Mere Illegal Entry Without Anti-National Material Not Attempt To Wage War Against India: Calcutta HC Commutes Death Sentence Of 4 LeT Members

The Calcutta High Court on Monday commuted the death sentence of four Lashkar-e-Taiba (LeT) members who were apprehended by the Border Security Force (BSF) whilst attempting to illegally cross the border into India from Bangladesh in 2007, with an objective of spreading terror in Kashmir.

A Division Bench of Justices Joymalya Bagchi and Ananya Bandyopadhyay found that possession of explosives and other anti-national materials by the LeT members was not established beyond reasonable doubt. It observed,

"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...Possession of explosives and other antinational materials have not been established beyond doubt...In this backdrop, it would not be correct to hold mere illegal entry of the appellants who are members of 'LeT' would constitute an attempt to commit the offence of waging war against the State."

The bench was hearing the appeals preferred by the appellants, admittedly associated with militant outfit, against conviction and death sentence imposed by the Trial Court.

Three appellants, Muzaffar Ahamed Rather, Md. Abdullah and Md. Younus were convicted under sections 121 (Waging, or attempting to wage war against India), 121A (Conspiracy to wage war against India), 122 (Collecting arms, etc., with intention of waging war against India) and 120B (Criminal conspiracy) of IPC.

The High Court turned down their conviction under Section 121 (Waging, or attempting to wage war against India) which prescribes death penalty in punishment, stating that even an attempt to commit the crime has not been established. It observed,

"To constitute an 'attempt', the overt act must not only be done with the intention to commit the crime but such act must have reasonable proximation and be done in the course of committing the crime. Evidence on record proves pursuant to an arrangement between themselves the appellants had illegally entered the country to pursue the objectives of a terrorist organization. But possession of explosives and other antinational materials have not been established beyond doubt. Under such circumstances, the test of reasonable proximation and potentiality to commit the offence of waging war stands snapped."

The bench also found them not guilty of offence of collecting arms, etc., with intention of waging war against India, punishable under Section 122. Evidence on record showing recovery of incriminating substances including Nitroglycerine has not been proved beyond reasonable doubt, it held. In this regard, Sk. Nayeem's conviction under Explosives Act was also held as not maintainable. 

However, the bench held them guilty of conspiring to wage war against India under Section 121A IPC. It found that the judicial confessions of the accused show the meeting of minds between themselves to pursue their "sinister objective" by illegally entering the country as trained mercenaries and proceed to Kashmir to execute the objectives of the terrorist organization. It observed,

"The object of the conspiracy was to smuggle the trained mercenaries of 'LeT' into Kashmir and utilise them to overawe the sovereign authority of the State by use of terror and violence. The common intention of the conspirators to spread terror and awe among members of the public and thereby further the avowed objective of the terrorist organization, i.e. to overthrow sovereign control over Kashmir clearly attracts section 121A of IPC. The fact that the conspirators were not aware of a specific target of attack does not erode their culpability with regard to the offence punishable under section 121A IPC."

It thus sentenced all the accused under Section 121A IPC to suffer rigorous imprisonment for 10 years.

So far as conviction of the two Pakistani nationals under the Foreigners Act is concerned, the High Court found that they had already confessed and their retractions were highly belated. Thus, "Judicial confessions appear to be voluntary and truthful." They were sentenced to suffer rigorous imprisonment for 5 years (to run concurrently).

On charges of Cheating and Forgery against Sk. Nayeem, the High Court found that the trial court order recorded no finding as to these offences and ordinarily the matter would be remanded back for a decision. However, given that more than 15 years had lapsed, the High Court said,

"it would not enure to the ends of justice to remand the case for recording a finding on the charges as aforesaid, when all the appellants have been found guilty of a graver offence and have already undergone incarceration for more than the maximum period of substantive sentence which could be awarded upon them provided the sentences were to run concurrently."

Interestingly, the Court found that the accused had served out their sentences. It thus directed that Muzaffar Ahamed Rather be released from custody, if not required in any other case. The two Pakistani nationals be "pushed" back to their country and Sk. Nayeem is directed to be produced before Patiala House Courts in Delhi, where he is wanted.

While parting, the High Court also criticized the trial court over "unilateral imposition of maximum sentence" without taking into account the aggravating and mitigating factors of the case. It observed,

"Offence under section 121A IPC deals with conspiracy to wage war or overawe the sovereign authority of a democratically elected government by show of criminal force. The offence is a grave one and involves indoctrinated members of a terrorist organisation whose purpose is to strike terror and destabilise the nation. Offence of such nature calls for deterrent punishment so as to discourage others from resorting to the path of terrorism. But unilateral imposition of maximum sentence 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."