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2013 DIGILAW 750 (RAJ)

Malkhan Singh Vishnoi v. Director, C. B. I.

2013-04-10

NIRMALJIT KAUR

body2013
Hon'ble KAUR, J.—The prayer in the present petition is for grant of bail under Section 439 Cr.P.C. The petitioner has been arrested in connection with FIR No. RC.7(5) 2011-SC 1/CBI/New Delhi registered at Police Station C.B.I., New Delhi for offence under Section 120-B read with Sections 364, 302, 201 of the IPC and Section 3(2)(v) of the SC/ST Act. 2. While praying for release of the petitioner on bail, learned counsel for the petitioner submitted that the petitioner is a sitting Member of the Rajasthan State Legislative Assembly. He is victim of circumstances and being made a scapegoat in the present case. It was contended that the petitioner was neither named in the first report nor in the second report and neither in the complaint. He was not even named in the first charge-sheet. His name was systematically dragged into the case on the basis of the false statements recorded under Section 161 of the Cr.P.C. The evidence against the petitioner is hearsay. No eyewitness and documentary evidence has been produced in support of that evidence. The necessary ingredients of offence of criminal conspiracy i.e. agreement, preparation and meeting of mind are entirely missing in the present case. There is not even a suggestion of participation of the petitioner in the alleged offence. It was further submitted that the petitioner is in judicial custody since 19.12.2011 and the trial of the case is still not commenced. There are almost 300 witnesses and more than 3000 pages of charge-sheet; and there are 17 accused persons. It was further argued that there is no legal evidence against the petitioner to sustain the charge of hatching criminal conspiracy. The petitioner is accused of executing a conspiracy through Paras Ram. The said Paras Ram has been discharged from the offence under Section 120-B o the IPC by the trial court vide order dated 4.10.2012. Moreover, the charges against the present petitioner are incorrectly framed and as a result, the C.B.I. itself has filed Revision Petition No. 1022/2012 against the order of framing of the charges against the petitioner before High Court. To make out a case for bail, it was also argued that conspiracy is shown between 23.7.2011 to 1.9.2011, whereas, it is evident from the charge-sheet that till 15.8.2011, monetary negotiations were going on between Bhanwari Devi and representative of Mahipal Maderna for securing the CD back against payment of Rs. 50 lacs. To make out a case for bail, it was also argued that conspiracy is shown between 23.7.2011 to 1.9.2011, whereas, it is evident from the charge-sheet that till 15.8.2011, monetary negotiations were going on between Bhanwari Devi and representative of Mahipal Maderna for securing the CD back against payment of Rs. 50 lacs. When the monetary negotiations failed and Bhanwari Devi disagreed with the mode of payment, the representative of Mahipal Maderna allegedly hatched and executed the plan of her elimination. The petitioner is nowhere in the picture during entire period. It was further argued that even if the allegation against the present petitioner is true, the also no substantive offence is made out against him. Learned counsel for the for the petitioner took the Court through the charge-sheet filed by the C.B.I. to show that the name of the petitioner is nowhere in the circuit persons either as conspirator or abettor in any manner whatsoever and his name has been falsely injected by the C.B.I. without any foundation. There is not a single evidence against the petitioner to support the charge of hatching a criminal conspiracy. It was further stated that the statement of co-accused Amar Chand was taken under allurement. Accused Sahiram nowhere states that the petitioner had hatched upon conspiracy. Even Rajesh Parihar (D-182) does not name the petitioner. While meeting the submission of C.B.I. that there are 32 witnesses claiming that there was illicit relationship between the petitioner and deceased Bhanwari Devi and an illegitimate child was born out of such relations, and that there was sufficient motive to eliminate the deceased as she was threating the petitioner for exposing such relations is not born out from the record because the alleged illicit relation and illegitimate child born from the relation was known to everybody, it was submitted that even if these allegations are accepted to be correct, there is no evidence that the petitioner had ever wanted to eliminate the deceased. 3. Learned counsel for the petitioner while referring to the statement of Amar Chand wherein he stated that he had heard that Bhanwari Devi had CD in her possession qua her physical relation with Mahipal Maderna and Malkhan Singh submitted that the said information with Amar Chand was hearsay and no such CD qua the petitioner has been produced till date. The only CD available is the CD involving accused-Mahipal Maderna. The only CD available is the CD involving accused-Mahipal Maderna. The statement of Illiyas was also read out by learned counsel for the petitioner. It was stated that as per the said statement of Illiyas, who was the friend of Shahabudeen, no role was attributed to the petitioner and that it is evident from the statement of Babu Lal Bishnoi that the reaction of the present petitioner when he had heard about the death of Bhanwari Devi was that even though the said crime had been committed by Mahipal Maderna, he (Malkhan Singh) would be blamed for the same on account of his relation with decea-sed Bhanwari. These statements were read out to show that the petitioner had neither committed the offence nor had intention to commit the offence. 4. Learned counsel for the petitioner has also placed on record the order dated 11.1.2012 passed by Additional Chief Metropolitan Magistrate No. 1, Jodhpur Metropolitan showing that accused Om Prakash Bishnoi, who was arrested on 30.12.2011, voluntarily expressed his desire to make confessional statement but he submitted before the court that the CBI had threatened him of false involvement in a murder case and therefore he did not want to make any statement under Section 164 of the Cr.P.C. under pressure. The order was shown to make out a case that the CBI was threatening the witnesses to make the statement in a particular manner. It was further submitted that the trial was likely to take a long time. The delay in trial amounts to violation of Article 21 of the Constitution of India. Lastly, it was contended that there is no apprehension of tampering the witnesses. Reliance was placed on the judgment rendered in the case of Dipak Subhashchandra Mehta vs. Central Bureau of Investigation & Anr., reported in (2012) 4 SCC 134 , Sanjay Chandra vs. Central Bureau of Investigation, reported in(2012) SCC 40, State of Kerala vs. Raneef, reported in (2011) 1 SCC 784 , Gokul Singh's case, reported in 1999 Cri. L.J. 3455, Rajendra Singh, & Anr. vs. State of Rajasthan, reported in 1998 Cri. L.J. 2131 = RLW 1999(2) Raj. L.J. 3455, Rajendra Singh, & Anr. vs. State of Rajasthan, reported in 1998 Cri. L.J. 2131 = RLW 1999(2) Raj. 1164, Nityanand Rai vs. State of Bihar, reported in (2005) 4 SCC 178 = RLW 2005(2) SC 237, Susanta Ghosh vs. State of West Bengal reported in (2012) 2 SCC 680 , and Maulana Mohammad Amir Rashdi vs. State of Uttar Pradesh & Anr., reported in (2012) 2 SCC 382 . 5. Learned counsel for the C.B.I. while opposing the bail submitted that there is enough evidence against the present petitioner. Reference was made to the statement of PW.2 Mohd. Farooq, the driver of deceased Bhanwari Devi. As per his statement, when he reached the house of Amar Chand, Amar Chand took him aside and told him that Malkhan Singh had eliminated Bhanwari and that he was to speak only what was directed by him. He was also threatened by Amar Chand. Thereafter, he had accompanied Amar Chand to Police Station to lodge the missing report of Bhanwari Devi. The statement of Sahiram (D-141) was also read out. As per his statement, Malkhan Singh had told him that he was fed up of Bhanwari Devi and that he had engaged Sohan Lal to eliminate her. The statement of Amar Chand was recorded under Section 161 of the Cr.P.C. As per the statement of Amar Chand, Bhanwari Devi had herself prepared her CD with Malkhan Singh and Mahipal Maderna. It was further stated by him that CD was stolen by Sohan Lal. When Bhanwari Devi had gone to the house of Sohan Lal and asked him to return the CD, then Sohan Lal told her that he will give the CD only if Indra Bishnoi will tell him to do so. It was further stated by Amar Chand that Sohan Lal had told him that there was a CD of both Mahipal and Malkhan Singh with Bhanwari Devi and that Sohan Lal also told Bhanwari Devi that the said CD may have been flashed on the T.V. at the behest of Indra Bishnoi. The statement of other witness i.e. Leela (PW. 160), who was maid-servant of Indra Bishnoi, was recorded. As per her statement, CD relating to Malkhan Singh and Bhanwari was seen by Indra Bishnoi and destroyed by Indra Bishnoi. The statement of other witness i.e. Leela (PW. 160), who was maid-servant of Indra Bishnoi, was recorded. As per her statement, CD relating to Malkhan Singh and Bhanwari was seen by Indra Bishnoi and destroyed by Indra Bishnoi. It was further stated by Leela that once Bhanwari had gone to the showroom of Malkhan Singh where she was beaten up and she also received injuries. Thereafter, Indra Bishnoi got her treated and also gave money to Bhanwari Devi. It was further stated by learned counsel of the C.B.I. that the statement of Deva Ram (PW.211) was also recorded. Deva Ram was Personal Secretary of Malkhan Singh. He stated in his statement that Malkhan Singh was fed up with Bhanwari Devi and he was ready to spent money once for all to get rid of Bhanwari Devi. Learned counsel for the CBI further stated that the accused Sahi Ram was in touch with both Mahipal Maderna and Malkhan Singh as the motive of both was same. It was further stated that accepted in the present case were in touch with each other through the mobiles of strangers and very cleverly they did not use their own mobile. Learned counsel for the C.B.I. also submitted that charges have been framed against the petitioner which prima facie shows that there is enough evidence against the petitioner. 6. There is no dispute qua the proposition of law laid down in the judgment referred by learned counsel for the petitioner that bail is the rule and jail is an exception and that denial of bail on account of tampering of evidence is to be resorted to in most extraordinary circumstances and that lengthy trial may prolong beyond maximum sentence leading to violation of the personal liberty. However, the consideration of bail also depends on the facts of each case. In the present case, when the deceased Bhanwari Devi went missing, her husband lodged FIR in September, 2011. Supplementary charge-sheet was filed on 20.2.2012 alleging therein that Bhanwari Devi had developed close physical relationship with Malkhan Singh Bishnoi and Mahipal Maderna. She used to receive money and other favours from them. Bhanwari Devi had a child from Malkhan Singh. She wanted Malkhan Singh to officially recognize the child. Supplementary charge-sheet was filed on 20.2.2012 alleging therein that Bhanwari Devi had developed close physical relationship with Malkhan Singh Bishnoi and Mahipal Maderna. She used to receive money and other favours from them. Bhanwari Devi had a child from Malkhan Singh. She wanted Malkhan Singh to officially recognize the child. Indra Bishnoi, the sister of Malkhan Singh convinced Bhanwari Devi to make a CD of her intimate relationship with Mahipal Maderna so that it could be used to remove him from the way of Malkhan Singh for political reasons, Bhanwari Devi is stated to have made her CD with both Mahipal Maderna and Malkhan Singh. Bhanwari Devi admittedly used the CD to obtain money from both the accused-persons. Both the accused hatched and executed a plot to eliminate Bhanwari Devi, who was abducted on 1.9.2011 and killed on the same day at the behest of the accused persons including the present petitioner. The body of Bhanwari Devi was allegedly burnt to ashes and later on remains were dumped in the canal. Mahipal Maderna was shown as a suspect because CD was aired on 23.7.2011 by electronic media showing illicit relationship between Mahipal Maderna and the deceased Bhanwari Devi. The present petitioner was arrested on 19.12.2011 on the basis of the investigation and statements of other accused-persons confirming illicit relation of the petitioner with the deceased and also having illegitimate child from the said relationship. The petitioner is a politician and as per the evidence collected, he felt threatened at the hands of deceased Bhanwari Devi for exposing his name in general pubic and he feared that the same may affect his career. He showed his apprehension and desire to get rid of Bhanwari Devi. His sister Indra Bishnoi, who was also an accused, was helping him all along to keep Bhanwari Devi away from creating trouble and nuisance. There is no doubt that sufficient evidence appears to have been collected by the prosecution showing the active involvement of the accused-Mahipal Maderna. However, sufficient evidence of motive is collected qua the present petitioner as well. Direct evidence of hatching a conspiracy by the conspirator is seldom available. At the same time, indirect evidence cannot be ignored especially in a case of the present nature. There is sufficient evidence to show illicit relationship between the petitioner and the deceased. However, sufficient evidence of motive is collected qua the present petitioner as well. Direct evidence of hatching a conspiracy by the conspirator is seldom available. At the same time, indirect evidence cannot be ignored especially in a case of the present nature. There is sufficient evidence to show illicit relationship between the petitioner and the deceased. Sohan Lal who is alleged to have played an active role in the murder of deceased is first cousin of the present petitioner. Indra Bishnoi, who was regularly in touch with deceased Bhanwari Devi, is the sister of the present petitioner. The deceased was killed after a well hatched conspiracy. The petitioner is involved in a crime of heinous nature. The learned counsel for the C.B.I. submitted that the Investigating Agency apprehends that the accused-persons will threaten the witnesses. It was stated that some of the accused persons had already filed applications for retracting from their confession, which were earlier voluntarily got recorded by them before the Court. Infact, the sister of Bhanwari Devi has already filed the application before the Hon'ble Supreme Court seeking transfer of the case to another State on the said ground. The petitioner is an influential politician. The material witnesses have yet to be examined. The sister of the petitioner, who is one of the accused, is still absconding. 7. The argument of the learned counsel for the petitioner that neither the petitioner was named in the first report nor in the second report and nor in the complaint filed by Amar Chand does not help at this stage because the first, second and third report was lodged by the husband of the deceased Amar Chand and he himself is an accused and charge-sheet has been filed against him as well. The bail of the co-accused Dinesh Bishnoi has already been dismissed. 8. In view of the above discussion, this Court does not deem it proper to enlarge the accused-petitioner on bail at this stage. The bail application is, accordingly, dismissed. However, nothing said herein above shall have any bearing on the merits of the case.