Ashok Jain vs State
2009 Latest Caselaw 4966 Del

       IN THE HIGH COURT OF DELHI AT NEW DELHI

                      Judgment Reserved on: 30.11.2009
                      Judgment Delivered on: 3.12. 2009


              BAIL APPLICATION NO. 2072/2008

       ASHOK JAIN                        ..... Petitioner
                             Mr.Siddharth Luthra, Sr. Advocate with
                             Mr.Satya Narayan, Mr.Arurag Ahluwalia
                             and Mr.Hitender Nath, Advocates.

                      versus

       STATE                       ..... Respondent
                             Through Mr.Pawan Behl, APP.
                             Mr.K.K. Sud, Sr. Advocate with
                             Mr.V.K. Malik, Advocate for
                              Complainant.
                             Insp.Dharamvir Singh, AHS Crime.

                             &

                      BAIL APPLICATION NO. 1644/2008

       RISHI PAL @ PAPPU (IN JC)      ..... Petitioner
                      Through Mr.D.C. Mathur, Sr. Advocate
                      with Mr.Jitendra Sethi and Mr.Vikram
                      Bariwal, Advocates.

                      versus

       STATE                       ..... Respondent
                             Through Mr.Pawan Behl, APP.
                             Mr.K.K. Sud, Sr. Advocate with
                             Mr.V.K. Malik, Advocate for
                              Complainant.
                             Insp.Dharamvir Singh, AHS Crime.


CORAM:
HON'BLE MS. JUSTICE INDERMEET KAUR

   1. Whether the Reporters of local papers may be
      allowed to see the judgment?

Bail Applications No.2072/2008 & 1644/2008              Page 1 of 13
      2. To be referred to the Reporter or not?
                                                   Yes

     3. Whether the judgment should be reported in the
        Digest?                                Yes


INDERMEET KAUR, J.

1. Petitioners before this Court are Rishi Pal and Ashok Jain.

Rishi Pal is in custody since 7.12.2007; Ashok Kumar is in

custody since 20.2.2008.

2. Incident is dated 29.9.2007; on the said day Vijay Yadav

@ Vijji had scummed to gun fire shots which had been fired

upon him at Gali Arya Samaj, Bazaar Sita Ram, Delhi. The

injured had been removed to the LNJP hospital where he had

been declared brought dead. FIR under Section 302 of the IPC

had been registered.

3. During the course of investigation, the name of the

present petitioners had surfaced. Admittedly, even as per the

version of the prosecution, Rishi Pal had removed the victim to

the hospital on his motor cycle. Admittedly Rishi Pal and the

deceased Vijay Yadav @ Vijji had a business partnership but

thereafter disputes had arisen between them. Investigation

from the local Police had stood transferred to the Crime Branch

on 9.10.2007.

4. On 25.11.2007, two accused persons Bhisham @ Chintoo

and Vinod @ Gola had been arrested. Pursuant to their

disclosure statements the conspiracy between said persons and

the other co-accused had surfaced. As per their version Gopal

Krishan Aggarwal, Ashok Jain and Rishi Pal were the persons

who were behind the murder because of their personal enmity

with the deceased.

5. In all 13 persons have been charge sheeted; of whom

one has died; Gopal Krishan Aggarwal had been granted bail

by the High Court but vide order of the Supreme Court dated

27.3.2009, the said order had been set aside and bail of Gopal

Krishan Aggarwal had stood cancelled. All the accused persons

are in JC.

6. On behalf of the petitioners, it has been pointed out that

there is no evidence qua the role of the petitioners; the FIR

had been registered on 29.9.2007 under Section 302 IPC, and

admittedly it does not name the present petitioners. The

statement of the brother of the deceased Abhay Singh was

recorded on 30.9.2007 and thereafter again on 11.10.2007; in

both these statements names of the petitioners did not

surface; it was only in the third supplementary statement of

Abhay Singh recorded on 16.10.2007 that the names of Rishi

Pal and Ashok Jain were mentioned for the first time.

Attention has been drawn to the said version. It is pointed out

that even as per this statement it has been stated that Ashok

Jain used to regard the deceased Vijay Yadav @ Vijji and

Abhay Singh as his enemies; it is stated that Rishi Pal had got

a raid conducted on Ashok Jain by the Anti Corruption Branch

of the CBI but a few days later Ashok Jain and Rishi Pal had

become one unit; Rishi Pal had suspected that Abhay Singh

was responsible for the said raid; the ill-feeling by Ashok Jain

and Rishi Pal continued against Abhay Singh and his deceased

brother Vijji. It is stated that apart from this suspicion of

Abhay Singh, there is no role attributed to the present

petitioners; even otherwise this has come in the third

supplementary version of Abhay Singh and there is no

explanation as to why he did not come forth with this version in

the first instance itself, manipulation in the investigation is writ

large.

7. Attention has also been drawn to the case diaries

maintained by the Investigating Officer, attention has been

drawn to the entries dated 16.10.2007; admittedly this case

diary has not been signed by the Presiding Officer; it is

submitted that case diaries of earlier dates have been signed

by the Presiding Officer again throwing doubt on the veracity of

the investigation.

8. Attention has also been drawn to the case diary dated

17.10.2007, on which date only the first page of the case diary

has been signed. It is stated that on 17.10.2007, the

Investigating Officer has recorded that he had interrogated

PW-Durga Pandit; why the statement of PW-Durga Pandit was

recorded only on 12.3.2008 i.e. after a delay of 5 months, has

not been answered by the prosecution; it was well within the

knowledge of the Investigating Officer that Durga Pandit had

some information to elicit and as such his statement recorded

after such an explained delay is unanswered.

9. Attention has also been drawn to the statement of PW-

Sunil Sharma which was recorded on 16.10.2007. This

statement although does not attribute any specific role to the

petitioner yet is also a manipulated version for the reason that

this was the date on which the case diaries had not been

signed by the Presiding Officer.

10. Attention has also been drawn to the statement of PW-

Krishan Kumar dated 12.3.2008. It is stated that this version

of Krishan Kumar is only a hearsay version and the information

elicited in this statement had been given by the deceased at

some point much prior in time to the incident; the said date

has also not been disclosed.

11. Attention has been drawn to the version of Deepak

Sharma who has admitted that the petitioner Rishi Pal had

taken the deceased to the hospital on his motor cycle. In

these circumstances when Rishi Pal was admittedly at the spot

when the incident had occurred; his role in the said incident is

ousted. It is submitted that the statement of PW-Vinod Kumar

recorded on 17.10.2007, is also to the effect that Rishi Pal had

taken the injured Vijay in his motor cycle.

12. On behalf of the petitioner Ashok Jain it is submitted

that pursuant to the application moved under the Right to

Information Act, certain documents have been extracted. The

information received on 13.10.2009 clearly shows that Ashok

Jain had been informed that no kalandara or FIR had been

registered against the deceased Vijay @ Vijji between January,

2007 to October, 2007 thus falsifying the submission of the

prosecution that there were disputes between the deceased

Vijay Singh @ Vijji and Ashok Jain; the kalandara proceedings

dated 31.3.2007, in fact show that the dispute was between

Vijay and one Pravin Pratap Singh.

13. It is submitted that Inspector K.G. Tyagi, who was the

I.O. of the Crime Branch is himself a questionable personality;

he has been accused in a trap case for having taken an illegal

gratification pursuant to the proceedings in the present FIR;

there are other cases also pending against him which the

prosecution cannot dispute; in these circumstances

investigation carried out by such an Officer whose credentials

are themselves under suspect, to a large extent throws

shadows of doubt on the credibility of the investigation.

14. It is submitted that the charge sheet in this case has

been filed on 21.2.2008; two supplementary charge sheets

have since been filed. It was only in the supplementary charge

sheets that the statements of the witnesses now sought to be

relied upon by the prosecution had surfaced and as such a

piece-meal charge sheet filed against the present petitioners

without any specific attribution of any role to either of them

has no value.

15. Learned counsel for the accused Rishi Pal has placed

reliance upon a judgment of a co-ordinate bench of this Court

in 2007 (2) JCC 1306 Tunde Gbaja vs. CBI to support his

submission that in the absence of a complete charge sheet

detailing out the offence not having been filed, an indefeasible

right had accrued to the accused entitling him to bail. This

judgment was on an application under Section 167 of the

Cr.P.C. for grant of statutory bail and would have no

application to the arguments now sought to be propounded.

16. Record shows that in the course of evidence collected by

the prosecution statement of Abhay Singh, brother of the

deceased victim recorded on 16.10.2007, revealed that a

conversation between Rishi Pal, Ashok Jain and co-accused

Gopal Krishan Aggarwal had been heard by PW-Sunil Sharma.

This was to the effect that they had enmical terms with the

deceased Vijay Yadav @ Vijji and his brother Abhay Singh;

Sunil Sharma had cautioned Abhay Singh and deceased about

the same. Statement of PW-Sunil Sharma was also recorded

on 16.10.2007, he has corroborated this version of PW-Abhay

Singh.

17. From the version of aforestated PWs it is apparent that

the investigation had revealed that the relationship between

Ashok Jain, Rishi Pal on the one hand and of Abhay Singh and

his deceased brother Vijay @ Vijji on the other hand were

strained, tense and enemical.

18. On 3.12.2007, statement of PW-Manish Kumar @ Mannu

was recorded. He was a supplier of the petitioner Rishi Pal who

was a builder by profession. As per his version about 5-6

months prior to the incident Rishi Pal had asked him if Hitender

@ Chhotu (co-accused) had told Abhay Singh that the

deceased Vijay Singh @ Vijji had given a contract to kill him for

which Hitender @ Chhotu would get a handsome amount.

19. PW-Harjit Singh @ Pappi was the friend of the deceased.

As per his version, Rishi Pal, Ashok Jain and Gopal Krishan

Aggarwal had become very intimate with one another; they

had developed links with Hitender @ Chhotu and his gang;

further Rishi Pal had enmity with deceased because of an

earlier argument when Rishi Pal had alleged that the deceased

had planned to kill him; in fact Vijay Singh the deceased had

told him that Rishi Pal, Ashok Jain and Gopal Krishan Aggarwal

had relations with Hitender @ Chhotu and he feared that he

could be killed at their hands.

20. As per statement of PW-Krishan Kumar @ Kukoo he had

arranged a meeting between Rishi Pal and Ashok Jain; on the

date of the incident i.e. 29.9.2007, he received a call from

Rishi Pal from his mobile no.9873056281 on his mobile

no.9899263059 wherein Rishi Pal had informed him that the

work which he had given to Gopal Krishan Aggarwal and Ashok

Jain had been done and this information be passed on to Ashok

Jain; PW-Krishan Kumar thereafter informed Ashok Jain by

using his mobile no.9999901314. The call details of the said

phone numbers have also been investigated evidencing that

such calls between the said numbers had been made.

21. Durga Pandit had also given a statement under

Section 161 of the Cr.P.C.; as per his version he had received

calls from Vinod @ Gola (co-accused), Bhisham @ Chintoo and

Deepak @ Chowda on his mobile no.9811111956 wherein they

had made confessions to him on telephone that they had killed

the deceased Vijay Yadav @ Vijji and they had received money

from Rishi Pal, Ashok Jain and Gopal Krishan Aggarwal in lieu

of the same. The mobile call records of the accused have also

corroborated this version of Durga Pandit.

22. Deepak Kumar was the holder of mobile no.9210866522.

He was a tea vendor in Katra Gokal Shah, Bazaar Sita Ram,

Delhi; his version also to the effect that he had received calls

on his mobile number wherein; Vinod @ Gola, Bhisham @

Chintoo and Deepak @ Chowda had confessed that they had

killed Vijay Yadav; mobile records of this phone also

corroborate the oral version of PW-Deepak.

23. Statements of Krishan Kumar, Durga Pandit and

Deepak Kumar are in the nature of extra judicial confessions

made by Rishi Pal and the co-accused Vinod @ Gola, Bhisham

@ Chintoo and Deepak @ Chowda; substantiating the further

submission that in lieu of this killing they had received the

money from Ashok Jain, Rishi Pal and Gopal Krishan Aggarwal.

24. Prosecution has also placed on record the criminal

antecedents of Rishi Pal; it is stated that he is a desperate

criminal and a BC of the area; he is a history sheeter of PS

Hauz Qazi, Central District.

25. Per contra, counsel for the accused Rishi Pal had

placed on record the criminal antecedents of PW-Abhay Singh.

It is stated that PW-Abhay Singh is also a history sheeter and

his antecedents are also doubtful. There are three cases

pending against him; deceased Vijay Singh also falls in the

same category. This fact coupled with the fact that the

Investigating Officer is himself a tainted person whose

credibility is highly suspect; little reliance can be placed upon

his line of investigation; Court has also to keep in mind that

the major chunk of the evidence on which the prosecution is

relying is based on the version of PWs recorded on 16.10.2007

and 17.10.2007, on which dates admittedly the case diaries

had not been signed by the Presiding Officer.

26. At this stage, such irregularities, committed in the

course of investigation even if correct cannot be gone into;

Court is not sitting in judgment; the considerations for bail are

distinct from the considerations to be kept in mind by the Court

while dealing with the trial. The evidentiary value of the

statements made in the course of the investigation cannot be

gone into at this stage. It is only a prima facie view of the

evidence gathered and collected by the prosecution which has

to weigh in the mind of the Court for consideration of an

application for the grant or refusal of bail.

27. Conspiracy is a matter of secrecy and there can

hardly be any overt evidence for such an offence; role

attributed to the present petitioners as per the version of the

PWs is that Ashok Jain, Rishi Pal and Gopal Krishan Aggarwal

had six months preceding the incident entered into a

conspiracy; this conspiracy had been initiated pursuant to the

enmity which was brewing between the petitioners on the one

hand and the deceased Vijay and his brother on the other

hand. It had been initiated on the suspicion of Rishi Pal and

Ashok Jain that the Anti Corruption raid in the house of Ashok

Jain had been done at the behest of Abhay and his deceased

brother Vijay. This acrimony and animosity between the

parties had gained momentum.

28. Role of both the petitioners in the conspiracy to kill

the deceased Vijay Singh has been prima facie borne out. The

apprehension of the compliant that the accused Rishi Pal is a

BC of the area and the possibility of there being breach of a

peace if he is released on bail also cannot be altogether ruled

out. In the Trial Court arguments are yet to be addressed on

charge. Petitioners appear to be influential persons; Rishi Pal

is a history sheeter; proceedings under the MACOCA are also

stated to be pending against him; Ashok Jain being a political

man was the Deputy Chairman of the MCD. Both the

petitioners have strong wielding influences which many a time

can be used for negative purposes.

29. It is made clear that any observation made in this order

will have no bearing on the merits of the case.

30. In this background, no ground is made out for grant of

bail. Dismissed.

INDERMEET KAUR, J December 3, 2009 `ns'