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Rajasthan High Court · body

2018 DIGILAW 517 (RAJ)

Parvej Khan S/o Lal Mohammad v. Union of India

2018-02-14

SANDEEP MEHTA

body2018
ORDER : 1. The instant second application for bail has been filed under Section 439 Cr.P.C. on behalf of the petitioner, who is in custody in relation to F.I.R. No.353/2015, Police Station Makrana, District Nagaur (re-registered at CBI New Delhi as CBI Case No.RC4(S)/2016/CBI/SC.III/New Delhi), for the offences under Sections 201, 203, 326, 302, 307, 458 r/w 120B IPC and Sections 25 and 27 of Arms Act. 2. The case involves murder of Lucky Khan, the petitioner’s brother and attempted murder of Parbat Khan and Reshma being the petitioner’s siblings as well as gunshot injury being caused to the petitioner's niece Inaya in an incident, which took place at the Borawad Town near Makrana in the night intervening 23.10.2015/24.10.2015. The petitioner is the first informant of the case. He lodged the report at the Police Station Makrana against the local MLA Shri Ram Bhichar and a few others casting suspicion on them of perpetrating the assault because of rivalry over educational institutions. On the written report of the petitioner, an F.I.R. No.353/2015 was registered at the Police Station Makrana and investigation was commenced. 3. The local Police conducted the investigation of the matter and reached to a conclusion that a man named Vikesh Gaur, who used to work in the educational institution named “Geetanjali B.Ed. College” as well as “Geetanjali ITI” being run by the petitioner and his family members, was the assailant and that the petitioner was the mastermind, who conspired with him and got the attack executed through Vikesh Gaur. Vikesh Gaur was apprehended by the Police but it is stated that he passed away while being in custody during investigation. The petitioner was arrested and numerous incriminating recoveries including that of 10 live cartridges matching the bore of the two country-made pistols found at the scene of crime were effected at his instance. The Investigating Officer, filed a charge-sheet concluding that the petitioner conspired with Vikesh Gaur and hatched a design to eliminate all his family members so as to gain control of the family’s riches. The petitioner moved a regular bail application (CRLMB No.3112/2016) under Section 439 Cr.P.C. in this Court and the petitioner’s father Lal Mohd. submitted a Cr.Writ Petition No.35/2015 wherein, prayer was made to change and direct further investigation of the case by the CBI. The petitioner moved a regular bail application (CRLMB No.3112/2016) under Section 439 Cr.P.C. in this Court and the petitioner’s father Lal Mohd. submitted a Cr.Writ Petition No.35/2015 wherein, prayer was made to change and direct further investigation of the case by the CBI. While deciding the petitioner’s bail application and the above criminal writ petition vide orders dated 1.6.2016, this Court directed that the further investigation of the matter be conducted by the CBI and granted conditional interim bail to the petitioner till conclusion of further investigation by the CBI. While granting conditional bail to the petitioner, this Court ordered that in case, the CBI files a chargesheet against the petitioner after further investigation, the conditional interim bail granted to him, would automatically come to an end and he would be required to surrender before the trial court in such an event. Pursuant thereto, the CBI registered a fresh F.I.R. and conducted further investigation into the matter. The Investigating Officer of the CBI virtually expressed his concurrence with the findings recorded by the previous Investigating Officers of Rajasthan Police on most of the relevant issues and proceeded to file a charge-sheet with the very same conclusion that the petitioner conspired with Vikesh Gaur and got the entire incident perpetrated. Upon filing of the above chargesheet, the petitioner surrendered before the trial Court in compliance of the conditional interim bail order dated 1.6.2016 and thereafter, he has approached this Court by way of this fresh application for bail under Section 439 Cr.P.C. 4. Learned counsel Sarva Shri Farzand Ali and Vishal Shrma representing the petitioner vehemently contended that the conclusions of the Investigating Officer of CBI are totally conjectural and fictional. The Investigating Officer has virtually ratified the totally fictional, perverse and cooked up findings recorded by the local Police in the earlier charge-sheet. They submitted that the Investigating Officer failed to consider the important aspect that none of the family members of the petitioner supported the fictional theory of motive putforth by the local Police that the petitioner conspired and got the assault perpetrated with the intention of eliminating all his family members so as to gain the family's riches. They urged that there is no substratum behind this conclusion of the Investigating Officer. They urged that there is no substratum behind this conclusion of the Investigating Officer. The petitioner was already at the helm of affairs in the family educational institutions and there is no ostensible reason as to why he would try to eliminate his own family members. They further urged that the Investigating Officer's conclusion that Vikesh was the murderer is extremely doubtful because the eyewitnesses Reshma and Parbat Khan knew Vikesh from before. They managed to catch hold of the assailant and grappled with him and both have categorically stated that Vikesh could not have been the assailant. They further urged that the belated recoveries of live cartridges and other worthless articles being a piece of the T-shirt worn by Vikesh etc. at the petitioner’s instance, clearly establishes that the Investigating Officer acted in a highly prejudiced and partisan manner with the sole objective of implicating the petitioner in the case. The motive behind the Investigating Officer’s biased actions was that the petitioner had dared to implicate the local MLA in the incident and thus, the Police acted at his (local MLA's) beck and call and entangled the petitioner in the offence without there being an iota of evidence to justify his arraignment in the case as the mastermind. They further urged that no significance can be attached to the Investigating Officer's observations that fact that the petitioner clicked pictures of his brother Lucky Khan while he was lying injured on the bed pointed to his guilty mind frame. They contended that the petitioner's actions were in all probability out of curiosity and the bonafide anxiety to preserve the circumstances prevailing at the scene of occurrence in case of future requirement. They further urged that the call details which the CBI has collected during investigation for drawing an inference that Vikesh went to Uttar Pradesh and Madhya Pradesh for procuring the firearms used in the incident at the petitioner’s instance, are also inconsequential because Vikesh was admittedly a resident of Uttar Pradesh and thus, his visit to the said State cannot be a ground for drawing such an inference. Furthermore, the SIMs in question were not issued in the name of Vikesh. Furthermore, the SIMs in question were not issued in the name of Vikesh. They urged that the petitioner who was granted conditional interim bail by this Court after first round of investigation, did not misuse the liberty granted to him and surrendered back as per this Court’s direction immediately after submission of the fresh charge-sheet by the CBI. They thus submitted that the petitioner’s fair conduct entitles him to indulgence of bail. They further urged that as per the statement of Reshma, she had inflicted injuries by a potato peeler on the fingers of the assailant and thus manifestly, if Vikesh had been the assailant, then the doctors/Investigating Officer would have noticed injuries on his hands when he was medically examined and post mortem was conducted on his body. They further drew the Court’s attention to the statements of various relatives of Vikesh, who categorically stated that Vikesh returned from the petitioner's house at about 9.30 PM and then did not leave his own house on the fateful night. They thus urged that the false implication of Vikesh as the assailant is writ large on the face of record. As per them, the local Police Officers were responsible for custodial death of Vikesh and in order to cover up their criminal and prejudicial acts, the entire burden of incident has been malafide shifted on to the petitioner. As per them, even the Investigating Officer of the CBI acted in a biased manner with the intention of saving the local Police and nothing else. They thus implored the Court to accept the bail application and enlarge the petitioner on bail. 5. Per contra, learned Special Public Prosecutor Dr.Sachin Acharya appearing for CBI vehemently opposed the submissions advanced by the petitioner’s counsel. He urged that there is ample evidence on the record to prove the petitioner’s involvement in the crime. He contended that the very manner in which the incident took place, establishes that none other than the petitioner could have been the person, who was the mastermind behind the ghostly incident. He urged that the sequence of events emerging from the statements of the relevant family members regarding their entry into the house on the fateful night clearly establishes beyond all manner of doubt that the petitioner was the only person, who could have facilitated entry of the assailant into the house. He urged that the sequence of events emerging from the statements of the relevant family members regarding their entry into the house on the fateful night clearly establishes beyond all manner of doubt that the petitioner was the only person, who could have facilitated entry of the assailant into the house. He pointed out that admittedly, Reshma came into the house after participating in the Moharram festival at about 11.30 PM. The petitioner was awake till about 1.15 AM because his mobile was active till that period. The deceased Lucky Khan entered the house at about 2 O’clock after returning from the Moharram festival and bolted the main gate from inside and went to sleep in the room where, Parbat Khan and Reshma were sleeping from before. The assailant became active only thereafter. He urged that the fact that the assailant selectively and consciously chose to enter into the room where, petitioner's three siblings were sleeping while excluding the petitioner’s room and also the time of assault being marked after entry of Lucky Khan into the room, is clearly indicative of the sole inference that only the petitioner had the opportunity to facilitate access of the assailant in the house which is otherwise secure from all sides. The petitioner also ensured that the assault was launched after all his siblings went to sleep in the same room. He further urged that the petitioner’s conduct in taking pictures of Lucky Khan even while he was lying alive on the bed in a pool of blood and transmitting them on whatsapp, rather than taking steps to provide him instant medical aid, clearly establishes the criminal intent of the petitioner. He pointed out that the incident took place between 2.00 AM and 2.45 AM. Parbat Khan informed his parents about the incident sometime between 2.45 AM to 2.50 AM. Parbat Khan and Reshma went to the hospital at 2.55 AM. Lal Mohd. rushed to the neighbourhood for fetching help. All during this period, the petitioner was loitering around and clicking pictures with his mobile rather than taking steps to provide immediate medical aid to his injured brother Lucky Khan. The petitioner did not make any attempt to inform the Police despite having numerous mobile phones at his disposal. He urged that because of the petitioner’s apathy, there was a delay of almost one hour in taking Lucky Khan to the hospital. Lal Mohd. The petitioner did not make any attempt to inform the Police despite having numerous mobile phones at his disposal. He urged that because of the petitioner’s apathy, there was a delay of almost one hour in taking Lucky Khan to the hospital. Lal Mohd. returned and took Lucky Khan to the hospital whereas, if the petitioner had acted in a normal human response to such incident by a blood relative, then he could have done so much earlier as he was all along present in the house where a vehicle was also available. He further urged that the petitioner presented a black CDMA mobile phone to the Police after allegedly bringing it from the rear of the house and claimed that he found it lying below the window from which, the assailant allegedly escaped. He urged that there is no possibility of the assailant having escaped from the window of the room No.3 as claimed by the petitioner because the window is located at a height of about 18 ft. from the ground level and as such, had the assailant jumped from that window, manifestly he would have been seriously injured and possibly would have been incapacitated. Thus, as per Dr.Acharya, it is the petitioner, who facilitated exit of the assailant from the main door and he did not escape by breaking the grill of the window of the room No.3. As per Dr.Acharya, it is the petitioner, who himself planted the CDMA mobile phone for misleading the Police. The mobile instrument fortuitously was proved to be of the petitioner thereby affirming his involvement in the conspiracy beyond all manner of doubt. Dr.Acharya further urged that the recovery of the ten live cartridges matching the bores of the firearms recovered at the petitioner's instance at the scene of crime, puts the issue regarding his involvement in the crime beyond pale of doubt. As per him, the petitioner was the mastermind behind the ghostly assault made on his own family members. He thus craved rejection of the bail application on these grounds. 6. I have given my thoughtful consideration to the arguments advanced at the bar and have gone through the material available on record. 7. As per him, the petitioner was the mastermind behind the ghostly assault made on his own family members. He thus craved rejection of the bail application on these grounds. 6. I have given my thoughtful consideration to the arguments advanced at the bar and have gone through the material available on record. 7. There is no doubt about the conclusion drawn by both the Investigating Officers that the petitioner managed to get a patently false and fabricated F.I.R. filed against Local MLA Shri Ram Bichar with the sole intention of implicating them in a serious and heinous case of murder because both the parties are reportedly running flourishing educational institutions in and around Makrana and thus are entrenched in professional rivalry. 8. Certain facts collected by the Investigating Officer of CBI which were pointed out by Dr.Acharya during the course of arguments, have a material bearing on the fate of this bail application and are being noted hereinbelow: • That the petitioner was the only person, who could have allowed the assailant’s entry into the house because the other family members admittedly bolted the main gate from inside while entering the house. • As per his own case, the petitioner was sleeping in the room No.4 on the first floor of the house wheras, all his siblings and his niece were sleeping in the room No.1. • The assailant managed to enter into the room No.1 from the gallery window without creating any noise whatsoever. Before launching the assault, the assailant had minute knowledge about the location of the petitioner as well as the victims and he was well informed of the fact that all the petitioner's siblings had returned home after participating in the Moharram festival and were sleeping in the same room. • The assailant fired numerous gunshots by two revolvers having silencers and thus, his sole intention was to eliminate all the occupants sleeping inside the Room No.1. • Fortuitously, Parbat Khan and Reshma woke up and managed to thwart the evil design of the assailant. • Even in the pitch-dark of the night, the assailant managed to locate and break into the room where, the deceased and the other victims were sleeping. • Fortuitously, Parbat Khan and Reshma woke up and managed to thwart the evil design of the assailant. • Even in the pitch-dark of the night, the assailant managed to locate and break into the room where, the deceased and the other victims were sleeping. • The petitioner who was the sole person available in the house with his profusing bleeding injured younger brother Lucky Khan, went around snapping pictures and forwarding the same on whatsapp rather than taking steps to provide medical aid to the injured, which gives an indication about cold blooded behaviour of the petitioner towards his own injured brother who was just 15 years of age. • The petitioner was the only able bodied person left behind in the house and only he could have provided means of escape to the assailant because the story set up by the petitioner in the earlier round of investigation regarding the assailant having escaped from the broken window of Room No.2 appears to be untenable looking to the fact that the window is at a height of almost 18 ft. from the floor level. • The significant fact that the ten live cartridges (matching with bores of the firearm found at the scene of crime) were recovered at petitioner's instance gives rise to a reasonable inference of his involvement in the crime either directly or indirectly. • The attitude of the petitioner at the time of the inspection of the scene of occurrence by the Investigating Officer just after the incident as recorded in a video gives an indication about his evasive and suspicious behaviour. 9. Having carefully considered the entire canvas of facts emanating from the evidence available on record, the Court is of an opinion that the petitioner’s conduct before and after the incident is indeed a significant circumstance, which cannot be ignored at this stage while considering his bail application. The petitioner’s siblings had been assaulted by a gunman. Three of them received injuries by firearms and other weapons. The first, foremost and natural reaction of a family member on seeing another one in an injured condition would be to take immediate steps to provide medical aid to the injured. The petitioner’s siblings had been assaulted by a gunman. Three of them received injuries by firearms and other weapons. The first, foremost and natural reaction of a family member on seeing another one in an injured condition would be to take immediate steps to provide medical aid to the injured. However, the sequence of events as emerging from record clearly indicate, rather than providing medical aid to Lucky Khan, who as per the photographs and evidence available on record, was lying on the bed in a pool of blood, the petitioner acted in a cold indifferent manner and went around snapping photographs with his phone and even transmitted them on to whatsapp. Thus, the petitioner who was the only able bodied person left behind in the house with Lucky Khan as Parbat Khan and Reshma left for the hospital at about 2.55 AM. Lal Mohd. reached at the scene of the occurrence at about 3.00 AM and went to the neighbouring houses for fetching help. Lucky Khan was taken to the hospital between 3.20 AM to 3.30 AM. The petitioner had a significant window of almost an hour in which timely medical aid could have been provided to Lucky Khan and he could have been saved. The petitioner appears to have taken a defence that he was guarding the assailant so that he might not escape. However, manifestly, the door of the room where the assailant had been pushed in, had been secured from outside and the petitioner could not have had even a semblance of idea that the assailant could break the cement grill of the window and escape from there unless he was the one who formulated this design. 10. In this background, there was no reason for the petitioner to wait in the house rather than taking Lucky Khan to the hospital. The photographs of Lucky Khan clicked by the petitioner clearly show that he was lying prone with his knee bent and blood was oozing from his head. Thus, the petitioner could have thought that the attempt to take Lucky Khan to the hospital would be an exercise in futility. He was having visible signs of life whilst his pictures were taken. At this stage, the Investigating Officer’s finding that the petitioner even moved Lucky Khan for taking his photographs from different angles, appears to be prima-facie tenable. Thus, the petitioner could have thought that the attempt to take Lucky Khan to the hospital would be an exercise in futility. He was having visible signs of life whilst his pictures were taken. At this stage, the Investigating Officer’s finding that the petitioner even moved Lucky Khan for taking his photographs from different angles, appears to be prima-facie tenable. It is also clear that the petitioner was the only person, who have opened the gate of the room where the assailant had been bolted in and so as to provide him an easy means of escape. Whether or not, the assailant escaped after breaking the grill of the window or whether he was provided means of escape through the main gate would be for the trial court to appreciate at the appropriate stage. 11. Any comment by this Court on this issue may prejudice the trial. Nevertheless, the conduct of the petitioner before and after the incident is a strong circumstance, which goes against him. The claim of learned counsel for the petitioner that the recovery of the ammunition is a planted one, is also premature to be adjudged at this stage. But the fact remains that ten live cartridges matching with the bores lying at the scene of occurrence recovered at the instance of the petitioner. Any comments by this Court on the sustainability or otherwise of the arguments advanced by the respective counsels may prejudice the trial and thus, the Court refrains from doing so. However, I am of the firm opinion that for the present, it is not a fit case wherein, the petitioner can be enlarged on bail at this stage. 12. Thus, the instant second application for bail is dismissed. The trial Court is directed to record the statements of the witnesses Reshma, Parbat Khan and Lal Mohd. and the Investigating Officer who initially investigated the matter, on a priority basis wherafter the petitioner shall be at liberty to file a fresh application for bail. 13. It is made clear that none of the observations made hereinabove shall prejudice the trial.