkudi, paid at
Kalpetta Head Post Office dated 23.10.2008.
Ext.P202(e) is again a transaction of Rs.25,000/-, by
Surfraz Navas to Shameer Kollamkudi dated 05.11.2008;
that paid at Mumbai.
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123. PW169 is the Senior Inspector of the
Crime Branch (Economic Offense Wing) Mumbai. He
contacted the DCP, Bureau of Immigration, Mumbai to
confirm the departure of Shameer Kollamkudy Alikkutty
with passport No. E-7080305 and confirmed that the
said person had travelled from Mumbai Airport to Dubai
on 21.11.2008. The certificate issued by him was
marked as Ext.P471. He confirmed that Ext.P161 and
P197 copies of the passport have the very same number
of Shameer Kollamkudy refered to earlier. This clearly
indicates impersonation by A20 who had fled the
country after the death of the four recruits to the
terror camp in Kashmir just after he received Rs.
25,000/- as per Ext.P198; the money send by A23. The
receipt of money on 23.10.2008 at Kalpetta and on
05.11.2008 at Mumbai, sent by A23, should in all
probability, be by A20; who is still absconding. This
inextricably links A23 with the process of recruitment
and the death of the four recruits.
124. We have already discussed the evidence
regarding the payment of Rs.50,000/- to A16, when
considering the evidence against him, since there were
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arguments addressed against the documentary proof
offered, which we rejected. The presence of A15 at
Perumbavoor when the above transaction occurred has
also been established beyond doubt. The transaction
was just prior to A15 leaving Perumbavoor where he
stayed for sometime under the assumed name of Anoop.
125. As against A23 the evidence collected on
his arrest and the subsequent examination of the
materials seized in the FSL, also crucially binds him
to the conspiracy alleged. PW182 is the ACP of
Bangalore Central Crime Branch who conducted
investigation in Crime No. 314 of 2008 registered in
Byatarayanapura Police Station. On 27.02.2009
receiving credible information that one of the
absconding accused in the above crime number relating
to the 'Bangalore Blast case', viz: Surfraz Navas, is
near SRE Travels at Kalasipalayam, he rushed there and
arrested A23 in the presence of two witnesses. The
suitcase carried by the accused was opened and several
CDs, floppies, documents, pen drives, hard disc and
passport were seized as per P583. The items seized
from the body and suitcase of the accused were
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submitted to the Court on the very next day as per
Ext.P587. Twenty items were sent for analysis to CFSL
Hyderabad, the report from which CFSL is produced at
Ext.P588. For our purpose we specifically notice a
document indicating a transfer of Rs.49,950/- from
Surfraz Navas to Subair V.M dated 28.10.2008 marked as
Ext.P597. Another transfer of Rs.20,001/- to Firoz
Khan dated 09.09.2008 marked as Ext.P598, transfer of
Rs.20,000/- to Shameer Kollamkudy dated 23.10.2008
marked as Ext.P599, another transaction of Rs.25000/-
from A23 to Shameer Kollamkudy marked as Ext.P600 on
11.04.2008 which are the Sender's Form of the money
transaction from abroad seized from the possession of
A23, again unerringly establishing the guilt of A23 in
the conspiracy.
126. PW183 is the Assistant Government
Examiner of questioned documents, CFSL Hyderabad who
marked and proved Ext.P588 report. He received
Exts.P589 to P594, respectively external hard disc,
two pen drives, five floppy series, 13 CD series and 1
DVD. He also identified MO53 to MO58 SIM Cards MO59 to
MO62 mobile phones without SIM, a digital camera-MO63
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and Memory Stick MO64. From the Pen drive Q3PD except
the contents in Malayalam, those in English were read
out. Under the heading of 'Indian Mujahideen' quotes
from the Quran were followed with the following
exhortations and narratives:
"Here we are back the Mujahideen of India-the
terrorists on the Disbelievers- the radicals
of Islam-after our triumphant and successful
assault at Jaipur, once again calling you
all, who disbelieve in Allah and his
messenger Mohammed(Peace be upon him) to
accept Islam and bear witness that there is
none to be worshipped except Allah and that
Mohammed(Peace be upon him) is the messenger
of Allah. Accept Islam and save yourself".
xxx xxx xxx
"Oh Hindus! O disbelieving faithless
Indians! Have not you still realised that
the falsehood of your 33 crore thirty mud,
idols and the blasphemy of your dear dumb
mute and naked idols as Ram, Krishna and
Hanuman are not at all going to save your
neck. Insha Allah Allah, From being
slaughtered by all hands? Nor is your,
fictitious faith in monkeys, pigs and nude
statues going to save you from wrath of
Allah and his humiliating pun..punish..
punishment".
xxx xxx xxx
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"We call you Oh Hindus, Oh enemies of Allah, to
take an honest stance with yourselves lest
another attack of IBN Ourselves, Ibin-e-Qasim
sends shivers down your spines, lest another
Ghauri shakes your foundations, and lest another
Ghaznawi = massacres you, proving your blood to
be the cheapest of all mandkind! Have you
forgotten your history full of subjugation,
humiliation, and insult? Or do you want to
repeat it again ? Take heed before it is too
late".
Xxx xxx xxx
" Here we begin the answer to your tyranny and
oppression raising the illustrious banner of
Jihad against Hindus... and all those who fight
and resist us and here we begin our revenge with
the help and permission of Allah-e-a terrifying
revenge of our blood - our lives and our honour
that will Insha Allah, terminate your survival
on this land".
xxx xxx xxx
"So wait !....... Awa ....Await now....! Wait
only for five minutes it from now..... Wait for
the Mujahideen and Fidayeen of Islam and stop
them if you can - who will make you feel the
terror of Jihad. Feel the havoc cast into your
hearts by Allahee Almighty, Face his, Dreadful
punishment - and suffer the results of fighting
the muslims and the Mujahideen. Await the
anguish, agony, sorrow and pain. Await, only
for 5 minutes, minutes to feel the fear of
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death - death"."
xxx xxx xxx
" o. you sick criminals of the Hindu
Parishad ! You nasty dogs of the R.S.S ! Yes !
We know you We identify you by your ugly faces
! We will not be satisfied until we make each
and every criminal pay for every drop of blood
you spilled and for each and every cry of the
oppressed women and children. Our swords are
ready to cut off your veins and to push you in
re into the hell fire. This is our assurance
you, a promise to you, a pledge to you which
Allah alone, the most exalted with his will
shall fulfill".
xxx xxx xxx
"the terms democracy, secularism, equality,
integrity, peace, freedom, voting, election are
yet another fraud with us. Have you forgotten
what the messenger of Allah (peace be upon him)
said said (The believer is not stung twice by
the same hole). In another para it is "come,
come, oh Muslim Youth ! Make your preparations
with whatever you have. Join our ranks and help
us - the ranks of India Mujahudeen to
strengthen the Jihad against the Hindus -
Hindus. Get ready with all the weapons you
have. Plan and recognize your move select your
targets - targets Target these".
xxx xxx xxx
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" With these triumphant attacks, we send our
message to all the faithless infidels and their
hypocrite allies from amongst the so called
Muslims like Arshad Madni & Mehmood Madni who
have bartered their faith in Jihad in written
of just one seat in the parliament and be
hereby declare an ultimatum to all the state
governments of India especially to those of
Rajasthan, Uttar pradesh, Madhya pradesh,
Andhra pradesh, Karnataka and Maharastra to
stop harassing the Muslims and keep a check on
their killing, expulsion and encounters".
xxx xxx xxx
"The news of the lawyers of the Bar council in
UP denying to fight the cases of our Muslim
brethren has already reached us. Remember, you
are provoking us to repeat the same blast in
civil courts that blew up your bodies into
pieces".
xxx xxx xxx
The recitals require no elaboration and A23 is
definitely linked to the conspiracy.
127. A23 was also using three mobile phones
with numbers 968 92979762, 968 24475727 and 968
99131244. PW140 Chief Manager of UBI who was working
at Oman on deputation said that the Oman code is
'00968' and the mobile number shown by the persons
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having a connection in Oman would be without the above
code. PW140 canvassed NRI account for Union Bank and
confirmed that Ext.P192 is the NRI account opening
form processed by him at Oman. Ext.P192 was submitted
by A23 with his address at Oman and the mobile number
given is 92979762. Ext.P193 is the copy of the
passport of the applicant,ID proof and Ext.P333 is the
copy of the resident card issued by Government of Oman
furnished by the applicant (A23) at the time of
opening the account. PW140 identified A23 from the
dock and it is the very same number in the account
opening form that is reflected in Ext.P597 to P599 and
the Send Money Slips of Western Union Money Transfer
(Exts. P597 to P600) recovered from A23 at the time
of his arrest. PW86 the Chief Manager of Perumbavoor
Branch of the Union Bank corroborated the statements
of PW140.
128. Ext.P321 CDR of 99953 25748 (A3)
indicates two calls on 18.04.2008 and
08.05.2008(Ext.P321(dc)to (df)), the relevant time
when A10 was brought for conversion to Kozhikode.
Again Ext.P309 CDR of 97461 86452 of A3 indicates two
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calls to the above number of A23 on 03.08.2008.
Ext.P285(ev) to (ez) are calls made with 93880 81080
of A16 between 01.08.2008 and 29.09.2008; when A16
received money from A23. 96824475727 was saved as 'My
Office' by A23 as revealed from page No. 145 of
Annexure-A of Ext.P588. There are calls made by
A3(99953 24748) and A16 93880 81080 marked as
Ext.321(dg) to (dt) and Ext.P285(fb)to (fk) with this
number. The 3rd number 968 99131244 is saved as 'My
No.' as per Ext.P588(m), entry as shown in Page 170 of
Ann-A to Ext.P588. This number again had contact with
A3 in his number 97461 86452 marked as Ext.P309(ue) to
(vp) between 04.08.2008 and 03.10.2008.
129. Ext.P588 also has extracted the text
messages to the mobile of A23 by Shameen Pak. The
number from which the messages came was +923 33 83 82
454, a mobile number of Pakistan. As we earlier
noticed, Ext.P588(ar) is the message supplying the J&K
number, to A23, in which A1 received 10 calls. On
15.09.2008 [Ext.P588(ah)] the message is "total are 5
and at a time they will reach ? Mean one's time Umair
will receive to 5?". Presumably a reference to the 5
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persons who were to be sent to Kashmir. Ext.P588(al)
to (as) are also messages with reference to Umair.
Ext.P588(au) on 24.09.2008, says 'they r fine. Wats
new abt Umer?', Obviously a reference to the 5 having
reached Kashmir and joined the terror camp. On
08.10.2008, the message is 'When Umer wil come 2 u?
Wats present situation? Also get satisfaction about
their cards and diary. They have original cards?'.
The said message was after A7 to A10 were shot dead in
Kashmir and the concern expressed about the cards
definitely is that of the ID cards held by the shot
militants. The next message on 13.10.2008 at Ext.P588
(u) reads 'remaining persons name is A.Jabbar. Send
the number by mail. Will check tomorrow'. Again the
reference is to A15 who had escaped from Kashmir;
whose whereabouts were not known to either of the
parties.
XIV. THE PRECEDENTS:-
130. State repd. by S.P CBI/SIT v. Nalini
(1999) 5 SCC 253 was relied on by the defence
specifically to urge the inadmissibility of an
admission/confession by an accused as against his
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co-accused. The paragraphs specifically pointed out
are paragraphs 107,108,576,581 and 665; the first two
in the leading judgment, the next two from the second
judgment in sequence and the last, in the third
opinion. We will refer to the last opinion since it
clearly brings out the one aspect on which the other
two judges differed. In the leading judgment it was
held that the confession of an accused is substantive
evidence as against the maker thereof, but not as
against the co-accused, against whom it can only be
used for corroboration. The second held that
confession of an accused is substantive evidence
against himself as well as the co-accused, abettor or
conspirator. Before we look at the aspect highlighted,
we have to notice that the case specifically involved
the interplay of the provisions of the Terrorist and
Disruptive Activities (Prevention) Act, 1987 vis a vis
the Indian Evidence Act. S.15(1) of the TADA Act made
confession of an accused admissible as against all
those tried jointly with him and hence S.30, according
to Quadri, J was not required to be invoked in the
said case. Quadri, J agreed with the second opinion
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but made it clear that even if confession of an
accused, is treated as 'substantive evidence' against
a co-accused tried along with him, it should be
understood in the limited sense of fact in issue or
relevant fact; requiring the court to employ prudence
and caution to ensure that the innocent are not,
unwittingly included with the guilty. 'Substantive
evidence' of a fact by itself does not necessarily
amount to 'proof of that fact' always; was the
profound declaration.
131. In the present case, the presumption as
available under S.15 of the TADA Act does not arise.
Further the only statement which amounts to a
confession on the part of one of the accused is that
of A15. S.30 as has been held by Quadri,J; is a clear
departure from the principles of English Law,
permitting consideration of a confession made by an
accused tried jointly with another as against the
co-accused. S.30 applies when more persons than one
are being tried jointly for the same offence and
confession made by one of such persons affecting
himself or some other person is proved; in which
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context the court has been conferred with the
discretion to take into consideration such confession
as against both. A15's confession to PW1 and PW72 is
only with respect to the journey to Kashmir undertaken
with the four persons who were shot dead and two
others. None of them stood trial; the four dead, for
obvious reasons and the other two, since they are
absconding. Hence the confession does not affect any
other person/accused who stood trial, and there is no
question of applying S.30. We have also not applied
the said provision or treated the confession of A15 as
an incriminating circumstance against any of the other
accused. We find no application of the dictum as
propounded in Nalini(supra).
132. Nalini(supra) is apposite in so far as
the following, again from the judgment of Qadri, J:
"In reaching the stage of meeting of minds, two
or more persons share information about doing an
illegal act or a legal act by illegal means. This
is the first stage where each is said to have
knowledge of a plan for committing an illegal act
or a legal act by illegal means. Among those
sharing the information some or all may form an
intention to do an illegal act or a legal act by
illegal means. Those who do form the requisite
intention would be parties to the agreement and
would be conspirators but those who drop out cannot
be roped in as collaborators on the basis of mere
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knowledge unless they commit acts or omissions from
which a guilty common intention can be inferred. It
is not necessary that all the conspirators should
participate from the inception to the end of the
conspiracy; some may join the conspiracy after the
time when such intention was first entertained by
any one of them and some others may quit from the
conspiracy. All of them cannot but be treated as
conspirators. Where in pursuance of the agreement
the conspirators commit offences individually or
adopt illegal means to do a legal act which has a
nexus with the object of conspiracy, all of them
will be liable for such offences even if some of
them have not actively participated in the
commission of those offences."
133. We have at the outset looked at the
aspect of proof of conspiracy in a criminal trial and
the impossibility, oftener than ever, in obtaining
direct evidence. Firozuddin Basheeruddin (supra)
agreed with E.G. Barsay v. State of Bombay (1962) 2
SCR 195 that when the accused are charged with
conspiracy to commit three illegal acts, the mere fact
that all of them cannot be convicted for each of the
offences, is not relevant in finding the offence of
conspiracy. If it is established that the accused were
pursuing a course of conduct with full awareness that
this was leading to the commission of a crime, by one
or more persons, in full agreement with each other,
then when the necessary mens rea is established, all
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are guilty of the offence. Paraphrasing the principle
on the facts of this case, the testimonies of the
witnesses, especially PWs. 1, 35, 36 & 39, the close
association of A3 with the militants and their death
in encounters with the security forces, inculpates A3
beyond all reasonable doubt. A1, on the other hand is
not found to have any direct connection with the
recruitment, but he has acted as a communication hub,
especially having direct contact with the militants at
Kashmir and relayed information from J&K to the other
accused, which ropes him in, inexorably into the
offence of conspiracy. As far as A1 is concerned, it
is not mere knowledge but there is a meeting of minds
as is the case of the other accused; discussed by us
in the earlier paragraphs. As a subtle distinguishing
aspect, it will be worthwhile to point out the case of
A2; who may have had knowledge of what A7 was planning
to do, but there is no evidence to indicate his
involvement in the conspiracy. The meeting of minds,
or agreement to carry out an illegal act and intention
to promote the unlawful objective as held in
Firozuddin Basheeruddin (supra) are the two elements
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required to be satisfied, to successfully bring home a
charge of conspiracy; both of which stand established
in the present case. Here, it is apposite to mention
that the theory of agency in conspiracy, of every
conspirator being guilty of the overt act, whether he
participated or not, as propounded by Firozuddin
Basheeruddin (supra) was not accepted by a co-ordinate
Bench in State (NCT of Delhi) v. Navjot Sandhu @ Afsan
Guru (2005) 11 SCC 600, relying on E.G. Barsay (supra)
an earlier decision of another co-ordinate Bench.
134. K.R. Purushothaman v. State of Kerala
(2005) 12 SCC 631 was relied on by the defence to
argue that mere knowledge or even a discussion of the
plan, will not per se constitute conspiracy. On facts
it was held that the appellant therein, an Assistant
Commissioner of the Devaswom Board was not at all
responsible for the shortage of gold; which metal was
in the exclusive possession of the other accused and
so was the supervision of the manufacture of a new
ornament. Reiterating, that, to constitute conspiracy,
meeting of minds to carry out an illegal act or an act
by illegal means, is the first and primary condition;
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it was asserted that there is no requirement that each
and every detail of the conspiracy should be known to
all the conspirators. Neither is it necessary that
every conspirator should take part in the commission
of each and every conspiratorial act. It was held
that:
14. Suspicion cannot take the place of legal
proof and prosecution would be required to prove
each and every circumstance in the chain of
circumstances so as to complete the chain. It is
true that in most of the cases, it is not possible
to prove the agreement between the conspirators by
direct evidence but the same can be inferred from
the circumstances giving rise to conclusive or
irresistible inference of an agreement between two
or more persons to commit an offence. It is held
in Noor Mohd. Mohd. Yusuf Momin v. State of
Maharashtra(1970) 1 SCC 696, that: (SCC pp. 699-
700, para 7)
"[I]n most cases proof of conspiracy is largely
inferential though the inference must be founded
on solid facts. Surrounding circumstances and
antecedent and subsequent conduct, among other
factors, constitute relevant material."
[underlining by us for emphasis]
"The acts or conduct of the parties must be concious
and clear enough to infer their concurrence as to the
common design and its execution".(sic-para 15)
135. The Hon'ble Supreme Court in Shankarlal
Gyarasilal Dixit v. State of Maharashtra (1981) 2 SCC
35) cautioned that the guilt of the accused need only
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be established beyond the 'shadow of reasonable doubt'
and not 'shadow of doubt'. On reasonable doubt,
usefull reference can be made to Sucha Singh v. State
of Punjab (2003) 7 SCC 643 :
20. Exaggerated devotion to the rule of benefit
of doubt must not nurture fanciful doubts or
lingering suspicion and thereby destroy social
defence. Justice cannot be made sterile on the
plea that it is better to let a hundred guilty
escape than punish an innocent. Letting the guilty
escape is not doing justice according to law. (See
Gurbachan Singh v. Satpal Singh(1990)1 SCC 445.)
The prosecution is not required to meet any and
every hypothesis put forward by the accused. (See
State of U.P. v. Ashok Kumar Srivastava(1992) 2
SCC 86.) A reasonable doubt is not an imaginary,
trivial or merely possible doubt, but a fair doubt
based upon reason and common sense. It must grow
out of the evidence in the case. If a case is
proved perfectly, it is argued that it is
artificial; if a case has some inevitable flaws
because human beings are prone to err, it is
argued that it is too imperfect. One wonders
whether in the meticulous hypersensitivity to
eliminate a rare innocent from being punished,
many guilty persons must be allowed to escape.
Proof beyond reasonable doubt is a guideline, not
a fetish. [See Inder Singh v. State (Delhi Admn.)
(1978) 4 SCC 161.] Vague hunches cannot take the
place of judicial evaluation.
136. The five principles, constituting the
panchseel of the proof of a case based on
circumstantial evidence was reiterated in Sharad
Birdhichand Sarda v. State of Maharashtra, (1984) 4
SCC 116. State of Andhra Pradesh v. I.B.S Prasad Rao
Crl.A Nos.1575/2013&con.cases
[AIR1970SC 648] reinforced the settled law that before
conviction on circumstantial evidence it must be shown
to be conclusive of the guilt of the accused and must
also be incapable of explanation on any hypothesis
consistent with the innocence of the accused.
However, it was cautioned that this is not to say that
the prosecution must meet any or every hypothesis
suggested by the accused, however extravagant and
fanciful it might be.
137. We have noticed the above precedents as
relied on by both sides to impress upon ourselves the
requirement of law, in entering a conviction wherein a
conspiracy is alleged, which brings in every
conspirator, whether he was involved in every detail
or was aware of all the spokes in the wheel, as long
as there was a meeting of minds to carry out an
illegal act or an act by an illegal means. As is
trite, direct evidence in a case of conspiracy is well
nigh impossible. When there is a complete chain of
circumstances, which behoves a reasonable inference as
to the participants having agreed on the objective of
the conspiracy and acted in accordance with the roles
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assigned to each of them; whether they be involved in
every single detail or had knowledge of such details
or had actively participated in the criminal act,
would all be inconsequential, in finding them
responsible for the offence of conspiracy. It is in
this context we have examined the evidence led in the
trial. The opening words in Section 10 of the Evidence
Act, of there being a 'reasonable ground to believe',
that two or more persons having conspired together to
commit an offence or an actionable wrong, is the
incantation, that opens up the flood gates against the
conspirators, literally drowning them in such
'relevant facts' proved in trial regarding anything
done, said or written by any of the conspirators with
reference to the common intention. Once the gates are
open; then every thing done, said or written by one,
inculpates the others who joined together towards the
common objective.
XV. THE EPILOGUE:-
138. The issues framed by the trial Court,
twelve in number are the following; whether (i) A7 to
A10 were killed in Kashmir in separate encounters,
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whether the accused, (ii) collected arms and
ammunition, prepared or concealed an attempt to wage
war against the Government Of India or actually waged
a war, (iii) committed sedition, (iv) harboured an
offender,(v) forged any document and used it with that
knowledge, (vi) carried out an unlawful activity or
any association declared unlawful, under S.3 of
UA(P)A, (vii) committed any terrorist act or
conspiracy therefore, (viii) raised funds for a
terrorist act, (ix) voluntarily harboured a terrorist
within the meaning of S.19 of UA(P)A, (x) associated
with a terrorist organization within the meaning of
S.38 of UA(P)A,(xi) supported terrorist organization
coming under S.39 UA(P)A and/or (xii) raised funds for
such terrorist organization. The trial court convicted
A15 under S.121 IPC and S.16 UA(P)A, accused Nos.1 to
5, 11,12,14 to 16 and 21 to 23 under S.121A and S.16
UA(P)A. A23 was further convicted under S.17 of UA(P)A
and A16 under S.19 of UA(P)A also. The life sentences
in the case of A15, A23 and A16 were also made
consecutive; which is irregular since life sentences
cannot be consecutive. The appeal of the NIA is only
Crl.A Nos.1575/2013&con.cases
against the acquittal of the convicted accused under
Ss.120-B, 122, 124-A, 465 and 471 IPC.
139. A7 to A10 are proved to have been killed
in Kashmir as per the evidence discussed by us herein
above; while associated with a terrorist camp and in
separate encounters with security forces. The others
are the members of a larger conspiracy to recruit
Muslim youth, to train them in arms and ammunition and
then spread terror within the Country. A1 was the
quiescent partner of the conspiracy through whom the
communications were exchanged between the accused and
the militants who journeyed to Kashmir to join the
terror camps. We have discussed the incriminating
material against the said accused as revealed from the
CDRs of his two mobile numbers. Pertinently, the
accused has no explanation regarding the 10 calls
which came from Kashmir which coincides with A7 to
A10's presence in the terror camp at Kashmir. A1 in
the S.313 questioning denied having used the two
mobile numbers, one seized from him at the time of
arrest and the other from his house. Both these mobile
numbers have been proved to be subscribed by A1 and
Crl.A Nos.1575/2013&con.cases
the statement given under Section 313 is a deliberate
falsehood. MO3 mobile which was seized from A1 was
found to have been used by A3, A4 and A8. The direct
link with A3, and the sticky web of calls, makes A1 a
static member of the conspiracy; having not moved out
of his native place or attended the Thareeqath
classes. A1's predilection to radical views brought
him under surveillance of a shrewd officer, PW158;
which led to the unfolding of the story.
140. A3, Nazeer @ Ummar Haji @ Haji Ustad
played the pivotal role in the conspiracy, as spoken
of by the deceased militants to their mates, PWs 35,36
& 39; describing him as the Commander, who had
recruited 180 boys and kept them ready to be sent for
training to terror camps. The venom he spewed in the
Thareeqath classes on assumed harassment perpetrated
on Muslims, despite the sober chiding of PW1, makes
him the prime mover in the conspiracy. A3, a native of
Kannur is found to have traveled to Ernakulam and
accompanied A10, a Christian, to the conversion center
at Kozhikkode. A10, as has been shown from the
circumstances and the testimony of PW1 was acting
Crl.A Nos.1575/2013&con.cases
under the directions of A3. A3 not only accompanied
him to the conversion center but also sent him on a
journey to get trained in arms and ammunition so as to
fight against his own country; leading to his death in
the very first encounter with the security forces. A7
to A9; who were also closely knit with A3 and the
radical movement he propounded, accompanied A10 to
Kashmir. A9 was their group leader; who kept contact
with his Commander through A1. A3's radical views have
been fairly established by the testimony of PW1, PW14
and PW19 and many other witnesses. A3 was a regular
teacher in the Thareeqath classes who deviated from
mere religiosity and traversed into sermons attempting
to radicalize the Muslim youth and turn them into
terrorists. The presence of A3 in the various classes
in Kerala and more particularly at Hyderabad, just
before A7 to A10 proceeded to Kashmir, the testimony
of PW1 from which a reasonable inference is possible
of A3 being the motivating force of A10 and A15,
coupled with the declarations made by the deceased A9,
to PWs35, 36 and 39 speaks volumes about the role of
A3. The CDRs of the mobiles used by A3, subscribed in
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the name of real persons, without their knowledge,
provide a clear trail of the connection with the other
accused. A3 as has been proved, absconded immediately
after the deaths in Kashmir and was later arrested
from the Indo-Bangladesh border at Meghalaya after
more than one year; for which he offers no
explanation.
141. A15 has been found to have travelled with
A7 to A10 and was identified by PWs 35,36 & 39 as
having joined the terror camp at Kashmir. A15
obviously fled Kashmir after the death of the others
came to Perumbavoor, where he stayed undercover in an
assumed name, then went back to Hyderabad, from where
he was arrested. He spoke of the failed escapade to
Kashmir to both PW1 and PW72; in atonement to PW1 and
as a boast to PW72. The confessions made and the other
circumstances clearly establish the active role played
by A15 and his presence in the terror camp. That A7 to
A10 & A15 were trained in arms and ammunition in the
terror camp and there were encounters with security
forces also stand established. The very fact that arms
and ammunition were recovered from the militants shot,
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makes possible a reasonable inference that A15 also
having fought against the security forces but escaped
with his life, which resulted in his fleeing the
terror camp. He had overtly waged war against India,
by joining the terror camps and participating in the
encounters; in which, five of his group were shot
dead. The name of A15,'A. Jabbar', was referred to as
the remaining person, in the messsage sent to A23 by
Shammem Pak.The contention raised by the defence that
since he was not arrayed in the F.I.R, there is no
proof of his presence in Kasmir is fatuous. The said
argument is liable to be rejected immediately, since
his name would figure in the F.I.R only if he were
caught dead or alive, but A15 obviously escaped with
his life from Kashmir. The fact proved of A15 having
lived under an assumed name at Perumbavoor and the
money transfer from A23, just prior to his
disappearance from the locality, further validates the
factum of an extra judicial confession made to PW72;
which corroborates the testimony of PW1 regarding a
similar confession.
142. Of the conspirators, A2 is proved to have
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accompanied A7 to Hyderabad and returned after two or
three days. PW174 had spoken disparagingly about the
character and conduct of A2 and people associated with
him. But that alone does not establish his role in the
conspiracy and we are of the opinion that despite
having followed A7 to Hyderabad, A2 is not proved to
be a part of the conspiracy. He might have had
knowledge, but there is nothing to show a meeting of
minds, evidencing a role in the conspiracy. A4 had
close association with A3, A7 & A8 who were also shown
to have radical tendencies. Though A4 was not a
passenger, he took the ticket for A2, A7 and A8 to
Hyderabad. His handwriting has been proved from
Ext.P34 reservation form of that journey. The CDR of
his mobile numbers also reveal close contact with A3,
A8, A16, A21 and also A9 in his mobile number which he
gave at Salim Manzil. A4 was using a SIM card in the
name of one Lijith, and there were frequent calls
between the various accused. A4 also used MO3
instrument from which A1, A3 and A8 used their SIM
cards also. MO26 handset recovered from the house of
A15 was used by A4. A4 has been shown to have
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harboured the wife of A15 and his two children; which
though not by itself a crime, is a strong circumstance
implicating him with the knowledge of the journey
undertook by A15 and makes him an integral part of the
conspiracy.
143. A5 again was a regular in Thareeqath
classes and had association with the other accused,
specifically with A3, A11 and A23 as also the
absconding accused A20. A5 was present at Hyderabad
before A7 to A10 and A15 journeyed to Kashmir. A5
also harboured the wife of A15, at Kalpetta, which
period also coincides with the money transaction
between A23 and A20 at Kalpetta. A5 has close ties
with A3 and A23. A5 had received an amount of
Rs.49,500/- sent from Oman by A23; which transaction
went unexplained in the 313 questioning. The said
transaction though was in the year 2007, indicates the
close ties maintained by A5 with A23 from long back.
A5 further had no explanation for absconding and for
his subsequent arrest from the Indo-Bangladesh border
that too, along with A3. The role of the above accused
can be clearly visualized and reasonably inferred from
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the evidence led.
144. A11, besides being a follower of
Thareeqath maintained close ties with A3. He used the
mobile number subscribed by PW97, which PW97 had
willingly handed over to him. The calls made by A11
immediately after the receipt of calls from J&K,
indicates A11 having acted as a spoke in the wheel of
conspiracy. The CDR of the mobile number used by A11,
indicated calls with A1, A3, A8 and also A9, the last,
in the number given at Salim Manzil, that too, between
6.9.2008 and 11.9.2008, immediately before the journey
to Kashmir. It has also come out in evidence that A5
was introduced to PW50, by A11. It was in the house
rented by A5 from PW50, A15's wife and children stayed
along with A5 and his family; a strong circumstance of
his role in the conspiracy. A12 cannot draw any
parallel with A13, who was acquitted by the trial
court. A12 had an active role in the conversion of
A10, along with A3, which was a precursor to the
journey to Kashmir. The mobile number used by A12
revealed calls from a J&K number, for which he offered
no explanation under S.313. Ext.P335 CDR of A12's
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mobile number indicates frequent calls with A3, A10
and lesser number of calls with A1, A20 and A21 as
also 8 incoming calls from the number given at Salim
Manzil. It is also interesting to note that the
operation of the mobile number of A12 ceased on
7.10.2008, immediately after the death of A7 & A10 at
Kashmir, as evidenced from Ext.P335 CDR. A14 and A22
were roped in for their connection with Thareeqath
classes and thus the association with the other
accused. However, there is nothing further discovered
as to their role in the conspiracy.
145. A16 harboured A15 after he came back from
Kashmir; with full knowledge of his antecedents since
A15 lived there under the assumed name of Anoop. A16
also entrusted PW71 with the task of receiving the
money sent from Oman by A23. The amounts received
along with further amounts are shown to have been
deposited by PW71 in the account of A16, specifically
on his directions which amount was also withdrawn on
the same day. The CDR of the mobile phone used by A16
had quite a number of calls recorded, with A3 and A23
as also A15. There are also calls with A4, A8 and A12.
Crl.A Nos.1575/2013&con.cases
A23 has saved the number of A16 in his instrument and
the money transaction originating from A23 has also
been proved by the document recovered from A23 on his
arrest. A21 is the father-in-law of A9 and is also
related to A15. A21 during the period had around 59
calls with A3 as also contact with A1, A4, A8, A12 and
the number given by A9 at Salim Manzil. He had also
received money from A23 as spoken of by PW59, who
physically handed over the amounts received on money
transfer from A23. The corresponding originating form
of the money transfer was recovered from A23 on his
arrest. The receipt of money by A21 was just before
the journey of the militants to Kashmir. A23 has been
established to be the financier, who operated from
Oman and the money transfers occurred as early as in
2007. In addition to the money transfer to A5 in 2007
on 10.09.2008, an amount was transferred to A21, just
prior to the five so called jihadi's commencing their
journey from Hyderabad to Delhi on 12.09.2008. One of
the two transfers to A20 were on 23.10.2008 to
Kalpetta, where A15's wife was staying along with A5's
family. A20 at that point, in a fake ID, received the
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money from the Post Office and the next transfer of
money to A20 was to Mumbai on 5.11.2008 immediately
after which A20 has flown out of the Country and is
still absconding. There was yet another transaction of
money to A16 coinciding with the period he helped A15
to remain undercover, at Perumbavoor, in an assumed
identity. The details of the narratives found in the
digital devices recovered on arrest from A23's
possession have been elaborately dealt with by us.
Pertinent also, are the messages received from
Pakistan to the mobile number of A23 with specific
reference to the five persons who joined the terror
camps, four of whom were later shot dead. There is
also indication of transfer of money from Pakistan, in
the messages, which provide a further link to A3. The
close association of the two Commanders, one in Kerala
(A3) and the other in Dubai(A23), respectively
handling recruitment and collection of funds; as
spoken of by PWs.35,36 & 39 stands clearly
established; the others being willing partners to the
crime.
146. Of the appellants/accused, except A2, A14
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and A22, we are convinced that there was clearly a
conspiracy to radicalize and recruit Muslim youth to
wage war against India. There is also evidence
regarding five persons having close association with
the other accused, who journeyed to Kashmir, four of
whom were finished off in encounters by the security
forces of India at Kashmir. One of them, who travelled
back, confessed to two witnesses regarding the journey
undertaken, the elimination of the other members in
the group and his own flight back. The actions of each
of the accused found guilty of entering into a
conspiracy to wage war against their own country is
established from the evidence discussed by us. Each of
them acted as a spoke in the hub; the rim of which was
provided by A3 & A23, the prime movers [(State of
Maharashtra V. Som Nath Thappa (1996) 4 SCC 659)]. It
has been clearly established that a conspiracy was
hatched to recruit men for terrorist activities, train
them in arms and ammunition and wage war with India,
which probably, fizzled out with the four out of the
five being shot dead in encounters. It would have
resulted in far reaching consequences, generally for
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the Nation and particularly for this State; but for
the sudden death of four of such recruits in
encounters at Kashmir. The testimonies, documents
produced, especially the CDRs and the extracts made
from the digital devices seized from A8's house and
A23 together provide the reasonable belief required to
use the evidence led regarding the relevant facts,
which stand proved, against all the accused. There is
unity of object and purpose, though the means were
achieved differently. There is a clear unbroken chain
of circumstances connecting the accused, with the plot
hatched of recruitment to perpetrate terrorist
activities; the overt acts of waging war against the
Nation having been proved by the death of the four
recruits. The evidence led unerringly inculpate each
of the accused as a member of the team of
conspirators. The meeting of minds is very evident and
the close association validates the allegation of
conspiracy as proved from the CDRs during the period
the recruits converged in Hyderabad along with many of
the accused and were sent for training to Kashmir,
with the intention to return and foster unrest and
Crl.A Nos.1575/2013&con.cases
foment terror within the Nation and the State. The
incriminating circumstances of the CDRs when put to
the accused, they had no explanation, which assumes
relevance under Section 106 of the Evidence Act. We
find no reason to upset the findings of the trial
court. The conviction and the sentence imposed on all
the appellants, except A2, A14 and A22 are confirmed.
147. The direction that the life sentences
would run consecutive cannot be upheld since the
sentence is one for life; which cannot run
consecutively. The Hon'ble Supreme Court has time and
again said that life imprisonment means imprisonment
for complete and full span of life; subject only to
remission. A wealth of decisions were considered in
Duryodhan Rout v. State of Orissa (2015) 2 SCC 783
and the principle reiterated, declaring that when
there is a life sentence imposed on an accused along
with other minor sentences the latter can only run
concurrently. Drawing support therefrom it has to be
declared that there is no question of two life
sentences running consecutively. A2 is conferred the
benefit of doubt and A14 and A22 are acquitted. A2,
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A14 & A22, acquitted of the offences, shall be
released forthwith, if they are not wanted in any
other crime.
148. As far as the appeal of the NIA is
concerned we note that there is no discussion
regarding the offences on which the appeal is filed,
much less any reasoning. A15 is convicted by the trial
Court under Section 121 IPC and all the accused under
Section 121-A, respectively for waging war against the
Government of India and the conspiracy to commit that
offence. Under S.122 IPC, not only collection of arms
and ammunition, but collection of men and preparation
to wage war with the intention of either waging or
being prepared to wage such war is also an offence and
the conspiracy to commit such offence would be covered
under Section 120-B. In the present case, there is
ample evidence to indicate recruitment of men who were
to be trained in arms and ammunition for the sole
purpose of waging war against India, for assumed
illegalities perpetrated on a community. Every single
person found guilty of conspiracy and the other
offences under UA(P)A as also S.121 & 121-A IPC
Crl.A Nos.1575/2013&con.cases
definitely have to be found guilty of commission of
the offence under S.122, since the acts proved are of
preparation to wage war against India. In that event,
on the evidence led, Section 120-B too is attracted
since there is conspiracy for committing such offence
by all the accused. We convict the accused/respondents,
except A2, A14 & A22, under S.122 and S.120-B of the
IPC. Further, under S.124-A any words spoken, written,
visible representation or otherwise brings or attempts
to bring, hatred or contempt or excite or attempts to
excite disaffection towards the Government established
by law in India is made an offence punishable with
life. A3 is guilty of the offence under S.124-A, as
has been disclosed from the evidence led and A1, A4,
A5, A11, A12, A15, A16, A21 and A23 are found guilty
of the offence under Section 120-B on that count also
for conspiring and aiding A3, and so is A3 convicted
for conspiracy. A1, A3, A4, A5, A11, A12, A15, A16,
A21 and A23 are sentenced to life under Section 122
and a like sentence for conspiracy to commit that
offence, under Section 120-B. Likewise, A3 is
sentenced to life under S.124-A and A1, A4, A5, A11,
Crl.A Nos.1575/2013&con.cases
A12, A15, A16, A21 and A23 are sentenced, under
Section 120-B, for the conspiracy to commit the
offence under Section 124-A, with imprisonment for
life. A3 is further convicted with life for the
offence of conspiracy under Section 120B for
conspiring to commit the offence under Section 124-A.
149. As far as S.465 and S.471, there is no
proof as to forging of documents and using them with
such knowledge, except as against A8, A9 and A15. As
far as A8 and A9 are concerned they are no more. A15
definitely forged the ID under an assumed name and
used it as is evident from the records. In such
circumstance A15 is further convicted under S.471 and
he is sentenced to rigorous imprisonment of two years
and fine of Rs.5000/-, in default of which he shall
further undergo RI for a period of six months. The
other accused who have used SIM Numbers in the assumed
name are not shown to have acquired the SIM numbers,
in the name of real persons.
149. Crl.A No.474 of 2014 of the NIA is partly
allowed. Crl.A No.1575 of 2013 is partly allowed
acquitting A2 & A22 who are the first and sixth
Crl.A Nos.1575/2013&con.cases
appellants and affirming the conviction and sentence
of the other appellants. Crl.Appeal Nos.873 of 2014,
1567 of 2013, 1574 of 2013, 1577 of 2013, 1578 of 2013
and 1638 of 2013 are dismissed. Crl.Appeal No.1576 of
2013 is allowed acquitting A14.
XVI. THE TAIL PIECE:-
150. Before we leave the matter we cannot but
record our appreciation for the tremendous work put in
both by the Kerala Police and the NIA; for which the
Investigating Officers literally traveled the length
and breadth of this Country on the heels of the
divisive forces; from Kerala to Kashmir and Meghalaya
to Maharashtra, tirelessly working to bring their
straying country men before law. For those who have
such radical thoughts, we can only say that the grass
is not greener on the other side of the fence, if you
just look at history. Larry Collins & Dominique
Lapierre in their book 'Freedom At Midnight' made this
observation in Chapter 5, about the partition, which
tore asunder the land in which four hundred million
human beings lived together for centuries (sic),
described by the Authors as 'The Most Complex Divorce
Crl.A Nos.1575/2013&con.cases
in History':
Yet, no aspect of partition was more illogical than
the fact that Jinnah's Pakistan would deliver
barely half of India's Moslems from the alleged
inequities of Hindu majority rule which had
justified the state in the first place. The
remaining Moslems were scattered throughout the
rest of India so widely that it was impossible to
separate them. Islands in a Hindu sea, they would
be the first victims of a conflict between the
countries, India's Moslem hostages to Pakistan's
good behavior. Indeed, even after the amputation,
India would still harbor almost fifty million
Moslems, a figure that would make her the third-
largest Moslem nation in the world, after Indonesia
and the new state drawn from her own womb.
[underlining by us for emphasis]
In the three score years and a dozen hence, there has
neither been a single instance of a hostage situation,
nor was there good behaviour, as contemplated by the
Authors.
151. We would be failing, if we do not place
on record our deepest appreciation for the manner in
which the arguments in the appeals were addressed. The
meticulous study of law and facts, made by the learned
Counsel for the defence and the learned Assistant
Solicitor General; which was in abundant display in
the arguments addressed before us, with remarkable
alacrity and astute finesse. We also noticed the
presence of the N.I.A Officers in the Court room, who
Crl.A Nos.1575/2013&con.cases
had the facts on their finger tips and were constantly
assisting the learned ASG, ensuring not a moment; was
wasted in Court, of precious judicial time.
Ordered accordingly.
Sd/-
K.Vinod Chandran, Judge
Sd/-
C.Jayachandran, Judge
jma/sp/lgk
