Mohamad Nasim vs State Of Haryana

MANISHA BATRA, J. (ORAL)

TheThe instant one is the second petition filed by theinstant one is the second petition filed by the petitionerpetitioner under Section 483 ofSection 483 of Bharatiya Nagarik SurakshaSuraksha Sanhita, 2023 (for shortSanhita, 2023 (for short “BNSS”) for grant offor grant of regular bail in case arising out of FIR No.arising out of FIR No.526 dated526 dated 03.10.2022 registered under Sections 302, 201, 365, 377, 394 read with03.10.2022 registered under Sections 302, 201, 365, 377, 394 read with03.10.2022 registered under Sections 302, 201, 365, 377, 394 read with03.10.2022 registered under Sections 302, 201, 365, 377, 394 read with Section 34 of IPC at Police Station Sadar Jind, District Jind. His first petitionSection 34 of IPC at Police Station Sadar Jind, District Jind. His first petitionSection 34 of IPC at Police Station Sadar Jind, District Jind. His first petitionSection 34 of IPC at Police Station Sadar Jind, District Jind. His first petition bearing No.CRMbearing No.CRM-M-24606-2024 was dismissed as withdrawn2024 was dismissed as withdrawn vide ordervide order dated 11.07.2024d 11.07.2024.

AsAsAsAs perperperper thethethethe allegations,allegations,allegations,allegations, onononon 03.10.2022,03.10.2022,03.10.2022,03.10.2022, onononon receiptreceiptreceiptreceipt ofofofof anananan information about the dead body of one unknown youth lyinformation about the dead body of one unknown youth lyinformation about the dead body of one unknown youth lying at the drain nearing at the drain near village Baroli bridge, a police party had reached thereroli bridge, a police party had reached thereroli bridge, a police party had reached there, where the complainantwhere the complainant Devender recorded his statement to the effect that on the same morning, heDevender recorded his statement to the effect that on the same morning, heDevender recorded his statement to the effect that on the same morning, heDevender recorded his statement to the effect that on the same morning, he had found the dead body of the victim lying at the spot and some personshad found the dead body of the victim lying at the spot and some personshad found the dead body of the victim lying at the spot and some personshad found the dead body of the victim lying at the spot and some persons were standing there.were standing there. Initially, FIR under Sections 302 and 201 of IPC wasFIR under Sections 302 and 201 of IPC wasFIR under Sections 302 and 201 of IPC was registered. Investigation proceedings were initiated. PostInvestigation proceedings were initiated. PostInvestigation proceedings were initiated. Post-mortem examinationmortem examination of the dead body was conducted and, as per the report, the cause of death wasof the dead body was conducted and, as per the report, the cause of death wasof the dead body was conducted and, as per the report, the cause of death wasof the dead body was conducted and, as per the report, the cause of death was asphyxia coupled with injury described which are individually as well asasphyxia coupled with injury described which are individually as well asasphyxia coupled with injury described which are individually as well asasphyxia coupled with injury described which are individually as well as collectively sufficient to cause deathcollectively sufficient to cause death in ordinary course of nature.in ordinary course of nature.

On 04.10.2022, the dead body was identified to be that of oneOn 04.10.2022, the dead body was identified to be that of oneOn 04.10.2022, the dead body was identified to be that of oneOn 04.10.2022, the dead body was identified to be that of one Pawan Singh son of Gopal Singh,Pawan Singh son of Gopal Singh, i.e. the victim. The cell phone of the victimthe victim. The cell phone of the victimthe victim. The cell phone of the victim was found to be switched off since the intervening night of 02/03.10.2022. Aswas found to be switched off since the intervening night of 02/03.10.2022. Aswas found to be switched off since the intervening night of 02/03.10.2022. Aswas found to be switched off since the intervening night of 02/03.10.2022. As per the cyber cell report, on 03.10er the cyber cell report, on 03.10.2022, one SIM card bearing no..2022, one SIM card bearing no.89506--19109 was inserted into the phone of the victim and it was active. The phone19109 was inserted into the phone of the victim and it was active. The phone19109 was inserted into the phone of the victim and it was active. The phone19109 was inserted into the phone of the victim and it was active. The phone ID of that SIM card was traced to the accused Naveen. He was arrested onID of that SIM card was traced to the accused Naveen. He was arrested onID of that SIM card was traced to the accused Naveen. He was arrested onID of that SIM card was traced to the accused Naveen. He was arrested on 12.10.2022.12.10.2022. OnOn interrogatiointerrogation, he disclosedsclosed thatthat withwith intentintent toto establishestablish physical relations with the victim, he along with his accomplices Monuphysical relations with the victim, he along with his accomplices Monuphysical relations with the victim, he along with his accomplices Monuphysical relations with the victim, he along with his accomplices Monu Thakur and the present petitioner had lured the victim into their auto underThakur and the present petitioner had lured the victim into their auto underThakur and the present petitioner had lured the victim into their auto underThakur and the present petitioner had lured the victim into their auto under the pretext of arranging a hotel room. They took him near Bathe pretext of arranging a hotel room. They took him near Bathe pretext of arranging a hotel room. They took him near Baroli bridge,e, extended beatings to him, snatched his cell phone, tied his mouth with someextended beatings to him, snatched his cell phone, tied his mouth with someextended beatings to him, snatched his cell phone, tied his mouth with someextended beatings to him, snatched his cell phone, tied his mouth with some cloth, and then sexually assaulted him. He disclosed that to destroy evidence,cloth, and then sexually assaulted him. He disclosed that to destroy evidence,cloth, and then sexually assaulted him. He disclosed that to destroy evidence,cloth, and then sexually assaulted him. He disclosed that to destroy evidence, they thereafter committed murder of the victim by inflicting injuries on histhey thereafter committed murder of the victim by inflicting injuries on histhey thereafter committed murder of the victim by inflicting injuries on histhey thereafter committed murder of the victim by inflicting injuries on his person and by insertiperson and by inserting branch of a tree into his anus. Offences underng branch of a tree into his anus. Offences underng branch of a tree into his anus. Offences under Sections 365, 377 and 394 read with Section 34 of IPC were added.Sections 365, 377 and 394 read with Section 34 of IPC were added.Sections 365, 377 and 394 read with Section 34 of IPC were added. TheThe petitioner and Monu Thakur were nominated as accused and were arrested onpetitioner and Monu Thakur were nominated as accused and were arrested onpetitioner and Monu Thakur were nominated as accused and were arrested onpetitioner and Monu Thakur were nominated as accused and were arrested on 12.10.2022 itself. They too suffered disclosure statements ad12.10.2022 itself. They too suffered disclosure statements ad12.10.2022 itself. They too suffered disclosure statements admitting theirmitting their involvement in the crime. The accused Naveen got recovered the einvolvement in the crime. The accused Naveen got recovered the einvolvement in the crime. The accused Naveen got recovered the e-rickshaw,rickshaw, clothing worn during the crime, and cell phone of the deceased, whereas theclothing worn during the crime, and cell phone of the deceased, whereas theclothing worn during the crime, and cell phone of the deceased, whereas theclothing worn during the crime, and cell phone of the deceased, whereas the petitioner got recovered an iron tool (papetitioner got recovered an iron tool (panna) used for causing injuries to thena) used for causing injuries to thena) used for causing injuries to the victim as well as the clothing worn by him at the time of occurrence, and thell as the clothing worn by him at the time of occurrence, and thell as the clothing worn by him at the time of occurrence, and thell as the clothing worn by him at the time of occurrence, and the accused Monu Thakur got recovered a screwdriver used during the crime asaccused Monu Thakur got recovered a screwdriver used during the crime asaccused Monu Thakur got recovered a screwdriver used during the crime asaccused Monu Thakur got recovered a screwdriver used during the crime as well as his clothing. Investigation now stands concluded.well as his clothing. Investigation now stands concluded.well as his clothing. Investigation now stands concluded.

It is argued by learned counsel for the petitioner thaIt is argued by learned counsel for the petitioner thaIt is argued by learned counsel for the petitioner that he has beent he has been falsely implicated in this case on the basis of disclosure statement of the cofalsely implicated in this case on the basis of disclosure statement of the cofalsely implicated in this case on the basis of disclosure statement of the co--accused which cannot be considered to be legally admissible in evidence. Heaccused which cannot be considered to be legally admissible in evidence. Heaccused which cannot be considered to be legally admissible in evidence. Heaccused which cannot be considered to be legally admissible in evidence. He is in custody for a period of over 3 years 10 months. The chances ofis in custody for a period of over 3 years 10 months. The chances ofis in custody for a period of over 3 years 10 months. The chances ofis in custody for a period of over 3 years 10 months. The chances of conclusion of triaconclusion of trial in near future are bleak as only 18 out of 27 prosecutionl in near future are bleak as only 18 out of 27 prosecutionl in near future are bleak as only 18 out of 27 prosecution witnesses have been examined so far. No incriminating material haswitnesses have been examined so far. No incriminating material haswitnesses have been examined so far. No incriminating material has beenbeen recovered at his instance.recovered at his instance. A false recovery has been plantedfalse recovery has been planted upon him. His. His antecedents are clean. His further incarcerationantecedents are clean. His further incarcerationantecedents are clean. His further incarceration would not serve any usefulwould not serve any useful purpose. There is no direct evidence ofpurpose. There is no direct evidence of the murder of the victim. It is,the murder of the victim. It is,the murder of the victim. It is, therefore, argued that he deserves to be extended benefit of bail.argued that he deserves to be extended benefit of bail.argued that he deserves to be extended benefit of bail.

Per contraPer contra, learned State counsel has argued, learned State counsel has argued the instant oneinstant one being a successive petition is not maintainable.being a successive petition is not maintainable.being a successive petition is not maintainable. It is argued that taking intoaking into consideration the gravity of the allegations as leveled against the petitioner,consideration the gravity of the allegations as leveled against the petitioner,consideration the gravity of the allegations as leveled against the petitioner,consideration the gravity of the allegations as leveled against the petitioner, he does not deserve to be extended benefit of bail.he does not deserve to be extended benefit of bail.he does not deserve to be extended benefit of bail.

This Court has heard the rivThis Court has heard the rival submissions made by learnedal submissions made by learnedal submissions made by learned counsel for the parties at considerable length.counsel for the parties at considerable length.

The petitioner, along with the coThe petitioner, along with the coThe petitioner, along with the co-accused, is alleged to haveaccused, is alleged to have taken the victim along with him on the intervening night of 02/03.10.2022 ontaken the victim along with him on the intervening night of 02/03.10.2022 ontaken the victim along with him on the intervening night of 02/03.10.2022 ontaken the victim along with him on the intervening night of 02/03.10.2022 on some excuse near village Bsome excuse near village Baroli bridge service road, where the petitioner andridge service road, where the petitioner andridge service road, where the petitioner and co-accused committed act of carnal intercourse against the order of natureaccused committed act of carnal intercourse against the order of natureaccused committed act of carnal intercourse against the order of natureaccused committed act of carnal intercourse against the order of nature with the victim, and then inflicted several injuries with screwdriver and pawith the victim, and then inflicted several injuries with screwdriver and pawith the victim, and then inflicted several injuries with screwdriver and pannana on the person of the victim. The murder was committed inon the person of the victim. The murder was committed inon the person of the victim. The murder was committed in a brutal manner, asa brutal manner, as the petitioner and cothe petitioner and co-accused are then alleged to have inserted branch of a treeaccused are then alleged to have inserted branch of a treeaccused are then alleged to have inserted branch of a tree in the anus of the victim to ensure his death. The weapon of offence was gotin the anus of the victim to ensure his death. The weapon of offence was gotin the anus of the victim to ensure his death. The weapon of offence was gotin the anus of the victim to ensure his death. The weapon of offence was got recovered by the petitioner. The allegations against him are quite serious inrecovered by the petitioner. The allegations against him are quite serious inrecovered by the petitioner. The allegations against him are quite serious inrecovered by the petitioner. The allegations against him are quite serious in nature.nature.nature.nature. Undoubtedly,Undoubtedly,Undoubtedly,Undoubtedly, thethethethe petitionerpetitionerpetitionerpetitioner hashashashas sufferedsufferedsufferedsuffered incarcerationincarcerationincarcerationincarceration forforforfor somesomesomesome prolonged period, but it cannot be stated that there would be any undue delayprolonged period, but it cannot be stated that there would be any undue delayprolonged period, but it cannot be stated that there would be any undue delayprolonged period, but it cannot be stated that there would be any undue delay in conclusion of the trial since 18 out of 27 prosecution witnesses alreadyin conclusion of the trial since 18 out of 27 prosecution witnesses alreadyin conclusion of the trial since 18 out of 27 prosecution witnesses alreadyin conclusion of the trial since 18 out of 27 prosecution witnesses already stand examined.stand examined. The well settled proposition of law is that mere prolongedtled proposition of law is that mere prolongedtled proposition of law is that mere prolonged period of custody or the fact that the trial is likely to take time by itself orperiod of custody or the fact that the trial is likely to take time by itself orperiod of custody or the fact that the trial is likely to take time by itself orperiod of custody or the fact that the trial is likely to take time by itself or coupled with the period of incarceration are not sufficient grounds forcoupled with the period of incarceration are not sufficient grounds forcoupled with the period of incarceration are not sufficient grounds forcoupled with the period of incarceration are not sufficient grounds for enlarging an accused on bail, when the offence alleged ienlarging an accused on bail, when the offence alleged ienlarging an accused on bail, when the offence alleged is serious. ReferenceReference in this context can be had to the observations made inin this context can be had to the observations made inin this context can be had to the observations made in Parmod KumarParmod Kumar Saxena Vs. UOI, 2008(63) ACC (SC)Saxena Vs. UOI, 2008(63) ACC (SC), Chenna Boyanna Krishna Yadav Vs.Chenna Boyanna Krishna Yadav Vs.Chenna Boyanna Krishna Yadav Vs. State of Maharashtra, (2007) 1 SCC, 242State of Maharashtra, (2007) 1 SCC, 242State of Maharashtra, (2007) 1 SCC, 242 and State through CBI Vs.State through CBI Vs. Amaramani Tripathi, 2005(4) RCRAmaramani Tripathi, 2005(4) RCR (Criminal) 280(SC)(Criminal) 280(SC). It is also well--settled proposition of law that grant of bail is a discretionary relief to besettled proposition of law that grant of bail is a discretionary relief to besettled proposition of law that grant of bail is a discretionary relief to besettled proposition of law that grant of bail is a discretionary relief to be granted or denied based on specific facts and circumstance of each case andgranted or denied based on specific facts and circumstance of each case andgranted or denied based on specific facts and circumstance of each case andgranted or denied based on specific facts and circumstance of each case and theretherethere cannotcannotcannot bebebe anyanyany exhaustiveexhaustiveexhaustive parametersparametersparameters setsetset outoutout forforfor consideringconsideringconsidering thethe application for grant of bail. The factors such as nature of accusations,application for grant of bail. The factors such as nature of accusations,application for grant of bail. The factors such as nature of accusations,application for grant of bail. The factors such as nature of accusations, severity of punishment if the accusations entail a conviction and nature ofseverity of punishment if the accusations entail a conviction and nature ofseverity of punishment if the accusations entail a conviction and nature ofseverity of punishment if the accusations entail a conviction and nature of evidence in support of accusations are to be seen. That apart, reasonableevidence in support of accusations are to be seen. That apart, reasonableevidence in support of accusations are to be seen. That apart, reasonableevidence in support of accusations are to be seen. That apart, reasonable apprehensionapprehension ofof tamperingtampering wwithithith evidenceevidenceevidence ororor threateningthreateningthreatening thethethe materialmaterialmaterial witnesses is also to be weighed.witnesses is also to be weighed. Frivolity of prosecution should always beFrivolity of prosecution should always beFrivolity of prosecution should always be considered, and it is only the element of genuineness that has to be consideredconsidered, and it is only the element of genuineness that has to be consideredconsidered, and it is only the element of genuineness that has to be consideredconsidered, and it is only the element of genuineness that has to be considered in the matter of grant of bail.in the matter of grant of bail. As such, the petitioner isAs such, the petitioner is not entitled to benot entitled to be released on bail only on the ground of period spent by him in custody.released on bail only on the ground of period spent by him in custody.released on bail only on the ground of period spent by him in custody.released on bail only on the ground of period spent by him in custody. Keeping in view the gravity of the allegations, the quantum of sentence forKeeping in view the gravity of the allegations, the quantum of sentence forKeeping in view the gravity of the allegations, the quantum of sentence forKeeping in view the gravity of the allegations, the quantum of sentence for which the conviction may entail and the attendant facts and circumstances ofwhich the conviction may entail and the attendant facts and circumstances ofwhich the conviction may entail and the attendant facts and circumstances ofwhich the conviction may entail and the attendant facts and circumstances of the case but without meaning to make any comment on the merits thereof,t without meaning to make any comment on the merits thereof,t without meaning to make any comment on the merits thereof, thisthis Court is of the considered opinion that the petitionof the considered opinion that the petitionof the considered opinion that the petition does not deserve to bedoes not deserve to be allowed. Accordinglyallowed. Accordingly, the same is dismissed.

Simultaneously, direction is given to the learned trial CourtSimultaneously, direction is given to the learned trial CourtSimultaneously, direction is given to the learned trial Court toto conclude the trial of the case by making utmost sincere efforts within a periodconclude the trial of the case by making utmost sincere efforts within a periodconclude the trial of the case by making utmost sincere efforts within a periodconclude the trial of the case by making utmost sincere efforts within a period of 4 months from the date of passing of this order.of 4 months from the date of passing of this order.of 4 months from the date of passing of this order.

Since the main petition has beenSince the main petition has beenSince the main petition has been dismissed, pending application,pending application, if any, is rendered infructuous.if any, is rendered infructuous.