"Clear conspiracy to recruit Muslim youth to wage war against India:" Kerala High Court upholds conviction of 10 in terror-recruitment case

The Kerala High Court on Monday confirmed the conviction of suspected Lashkar-e-Taiba operative, Thadiyantavida Nazeer, and nine others for their involvement in recruiting young men for terrorist activities in Kashmir [MH Faisal & Ors. v The State]..A Division Bench of Justices K Vinod Chandran and C Jayachandran upheld the conviction of 10 of the accused but acquitted 3.Additional charges under Section 120B (criminal conspiracy) and 122 (collecting arms with the intention of waging war against India) of the Indian Penal Code (IPC) were imposed on the 10 who were convicted. Thadiyantavda Nazzer was also convicted for committing the offence of sedition under Section 124A of the Indian Penal Code (IPC). The Court stated in no uncertain terms that the evidence in the case pointed to a clear conspiracy to recruit Muslim youth and train them to wage war against India."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 the Nation and particularly for this State; but for the sudden death of four of such recruits in encounters at Kashmir", the Court said in its judgment.The evidence also indicated to the court that there is a clear unbroken chain of circumstances connecting the accused, with the plot hatched of recruitment to perpetrate terrorist activities"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", the judgment said. .The Court also recorded its appreciation for the tremendous work put in both by the Kerala Police and the National Investigation Agency (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", the judgment stated..The judgement was delivered in the appeals filed by the convicted accused and the National Investigation Agency (NIA) against the judgement of a special NIA court which had convicted 13 persons and acquitted 5. Some of the other accused are currently out on bail.The NIA's appeal was 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..At the outset, the Court described the case as follows:"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 which he waged war, which gave him a fair trial and convicted him with some others arraigned".The Kashmir terror recruitment case came to light in 2008 when security forces in Kashmir shot down some suspected terrorists amongst whom were four Kerala youths.The NIA then started investigating into possible organised recruitment of youths from Kerala to Kashmir to take part in terrorist activities.The probe resulted in charges being filed against 20 persons, including Thadiyantevida Nazeer and his associate Shafas.Both men were recently acquitted by the High Court in the Kozhikode twin blasts case..The prosecution case was that 5 youths were instigated and radicalised in the 'Jihadi' classes conducted at the behest of the various accused, particularly Nazeer and and financed by one Sarfuraz Navas, to wage war against India. Though the case originated with the suo motu FIR registered against the prime accused, the gravamen of the accusations originated from the encounter between the security forces and the members of a terrorist group, LeT at Kashmir, a proscribed group, in which 4 of the recruited youths were shot dead. A trial court convicted and sentenced the 13 appellants for various offences under the IPC and the Unlawful Activities (Prevention) Act, 1967 (UAPA). .The trial court and the High Court in appeal were presented with a chain of circumstances and a star prosecution witness, referred to as PW1, who is a native of Kerala and a Muslim Scholar and Teacher who conducts Thareeqath classes in Kerala, Hyderabad, and Maharashtra.The witness identified 10 of the accused appellants as having attended his Thareeqath classes.He deposed that Nazeer in particular would deliver radical sermons after the classes, misusing the term "jihad" by twisting it to mean retaliation by organising young men "to beat those who beat and kill those who kill" Muslims. .Considering this testimony and the catena of evidence submitted by the prosecution, the court found that the fact that the five men traveled to Kashmir after being indoctrinated was sufficiently established. What was left to consider was the role of the conspirators. The judgment pointed out that criminal conspiracy, being hatched in private, would have little direct evidence. The court viewed the case in the context of the Indian Evidence Act."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", the Court stated.In the instant, the Court concluded that all the appellants, except 3, had conspired to radicalise and recruit Muslim youth to wage war against India. Further, the Court stated that there was 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. Therefore, all the appellants, except 3, were convicted for the offences under Sections 120B and 122 IPC and sentenced to life imprisonment on each of the chanrges.Nazeer was also convicted and sentenced to life imprisonment under Section 124A IPC."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", the Court said in its judgment.Three of the 13 appellants were acquitted by the High Court based on lack of evidence to tie them to the conspiracy or any of the illegal acts that followed. .Assistant Solicitor General Manu S, Central Government Counsel Mini Gopinath, Suvin R Menon and Jaishankar V Nair, Senior Government Pleader Arjun Ambalapatta, and Special Public Prosecutor M Ajay appeared for the NIA and the State. The accused were represented by Senior Advocate S Sreekumar and advocates Prakash P George, S Rajeev, Isac Sanjay, TK Kunhabdullah and Sunny Mathew..[Read Judgment]