Rajasthan High Court - Jaipur
Bakhtawar Singh And Ors. vs State Of Rajasthan on 2 May, 1997
Equivalent citations: 1997CRILJ2752
ORDER A.S. Godara, J.
1. This bail petition has been filed Under Section 439, Cr. P.C. by the accused petitioners in Sessions Case No. 36/96 pending trial in the Court of Additional Sessions Judge, Bali, after similarly presented application having been dismissed by the Chief Judicial Magistrate, Pali while exercising powers of Addl. Sessions Judge, Bali, in absence of the Presiding Officer on 15-4-1997.
2. Briefly stated the prosecution case against. the accused-petitioners is as follows:
Umesh Singh is the younger brother of Dr. Bhanwar Singh (deceased) and belongs to the village Mada. He lodged a report before the S.H.O. of P.S. Sadari on 16-3-87 alleging therein that the dead body of Dr. Bhanwar Singh who was married to Smt. Shobha, sister of accused-Prithvi Raj and Chan Shyam, sons of Rawat Singh resident of village Basant, was brought to their village Mada by their brother-in-law Sajjan Singh from Jaipur on 16-3-1987 at 2 a.m. The said accused Prithvi Raj accompanied the dead body from Jaipur to Sandcrao. Prithvi Raj accused had given beatings to Dr. Bhanwar Singh on earlier occasions and also threatened him. It was alleged that they suspected that the accused petitioners with the aid and collusion of one Kesar Singh, Upsarpanch and 6-7 marathas, as hirelings, assaulted Dr. Bhanwar Singh fatally in the early night of 6-3-87 in a room situated at the farm house (at well) of Rawat Singh in the village Mada who died of a head injury. Since the village Bassnt falls within the territorial jurisdiction of P.S. Takhatgarh and so this report was forwarded to the latter Police Station whereat FIR No. 18/87 Under Sub-section 147, 148, 149, 302, I.P.C. was registered and investigation commenced.
3. After investigation, a Final Report (negative) was filed concluding that Dr. Bhanwar Singh died because of accident injury, in the Court of Munsif & Judicial Magistrate, Sumcrpur.
4. The complainant Umesh Singh lodged a protest petition against the same and hence the learned Magistrate ordered the Dy. I.G.P. Jodhpur Range to entrust investigation to some Senior Officer and hence Dy. S. P., C.I.D. (CB), Jodhpur carried out further investigation resulting in submission of another Final Report (negative) concluding that the deceased being in a state of drunkenness fell down on the stair-case of the bath-room of the guest house resulting in the head injury which proved fatal and this again enabled the complainant to lodge yet another protest petition requesting for issuance of desired directions for further investigation on the points raised therein but the same did not find favour with the Munsif & Judicial Magistrate, Sumerpur. However, it was on 14-2-90 that the Munsif & Judicial Magistrate, Sumerpur took cognizance of offences Under Section 364, 302 and 120B, I.P.C. against the accused-petitioners, ordering for securing their presence by warrants of arrests.
5. The accused persons filed Criminal Misc. Petitions Under Section 482, Cr.P.C. for quashing of the order dated 14-3-90 before this Court which were decided by Hon'ble Mr. S.C. Mittal, J. on 10-4-96 thereby rejecting the petitions, simultaneously, inter alia, ordering for summoning of the accused by issuance of bailable warrants.
6. Consequently, on appearance in the Court of the Munsif & Judicial Magistrate, Sumerpur, the accused were bailed out on 3-6-96. The complainant filed an application on 12-7-96 that the accused persons be taken into police custody on the ground that the High Court never intended and purported to have granted regular bail under the aforesaid order. This prayer being turned down vide order dated 12-7-96, along with order dated 3-6-1996, was challenged in this Court in S.B. Cr. Misc. Petitions Nos. 563/96 and 782/96 which were decided on 20-3-1997 by Hon'ble Mr. Mittal, J. thereby quashing the orders dated 3-6-96 and 12-7-96 passed by the C.J. (JD) & J.M. Sumerpur and allowing the accused-petitioners time to enable them to appear in the trial Court (Addl. Sessions Judge's Court, Bali) since, in the meantime, the case stood committed to it. However, the outer date of appearance was extended to 21 -4-97 when the accused-petitioners appeared in the said Court who were taken into custody and their prayer for granting of bail was refused.
7. I have heard the learned counsel for the accused-petitioners, learned Public Prosecutor for the State as well as the learned counsel for the informant-complainant and have also gone through the relevant record including the contentions as are raised in the petition as well as the counter running into 55 pages along with its annexures and have considered the same for the purpose of appreciating rival contentions.
8. The learned counsel for the petitioners contended that (i) as a result of thorough investigation twice, no case of any murder was detected and instead it was found to be a case of simpliciter accident; (ii) the order of cognizance was passed as late as on 14-3-96 and that too on the basis of F.l.R. (negative) filed by the police concluding that no offence was made out; (iii) the C.J.M. erroneously observed in the order, in absence of any basis therefor, that there was apprehension of misuse of liberty on bail by the accused on the face of pendency of the ease for last about 10 years without any hindrance from the side of the accused persons; (iv) there is no prima facie case of either abduction for committing Tnurder and commission of murder against any accused-petitioner; (v) there is absence of motive specially when the accused Prithvi Raj and Ghan Shyam, who are real brothers-in-law of the deceased had no motive to finish their own real brother-in-law (gainer) resulting in widow-hood of their own sister to whom they had arranged a residential house at Pali besides providing regular financial help as admitted even by Smt. Mohini, mother of the deceased, besides provision of a motor cycle and so the accused were always disposed towards reforming the deceased who was a drunkard and acute alcoholic as a result of which he often became disorderly and quarrelsome and hence they could not have thought of his elimination, as alleged; (vi) Shaktidan and Shivnath Singh were the only eye-witnesses to the occurrence who have negatived the prosecution allegations of any homicidal death of the deceased much less at the hands of the accused-petitioners, (vii) Prithvi Raj immediately, hearing about the unconsciousness of the deceased, rushed to the farm-house and procured services of Dr. Mohan Singh of Koselao and Dr. Mohan Singh of Takhatgarh as also supported by Ramlal and then, the deceased was taken to Pali whereat Dr. Shivlal Rajpurohit attended him and, since condition of the deceased was serious, he was rushed to S.M.S. Hospital, Jaipur, an Apex Hospital of the State, for treatment and Dr. Shivlal accompanied him to Jaipur whereat half a dozen medical-experts including renowned neuro-surgeon Dr. S. Dharker attended to, operated upon and treated the deceased till last and the accused Ghan Shyam Singh even donated his own blood and no effort was spared by Prithvi Raj and Ghan Shyam to save the deceased; and (viii) the complainant and his family members, out of sheer vengeance to squeeze maximum financial benefit out of this unfortunate event are falsely prosecuting the accused persons for some oblique motive. This is fortified from the fact of pendency of a civil action under the Fatal Accidents Act also instituted by the complainant.
9. Therefore, it is submitted that the conduct of the accused petitioners conclusively bears testimony to the fact that they were out and out to save the precious life of the deceased and, at no time, they faltered but, due to bad luck, destiny did not favour them. It was a case of single injury and, under no circumstances, 11 or 12 persons, as versed in the First Information Report, could have left satisfied with a single injury, if so assumed. So the allegations are far from being nearer to the truth. The accused persons did not attempt to tamper with the prosecution evidence for last ten years and hence there is no real apprehension of or any cause therefor to deny bail to the petitioners.
10. The learned Public Prosecutor has supported the grounds of refusal of bail on the reasoning of the lower Court as are detailed in its order.
11. The learned counsel for the complainant has filed a detailed-exhaustive counter along with voluminous documents supporting the same. Besides, a reference has also been made to various Court orders.
12. While repeating the chequered history of the successive stages and events culminating into present petition, Shri Rajpurohit submitted that the accused Prithvi Raj was always enraged and annoyed with the deceased, may be due to the lalter's alcoholic and drunkenness habit and previous skirmishes having taken place between the two. As a result, Prithvi Raj did not invite the deceased on the occasion of marriage ceremony of his daughter Hema on 6-3-87 and he had even despatched his sister Smt. Shobha back to Pali to rejoin her (deceased) husband at Pali. This provided a strong and immediate motive, jus! after the marriage ceremony was over on 6-3-87, to commit these offences on 9-3-87. His main thrust of argument is that the accused Prithvi Raj, besides being a Pradhan of the Panchayat Samiti, is a multi-millionaire and so he has a strong social and political clout and so he derailed the investigation agency which did not investigate the case dutifully, sincerely and honestly to find out the truth and hence, keeping in the fact in view that the investigation is tainted and aimed at to help the accused persons taking casualty of the criminal justice and, in this perspective, the circumstantial evidence, coupled with conduct of the accused persons preceding and subsequent to the incident as well as the medical evidence point out towards a strong prima facie case of hatching up of a criminal conspiracy by the petitioners with the common design and object of abducting and murdering Dr. Bhanwar Singh who could not have died of the alleged single injury recrived on the scalp. He has also, at length, dealt with and criticised the medical evidence and the treatment given and the need and nature of operation, if any, carried out. He has mainly based his submissions on the circumstances pointing out that (i) Prithvi Raj and his accomplices did not take Bhanwar Singh to Hospital in the night; (ii) he was not taken to house of Rawat Singh in the village whereat his in-laws and wife Shobha were present, at any time; (iii) the other family members of Bhanwar Singh, at Mada, were not informed of this incident before 15-3-87 when Bhanwar Singh breathed his last at Jaipur Hospital; (iv) none, except Sajjan Singh, accompanied the dead body of Bhanwar Singh from Sanderao to Mada; (vi) Prithvi Raj acted as a sole guardian thereby getting Bhanwar Singh operated upon and the conduct of all the medical officers and experts is shrouded in mystery; and (vii) the resultant operation of the head injury of the deceased could not and ought not to have been treated and operated upon in the manner Dr. Dharker and Dr. Mathur have stated. There are inconsistencies in the time of the incident, the lime of becoming unconscious of Bhanwar Singh, the dale and manner of alleged observance of farewell presentation ceremony customarily observed immediately after the marriage ceremony was over: absence of M.L.R. at any hospitals whereat Bhanwar Singh was taken; the manner and the purpose of going to Pali on 9-3-87 to fetch Dr. Bhanwar Singh to Basant; his stay at the farm house; presence of Ladu Singh accused by his side; the successive events happening at Pali leading to Bhanwar Singh and his family in reaching Basant and, lastly, the false explanations about the manner and cause of death of Bhanwar Singh etc. cumulatively falsify and improbabilise the theory of accidental fall on the stair-case of bath-room resulting in head injury to Bhanwar Singh and so, at present, as is submitted by him, there is strong prima facie case attracting liability of the petitioners for the aforesaid offences with the connivance and abetment of even Smt. Shobha and Medical Officers, who were successively helping in disappearance of the evidence of murder to screen the real culprits who would be sought to be arrayed as co-accused at the appropriate stage of the trial. The accused have also refrained. So far, from disclosing their defence in the civil suit instituted for and on behalf of the minor children of the deceased through the complainant as their next-friend.
13. On perusal of the case-record, there is no denial from the fact that Bhanwar Singh was a drunkard and alcoholic and often beat and ill-treated his wife Shobha and also resorted to a disorderly and objectionable behaviour in alcoholic and drunken condition. Therefore, Prithvi Raj etc. refrained from inviting him on the eve of marriage of Hema, daughter of Prithvi Raj, on 6-3-87. Fearing any untoward incident in case of arrival of the deceased on the occasion of marriage, they even sent back Shobha on the same day, back to Pali. Bhanwar Singh, Shobha and their children were taken from Pali to Basant on 9-3-87 by the accused-petitioners in separate vehicles. Bhanwar Singh, as usual, stayed back at the well (farm-house) of Prithvi Raj whereat caretakers of the farm Shivnath and Shaktidan Singh were present. Ladu Singh is also stated to have been left there waiting to transport the deceased to the village Basant whereat Shobha and his children along with his in-laws were present. There was a single head injury received by the deceased. The deceased was attended by not less than half a dozen medical doctors/experts including the best available neuro-surgeon Dr. Dharker and his associates at S.M.S. Hospital, Jaipur. Presently, no opinion about the nature and advisability of the skull-operation and treatment can be commented upon adversely. The deceased died due to head injury. Except Shaktidan and Shivnath, there is no other direct witness to depose about the immediate causing/resulting of the injury.
14. The accused persons spared no effort to take the deceased for medical aid and treatment to even Pali and Jaipur and Ghan Shyam even donated his own blood. Lastly, the deceased succumbed to the head injury. Shobha also does not, substantially, subscribe to any violent and homicidal death of her husband. She is the most affected person as a result of this incident. On consideration of all the witnesses examined during investigation and the relevant record, presently, it is premature to conclude whether it was a case of accidental death or a violent and homicidal death. Any how, it was not a natural death.
15. The learned counsel for the petitioners contended that there is no evidence of conspiracy to commit offences of abduction and murder of the deceased. Besides, who were the conspirators participating in the commission of the alleged murder, is also a mystery, besides the petitioners. The circumstances pointed out by Mr. Raj Purohit do not conclusively lead to the theory of murder and murder simpliciter, negating the possibility of accidental fall and resultant injury . However, with a view to avoid forestalling the conclusion of the trial court about the existence of a prima facie case of abduction and murder pursuant to a criminal conspiracy entered into between the accused-persons with or without some more persons, it may be observed that even if it is assumed that there is a prima facie case of commission of offences on the basis of circumstances, acts, omissions and conduct of the accused persons, this by itself, does not deter the Court from granting bail to the petitioners specially when this occurrence is alleged to have taken place on 9-3-87 and till now there is no specific allegation of tampering with the prosecution evidence. There is also no allegation of apprehension of still repetition of such offences in case the petitioners are released on bail. The deceased was real brother-in-law of the accused-Prithvi Raj, whose status is, admittedly, high and respectable, who was then a Pradhan as well and there does not appear any ground to suspect their fleeing from the justice. As a result, looking to the nature of evidence and the seriously debated controversy dating back to 10 years, it does not appear just and proper to refuse bail to the petitioners.
16. The Apex Court, while discussing the scope of the provisions of Sub-section 437(1) and 439(1), Cr.P.C. in Gurcharan Singh v. State (Delhi Administration) AIR 1978 SC 179 : (1978 Cri LJ 129) observed in para 24 :
24. Section 439(1), Cr.P.C. of the new Code, on the other hand, confers special powers on the High Court or the Court of Session in respect of hail. Unlike Under Section 437(1) there is no ban imposed Under Section 439(1), Cr.P.C. against granting of bail by the High Court or the Court of Session to persons accused of an offence punishable with death or imprisonment for life. It is, however, legitimate to suppose that the High Court or the Court of Session will be approached by an accused only after he has failed before the Magistrate and after the investigation has progressed throwing light on the evidence and circumstances implicating the accused. Even so, the High Court or the Court of Session will have to exercise its judicial discretion in considering the question of granting of bail Under Section 439(1), Cr.P.C. of the new Code. The overriding considerations in granting bail to which we adverted to earlier and which are common both in the case of Section 437 (1) and Section 439(1), Cr.P.C. of the new Code are the nature and gravity of the circumstances in which the offence is committed; the position and the status of the accused with reference to the victim and the witnesses; the likelihood, of the accused fleeing from justice; of repeating the offence; of jeopardising his own life being faced with a grim prospect of possible conviction in the case.; of tampering with witnesses; the history of the case as well as of its investigation and other relevant grounds which, in view of so many variable factors, cannot be exhaustively set out.
17. Similarly, in Bhagirath Sinh Judeja v. State of Gujarat AIR 1984 SC 372 : (1984 Cri LJ 160), the Apex Court observed (para 5):
...If there is no prima facie case there is no question of considering other circumstances. But even where a prima facie case is established, the approach of the Court in the matter of bail is not that the accused should be detained by way of punishment but whether the presence of the accused would be readily available for trial or that he is likely to abuse the discretion granted in his favour by tampering with evidence.
18. There are no allegations of either apprehension of abscondence of the petitioners pending trial nor such an apprehension has been raised by the opposite side that they are likely to tamper with the prosecution evidence.
19. Accordingly, taking a conspectus view of the rival contentions in the light of material available on record, I am favourably disposed to grant this petition.
20. On the basis of above discussion, this petition is accepted and it is ordered that in case the petitioners furnish bail bonds in the sums of Rs. 2,00,000/- each to the satisfaction of the trial court, undertaking to appear in the trial court as and when so required they shall be released on bail provided they are no longer required in any other case.