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2017 Supreme(Kar) 326
IN THE HIGH COURT OF KARNATAKA DHARWAD BENCH
ANAND BYRAREDDY & K.SOMASHEKAR, JJ.
State of Karnataka, Through APMC Police Station, Belgaum – Appellant
Versus
Nasir Liyakatali Patel and Ors. – Respondents
CRIMINAL APPEAL NO.2662 of 2012 (A)
Decided On : 08-02-2017
For the Appellant : Shri. V.M. Banakar
For the Respondent: Shriyuths Ahamed Ali Rehaman Shah, Z.M. Hattaraki and V.V. Badiger, A.B. Patil, Vijay S. Chiniwar and I.D. Jalgar and M.S. Halli, A.G. Mulawadmath, K.M. Shiralli, I.D. Jalgar and R.M. Javed
Headnote:UNLAWFUL ACTIVITIES PREVENTION ACT, 1967 – Sections 13, 15 & 18 – Offences also under Sectioins 153-A, 153-B, 124-A, 511 of Indian Penal Code and Sections 4 and 5 of Explosives Substances Act, 1908 – Recovery of computer hard disc containing hate speeches, preparation and use of RDX explosives, method of preparation and use of biological and chemical warfare by using poisonous substances, use of rocket launchers, etc.- Evidence of Investigating Officer not indicating that a forensic duplicate copy of suspect storage media, or bit for bit duplication of original media, was prepared by taking help of a forensic expert – Identity of person who downloaded said contents from original source not known – Prosecution not taking proper steps to ensure that folders which were found during raid operations were copied by using forensic techniques so as to rule out possibility of any tampering – Not complying with Section 65-B of Evidence Act – Not examining any forensic expert to substantiate allegation that hard disc seized from possession of accused was indeed very hard disc which contained incriminating material – Witness turning hostile and not supporting case of prosecution – Statements of several accused and witnesses not shown to be recorded in language known to or spoken by accused – Attesting witnesses to said statements not supporting case of prosecution – Absence of evidence to show that accused persons had viewed contents of disc on a screen/laptop and thereby they entered into a conspiracy – Mere seizure of hard disc could not lead to an inference with regard to conspiracy alleged against accused – Acquittal held, justified.
INDIAN PENAL CODE, 1860 – Sections 153-A & 153-B – Promoting enmity and imputations and assertions prejudicial to national integrity – Prosecution not establishing conspiracy and steps taken by accused for execution of their plan – Mere sanction by State Government for prosecution of accused not sufficient to hold them guilty – Acquittal justified when prosecution has failed to prove guilt of accused beyond all reasonable doubt.
Heard the learned Additional State Public Prosecutor and the learned counsel for the respondents/accused.
2. The facts of the case are as follows:
The Deputy Superintendent of Police, Khade Bazaar, Sub Division, Belgaum, is said to have filed the charge sheet before the Judicial Magistrate First Class IV Court, Belgaum on 21.08.2008 numbered as C.C. No.1204/2008 alleging that on 27.05.2008, he had received credible information, on the basis of which a search was conducted on the house of accused No.1/Nasir Liyakatali Patel situated at 8th cross, Azam Nagar, Bleguam, in the presence of panch witnesses and a hard disc of a computer was said to have been recovered and it was found that the hard disc contained folders which carried (i) speeches by Osama-Bin-Laden exhorting Muslims to fight against injustice meted out to Muslims all over the world; (ii) violent activities of Talibanin Afghanistan for the cause of Islam; (iii) a Muslim youth giving interview justifying the serial bomb blasts that occurred in Mumbai and that it was done to fight against the exploitation of Muslims by non-believers; (iv) demolition of Babri Masjid and communal riots that took place in Godhra, Gujarat State; (v) preparation and use of RDX explosives neatly explained in one of the video folders; (vi) method of preparation and use of biological and chemical war fare by using poisonous substances; (vii) Osama-Bin-Laden found teaching the use of rocket launchers against the non-believers as a fight for JEHAD.
3. It was alleged that accused No.1, who was a student of B.Sc. at Belgaum, had come into contact with accused Nos.2 to 10 on account of socio-religious proximity and this was seen when the email box of accused No.10/Liyakatali was opened. It said to have contained messages sent by accused No.10 to Muslims not to sing songs such as, Om Shanti Om, Hare Rama Hare Krishna and to follow the Islamic tenets strictly and that there was meeting of minds of accused on JEHADI literature (both printed and electronic media); and with the assistance of members of the Students Islamic Movement of India (hereinafter referred to as ‘SIMI’, for brevity), they were able to disseminate the information referred to above to cause communal hatred and assertions prejudicial to national integration; and in furtherance of their common intention, accused No.4/Imtiyaz, accused No.5/Nadeem and accused No.8/Dr.Munroj who are said to have collected chemicals like glycerol, nitric acid etc., to prepare explosive articles like time bombs and other bombs and they even secured a cylinder prepared according to their specifications at Momin Galli, Belgaum to use the same for making gas bombs. That accused No.8 handed over a hard disc to accused No.1 and the contents of the said hard disc when viewed in the laptop of accused No.1, it was found to contain most barbaric scenes of demolition of Babri Masjid, the Godra Massacre, footage of speeches of Hindu leaders, atrocities on Muslims, Gujarat communal riots etc., and this was in order to incite the feelings of other castes and to provoke them to wreak vengeance on Hindus and thereby the accused committed offences punishable under Sections 13, 15, 18 of Unlawful Activities Prevention Act, 1967 (Amendment Ordinance 2004) and also Sections 153-A, 153-B, 124-A, 511 of the Indian Penal Code, 1860 (hereinafter referred to as ‘IPC’, for brevity) and Sections 4 and 5 of the Explosives Substances Act, 1908.
4. It is in this background that accused No.1 was said to have arrested and produced before the Magistrate on 27.05.2008 and he was remanded to Police custody. Accused Nos.5 and 4 were produced on 02.06.2008 and were also remanded to judicial custody. Accused No.1 was remanded to judicial custody on 18.06.2008. Similarly, the other accused were remanded to judicial custody on various dates.
5. On 21.08.2008, the Investigating Officer filed the charge sheet against accused Nos.1, 4, 5, 6 and 10 for offences punishable under aforesaid provi
