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2016 DIGILAW 802 (RAJ)

Lal Mohd. Khan v. State of Rajasthan

2016-06-01

SANDEEP MEHTA

body2016
Hon'ble MEHTA, J.—By way of the instant writ petition, the petitioner Lal Mohammed has approached this Court seeking a direction for transferring further investigation of F.I.R. No.353/2015 registered at the Police Station Makrana, District Nagaur, for the offences under Sections 458, 323, 302 and 307 IPC and Section 3/25 of the Arms Act, to Central Bureau of Investigation. 2. Facts relevant and essential for disposal of the instant writ petition are noted herein below. 3. A gruesome incident of murder and attempted murder took place in the Borawad town of Nagaur District on 24.10.2015 wherein the family members of the petitioner herein were assaulted by some unknown assailants armed with firearms and other weapons. The petitioner’s younger son Lucky Khan aged 13 years was killed in the incident whereas his other son Parvat Khan, maternal grand daughter Inaya 2 years old and his daughter Reshma Bano received injuries. 4. The FIR of the incident was lodged by the petitioner’s son Parvej Khan with the S.H.O., P.S. Makrana on 24.10.2015 at the scene of occurrence. It was alleged in the FIR that Parvej Khan was sleeping in his room on the first floor of their house in the night intervening 23.10.2015 and 24.10.2015. In the early morning at about 2:30 – 3:00 AM, on hearing cries of “ekjs&ekjs”, he woke up and went to the adjoining room where his brothers and sister were sleeping. He saw that a person with his face covered, was assaulting them. His younger brother Parbat was lying below the cot. Parvej Khan managed to catch hold of the suspect and pushed him in the adjoining empty room and locked the door from outside. He saw 2-3 other persons running down the stair case. His brothers and sisters were lying in a pool of blood and a knife & 2 pistols etc. were lying around. He went down and informed his father Lal Mohammed, the petitioner herein, of the incident. Both of them informed the police, opened the door of the room in which one of the assailants had been locked but by that time, he managed to break through the cement grill fixed on the window and escaped. were lying around. He went down and informed his father Lal Mohammed, the petitioner herein, of the incident. Both of them informed the police, opened the door of the room in which one of the assailants had been locked but by that time, he managed to break through the cement grill fixed on the window and escaped. Parvej saw a broken mobile phone lying outside the broken window which he picked up and handed over to the S.H.O. A suspicion was cast in the FIR that the persons bearing enmity towards his family namely, Sikander Khan, Shahbaj Khan, Akbar Khan and Aslam Khan might have conspired to get the attack perpetrated. Suspicion was also cast against the sitting M.L.A. Shri Ramji Bhichar. It was further alleged in the FIR that threats had been given by Shri Ram Bhichar as well as Sikander Khan to his entire family of dire consequences. Two pistols, knife and gloves etc. were stated to be lying at the scene of occurrence. It is also mentioned that the injured had been taken to the hospital but their condition was serious. 5. On the basis of this report, FIR No.353/2015 was registered at P.S. Makrana for the offences under Sections 458, 323 and 307 IPC. Lucky Khan, son of the petitioner, passed away at Ajmer Hospital during treatment. His body was subjected to post mortem and offence under Section 302 IPC was added to the case. 6. The initial investigation was conducted by Mr.Tulsi Ram, S.H.O. who seized the blood stained articles lying at the scene of occurrence, pistols, empty cartridges, knives, gloves etc. The broken mobile phone was also seized. The I.O. appears to have apprehended one Vikesh Gaur as a suspect and he allegedly named Parvej Khan the first informant as the brain behind the whole incident and also confessed that Parvej Khan had engaged him as a hired killer for doing away with his own family members after procuring illegal firearms. Vikesh Gaur allegedly passed away while under treatment on 12.11.2015. Further investigation was transferred to Shri Aash Mohd. C.O., P.S. Merta City. The petitioner’s son Parvej Khan the first informant was arrested in this case on 13.11.2015. Call details of the numerous mobile numbers in use at and about the time of incident were collected. Vikesh Gaur allegedly passed away while under treatment on 12.11.2015. Further investigation was transferred to Shri Aash Mohd. C.O., P.S. Merta City. The petitioner’s son Parvej Khan the first informant was arrested in this case on 13.11.2015. Call details of the numerous mobile numbers in use at and about the time of incident were collected. The C.O. allegedly recorded the information of Parvej Khan under Section 27 of the Evidence Act and recovered ten live cartridges on the basis of the said information from the petitioner’s house. 7. Upon conclusion of investigation, the I.O. opined that Parvej Khan was having a greed for usurping the entire family property and thus, he hatched a conspiracy with Vikesh Gaur who was working in his own educational institution. He procured illicit firearms from Madhya Pradesh. The conspiracy was aimed at doing away with the brothers and sisters who could possibly stake claim in the family riches. On the fateful night, Parvej Khan himself opened the gate of the house and provided access to Vikesh Gaur. Thereafter, Parvej Khan & Vikesh Gaur both fired at Lucky, Reshma, Inaya and Parbat with the intention of doing away with them. For the purpose of reaching to this conclusion, the I.O. drew inference from the circumstance that all the siblings of Parvej Khan were assaulted in the incident whereas Parvej Khan himself remained unharmed. Thus, as per the I.O., there was no escape from the conclusion that Parvej Khan was the conspirator and murderer. With these findings, an incomplete charge-sheet was filed against Vikesh Gaur showing him to be dead and against Parvej Khan for the offences under Sections 458, 323, 302 and 307 IPC and Section 3/25 of the Arms Act. Investigation has been kept pending for collecting further evidence regarding the firearms used in the incident. 8. The petitioner Lal Mohammed has approached this Court by way of the instant writ petition seeking investigation of the aforesaid FIR and the entire incident by an independent agency i.e. C.B.I. 9. Shri Bora, learned senior counsel assisted by Mr.Farzand Ali representing the petitioner vehemently contended that the investigation of the case has been conducted in totally biased, motivated and partisan fashion. Serious aspersions were levelled against the local police which investigated the case. It was contended that the petitioner’s son Lucky was murdered and other children were seriously injured in the gruesome incident. Serious aspersions were levelled against the local police which investigated the case. It was contended that the petitioner’s son Lucky was murdered and other children were seriously injured in the gruesome incident. The local police, instead of arresting the actual culprits, has maliciously arrested the petitioner’s son Parvez Khan the first informant and charge-sheeted him for oblique motives. It was contended that the motive of implicating Parvej Khan in the incident projected by the Investigating Officer in the charge-sheet that he was having greed for the family property is flimsy and farfetched. There existed not even a remotest possibility of Parvej Khan gaining the property without the consent of his parents who were admittedly not sleeping in room where the incident happened. Learned counsel further urged that the police portrayed in the charge-sheet that Parvej Khan hired Vikesh Gaur to do the dirty job of killing his family members so that he could lay hands on the family property for himself. Parvej Khan was kept in illegal custody from 7.11.2015 onwards and was brutally beaten. He was formally arrested on 13.11.2015. No explanation has been given and no action taken against the erring officials for the injuries caused to him in custody. There is a serious allegation against the Investigating Agency that they kept Vikesh Gaur in illegal confinement and murdered him. Vikesh Gaur’s brother has also filed an FIR against the police officers of Makrana for murder of his brother but investigation of the said FIR is also not being conducted fairly. It was further contended that the I.O. deliberately did not place on record the following documents in order to cover up the faulty and partisan investigation :- (a) Interrogation note of Vikesh Gaur, (b) Post mortem report of Vikesh Gaur, (c) Parcha Bayan of the injured Reshma Bano, (d) Statement of petitioner Lal Mohd. (e) Injuries reports of Parvej Khan, Reshma and Inaya, (f) Copy of FIR No.373/2015. 10. It was further contended that the following false and fake recoveries were shown to have been made at the instance of Parvej Khan :- (a) A piece of T-shirt and blood stained collar allegedly belonging to Vikesh Gaur (cut by scissors), (b) Ten live cartridges from the house of the petitioner pursuant to information allegedly supplied by Parvej Khan under Section 27 of the Evidence Act. In support of this assertion, learned counsel for the petitioner, in presence of Dr.P.S. Bhati learned AAG displayed a video recording allegedly preserved in CCTV footage of the camera installed in the petitioner’s house after the incident and urged that on viewing the CCTV footage, it is apparent that the I.O. did not recover anything and planted a fake recovery on Parvej Khan. (c) The recovery of a veil and scarf from the grave yard. 11. It was further contended that the I.O. deliberately did not preserve and forward the weapons recovered at the scene of occurrence for finger print examination. Even the scene of occurrence in such a gruesome incident was not preserved and got examined through a team of forensic experts. They further contended that otherwise also, considering the fact that there are allegations of custodial violence brutality on Parvej Khan and custodial killing of Vikesh Gaur against the local police, it is absolutely essential and imperative for securing the ends of justice that the investigation should be got conducted through some independent agency. In support of their contention, learned counsel relied upon the judgments of the Hon’ble Supreme Court in the cases of (1) State of Punjab vs. Central Bureau of Investigation & Ors. reported in 2012(2) SRJ 248 and (2) Pooja Pal. vs. Union of India & Ors. reported in AIR 2016 SC 1345 . They thus prayed that the writ petition deserves to be allowed and further investigation of the matter be directed to be got conducted through the C.B.I. 12. Per contra, learned AAG Dr.P.S. Bhati assisted by the learned Public Prosecutor Mr.A.S. Rathore and the I.O. Mr.Aash Mohd. vehemently opposed the submissions advanced by the learned counsel for the petitioner. They urged that details of the SIMs used in the mobile provided by Parvej Khan to the I.O. clearly establish his complicity in the crime. The investigation has been carried out by the local police in an absolutely fair and independent manner. They urged that the petitioner’s son Parvej Khan the first informant was himself found guilty of hatching the conspiracy of getting his family members liquidated for satisfying his greed of family riches. He himself planned and got the incident perpetrated through Vikesh Gaur after providing him the weapons. They urged that the petitioner’s son Parvej Khan the first informant was himself found guilty of hatching the conspiracy of getting his family members liquidated for satisfying his greed of family riches. He himself planned and got the incident perpetrated through Vikesh Gaur after providing him the weapons. Parvej Khan has been arrested and charge-sheeted and thus, the petitioner feeling frustrated by the arrest of his son has filed this writ petition for oblique motives. There is ample justification for not filing on record of the charge-sheet, the documents pointed out by the petitioner’s counsel as they are likely to prejudice the prosecution case. It was urged that the documents which the prosecution thinks would not be suitable for proving its case can be withheld while filing the charge-sheet. The accused can always use such documents in his defence. Vikesh Gaur’s death was natural as is evident from the post mortem report. Relying upon the judgment of the Hon’ble Supreme Court in the case of Doliben Kantilal Patel vs. State of Gujarat & Anr. reported in 2013 Crl.L.J. 3761, they urged that the petitioner has failed to make out any case for C.B.I. investigation and, therefore, the writ petition deserves to be dismissed. 13. Heard and considered the arguments advanced at the Bar. Perused the material available on record. 14. The petitioner’s son Parvej Khan himself lodged the FIR on the basis whereof, the investigation was commenced. It is an admitted case of the prosecution that the scene of occurrence and the weapons lying there in such a gruesome and heinous incident was not preserved for finger prints by the S.H.O. Mr.Tulsi Ram. This clearly reflects gross negligence on his part but no action has been proposed against the erring officer till date. The later investigation was conducted by C.O. Mr.Aash Mohd. While concluding the investigation he has attributed to Parvej Khan, greed for the family property as being the motive of the incident. Suffice it to state that this finding of the I.O. is purely conjectural because the parents of Parvej Khan are still alive. Therefore, even if the brothers and sisters were eliminated, the possibility of Parvej Khan gaining the property for himself was subject to the consent of the parents. This finding of the I.O. appears to be farfetched. Suffice it to state that this finding of the I.O. is purely conjectural because the parents of Parvej Khan are still alive. Therefore, even if the brothers and sisters were eliminated, the possibility of Parvej Khan gaining the property for himself was subject to the consent of the parents. This finding of the I.O. appears to be farfetched. It is not disputed that vital documents which have been noted herein above were not filed on record along with the charge-sheet by the I.O. No explanation is forthcoming for such concealment/withholding of the documents. The Investigation Officer’s approach is thus unfair and partisan. The job of the investigating agency is to find out the truth and not to act as mouth piece of the prosecution for securing a conviction. The petitioner claims that Parvej Khan was taken into illegal custody from 7.11.2015 and was kept detained till the date of his arrest i.e. 13.11.2015 and was subjected to custodial violence by the police. It was projected in the charge-sheet that Parvej Khan hired Vikesh Gaur to do the dirty job of killing his family members so that he could claim the property for himself. There is a serious allegation against the Investigating officers that Vikesh Gaur too was kept in illegal confinement and was brutally assaulted resulting into his death. Vikesh Gaur’s brother has filed an FIR against the police officers of Makrana for his murder. The findings reflected in the post mortem report of Vikesh Gaur ex-facie indicate about some foul play in his death. As per the investigation agency, Vikesh Gaur, who was a young hail and hearty man aged about 24 years, died by natural causes. It was claimed that Vikesh who was not in police custody developed sudden symptoms in the afternoon of 12.11.2015 and he was immediately rushed to JLN Hospital, Ajmer by two police officers. However, he could not be saved. It is indeed questionable as to why Vikesh who was not in custody, was in company of the police officers who brought him to the hospital. The autopsy which was conducted at 1:10 PM shows that Rigormortis had developed all over the body of Vikesh Gaur. The incident is of November, 2015. Thus, the climate must have been cold. It would have taken a significant period for the Rigormortis to set in all over the body at that point of time. The autopsy which was conducted at 1:10 PM shows that Rigormortis had developed all over the body of Vikesh Gaur. The incident is of November, 2015. Thus, the climate must have been cold. It would have taken a significant period for the Rigormortis to set in all over the body at that point of time. Thus, it can be safely inferred that Vikesh Gaur expired 12-15 hours before the post mortem was conducted. There are numerous other symptoms in the post mortem report including ante-mortem injuries of the nature generally seen in cases of custodial violence which clearly indicate that the death of Vikesh Gaur was not natural. It is, therefore, clear that the claim of the local police that the death of Vikesh Gaur was natural is highly doubtful. The post mortem report ex-facie appears to have been managed by manipulation. 15. Learned counsel for the petitioner displayed before the Court, the video footage taken from the CCTV camera fixed at the house of the petitioner in order to portray that the recovery of cartridges at the instance of Parvej Khan was fake and fabricated. Any comment on the veracity of the recovery on the basis of the video footage is likely to prejudice further proceedings and thus, this Court refrains from making any observations thereon. However, numerous circumstances are reflected from the record creating a grave doubt on the motive and conduct of the Investigating Officers against whom there is also an allegation of police brutality resulting into the death of a suspect and also causing injuries to Parvej Khan. 16. Testing the facts of the case at hand on the touchstone of the Supreme Court judgments cited by the learned counsel for the parties, this Court is of the firm opinion that the petitioner has been able to make out a strong case for directing further investigation of the matter by the C.B.I. 17. As a consequence of the above discussion, the instant writ petition deserves to be and is hereby allowed. Further investigation of the entire matter viz., the incident of murder and attempted murder which occurred in the petitioner’s house on 24.10.2015 as well as the circumstances leading to the death of Vikesh Gaur shall be conducted by the independent agency i.e. Central Bureau of Investigation. Further investigation of the entire matter viz., the incident of murder and attempted murder which occurred in the petitioner’s house on 24.10.2015 as well as the circumstances leading to the death of Vikesh Gaur shall be conducted by the independent agency i.e. Central Bureau of Investigation. The Director, C.B.I. shall forthwith appoint a competent investigating officer for conducting an independent, fair and thorough investigation into the matter. The I.O. concerned shall file the result of investigation in the concerned Court preferably within a period of four months from the date of receipt of copy of this order. The original investigation papers shall be handed over to the Investigating Officer appointed by the Director, C.B.I., immediately upon request. 18. Progress report be submitted for this Court’s perusal on 2.11.2016. Copy of this order be forwarded to the Director, C.B.I., New Delhi forthwith.