No Room For Sympathy While Sentencing Terror Convicts: SC

It is most heartening and most refreshing to learn that in a latest, landmark and extremely laudable judgment, the top court that is the Supreme Court has very rightly held in Union of India Vs Yasmeen Mohammad Zahid @ Yasmeen in Criminal Appeal No. 1199 of 2019 (Arising out of Special Leave Petition (Cri.) No. 461 of 2019) with Criminal Appeal No. 1200 of 2019 (Arising out of Special Leave Petition (Cri.) No. 6899 of 2019) (D. No. 740 of 2019) delivered on August 2, 2019 that there can be no room for sympathy while sentencing terror convicts. This noteworthy and commendable judgment authored by Justice UU Lalit for himself and Justice Indu Malhotra has very rightly while disagreeing with Kerala High Court judgment restored the sentence of seven years imprisonment awarded to a woman, Yasmeen who was convicted for propagating dreaded international terror group ISIS ideology. Very rightly so!

To start with, the ball is set rolling in para 1 wherein it is held that, 'Special leave to appeal granted.' It is then observed in para 2 that, '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 also against reduction in sentence ordered by the High Court for offences under 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.'

Briefly stated, para 3 then postulates that, '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 Syria (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.'

To be sure, it is then envisaged in para 4 that, '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.'

To put things in perspective, it is then pointed out in para 5 that, '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.'

As it turned out, para 6 then discloses that, '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, Section 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.'

Needless to say, para 7 then illustrates that, '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.

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

It would be pertinent to mention here that it is then observed in para 8 that, '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'.'

Not stopping here, it is then added in para 9 that, '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.'

Suffice it to say, para 10 then holds that, '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.'

Going forward, while highlighting the importance of mens rea in convicting in such cases, it is then enunciated in para 15 that, '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 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.'

Interestingly enough, para 16 then elaborates stating that, '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.'

Simply put, it is then observed further in this same para 16 that, '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.'

But in the same vein, adding a rider, it is then clarified in para 17 that, '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.'

Importantly, para 18 then states that, 'Lastly, we come to the quantum of sentence in respect of offences where A2-Yasmeen has been found guilty by both the Courts.'

More importantly and more crucially, while rapping the High Court on its knuckles, it is then held in para 19 that, '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 considerations. The quantum of sentence imposed by the trial court was absolutely correct and adequate.'

Finally and most importantly, it is then held in para 20 that, '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.'

To summarise, it must be said with certitude that the Apex Court in this latest, landmark and extremely laudable judgment has very rightly reiterated like it has earlier also in many cases that there must be no room for sympathy while convicting the terror convicts. Moreover, it minced no words to hold that in the circumstances, there was no room for invoking sympathetic considerations. So no wonder that the Apex Court set aside the High Court order to reduce the sentence of imprisonment while also restoring the sentence imposed by the Trial Court in respect of offences under Section 120B IPC and Section 38 of the UAPA against A2! Very rightly so! Terrorism is the most heinous crime directed not against one or few individuals unlike other crimes like murder or rape or dacoity or robbery but against the entire humanity which affects all of us and is the biggest threat to our nation as a whole! So there has to be zero tolerance for it! Any display of sympathy will only boost terrorism which no country can dare to ever afford under any circumstances come what may as it will certainly be the surest recipe of unmitigated disaster, destruction and death!