Behind Kailash Vijayvargiya son’s acquittal, hostile star witness, lapses in probe

Vijayvargiya, the MLA from Indore-3 at the time, was arrested on June 26, 2019, over allegations that he hit Indore Municipal Corporation officer Dhirendra Singh Bais with a bat during an anti-encroachment drive.

A video grab of Akash Vijayvargiya purportedly wielding the bat.

The case had put the BJP — which at the time was in the opposition in Madhya Pradesh — on the back foot as the Kamal Nath-led Congress government promised to convict Vijayvargiya. In the 2023 assembly elections, Akash was not fielded from Indore-3, and had to make way for his father, senior BJP leader Kailash Vijayvargiya.

The prosecution had relied on videos and testimonies of municipal officials to build what it thought was a watertight case.

Bais, who was a zonal officer and building inspector posted with the anti-encroachment squad at the time, was the star witness. The prosecution had argued that he turned hostile due to a two-year delay in his cross-examination, which was held on February 18, 2022 and September 8, 2022.

The court noted that the “prosecution did not seek any clarification or challenge the contradictory statements made by the witness”.

As per the police complaint, on June 26, 2019, Bais turned up with several Indore Municipal Corporation officials to demolish buildings designated as dangerous, following the orders of the Additional District Magistrate. It was alleged that Vijayvargiya turned up at the site with his supporters and asked municipal officials to leave within 10 minutes.

The prosecution alleged that Vijayvargiya “came with a bat and started hitting Bais” and “ten of his associates also began kicking and punching him”.

As per the prosecution, Bais identified the “individuals who assaulted him at the scene by watching the video footage” at MG Road police station, and signed an identification memo too.

During his testimony in court, Bais identified Vijayvargiya based on a set of photographs and a video, shown by the prosecution, as the “individual in the blue shirt with the bat”. He also said that when he turned around, the bat had already struck his leg.

During cross-examination on February 18, 2022, however, Bais said that in the video, “hundreds of people, including police officers, were present, and it was unclear who was pushing and shoving”. He also accepted the suggestion of the defence team that “there was no photo of Akash Vijayvargiya hitting with a bat”.

Bais also accepted that in the video, when the “bat appeared to hit his leg, he was talking on the phone, and many people, including police officers, were present at the scene”.

He stated that at the time, “his full attention was on the mobile phone, and he could not see who caused the injury”.

Bais also stated that “3 to 4 people standing behind him were holding bats” and “one of them must have hit him with a bat”. He said Vijayvargiya was identified as the assailant since “he was the closest”.

Raj Thakur, another witness who was the in-charge supervisor (civil) and was present at the site, told the court he “did not see anyone hitting him (Bais) with a bat”.

Video called into question

Vijayvargiya’s legal team had also argued that the “videos shown in court were fake and that the person holding the bat was not Akash Vijayvargiya but someone else with Akash’s face imposed on the video”.

Bais told the court that he had handed over a pen drive containing videos to the police, which were gathered “from social media and other sources”.

During cross-examination, Bais said the “videos first surfaced on social media, but he did not know who made them, which device was used, or who uploaded them”.

During cross-examination, he said he “cannot speak to the authenticity of the said photos/videos and cannot say who originally created the videos contained in the pen drive”.

“However, such videos can be altered or modified,” he said during cross-questioning by the defence team.

The court said it was “necessary to either present the original device that created the photos/videos before the court or provide a certified copy under Section 65B of the Evidence Act”. However, in this case, it is “unproven who made the photos/videos”, the court said.

The court also remarked that Investigating Officer Prahlad Singh Khandate “failed to authenticate the truthfulness of the photos/videos contained in the pen drives” and “despite being the investigation officer, he could not confirm who, when, and through which device the photos/videos in the pen drives were created”. “As a result, the presence of the accused individuals at the crime scene and their involvement in the crime could not be proven through his testimony,” the court said.

The court said the “prosecution has completely failed to prove the authenticity of the photos/videos” and “it is astonishing that the prosecution did not conduct any forensic examination of the videos”.

IO Khandate also told the court that he arrived at the scene two hours later. The identification of the accused came under doubt after he “admitted that during the investigation, he did not conduct any identification process with the complainant (Bais) by taking him to the jail”.

The IO also admitted that the “bat was not seized from any person by him”, and that the “place from where the bat was seized was a public area where anyone could come and go”.

Virendra Kumar Upadhyay, who was the Assistant Removal Officer, during cross-examination agreed with the argument that the “seized bat was an ordinary cricket bat, and such a bat could be owned by anyone who plays cricket”.

After the trial ended, the bat was “deemed worthless” and the court ordered it to be “destroyed if no appeal is filed”.