Parvej Khan vs UOI

The instant third bail application under Section 439 CrPC has been preferred by accused petitioner Parvej Khan, who is in custody in connection with FIR No.353/2015 registered at the Police Station Makrana (Re-registered at CBI, New Delhi as Case No.RC 4 (S)/2016/CBI/SC.III/New Delhi) for the offences under Sections 458, 323, 302, 307 IPC and Section 3/25 of the Arms Act.

The petitioner is the first informant as well as accused of the case involving a murderous assault, which took place in his own house located at Borawad Town near Makrana in the night intervening 23.10.2015 and 24.10.2015. Whilst Lucky Khan, 15 years old brother of the petitioner, died of the gun-shots fired by the assailant, Parbat Khan and Reshma, petitioner's brother and sister respectively, and his niece Inaya, received gun-shot injuries in the same incident. The initial FIR No.353/2015 was lodged by the petitioner himself against the local M.L.A. Shri Ram Bhichar and few others. However, the investigating agency started pointing finger of suspicion towards the petitioner and arrested him in this case with a conclusion that he conspired with his employee Vikesh Gaur and got the attack perpetrated on his own family members with the motive of eliminating them so that he could gain access to the entire family riches. Thereupon, the petitioner's father Shri Lal Mohammad filed S.B. Criminal Writ Petition No.35/2015 in this court with a prayer to change and direct further investigation by CBI. The said writ petition and the petitioner's regular bail application No.3112/2016 were heard and decided on 01.06.2016 and this court directed that the further investigation of the matter shall be carried out by the CBI. While issuing the said direction, the petitioner was granted conditional interim bail observing that he would continue to be on bail till the CBI filed result of the investigation in the court concerned. It was further observed that in case the CBI filed a charge-sheet, the conditional bail granted to the petitioner would come to an end automatically. Pursuant to this direction, the CBI took over investigation of the case and filed a detailed charge-sheet in the court concerned. The petitioner surrendered back after filing of the charge-sheet on 27.09.2017 and is in custody since then. After surrendering, the petitioner filed second bail application No.9668/2017 with a prayer to be released on regular bail during pendency of the trial. This court, while deciding the said bail application did not feel persuaded to grant bail to the petitioner and rejected the same by order dated 14.02.2018 giving liberty to the petitioner to file a fresh bail application after examination of the injured witnesses Reshma, Parbat Khan and Lal Mohammad in the trial court. While rejecting the bail application, the court observed that the conduct of the petitioner at the time of the incident was suspicious inasmuch as he made no effort whatsoever to provide medical aid to his injured younger brother Shri Lucky Khan, who expired subsequently while undergoing treatment at the Ajmer Hospital. It may be stated here that the CBI too while filing the result of the investigation concluded that Vikesh Gaur, an employee of the petitioner's education institution, was the murderer and the petitioner was the conspirator. After the said direction, the material prosecution witnesses referred to supra as well as the SHO Shri Tulsiram (P.W.4) have been examined by the trial court. Thereafter, the petitioner has approached this court by way of this third bail application filed under Section 439 CrPC.

Mr. Vishal Sharma, learned counsel representing the petitioner, vehemently and fervently urged that the entire case of the prosecution has been proved to be false and fabricated after examination of the material witnesses. The theory put forth by the CBI in the conclusion report that Vikesh Gaur was the murderer and that the petitioner was the conspirator has been completely negated by the three star prosecution witnesses, namely, Shri Lal Mohammad, Shri Parbat Khan and Smt. Reshma. He urged that all these witnesses have categorically stated that the petitioner made all possible efforts to save his siblings from the attack and apprehended the offender and that the conclusion drawn by the CBI in its report that the petitioner intentionally delayed providing medical aid to the deceased is totally falsified from the statement of Lal Mohammad. He urged that Shri Lal Mohammad, father of the petitioner and Lucky, has given a categorical statement in his sworn testimony that he instructed the petitioner to remain at home because his mother was all alone. Shri Lal Mohammad ensured that arrangements were in place for taking Lucky to the hospital and instructed the petitioner to stay back at the house and thus, as per Mr. Sharma, the aspersions cast by the CBI in the charge-sheet that the petitioner conspired with Vikesh Gaur for committing the offence is totally baseless, conjectural and unbelievable. He urged that the witnesses Parbat Khan and Reshma have given positive evidence ruling out the participation of Vikesh Gaur in the incident and thus, manifestly, the theory of conspiracy between the petitioner and Vikesh Gaur stands nullified automatically. He further pointed out that the CBI has cited almost 80 witnesses and out of this long the list of witnesses, only about 10 have been examined so far and thus, the chances of the trial being concluded in the near future are absolutely bleak. He urged that the petitioner, who has been incarcerated in prison for nearly four years, deserves indulgence of bail during pendency of the trial. He, thus, implored the court to accept the application for bail and enlarge the petitioner on bail.

Per contra, Dr. Sachin Acharya, learned Special Public Prosecutor appearing for the CBI, vehemently and fervently opposed the submissions advanced by the petitioner's counsel. He referred to the observation made by this court in the order dated 14.02.2018, whereby the second bail application submitted on behalf of the petitioner was rejected and urged that these observations still extant against the petitioner and have not been diluted in any manner by the evidence of the witnesses referred to supra. He submitted that the witnesses have given false evidence against the conclusions drawn by the CBI and hence, their testimony favouring the accused should be ignored. On these grounds, he sought rejection of the bail application.

I have given my thoughtful consideration to submissions advanced at bar and have gone through the material available on record.

Suffice it to say that it is an admitted position as emerging from record that the petitioner and his family members have been crying out loud from the day one that the finger of suspicion has been wrongly pointed against the petitioner. The prosecution has basically relied upon the conduct and demeanor of the petitioner at the approximate time of the incident so as to draw an inference regarding his involvement in the crime. Whether or not, these inferential conclusions will be substantiated in future would be for the trial court to examine at the final stage of the case. However, this court cannot lose sight of the fact that Parbat Khan and Reshma, being the brother and sister respectively of the petitioner, and Lal Mohammad, his father, are the star witnesses relied upon by the CBI as well as the local police in an endeavour to prove their case. Lal Mohammad and Parbat Khan have categorically stated in their evidence that the petitioner never displayed his greed for the family riches. The CBI also proceeded on an assumption that the murderer was none other than Vikesh Gaur, an employee in the petitioner's education institution and thus, the petitioner conspired with him to get the incident perpetrated. Parbat Khan and Reshma, being injured eye-witnesses, were familiar with Vikesh Gaur, who used to work in the family's educational institutions. Thus, without any doubt, they would definitely be in a position to identify the assailant by his physical appearance, shape, size, gait etc. Both these witnesses when deposing before the trial court have given categorical evidence that in their understanding and assessment, Vikesh Gaur was not the assailant. Once the foundation of the prosecution case on this aspect is shaken, manifestly, the theory of conspiracy between the petitioner and Vikesh Gaur would also be adversely affected.

Be that as it may. If the participation of Vikesh Gaur as the principal perpetrator of the offence is ruled out, the only material which would remain animate against the petitioner would be in the form of his so called suspicious conduct proximate to the incident. Whether or not, solely on the basis of this suspicious conduct, the prosecution would succeed in bringing home the charge of conspiracy to commit murder against the petitioner would be for the trial court to consider and elaborate while deciding the case finally. For the present, it is an undisputed fact that the accused petitioner has remained in custody for more than 3 years. Out of 80 odd witnesses cited by the prosecution, till date only about 10 have been examined and thus, there are faint chances of an early disposal of the case. The material prosecution witnesses examined so far have not made a whisper against the petitioner and that too, without being declared hostile. The accused petitioner was granted conditional bail vide order dated 01.06.2016 and remained on bail for a period of more than on year. He did not misuse the opportunity so granted. In this background, this court is inclined to accept the application for bail.

Consequently, the bail application is allowed. It is ordered that the accused-petitioner namely Parvej Khan S/o Lal Mohammad arrested in connection with FIR No.353/2015 registered at the Police Station Makrana (Re-registered at CBI, New Delhi as Case No.RC 4 (S)/2016/CBI/SC.III/New Delhi) shall be released on bail; provided he furnishes a personal bond of Rs.1,00,000/- and two surety bonds of Rs.50,000/- each to the satisfaction of the learned trial court with the stipulation to appear before that Court on all dates of hearing and as and when called upon to do so.