From evidence it appears convicts not in the ‘upper echelons’ of terrorist organisation: Calcutta HC commutes death sentence of Lashkar-e-Toiba Militants

The Calcutta High Court on Monday commuted death sentence of 4 militants of Lashkar-e-Toiba (a militant outfit) who were sentenced to death and directed to pay a fine of Rs. 50,000 each by the Trial Court. The four accused had illegally entered the country.

“From the evidence on record it appears that the appellants are not men who were in the higher echelons of the terrorist organisation. They are foot soldiers who were recruited through allurement or coercion for the activities of the organisation”, opined Justices Ananya Bandopadhyay and Joymala Bagchi.

“Md. Younus, a Pakistani national, was initially attracted by the altruistic activities of the organisation. Thereafter, on allurement of money he was indoctrinated and trained in use of arms. He is presently more than 66 years old and there is little possibility of his reverting to the path of terrorism. Md. Abdullah, the other Pakistani national, was a teacher by profession. He did not receive any training in use of arms and expressed his mistake in joining the terrorist organisation. Muzaffar Ahamed rather was forcibly inducted into the terrorist organisation and given arms training. These mitigating circumstances show the appellants are not prominent players in the organisation and there is little possibility of their reverting to the path of terrorism”, the bench further urged.

In the present matter on the basis of specific intelligence BSF officials laid ambush around Petrapole area where a group of Pakistan trained Laskar-e-Toiba militants were likely to enter into India via Benapole-Petrapole Checkpost area. They observed four persons were moving suspiciously and confronted them, and after unsuccessful attempts to escape, were even captured. On interrogation they revealed their names and identities, where they were found to be admitted members of Lashkar-e-Toiba (for short ‘LeT’) a militant outfit who had illegally entered the country. Fake identity cards were seized from the accused that included fake identity card Election Commission of India, and of Chandra Sekhar Azad University of Agriculture & Technology Kanpur, with fake names.

On the basis of judicial confessions, evidences produced, and the testimonies of witnesses, resultantly, the trial court tried all 4 militants under Sections 419, 420, 468, 469, 471, 121, 121A, 122, 124A, 120B of the IPC were framed against all the appellants viz., Md Younus, Md. Abdullah, Muzaffar Ahamed, Sk. Abdul Nayeem. And thus granted death penalty with a fine.

Now the questions before the Court to consider were:

Judicial confessions:- (i) Analysis of evidence pertaining to the confessions, whether voluntary and the truthfulness of the confessions

The Court after taking note of all the facts, evidences and referring to Baburao Bajirao Patil vs. State of Maharashtra, opined, “These circumstances unerringly establish Sk. Nayeem had acted in concert with the other appellants who are members of a terrorist organization and they had illegally entered India with false documents. These broad features of the prosecution case being established through

independent evidence, confessional statements of the other appellants 39 may be used to corroborate and lend assurance to the conclusion of the Court regarding culpability of Sk. Nayeem as a conspirator in the crime”.

Whether the confessions may be used against Sk. Nayeem:

“Applying the ratio in the present case, I note not only were the retractions delayed but they were cryptic. It was merely stated that confessions were made upon pressure by police. How, when and in what manner such pressure was exerted is not explicit. Retractions do not inspire confidence and appear to have been made as an afterthought upon legal advice”, Court said.

Recovery of incriminating articles including explosives whether proved:

“Prosecution must establish through convincing and unimpeachable evidence whether the appellants had collected arms and ammunitions with the intention of waging war or overawing the State which show of criminal force. Access to arms and ammunitions of lethal nature by one of the conspirators is a ‘sine que non’ to prove the charged offences. Recovery of various incriminating articles from the room of Sk. Nayeem including a brown sticky substance alleged to be an explosive is based on shaky foundation and cannot be said to have been proved beyond reasonable doubt”, the bench stated.

Opinion of CFSL expert (P.W. 38) – whether live-link is established:

“In the absence of such link evidence, it may not be safe to rely on the opinion of the CFSL expert that the seized material contained Nitroglycerine. Thus, prosecution has failed to prove beyond doubt recovery of incriminating materials, namely, antinational pamphlets and sticky substance containing Nitroglycerine from the possession of one of the conspirators, namely, Sk. Nayeem”. Furthermore, “Recovery of incriminating articles, e.g. antiIndian pamphlets and explosives from the residence of Sk. Nayeem have not been proved. Mere reliance on judicial confessions and apprehension of all the appellants at Petrapole after they had illegally entered India would not establish access of the appellants to destructive explosives and prove their potentiality to wage war”, the Court urged.

Although the bench did note that the offence under Section 121A IPC (conspiracy to wage war) is to overawe the sovereign authority of a democratically elected government by show of criminal force where the ‘purpose is to strike terror and destabilise the nation’. It even agreed that such offences require deterrent punishment. However, the Court also noted, “But unilateral imposition of maximum sentence 67 without considering the peculiar circumstances of the convict, namely, his position in the hierarchy of the terrorist organisation, extent of his involvement in the conspiracy and potentiality to strike terror would lead to undeserving martyrdom and feed fodder to further radicalisation. Hence, it is necessary to adopt a balanced approach and keep in mind all the aggravating and mitigating factors of the case while awarding a just punishment”.

Case Title: STATE OF WEST BENGAL vs MUZAFFAR AHAMED RATHER @ ABU RAFA