PARVEEN SINGI

Addl GesNos Jude 03

Nrw Delli Distrirt,
Ruom N. 39 MEA Building
Patiala Ilouse Court, New Delhi

IN THE COURT OF SH. PARVEEN SINGH,

ADDL. SESSIONS JUDGE -03 (NEW DELH)
PATIALA HOUSE COURTS: NEW DELHI

RC-10/2017/NIA/DLI

State (National Investigation Agency)

Versus

Mohd. Yasin Malik @ Aslam,

son of Sh. Mohammad Ghulam Qadir Malik,
r/o Yasin Gali, Maisuma, Srinagar,
Jammu & Kashmir. .Convict.

25.05.2022

ORDER ON SENTENCE

Convict Mohd. Yasin Malik Aslam stands convicted

for offences punishable u/s 120B IPC, 121 IPC, 121A IPC, 13 UAPA

r/w 120B IPC, 15 UAPA r/w 120B IPC, 17 UAPA, 18 UAPA, 20

UAPA, 38 UAPA and 39 UAPA.

2. On 10.05.2022, separatc chargcs u/s 120B IPC, 121 IPC,

121A IPC, 13 UAPA /w 120B IPC, 15 UAPA /w 120B IPC, 17

UAPA, 18 UAPA, 20 UAPA, 38 UAPA and 39 UAPA was framed

against convict Mohd. Yasin Malik, to which he plcaded guilty.

3. Vide judgment dated 19.05.2022, convict Mohd. Yasin

dditiona/Sess 02017/NIA/DIJ TRUE COPY igita

by PARVEod

ARVEEN SINGH
ATTESTED SINGH Dat
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 Malik was convicted for offences
punishable u/s 120B IPC, 121 IPC,
121A IPC, 13 UAPA r/w 120B
IPC, 15 UAPA r/w 120B IPC, 17
UAPA, 18 UAPA, 20 UAPA, 38 UAPA
and 39 UAPA.
4. Today, the matter is listed for deciding the quantum of
sentence to be awarded to the convict.
5. In view of the judgment of Hon'ble Delhi High Court in
Vishal Yadav v. State of Govt of UP in Crl. A. 910/2008,_socio
economic report of the convict was called for.
. The socio economic report of convict Mohd. Yasin Malik
reflects that the convict owns a three storey residential house at
Maisuma Lal Chowk, Srinagar where his mother and divorced sister
alongwith her 02 sons used to reside. With regard to social status of
convict, it is submitted that the convict was acting as JKLF Chairman
and was an influential person. He had a number of supporters within
his locality before declaration of JKIF as banned organization. It is
further submitted that the family of convict consists of 11 members
including his mother, wifc, 03 sisters, onc daughter, two nephew and
three maternal uncles
7. In order to further find the chances of
rcformation, the
court had summoncd convict's conduct report from the jail. Further in
view of judgment of
Karan v. State of NCT of Delhi in Crl. A.No.
352/2020, an affidavit detailing the asscts and income of convict was

nal SessiRC-10/2017/NIA/DLI
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 asked for.

8. As per the jail conduct report of convict, the conduct of

convict has been satisfactory in the jail. As per jail records, no jail
punishment has becn recorded against him. Regarding the convict's
inclination towards reformation, it is submittcd that during his
incarceration, behaviour of convict towards co-inmates as well as jail
administration has remained cordial and peaceful. Convict seems to be
inclined towards reformation.
9. As per the affidavit filed by the convict, the annual
income of convict from all sources is Rs.50,000/-. Regarding the
immovable property, the convict has stated in affidavit that he has
11.5 kanal land in Zolangham, Kokennag, Anantnag, J&K. That in the
year 2014, the value of the said land was Rs.5 lacs/ kanal. He sold 04

kanals of land in Rs.20 lacs and from that money, he had bought a
shop for the son of his sister. He has stated that he has no bank
account or investments.

Arguments:
10. Sh. Nccl Kamal, Id. Sr. PP for NIA, during the course of
arguments on sentencc, has drawn the attention of the court to various

paras of order on charge where the allegations against the convict and
findings of the court on those allegations had been given. He has
contended that the acts of the convict had led to severe chaos and
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SINGH
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 in the valley and had resulted in loss of numerous lives and
1unrest
ur

The acts for which convict had conspired had

damage to property.
been found to be terrorist acts. The convict
has also found to be

in activitics of terror funding, being a member of terrorist

engaged
as well for offences u/s
gang and supporting terrorist organizations
as

121 IPC and 121A IPC whercby he had been found to have waged war

UOI. The convict has not denied these allegations and chose
against
not to contest these allcgations. He has further contended that it has

settled jurisprudence that while awarding punishment to convict, there

prevalencc which are to be considered.

have been certain thcories in
been used by the courts
He has contended that theories which have
include preventive theory, retributive theory,
during various periods
and reformative theory. IHe has contended that the acts
deterrent theory
of the convict and the results thereof whereby he had waged war

to wage such war had resulted in loss

against UOI and had attemptcd
of life and property and thus, a message nceds to be
sent to the society

lenicncy can be shown. Ilc has contended that

that in such cascs, no

deterrent and to
punishment awardcd to the convict should serve as a

terrorist organization
set an example to prevent others from joining

and waging war againstUOI. He has further contended that State

offcnces for which convict has
seeks maximum punishment for all the
there are no mitigating circumstances in favour of
been convicted as

ditiona ons JudeR TRUE COPY PARVEEN SINGH

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 she convict. He further contends that the maximum punishment for
waging war against UOI is death and State sccks death sentence for
offences u/s 121 IPC and similarly, seeks maximum punishment for
other offences for which convict has been convicted. FHe has further
contended that the mitigating circumstances which are to be

considered by the court are a part of reformative theory of

punishment. IHowever, the convict himsclf has plcadcd guilty to the
charges and has admitted taking wrong path. He has further contended

the convict was responsible for genocide and exodus of Kashmiri

Pundits. The convict is a hard core criminal and thus, there are no

chances of his reformation. Therefore, the convict should be awarded

death penalty for offencc u/s 121 IPC and maximum punishment for
other offences for which he has becn convicted.
11. Countering it, Sh. Akhand Pratap Singh. ld. Amicus
Curiae has contended that retributive theory has no place in Indian
judicial system and thus, there are only threc theories i.c. preventive
theory, deterrent theory and reformative theory, which are to be
considered by thc court while awarding sentence to the convict. He
has further contended that with regard to the sentence being awarded
to the convict for preventing him from committing similar offences
and awarding maximum sentencc on the basis of that theory is
concerned, there is no rational to apply that theory in this case. He has

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PARVEEN SINGU
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 contended that ther arc
allegations that sincc the arrest
no
of thec
convict and during his
conlinement, he had engaged in any of the
activities which he had
for been convicted and
thus,
preventiveeven if
theory is applicd, the incarceration of
the convict can serve that
purpose and there is no
requirement of extinguishing the life of
convict for preventing
re-commission of these offences. He has further
contended that even for the
purpose of deterrence, maximum
punishment need not be awarded to the convict as it is the own case
of
NIA that apart from this case
and onc more case in pending Srinagar,
there is no other criminal case
pending against the convict. The
convict has not been convicted in the case at
Srinagar. Therefore, for
the offences for which he had
voluntarily plcaded guilty and had been
convicted by the court, theory of deterrence cannot be stretched to the
extent that he has to be made an example. IHe has further contended
that convict is not a habitual offender as there are only two cases
against him. He has further contended that while
awarding punishment
to the convict, the age of the convict, mental
convict and state of
social and cconomic status of convict nced to bc considered by the
court by drawing and balance and then award just punishment. He has
contended that demand of death scntencc is highly unjustified as the
case of thc convict docs not fall into the catcgory of rarest of the rare
case. He has furthcr contended that the fact that convict himself has

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 nleaded guilty should be taken into consideration and as a pointer

towards inclination of the convict to rcform. Hc has therefore

contcnded thal minimum scntence be awarded to the convict.

12. Convict Yasccn Malik also

was given an
opportunity to
state his casc on the point of sentencc. The convict has contended that
he had given up violence in the year 1994. Before the year 1994, he
had picked up a gun and he had never shied away from this fact and at
that time also, he was known by his name as a person who was
engaged in armed struggle. After the cease fire in the year 1994, he

had declared that he would follow peaccful path of Mahatma Gandhi

and would engage in non violent political struggle. Ile has further

contended that since then there is no evidence against him that in the
last 28 ycars, he had provided any hidc out to any militant or had
provided any logistic support to any terrorist organization. He has
further contendcd that many a times, it has been raiscd that he had a
meeting Prime Minister Manmohan Singh but he had not only met one
Prime Minister. All the Prime Ministers from the time of Sh. V.P Singh
till Sh. Atal Bihar Vajpayee had cngaged with him and had given him
a political platform. Government of India had provided him all the
platforms to cxpress his opinion in India as well as outside and
government cannot be considered to be a fool to give an opportunity
to a person who was cngaged in terrorist acts. Ile has further

t i o n aS
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 contcnded that it has been allegcd that he was cngaged in acts of

violence in the valley post killing of Burhan Wani. However,

immediatcly after the death of Burhan Wani, he was arrested and

remaincd in custody till November 2016. Thercfore, he could not have

engaged in violent protests

Eindings
13. I have considered the rival submission and perused the
record very carcfully.
14. The prosccution has demanded the maximum penalty as
provided and the ld. Amicus Curiac for convict has prayed for

minimum sentence.
15. The prosecution has based its claim on the deterrent
theory of punishment and has contended that undue leniency towards
convict necd not be shown and that a message necds to be sent to the
society that in such cases, law shall deal with the offenders wit a

heavy hand so that others who are considering to take the same path
think twice before acting upon such idca.

16. On the other hand, Ld. Amicus Curiac has contended that
convict necd not be made an example for the socicty and that there are
strong chances of the convict being reformed as is visible from his

conduct during his jail and fact that during his incarceration, he has
not been found to be involved in any activities for which he has been

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by PARVEEN
ATTESTED PARVEEN SINGH

SINGH Date
2022.05.
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 convicted. The convict himsell has indircctly stressed upon the
reformative theory and his chances of reformation when he claimed

that since giving up arms in the year 1994, he has not been found to be

engaged in terrorist activities, sheltering any terrorist or providing any

logistic support to any terrorist organization. IIe has further contended

that the fact that the convict is reforming has been recognized by the
governmcnt of India which has given platforms to the convict to
propagate his idcas.
17. It has not been well settled that while awarding sentence
the court has to consider aggravating and mitigating circumstances in

order to arrive at a just sentence to be awarded to the convict. It has

also been now well settled that there is no straight jacket formula for
awarding sentcnce based upon any individual theory of punishment
and that cach case has to be decidcd on its own facts and
circumstanccs.
18. The Hon'ble Apex court in Stateof Madhyapradesh vs
Mehtab.(Cri.Appealno.290/2015.dated13.02.2015) has observed
that, "we find forcc in the submission it is the duty of the court to
award just sentencc to a convict against whom charge is proved.
While mitigating and aggravating circumstance may be given due
weight, mechanical reduction of sentence to the period already
undergone cannot be appreciatcd. Sentence has to be fair not only to

nal ons Juda RC-10/2017INIA/DI

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 the accused but also the victim and the socicty,"

19. In Shailesh Jasvantbhai and Another v. State of

Gujaratand Others, l(2006)2 SCC 359] the Hon'blc Apex Court
heldthat:
In opcrating the sentencing system, law should adopt the
corrective machinery or deterrence bascd on factual
matrix. By deft modulation, sentencing process be stern
where it should be, and tempered with mcrcy where it
warrants to be. The facts and given circumstances in cach
case, the nature of the crime, the manner in which it was
planned and committed, the motive for commission of the
crime, the conduct of the accused, the nature of weapons
used and all other attending circumstances are relevant
facts which would enter into the area of consideration."

20. InAlister Anthony PareiraVs. State of Maharashtra

(AIR2012 SC3802), the Ilon'ble Apex Court held:
12. "Sentensing policy is an important task in the matters
of crime. Onc of the prime objectives of the criminal law
is imposition of appropriate, adequate, just and
proportionate sentence commensurate with the nature and
gravity of crime and the manner in which thc crime is
donc. Thcre is no straitjacket formula for sentencing and
accuscd on proof of crime. The courts have evolved
certain principles: twin objectives of the sentencing policy
are deterrence and correction. What sentence would mect
the ends of justice depends on the facts and circumstances
of cach case and the court must keep in mind the gravity of
the crime, motive for the crimc, nature of the offence and
all other attendant circumstances. The principle of
proportionality in sentencing a crime doer is well
entrenchcd in criminal jurisprudence. As a matter of law,
proportion betwcen crime and punishment bcars most

RC-10/2017/NIAIDII
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 rclevant influcnce in determination of scntencing the crime
docr. The court has to take into consideration all aspects
including social interest and consciousncess of the society
for award of appropriate sentence."

21. Thercforc, the twin objective of sentencing as decided by

Hon'ble Apex Court is deterrence and correction. Deterrence is in

relation to the crime committed and correction is in relation to the

criminal

22. The crimes for which convict has been convicted are of
very serious nature. These crimes were intended to strike at the heart
of the idca of India and intendcd to forcefully sccede J&K from UOI.
The crime bccomcs more serious as it was committed with the

assistance of forcign powers and designated terrorists. The seriousness

of crime is further increased by the fact that it was committed behind
the smoke screen of an alleged peaccful political movement.

23. Coming onto the criminal, it has been claimed on behalf

of and by convict Yascen Malik that there are chances of convict
reforming bccause firstly, during his custody, his conduct has been
found to be satisfactory which points towards his chances of
reformation and sccondly, as claimed by the convict, after giving up
arms in 1994, he has never shcltered or provided logistic support to
any terrorist of terrorist organization. It has also becn claimed that the

fact that many Prime Ministers of Govt. Of India has meaningfully

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 engagcd and given him platiorms to express his idcas, reflects that

even the Government of India had accepted that he was a reformed

person.
24 I havcconsidered this contention.
25. Admittedly, the convict had been engaged in violent
terrorist activities prior to 1994.The claim of the convict is that he
gave up the gun in the year 1994 and thereafter, he was recognized as
a legitimate political player which is evident by the fact that the
government of India has been engaging with him and had been

providing him the platforms to express his opinions. On the face of it.
it seems to be a vcry sound argument which would give an impression
that convict has alrcady reformed. IHowever, in my opinion, there was
no reformation of this convict. It may be correct that the convict may
have given up the gun in the ycar 1994, but he had never expressed
any regret for the violence he had committed prior to the year 1994. It
is to be noticed that, when he claimed to have given up the path of
violence after the ycar 1994, the government o f India took it upon its
face value and gave him an opportunity to reform and in good faith,
tried to engagc in a mcaningful dialogue with him and as admitted by
him, gavc him cvcry platform to express his opinion. llowever, as
discussed in thc order on chargc, the convict did not desist from
violence. Rather, betraying the good intentions of government he took

DgitySged

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 a different path to orchestrate violence in the guise of political
struggle. The convict has claimed that hc had followed Gandhian

principle of non violencc and was spear hcading a pcaceful non

violent strugglc. However, the evidence on the basis of which charges

were framed and to which convict has plecaded guilty, speaks
otherwise. The entire movement was planned to be a violent
movement and large scale violence ensued is a matter of fact. I must

observe here that the convict cannot invoke the Mahatma and claim to

be his follower because in Mahatma Gandhi's principles, there was no

place for violence, howsocver high the objective might be. It only took
one small incident of violencc at Chauri Chaura for the Mahatma to

call off the entire non coopcration movement but the convict despite

scale of violence engulfing the valley neither condemned the

large
violence nor withdrew his calcndar of protest which had led to the said

violence.
26. I accordingly find that in the present case, the primary

consideration for awarding sentencc should be that it should serve as

deterrence for those who seck to follow a similar path.

27. In vicw of my above discussion after weighting the

and mitigating circumstances, the convict is sentenced as
aggravating
under:
igitaiy

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 28. U/s 120B IPC

The convict is sentenced to rigorous imprisonment 10

ears. A fine of Rs. 10,000/- is also imposed upon convict and in

default of payment, he shall further undergo simple imprisonment

for a period 06 months.

29. U/s 121 IPC

30. For the offence punishable u/s 121 IPC, as detailed in

arguments above, the prosecution has sought death sentence and it has
been contended on behalf of accused by Ld. Amicus Curiae that the
case does not call for the highest penalty provided under law.
31. It is correct that section 121 IPC provides for punishment
of death sentence in case a person is proved to have committed an

offence punishable u/s 121 IPC and the convict has been convicted for
the offence u/s 121 IPC.

32. IHowever, it has now been well settled that merely

because the offence provides for capital punishment, the same cannot
be handed over to the convict in a routinc manner or as a matter of

rule.
33. InBachchan Singh v. State of Punjab, AIR 1980 SC
898, Hon ble Supreme Court while interprcting sections 354 (3) and
235 (2) Cr.P.C had hcld that the extreme penalty of death (1) need not

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7
 in the gravest cascs of cxtrcmc culpability (2)
to be inflicted excepl
circumstanccs of the offender are
death penalty, the
before opting for for the
with the circumstanccs
to be
considered along
also required is an
sentcnce
is a rule and dcath
crime (3) life imprisonment
where after
Dcath sentencc must be imposed only in cascs

exception. seems

at the circumstances
of the crime, lifc imprisonment
looking
and (4) for arriving upon
inadequate and it
rcmains as the only option
to be imposcd, the court
the conclusion regarding the cxtreme penalty
circumstances in
is required to consider the aggravating and mitigating
aggravating and mitigating
order to strike a just balance between

circumstances.
elaborated
reiteratcd and further
34. The said principle was

by Hon'ble Supreme Court in Machhi Singh v. State of Punjab,

(1983)3 SCC 470.
net result of the judicial pronouncements
35. Therefore, the
in exceptional cases where the
is that death penalty should be awarded
its nature shocks the collective
consciousness of the society
crime by
unmatched cruclty and in a gruesome
and has been committed with
manner.

36. The crime u/s 121 IPC no doubt is of a very serious

nature as it is intended to strike at the core of the principles upon

formed and in such cases, certainly death

which this nation was

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 Sentence can be awarded. However, it can only be done when the case
of the convict falls within the criteria as laid down by Hon'ble

Supreme Court in Bachchan Singh (supra) and Machchi Singh

Supra)
37. In the prescnt casc, the mannerin which the crime was
committed was in the form of conspiracy whereby there was an

attempted insurrection by instigating, stone pelting and arson and a

very large scale violence led to shut of the government machinery and

ultimate sccession of J&K from UOI.

38. However, the manner of the commission of crime, the
kind of wcaponry used in the crime lead me to a conclusion that the

crime in question would fail the test of rarest of rare case as laid down
by Hon'ble Supreme Court. Ld. Sr. PP for NIA has tried to impress
upon the court that while awarding sentence court should consider that
the convict was responsible for the genocide of Kashmiri Pundits and
their exodus. However, I find that as this issuc is ncither before this
court, nor has been adjudicated upon and thus court cannot allow itsclf
to be swaycd by this argument.

39. I accordingly find that this case docs not call for awarding

death sentencc as demanded.

40. As already discussed, the case does not fall within the
category of rarest of rare case, convict is therefore, sentenced to life

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1
 convict
imprisonment. A fine of Rs. 10,000/ is also imposed upon
and in default of payment, he shall further undergo simple

imprisonment for a period 06 months.

41. Us 121AIPC
10
The convict is sentenced to rigorous imprisonment
years. A fine of Rs.I0,000/- is also imposed upon convict and in
default of payment, he shall further undergo simple imprisonment
for a period 06 months.

42.U/s 13 UAPAr/wsection120B PC
The convict is sentenced to rigorous imprisonment 05
years. A fine of Rs.5,000/- is also imposed upon convict and in
default of payment, he shall further undergo simple imprisonment

for a period 03 months.

43.U/s 15 UAPA as punishable u/s 16 UAPAr/w section120B IPC

The convict is sentenced to rigorous imprisonment 10
years. A fine of Rs.10,000 is also imposed upon convict and in

default of payment, he shall further undergo simple imprisonment

for a period 06 months.

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 44. Us 17 UAPA
Financing is the backbone of any operation including
terrorist activities. In the prescnt case, the order on charge specifies
how funds were raised and how they were reccived from Pakistani

establishment as well as designated terrorist Hafeez Saced and through

other hawala operations. It is thesc funds that were used to create

unrest where under the guise of public protests, paid terror activities of
stone pelting and arson at mass scale were committed. Had there been

no such funding for the convict to conspire to commit thesc acts and to

scale could not

pay the perpctrators, the violence and mayhcm at this
have been committed. Thercfore, in my considered opinion, it is high

time that it is recognized that terror funding is one of the gravest

offences and has to be punished morc severely.

45. Accordingly, for commission of offence u/s 17 UAPA,

convict is sentenced to life imprisonment. A fine of Rs. 10,00,000/-is

also imposed upon convict and in default of payment, he shall

further undergo simple imprisonment for a period of two and a half

years.
46. Icre I must observe that l'm mindful of the mandate of
Sec. 63 1PC that fine imposcd upon the convict should not be
cxcessive and therefore, I find it necessary to give reasons for

imposition ofa finc of rupees ten lacs.

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 terror
47 The convict has been convicted for offence of
charge, convict was a
funding u/s 17 UAPA. As detailed in order on

been recciving funds which were raised

part of the group which had
lacs
for terrorist activities and as per D-132/A, he had rcceived Rs.10
on 29.04.2015 from accused 7ahoor Ahmad Shah
Watali. Thus, the

fine as imposed above is equivalent to the terror fund which he had

received.

48. U/s18 UAPA

The convict is sentenced to rigorous imprisonment 10
years. A fine of Rs. 10,000/- is also imposed upon convict and in
default of payment, he shall further undergo simple imprisonment

for a period 06 months.

49. U/s 20UAPA

The convict is sentenced to rigorous imprisonment 10
years. A fine of Rs. 10,000/- is also imposed upon convict and in

default of payment, he shall further undergo simple imprisonment

for a period 06 months.

50.
U/s 38 UAPA
The convict is sentenced to rigorous imprisonment 05

S e s s i o n s
:
TRUE COPY Diqilally signed
RC-10201 7INIAJDII YARVEN
a l
ATTESTED PARVE:N SING
SINGII Date:
06.5 25
Page No. 19 of 20
530

hi
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 years. A fine of Rs.5,000- is also imposed upon convict and in

default of payment, he shall Jurther undergo simple imprisonment

for a period 03 months.

51. U/s 39 UAPA

rigorous imprisonment 05
The convict is sentenced to

years. A fine of Rs.5,000/ is also imposed upon convict and in

default of payment, he shall further undergo simple imprisonment

for a period 03 months.

All the sentences shall concurrently. Benefit of

52. run

section 428 Cr.P.C shall be given to the convict.

53. Copy of order on sentence be given to the convict free of

cost.
igitally signed
YARVN

PARVEEN SINGH!
SINGH ate.
.0530
Announced in open court
today on 25.05.2022. (Parveen Singh)
Special Judge (NIA)
(This order contains 20 pages ASJ-03, New Delhi Dist..
and cach page bears my signatures.) Patiala Housc Court. N. Delhi.
Adiditional
New
Sessions Judge-03
Delhi District, N. D.

TRUE COPY
ATTESTED
nalSessic
S1ons,J

RC-10/2017INIA/DIJ

Page No. 20 of 20

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