Breaking| Kashmir Terror Recruitment Case: Kerala High Court Confirms Conviction Of 10 Accused, Acquits 3

The Kerala High Court on Monday confirmed the conviction and sentence awarded to prime accused Thadiyantavida Nazeer and nine others in the Kashmir terror recruitment case in a judgment that runs to 205 pages.

The Division Bench of Justice K Vinod Chandran and Justice C Jayachandran observed that a conspiracy had been clearly established through the evidence and records produced before it. 

"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 noted that the testimonies, documents produced, especially the CDRs and the extracts made from the digital devices seized from the accused together provide the reasonable belief required to use the evidence led regarding the relevant facts, which stand proved, against all the accused.

"There is unity of object and purpose, though the means were achieved differently. There is a clear unbroken chain of circumstances connecting the accused, with the plot hatched of recruitment to perpetrate terrorist activities; the overt acts of waging war against the Nation having been proved by the death of the four recruits. The evidence led unerringly inculpate each of the accused as a member of the team of conspirators."

It was also found that the meeting of minds was very evident and the close association validated the allegation of conspiracy as proved from the CDRs during the period the recruits converged in Hyderabad along with many of the accused and were sent for training to Kashmir, with the intention to return and foster unrest and foment terror within the Nation and the State.

The incriminating circumstances of the CDRs when put to the accused, they had no explanation, which assumes relevance under Section 106 of the Evidence Act.

Therefore, the Bench found no reason to upset the findings of the trial court and confirmed the conviction and the sentence imposed on all the appellants, except A2, A14 and A22.

However, the Bench acquitted the 2nd, 14th and 22nd accused in the case finding that they had no role in the conspiracy. 

The terror recruitment case revolves around the allegations that persons from Kerala are being recruited in terror camps in Jammu and Kashmir. The matter came to light in 2008 when security forces in Kashmir shot down some suspected terrorists, out of which four turned out to be youths from Kerala.

The Ernakulam NIA Special Court had convicted 13 persons and acquitted 5 in the case. The convicted accused moved the High Court challenging their conviction while the NIA moved the Court challenging the acquittal of the remaining 5.

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 suspected Lashkar-e-Taiba operative, Thadiyantevida Nazeer and his associate Shafas. Both men were recently acquitted by the High Court in the Kozhikode twin blasts case.

This case had earlier made headlines when the High Court allowed witness examination of a BSNL official who had issued a call record showing communication between the accused and some persons in Kashmir at the appellate stage. This is an extraordinary step since generally, witness examinations in criminal appeals are completed at the trial courts and the High Courts only evaluate the evidence gathered by the trial court.

This move was prompted when the counsel for the convicted appellants argued that the BSNL official had not given the mandatory attestation under Section 65B of the Indian Evidence Act on the call record presented by him. ASGI S Manu appearing on behalf of NIA, therefore, filed a special petition seeking permission to cross-examine the said official. Upon evaluating the facts of the case, the Bench deemed it appropriate to allow the said petition and thereby summoned the BSNL official on April 8.

As such, the accused who were out on bail were directed to appear before in person while those in custody were ordered to appear via video conferencing from the prisons in which they are currently incarcerated. The Court thereby recorded the statement of the official and accepted the call record certificate issued by BSNL as additional evidence.

Case Title: M.H. Faisal v. State of Kerala & connected matters.

Citation: 2022 LiveLaw (Ker) 213

Click Here To Read/Download The Judgment