MOHD AFZAL KUMHAR Vs. STATE

JUDGEMENT

(1.) 13th December, 2001 witnessed a terrorist attack on the indian Parliament. The objective of the terrorists, who belonged to a militant organization called JKLF', behind that attack was to capture the Parliament House. The brave security personnel posted there, however, had not only succeeded in saving the Parliament house from being captured and the Members of Parliament, who were inside, from being killed or held as hostages but also managed to kill all the terrorists who had launched the attack there. During that operation some of the security personnel also lost their lives while fighting for the honour of the country. The terrorists who have been causing havoc in different parts of the country could not take their defeat lying down and decided to commit more panic and fear in the Capital city by causing loss of human lives and mass devastation of properties by exploding bombs on the occasion of Republic Day which was to be celebrated on 26th January,2002. However, this time the intelligence agencies could catch hold of the terrorists belonging to another militant organization called Lashkar-e-Toiba (Let) who had come from kashmir for committing acts of terrorism in Delhi before they could convert their nefarious design into reality. On being apprehended by the police alongwith huge quantity of RDX and other explosive material and lacs of rupees in cash meant for being utilized for the said purpose they were prosecuted and tried for various offences and finally were convicted and now these appeals have been filed by four accused persons who have been convicted by the designated Court under the Prevention of Terrorism Act, 2002 (POTA) vide judgment dated 30th October, 2007 for their having committed various offences including that of hatching a conspiracy to wage war against the Government of India. These four accused persons were charge-sheeted alongwith three other persons out of whom one Mehboob Karim Merchant was discharged by the Designated Court while in respect of accused rajesh Bhai Prajapati the Designated Judge passed an order on 29-04-2005, when the case was at the stage of final arguments, for deleting his name from the array of accused persons in view of the decision of the POTA Review Committee exonerating him of the offence under POTA for which only he was being tried. In respect of accused Dilip Tribhuvan Das Barot, who was also being tried for an offence under POTA only, the Designated Court passed an order of his acquittal on 31-08-2005 since he had also been exonerated in the meanwhile by the POTA Review Committee. Thereafter, the trial of the four appellants continued and finally ended in their conviction. Hence, these appeals came to be filed and since the same arise out of a common judgment of the trial court they are being disposed of by us by a common judgment.

(2.) THE foundational facts of the prosecution case are described in the charges framed by the trial Court against the six accused and so at the outset we deem it appropriate to re-produce those charges. Against accused-appellant Mohd. Afzal Kumhar (appellant no. 1 in Crl. A. No. 811 of 2007) the following charges were framed:-

(3.) THIRDLY that in the company of your co-accused, you received hawala money of Rs. 28. 25 lakhs from accused No. 5 at the instructions of accused No. 6, who had received further instructions from terrorist organizations, knowing fully well that this amount be utilized for the purposes of terrorism and thereby you committed offence u/s 22 (3) (5) of POTA.