***

MANISHA BATRA, J. –

The present petition has been filed under Section 483 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (for short ‘BNSS’) by the petitioner seeking grant of regular bail in case bearing FIR No. 178 dated 08.07.2023 registered under Sections 302, 148 and 149 of IPC at Police Station Model Town, Hoshiarpur, District Hoshiarpur.

2. As per the allegations, on the night of 07.07.2023, on asking of Sahil, Tanmay Singh son of the complainant, had gone to Hoshiarpur to watch a movie with his friend. On the same night, the complainant received information from his friend Deepak Raj that 15–20 youths had caused injuries to his son Tanmay Singh and that he was now in Ivy Hospital. On reaching there, the complainant found his son to be dead. On making inquiries, he came to know that the petitioner, accompanied by co-accused and some unknown persons and being armed with deadly weapons, had inflicted injuries on the person of his son. The cause of the grudge was that some trivial altercation had previously taken place between Tanmay and the accused Vishal. On complaint of complainant, FIR was registered.

3. After registration of the FIR, investigation proceedings were initiated. Some of the persons nominated as accused were arrested. On 18.10.2023, the complainant recorded his supplementary statement, on the basis of which the petitioner and one Manu were nominated as accused. The petitioner, who was identified by one eyewitness Gaurav, was arrested on 18.10.2023. He also suffered a disclosure statement admitting that when the co-accused were assaulting the victim, he had videographed the occurrence through his mobile. His mobile was also recovered. Investigation now stands concluded.

4. It is argued by learned counsel for the petitioner that he has been falsely implicated in this case. He was not named in the FIR. His name was taken by the complainant for the first time on 20.10.2023. However, he had been arrested by the police on 18.10.2023, i.e. prior to recording of the supplementary statement of the complainant. This fact itself proved his false implication. Neither any specific weapon nor any injury on the person of the victim has been attributed to him. There are allegations against him that he was present at the spot and prepared a video of the alleged occurrence through his mobile phone. However, there is no material on record to show so. He has been in custody for a long time. The trial will take considerable time to conclude. No useful purpose would be served by detaining him in custody anymore. Each day spent by him in custody has furnished a reason for him to seek concession of bail. It is, therefore, argued that he deserves to be released on bail.

5. Per contra, learned State counsel has argued that, keeping in view the gravity of the allegations levelled against the petitioner, he does not deserve to be released on bail. There are chances of his absconding or committing similar offences, if extended benefit of bail. Therefore, it is stressed that the petition does not deserve to be allowed.

6. This Court has heard learned counsel for the parties at considerable length.

7. The petitioner was named by the complainant more than three months after the murder of the victim. The petitioner, however, was arrested prior to recording of such statement. As per the allegations that he was found present at the spot of occurrence in the footage of the CCTV camera installed in the vicinity and had made a video of the incident on his mobile phone. The petitioner is alleged to have been identified by one Gaurav. However, there is no material on record to show when the statement of the said Gaurav was recorded. The petitioner is alleged to be a member of an unlawful assembly formed with the co-accused on the fateful night. In prosecution of the common object of that unlawful assembly, injuries were inflicted on the son of the complainant, and he succumbed to the same. The petitioner has not been attributed any injury on the person of the victim and as per the allegations, he had video graphed the entire incident of assaulting and murdering the victim through his mobile phone. He has been linked to the acts attributed with the aid of Section 190 of BNS. It is well settled proposition of law that in cases of group violence, individual roles must be specifically established. The alleged presence of the petitioner at the scene of the crime and his making video of the occurrence, cannot impute the same level of culpability to the petitioner as imputed to the other accused, who had allegedly assaulted the victim and killed him. The absence of any specific evidence against the petitioner at this stage militates against the denial of bail. This Court is conscious that the allegations as levelled against the petitioner are serious one, however, for the purpose of grant of bail, this Court is required to test whether the material against the petitioner justifies continued pre-trial incarceration bearing nature of evidence and progress of the trial. He has been in custody since 18.10.2023. The chances of conclusion of trial in near future are bleak as no prosecution witness has been examined so far. In view of the forgoing discussion, particularly the limited role as ascribed to the petitioner, this Court is of the considered opinion that the continued detention of the petitioner would not serve the ends of justice. Accordingly, the petition is allowed and the petitioner is ordered to be released on bail subject to his furnishing personal/surety bonds to the satisfaction of the learned trial Court/Chief Judicial Magistrate/ Duty Magistrate concerned.

8. It is, however, clarified that the observations made hereinabove shall not be construed as an expression of opinion on the merits of the case and shall not influence the outcome of the trial.

9. Since the main petition has already been disposed of, pending application, if any, is rendered infructuous.

Petition allowed.

********