Point of Law : Conviction on circumstantial evidence it must be shown to be conclusive of guilt of accused and must also be incapable of explanation on any hypothesis consistent with innocence of accused.

JUDGMENT

Vinod Chandran, J.

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. We are called upon to decide the legality of the conviction and the propriety of the sentence, in the appeal by the accused. The National Investigation Agency (NIA), which filed the final report has filed an appeal 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.

I. THE PROLOGUE:-

2. The prosecution case is that A7 to A10 and A15 were instigated and radicalised in the 'Jihadi' Classes conducted at the behest of the various accused, particularly A3 and financed by A23, recruited to wage war against India, in pursuit of which common goal A7 to A10 met with death, having been shot dead in three separate encounters at Kashmir. Originally there were 24 accused of which A7 to A10 lost their lives in Kashmir, A20 and A24 are still absconding and 18 stood trial. A6, A13 and A17 to 19 stood acquitted by the trial court. The appellants 13 in number were convicted for various offences under the IPC and the Unlawful Activities (Prevention) Act, 1967 (UA(P)A). A15 stands convicted under S.121 IPC and S.16 UA(P)A for which he was sentenced to life imprisonment on both counts and Rs.50000/-, as fine, also on both counts. Accused Nos.1 to 5, 11, 12, 14, 15 16, 21,22 and 23 were convicted under S.121A IPC and S.18 UA(P)A with sentences of imprisonment for life on both counts with a fine of Rs.50000/- each. A23 was further convicted under S.17 and sentenced to imprisonment for life and fine of Rs.50,000/-. A16 was also convicted under S.19 of UA(P)A to undergo imprisonment for life and fine of Rs.50,000/-. Appropriate default sentences for various periods, to run on default of payment of fine were also indicated.

3. The genesis of the case is from the surveillance of A1 and the FIR registered suo motu by PW158, Sub Inspector, Edakkad Police Station, Kannur as Crime No. 356/2008 (Ext.P397). A1, arrested on the same date was kept under surveillance for his involvement with a banned organisation by name Students Islamic Movement of India (SIMI). A1 was found using two mobile numbers 97443 82047 and 96057 49262 alternatively. PW158 obtained the call details of the first mobile number, which, on examination revealed that number to have been deactivated after 05.10.2008 and ten calls having been received by A1 on the 1st and 2nd of October, 2008 from Jammu & Kashmir (J&K). Inquiries with the intelligence agencies revealed that the calls could be related to terrorists, shot dead in Kashmir. PW158 took A1 for questioning and initially A1 feigned ignorance and asserted innocence. Later, he pleaded for a pardon with the Officer; being the first instance, and promised that he would not indulge in any such activities, thereafter. A1 was arrested and FIR was registered on 18.10.2008. A phone diary (Ext.P123), mobile phone (MO.3) and the SIM Card (MO.3A) in the phone, were seized from him. Later the house of A1's wife was searched and by Ext.P117 search list, Ext.P400 passport and MO.22 SIM card were seized. Considering the ramifications, a Joint Investigation Team (J.I.T) wa