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

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Reportable IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

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

Union of India …Appellant

VERSUS

Yasmeen Mohammad Zahid @ Yasmeen …Respondent

WITH

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

(D.No.740 of 2019)

J U D G M E N T

Uday Umesh Lalit, J.

1. Special leave to appeal granted.

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

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

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

Mohammad Zahid  @ Yasmeen in respect  of  offences  punishable  under

Section 125 of the Indian Penal Code (“IPC” for short), Sections 39 and 40

of  the Unlawful Activities (Prevention) Act, 1967 (UAPA for short) and

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also against reduction in sentence ordered by the High Court for offences

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

Yasmeen is in appeal against her conviction and sentence under Section

120B IPC and Section 38 of the UAPA.   

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

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

Station,  Kasaragod  preliminary  investigation  was  undertaken  which

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

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

the First Schedule to the UAPA).   

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

01.08.2016 at Indira Gandhi International Airport, New Delhi while she

was attempting to travel to Afghanistan along with her child.

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

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

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

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

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

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

for supporting the activities of ISIS.

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4. Out of 15 accused named in the charge-sheet all the other accused

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

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

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

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

witnesses and relied upon various documents and material objects.  Insofar

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

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

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

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

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

punishable under Sections 120B and 125 IPC and under Sections 38, 39

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

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

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

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

default  whereof  she  was  directed  to  suffer  three  months  rigorous

imprisonment.  The judgment and order dated 24.03.2018 passed by the

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

Yasmeen in Criminal Appeal No.506 of 2018.

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6. The  High  Court  by  its  judgment  under  appeal,  set  aside  the

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

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

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

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

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

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

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

Court.  

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

under:-

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

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

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The 2nd accused  was arrested on 1.8.2016 and she was under judicial custody in Kannur women prison. At  the  time  of  admission,  her  personal  belongings were entered in a register.  Among the articles, there were two Idea SIM cards.  The SIM cards were seized by PW41 as per P29 mahazar and produced as MO13 and  MO14.   The  articles  also  contained a  memory card marked as MO15.  The memory card contained revelation videos and videos relating to ISIS,  audio speech  of  Anwar  Alwaki,  a  brief  guide  to  Islamic State and women of Islamic State.  This according to the prosecution further proved that she was preparing to go to Afghanistan at the instance of the 1st accused. When these facts are proved, the question is whether the accused had committed any such offence.”

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

considered whether  the  offences  alleged against  A2-Yasmeen under  the

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

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

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

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

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

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

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

UAPA it was observed as under:

“There is evidence to prove that the 2nd accused was associated with A1 who propagated ISIS ideology and had  gone  even  to  the  extent  of  joining  him.   Her attempt  to  proceed to  Afghanistan was with a clear intention  to  meet  1st accused  and  to  involve  in  IS

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

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

found that though A2 was certainly influenced by the ideology professed

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

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

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

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

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

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

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

under Section 40 of the UAPA was not made out.

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

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

considered  the  case  with  a  lenient  view  and  reduced  the  substantive

sentences in respect of these two offences as stated hereinabove.

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

Solicitor  General  for  Union of  India  and Mr.  Santosh  Krishnan learned

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Advocate for A2-Yasmeen.   According to the learned Additional Solicitor

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

a terrorist organisation.

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

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

1  (2011) 3 SCC 377 2  (2011) 1 SCC 784

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order of the High Court granting bail to said Dentist.  While affirming the

order of the High Court, it was observed,

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

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

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

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

decision to submit that mere membership of an unlawful organization was

not enough and there must be clear proof that  the accused intended to

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

observations were made while considering the matter in the context  of

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

15 of the decision.

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

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

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

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

The subsequent portion of the decision, where the earlier decision

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

Krishnan.

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

observations quoted hereinabove establishes that A1 was propagating the

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

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

relating  to  such  speeches  were  found  on  her  person  when  she  was

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arrested; and that she was attempting to go to Afghanistan at the instance

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

Courts  below  were  therefore  absolutely  right  in  recording  conviction

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

of charges under Sections 39 and 40 was therefore rightly recorded by the

High Court.  

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17. We  must  however  state  that  the  High  Court  was  not  right  in

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

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

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

terrorist organisation with intention to further its activities while the other

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

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

addressing  a  meeting  for  encouraging  support  for  the  terrorist

organisation.   

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

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

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

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

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

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

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

the  circumstances,  there  was  no  room  for  invoking  sympathetic

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considerations.  The quantum of sentence imposed by the trial court was

absolutely correct and adequate.

20. In the premises,

A] Appeal  preferred  by  A2-Yasmeen challenging  her

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

UAPA is dismissed.  

B] Appeal preferred by the Union challenging the acquittal of

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

Sections 39 and 40 of the UAPA is dismissed.  

C] Appeal  preferred  by  the  Union  as  regards  reduction  of

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

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

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

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

UAPA against A2 is restored.

21. Appeals stand disposed of, in aforementioned terms.   

……………………..J. [Uday Umesh Lalit]

……………………..J. [Indu Malhotra]

New Delhi; August 02, 2019.