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2021 DIGILAW 294 (PNJ)

Yogesh @ Yogi v. State Of Haryana

2021-02-02

JASWANT SINGH, SANT PARKASH

body2021
JUDGMENT 1. By way of filing the present application, the applicantappellant/Yogesh @ Yogi has prayed for suspension of remaining sentence of life imprisonment, awarded to him in FIR No.098 dated 01.12.2017 under Sections 302, 365, 201 and 34 of the Indian Penal Code registered at Police Station, Sadar, Hisar. 2. Brief facts of the case are that on 01.02.2017, a telephonic message was received in Police Station, Sadar, Hisar that dead body of a boy was lying on the road at South bypass, Hisar. On this information, police party reached at the spot. The deceased was identified as Sumit son of Vijender by his relatives. There were several marks of injuries including the tyre marks of a vehicle on the person of the deceased-Sumit. During investigation, the present applicant-appellant along with other co-accused were arrested. The present applicant-appellant (Yoesh @ Yogi) and co-accused were held guilty; inter alia convicted for the offences under Sections 302/201/365 read with Section 34 IPC and sentenced to undergo life imprisonment by the learned trial Court. 3. Learned counsel for the applicant-appellant submits that a blind FIR was registered, wherein neither the applicant-appellant was named nor any overt act was attributed to him. He further submits that there is no direct evidence available on the record and the prosecution has projected the occurrence based on circumstantial evidence. He further submits that though the learned trial Court has placed reliance on Facebook Chat (Ex.46) but it would not connect the present applicant-appellant with the commission of offence in any manner. Further elaborating his arguments, learned counsel submitted that the learned trial Court erroneously placed reliance upon evidence in the form of `CD' (Ex.P15) showing CCTV footage of the parking area of Hotel Paradise, which is not admissible in evidence as the mandatory certificate under Section 65B(4) of the Evidence Act, 1872 was not annexed. He has further tried to convince the Court that the said CCTV footage, which is the basis of the entire case of prosecution, has not been proved in accordance with the provisions of the Evidence Act and, thus, the whole prosecution case has fallen like a pack of cards. In support of his contentions, he has relied upon judgment of the Hon'ble Supreme Court rendered in Anvar P.V. Vs P.K.Basheer and others,2015 1 SCC(Civ) 27. 4. In support of his contentions, he has relied upon judgment of the Hon'ble Supreme Court rendered in Anvar P.V. Vs P.K.Basheer and others,2015 1 SCC(Civ) 27. 4. With regard to the recovery of incriminating material effected from the applicant-appellant, pursuant to the disclosure statement (Ex.P32) is concerned, it is contended that it was the mobile of the applicantappellant only and it cannot be said to be incriminating evidence against him. 5. He further submitted that at the most, even if the entire set of allegations of the prosecution is considered to be a gospel truth, only offence under Section 365 IPC is made out, as there is no evidence of participation of the present applicant-appellant in causing the murder of the deceased. According to him, the applicant-appellant was on bail even during the trial and it will be a travesty of justice if concession of suspension of sentence is not accorded by this Court. 6. Opposing the contentions tooth and nail, the learned counsel for the State urged that the allegations against the present applicantappellant and co-accused are very serious. From the material on record, it is crystal clear that the present applicant-appellant along with the co-accused, firstly abducted the deceased and thereafter caused injuries upon his person and ran over the car resulting into his death. The chain of circumstantial evidence was complete and the applicant-appellant has failed to point out any defence as to how he was caught in CCTV footage of parking area of Paradise Hotel and what was the motive for his false implication. 7. This Court has heard the learned counsel for the parties and perused the case file. 8. As per the case of the prosecution, deceased (Sumit son of Vijender) was in love with Jyoti sister of accused Sumit son of Ved Parkash. When brother of Jyoti came to know about their relations, he got annoyed and using the Facebook account of his sister Jyoti, he called the deceased and alongwith others, abducted the deceased outside Hotel Paradise and then he was beaten up in the car itself. The deceased was provided with some medicines near Chawla Nursing Home, Hisar and deceased was chased by accused Sumit, Amit and the present applicant-appellant (Yogesh @ Yogi) and was trapped at bus stand, Hisar. The deceased was provided with some medicines near Chawla Nursing Home, Hisar and deceased was chased by accused Sumit, Amit and the present applicant-appellant (Yogesh @ Yogi) and was trapped at bus stand, Hisar. Thereafter he was beaten in the car and was thrown out of the car near Railway Crossing, Stud Farm, South Bypass, Hisar and thereafter accused ran the car over the body of the deceased. 9. If the entire set of evidence, oral as well documentary, is glanced through, we do not feel that it is a fit case for extending the concession of suspension of sentence at this stage. Learned counsel for the applicant-appellant has raised the issue of non admissibility of the CCTV footage, which is the basis of the entire case. Even if the CCTV footage of the parking area of Hotel Paradise, for the sake of argument, is kept out of the record, there is substantial evidence against the applicant-appellant and others showing their culpability in the commission of offence of kidnapping and murder of Sumit. From the sequence of events, a reasonable and plausible conclusion can be drawn that non collection of the certificate under Section 65B(4) of the Evidence Act was merely an investigational lapse on the part of the investigating agency and the applicant-appellant has failed to lead any defence as to why he was involved unnecessarily in a heinous crime of kidnapping and murder. No motive has been alleged or proved on record as to what prompted the investigating agency to implicate him falsely. Otherwise also, the impact of not annexing the mandatory certificate in view of the observations of the Hon'ble the Supreme Court in Anvar's case (supra) would be seen at the time of final disposal of the present appeal. In the case of investigational lapse, the Hon'ble Supreme Court in Dharmendrasinh @ Mansing Ratansinh Vs State of Gujrat,2002 2 CCCases(SC) 1 has held as under:- In a case under Section 302 IPC, the consequences of such faulty investigation is not necessarily one leading to discredit the main prosecution case if the prosecution evidence inspire confidence and circumstances leading to such a conclusion and the prosecution story rings true. Other relevant facts and circumstances cannot be totally ignored altogether. The relevant consideration would be that chances of false implication are totally illuminated and the prosecution story as a whole rings true. Other relevant facts and circumstances cannot be totally ignored altogether. The relevant consideration would be that chances of false implication are totally illuminated and the prosecution story as a whole rings true. In such circumstances, despite the contradiction of defective investigation, a conviction can safely be recorded. 10. The Hon'ble Supreme Court reiterated the aforesaid view in C. Muniappan Vs State of Tamlinadu, (2010) 4 RCR(Cri) 268. 11. The plea of the applicant-appellant that at the most offence under Section 365 IPC was made out is totally misconceived. There are specific allegations and evidence including the disclosure statements of all the accused except accused Vijay @ Bunty that they chased Sumit (deceased) and again gave him beatings and ran the car over his body. Thus, at this stage, it does not lie in the mouth of the accusedappellant to raise the contention that no offence under Section 302 IPC was made out against him and his case was at par with co-convict Vijay @ Bunty. 12. Regarding the next contention that the recovery effected in pursuant to the disclosure statement is not incriminating and the disclosure statement, in the absence of any incriminating recovery, is not admissible in evidence. Even this submission is unable to cut much ice. Apart from the disclosure statement of the present applicant-appellant, which resulted into recovery of the mobile, there are the disclosure statements of the other co-accused implicating the applicant-appellant. Otherwise also, the question of admissibility of the disclosure statement and recovery effected in pursuant thereto is a matter of final arguments and no benefit can be extended to the applicant-appellant at this juncture. 13. Admittedly, the applicant-appellant was on bail during the course of trial as it is reflected from the impugned judgment dated 24.01.2020. The parameters of granting the bail during the course of trial and considering the request of the applicant for suspension of sentence after conviction are definitely on different footings. The concession of bail during the trial might have been granted as till that time no incriminating evidence could have come on the record but now, the applicant-appellant and other co-accused have been convicted and sentenced. Therefore, even this ground is of no help to the applicant-appellant. 14. The concession of bail during the trial might have been granted as till that time no incriminating evidence could have come on the record but now, the applicant-appellant and other co-accused have been convicted and sentenced. Therefore, even this ground is of no help to the applicant-appellant. 14. Moreover from the story of the prosecution and the evidence led, it is established that it was a case of honour killing as the sister of the accused-Sumit was having relationship with the deceased and since accused-Sumit was annoyed with that relationship, he along with others including the present applicant-appellant committed the murder in a very brutal manner. While considering the concession of suspension of sentence of the applicant-appellant, the mode and manner of commission of the offence is also to be taken into consideration. From the evidence coming on the record, it is proved that the applicant-appellant along with others after throwing the deceased out of the car; chased him again and after giving beatings, ran over the car when he was lying on the road. 15. Taking into consideration the totality of circumstances of the case noted above, we do not find any merit in the present application and the same is hereby dismissed at this stage. 16. It is clarified that none of the observations made hereinabove shall be construed to be a reflection on the merits of the case. The same are solely confined for the purpose of decision of the present application.