SUPREME COURT REVERSES BAIL GRANTED TO ACCUSED IN HONOUR KILLING CASE ON THE GROUND OF NATURE AND SERIOUSNESS OF OFFENCE
A two Judge Bench of the Supreme Court comprising of Justice B.V. Nagarathna and Justice Prashant Kumar Mishra passed a Judgment dated 24-07-2023, in Rohit Bishnoi Vs. The State of Rajasthan and Anr. in Criminal Appeal No. 2078 of 2023 and observed that the decision of the High Court of Rajasthan of allowing the Application for Bail filed by the Respondents- Accused was erroneous, on the ground that the High Court only took into consideration the testimony of the hostile Prosecution witness who testified in favor of the Accused and ignored other evidences and the nature and gravity of offence committed by the Accused, while granting them bail.
1) In the present case, the Appellant, Rohit Bishnoi, brother of the Deceased, namely Vikash Panwar and also an informant, filed a Complaint around 18-05-2020 midnight hours against four persons including three of the Respondents- Accused, namely, Budharam, Vikas Vishnoi, Shrawan Jani and Ram Kishor at Mandore Police Station, Dist. Jodhpur, Rajasthan, alleging murder of the Appellant’s brother, Vikash Panwar (Deceased), aged 25 years. The Appellant stated that the Deceased was having an extra marital live-in relationship with a woman called Nirma at Gudia, Rajasthan, for the past three months, who was married to one, Shrawan Jani and had two children from the wedlock. Upon having knowledge about the extra marital live-in relationship, Nirma’s parents and in-laws had been threatening to kill the Deceased.
2) Based on the said Complaint, an F.I.R No. 134 of 2020 was registered in Mandore Police Station, Dist. Jodhpur, Rajasthan on 18-05-2020, for offences punishable under Section 302 of the Indian Penal Code, 1860 (hereinafter referred to as “IPC” for the sake of brevity) (Punishment for Murder) read with Section 34 IPC (Acts done by several persons in furtherance of common intention) and Section 3 of the Arms Act, 1959 (Licence for acquisition and possession of firearms and ammunition) read with Sections 25 (Punishment for certain offences) and 27 (Use of Arms and Ammunition without a license) of the Arms Act, 1959.
3) The F.I.R also stated that the Respondents-Accused, namely, Budharam and Vikas Vishnoi, Nirma’s brothers, Shrawan Jani, Nirma’s husband and Ram Kishor, Nirma’s brother-in-law had been threatening the Appellant’s brother, by way of calls, and messages. Later, on 17-05-2020, around 12:15 p.m, the Appellant’s nephew informed him that a video of the Deceased getting shot was being circulated on the internet. Then, the Appellant and his father rushed to the spot where the incident had taken place, at Nayapura Mandore area, and saw the Deceased lying on the ground dead, with blood oozing out from his ribs. After enquiring about the incident, the Appellant got to know that the four Accused above named had come on motor cycles and dragged the Deceased. Thereafter, they shot him and left him dead on the spot.
4) Few months before the death of the Deceased-Vikash Panwar, i.e. on 18-2- 2020, Nirma’s mother in- law had filed an F.I.R No. 18 of 2020 in Bilara Police Station, Jodhpur stating that the now-Deceased Vikash Panwar had kidnapped her daughter in-law, Nirma. Thereafter, Nirma, on 24-02-2020 filed an F.I.R No. 88 of 2020 against her brother in-law and parents in-law for offences punishable under Sections 498A IPC (punishing cruelty at the hands of husband or his relatives) and 376 IPC (Punishment for sexual assault) stating therein that her brother-in- law repeatedly raped her and that she was being subjected to cruelty in her matrimonial household.
5) Now, in connection with F.I.R. No. 134 of 2020, the Respondent-Accused, Budharam was arrested on 22-05-2020, while Respondents-Accused, Rajendra Bishnoi and Vikas Vishnoi were arrested on 30-05-2020 and remanded to judicial custody.
6) The Police, after conducting a thorough investigation, filed a Charge Sheet before the Ld. Metropolitan Magistrate, Mahanagar, Jodhpur on 19-08-2020 (“Trial Court”) against eight (8) Accused including the Respondents-Accused herein. Budharam was charged for offences punishable under Sections 302 and 120B of the IPC (Punishment for Criminal Conspiracy) and Sections 3 read with 25 and 27 of the Arms Act, while Respondents-Accused, Rajendra Bishnoi and Vikas Vishnoi were charged for offences under Sections 302 and 120B of the IPC.
7) Thereafter, the Respondent-Accused Vikas Vishnoi preferred an Application seeking a Regular Bail before the Ld. Additional District and Sessions Judge, Rajasthan (1st Appellate Court), which was dismissed by the 1st Appellate Court, vide Order dated 10-11-2021.
8) Meanwhile, the Accused-Vikas Vishnoi filed an Application seeking Regular Bail in the High Court of Rajasthan at Jodhpur, under Section 439 of the Code of Criminal Procedure, 1973 (“Cr. P.C”) (Special powers of High Court or Court of Session regarding bail), but the same was dismissed as withdrawn vide Order dated 16-04-2021.
9) Aggrieved by the High Court Order dated 16-04-2021, the Respondent-Accused, Vikas Vishnoi filed a second Bail Application, being B. Criminal Miscellaneous Bail Application Nos. 16016 of 2021, before the High Court. By the impugned Judgment dated 14-02-2022, the High Court granted him Bail in connection with F.I.R. No. 134 of 2020 registered at Police Station Mandore, District Jodhpur, Rajasthan. Subsequently, the High Court vide impugned Judgment dated 02-02-2023 allowed S.B. Criminal Miscellaneous Bail Nos. 4265 of 2022 and 4823 of 2022 and thereby granted Bail to the Respondents- Accused herein, namely, Budharam and Rajendra Bishnoi respectively.
Supreme Court Analysis and Findings-
Being aggrieved by the High Court Orders dated 14-02-2022 and 02-02-2023, the Appellant-Informant i.e. the Deceased’s brother, preferred Criminal Appeal No. 2078 of 2023 before the Supreme Court of India. The Apex Court, vide Judgment dated 24-07-2023, made the following observations:
(i) That in the present case the Appellant has brought on record adequate material that would prima facie point towards the guilt of the Accused.
(ii) That the Apex Court has, on several occasions discussed the factors to be considered by a Court while deciding a bail application. The primary considerations which must be placed at balance while deciding bail matters are:
(a) The seriousness of the offence;
(b) The likelihood of the accused fleeing from justice;
(c) The impact of release of the accused on the prosecution witnesses;
(d) Likelihood of the accused tampering with evidence.
While such a list is not exhaustive, it may be stated that if a Court takes into account such factors in deciding a bail application, it can be concluded that the decision has resulted from a judicious exercise of its discretion.
(iii) The allegations made against the Accused were not only that they were involved in a conspiracy to kill the Deceased, but also that they actively participated in his murder. This alleged incident is stated as honour killing.
(iv) Upon the perusal of the Charge Sheet dated 19-08-2022, it would describe that each of the Respondents- Accused had a role to play in the alleged incident.
(v) That in the present case, it cannot be said that the accusations against the Respondents-Accused are prima-facie wholly false, frivolous or vexatious in nature, so as to justify grant of Bail from the High Court. Further, the Court was not inclined to hold that the Prosecution has not established a prima facie case as in respect of the guilt of the Accused.
(vi) That the Bench was of the view that one of the Prosecution Witnesses had turned hostile. Therefore, the Court could not rule out the possibility of the Respondents-Accused influencing other witnesses, tampering with the evidence, in the event they are continued to be allowed to remain on Bail.
(vii) Further, the present case was not where the Respondents-Accused have been detained in custody for inordinate time as under trials.
(viii) That the High Court while giving the Order was swayed by the fact that one of the Prosecution Witnesses had turned hostile and did not consider the other aspects of the case in the context of granting Bail.
(ix) That upon considering all the aspects of the case, the Bench held that the present case was not fit for grant of Bail to the Respondents- Accused, given the seriousness of the offence committed by the Accused.
Thus, based on the aforesaid observations, the Supreme Court held that the High Court gave an erroneous decision while granting Bail to the Respondents-Accused by relying on the hostile witness of the Prosecution and ignoring all the facts of the case which led to the prima facie view pertaining to the guilt of the Accused. As a result, the Appeals filed by the Appellant-brother of the Deceased were allowed and the High Court Orders dated 04-02-2022 and 02-02-2023 were set aside. The Apex Court further directed the Respondents- Accused to surrender before the concerned Jail Authorities within a period of two weeks from the date of the Judgment, i.e., 2 weeks from 24-07-2023.
Kartik G. Khandekar
The Indian Lawyer