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2021 DIGILAW 39 (HP)

Yaseen Mohd. v. State of Himachal Pradesh

2021-01-07

CHANDER BHUSAN BAROWALIA

body2021
JUDGMENT : CHANDER BHUSAN BAROWALIA, J. 1. The matter is taken up through video conference. 2. The present bail application has been maintained by the petitioner under Section 439 of the Code of Criminal Procedure seeking his release in case FIR No. 108 of 2018, dated 27.10.2018, under Sections 302, 201 and 120B IPC, registered in Police Station Tissa, District Chamba, H.P. 3. As per the averments made in the petition, the petitioner is innocent and has been falsely implicated in the present case. He is resident of the place and neither in a position to tamper with the prosecution evidence nor in a position to flee from justice. No fruitful purpose will be served by keeping him behind the bars for an unlimited period, so he be released on bail. 4. Police report stands filed. The prosecution story, as emanates from the records, is that on 27.10.2018 Incharge, Police Post Nakrodh, sent a rukka to Police Station, Tissa. Complainant, Shri Kayum Mohammad made a statement to the police under Section 154 Cr.P.C. As per the complainant, on 25.10.2018, his brother, Lateef (son of complainant’s uncle) took his vehicle, having registration No. HP01C-1147 (Taxi), for visiting the house of his relatives and in the evening Lateef (hereinafter referred to as “the deceased”) came upto Tikri bridge to drop his family. Thereafter, when he talked with the deceased on telephone, he informed that he alongwith the vehicle is at Dehrog and going for some work. Thereafter, the complainant alongwith others went towards that side and found that the vehicle had rolled down the hill for about 500 meters and the deceased was lying there. As per the complainant, the deceased, who was driving the said vehicle, died in the accident. On the basis of the complainant, police visited the spot and prepared the spot map. Statement of the complainant was recorded by the police. Police registered a case under Sections 279 and 304A IPC. Documents of the accidental vehicle were taken into possession. It has come in the investigation that the spot, from where the vehicle rolled down, there was blood stained soil and blood was also found on the road, so the police lifted the blood stained soil. Corpse was sent for postmortem and as per the medical opinion, all injuries were found to be ante-mortem in nature. Scientific samples were sent for forensic analysis. Corpse was sent for postmortem and as per the medical opinion, all injuries were found to be ante-mortem in nature. Scientific samples were sent for forensic analysis. On 01.12.2018, during search operation of the surrounding area of the place of occurrence, police found an iron angle and a plastic pipe under the rocks. The iron angle and plastic pipe were taken into possession and sent for forensic analysis. It has also come in the police investigation that the blood found on the road and the blood of the deceased were same and completely matched. Thereafter, the police obtained the call records of the deceased and it was found that the deceased used to talk with one Ramjani (co-accused). The deceased had illicit relation with co-accused Ramjani and Yaseen (petitioner herein), husband of co-accused Ramjani, knew this fact. The FIR, which was registered earlier, was converted into Section 302 IPC and the petitioner was arrested on 05.01.2019. During the course of police interrogation, the petitioner divulged that on 25.10.2018 he murdered the deceased with stone and stick, but he could not get recovered the stick, which was thrown by him. The petitioner also identified the spot of occurrence, so the police prepared the spot map. Police recorded the statements of the witnesses and it was unearthed, during the course of investigation, that the petitioner saw co-accused Ramjani and the deceased in an objectionable condition. Co-accused Ramjani, during the course of interrogation, disclosed that she had illicit relations with the deceased and when her husband (petitioner herein) came to know about it, he compelled her to call the deceased to their home. On 25.10.2018 coaccused Ramjani made 28 calls to the deceased and while he was en route the petitioner murdered the deceased and tried to give it a colour of an accident. Co-accused Ramjani was arrested on 18.03.2019. As per the police, the petitioner and his wife (co-accused Ramjani) with prior concert planned the murder of the deceased and the co-accused Ramjani repeatedly called the deceased. The petitioner was waiting for the deceased on the road and he killed the deceased by administering stone and stick blows to him and thereafter the vehicle was pushed from the road just to portray that the deceased had died in a road accident. On 04.04.2019 challan stands presented in the learned Trial Court. The petitioner was waiting for the deceased on the road and he killed the deceased by administering stone and stick blows to him and thereafter the vehicle was pushed from the road just to portray that the deceased had died in a road accident. On 04.04.2019 challan stands presented in the learned Trial Court. Lastly, it is prayed that the bail application of the petitioner be dismissed, as the petitioner had played an active role in killing the deceased and he had planned the murder of the deceased. There is possibility that in case, at this stage, the petitioner is enlarged on bail, he may flee from justice and tamper with the prosecution evidence, so the bail application may be dismissed. 5. I have heard the learned Senior Counsel for the petitioner, learned Additional Advocate General for the State and gone through the record, including the police report, carefully. 6. The learned Senior Counsel for the petitioner has argued that the petitioner has been falsely implicated in the present case only on the basis of the statement co-accused Ramjani. He has further argued that petitioner is behind the bars for the last more than two years. He has argued that the challan stands presented in the learned Trial Court and the custody of the petitioner is not at all required by the police. The petitioner is resident of the place and neither in a position to tamper with the prosecution evidence nor in a position to flee from justice. No fruitful purpose will be served by keeping the petitioner behind the bars for an unlimited period, so the bail application be allowed and the petitioner be enlarged on bail. Conversely, the learned Additional Advocate General has argued that there is more than sufficient material against the petitioner, which clearly demonstrates that the petitioner, being husband of co-accused Ramjani, compelled her to call the deceased to their residence. Thereafter, as per the prosecution story, the petitioner killed the deceased. The petitioner, in order to give crime the colour of an accident, put the corpse of the deceased inside the vehicle and pushed the vehicle down the hill into a ditch. He has argued that it was the petitioner whose mind planned the murder of the deceased and ultimately he murdered the deceased, so his role in the commission of crime is main and cannot be equated with that of co-accused Ramjani. He has argued that it was the petitioner whose mind planned the murder of the deceased and ultimately he murdered the deceased, so his role in the commission of crime is main and cannot be equated with that of co-accused Ramjani. He has argued that in case, at this stage, when the trial is going on, petitioner is released on bail, he may tamper with the prosecution evidence or may flee from justice, so the bail application of the petitioner may be dismissed. 7. In rebuttal the learned Senior Counsel for the petitioner has argued that the petitioner is behind the bars for the last more than two years and cannot be kept behind the bars for an unlimited period, especially when the investigation is complete, challan stands presented in the Court. He has argued that co-accused Ramjani has already been enlarged on bail by this Hon’ble Court, so on the ground of parity, the petitioner may also be enlarged on bail and the application may be allowed. 8. Indeed, the principle of parity has exceptions and these exceptions are far and wide. The available record reveals that in the instant case the petitioner is the main accused and he played a key role in planning the murder of the deceased and ultimately killing him. A perusal of the records also shows that there is more than sufficient material against the petitioner. It has come on record that it was the petitioner, who compelled co-accused to call the deceased to their residence and with prior concert with the co-accused, the petitioner killed the deceased and after putting his corpse inside the vehicle pushed the same down the hill to give it a colour of an accident. Considering the role of the petitioner in the alleged offence, the plea of parity cannot be accepted, as the roles of the co-accused and that of the petitioner in the alleged offence are not akin and cannot be balanced. As per the records, on the one hand it was the petitioner who planned murder of the deceased and virtually he successfully committed the same and the role of the co-accused, as emerge, is that she called the deceased to her residence by making telephone calls to him, so the roles played by both of them are clearly distinguishable and cannot be kept in a same box. Thus, the petitioner cannot treated with the yardstick of principle of parity and the benefit of principle of parity cannot be extended to him. 9. At this stage, after meticulously examining the material, which has come on record, this Court finds that in case, at this stage, if the petitioner is enlarged on bail, he may flee from justice and may also tamper with the prosecution evidence and after considering all the facets of the case, which emerge on record, and without discussing the same ornately at this stage, and in view of what has been discussed hereinabove, this Court finds that the present is not a fit case where the judicial discretion to admit the petitioner on bail is required to be exercised in his favour. 10. In view of what has been discussed hereinabove, the petition, which sans merits, deserves dismissal and is accordingly dismissed. 11. Needless to say that the observations made hereinabove are only confined for adjudication of the present petition only and the same shall have no bearing, whatsoever, on the merits of the main case, which shall be adjudicated on its own.