Nazeer @Naimon vs State Of Kerala

Bechu Kurian Thomas, J

The accused in Crime No.717 of 2019 of Perumpetty Police Station has approached this Court seeking release on bail under section 439 of the Code of Criminal. He is implicated in the crime alleging offences under sections 449, 376(2)(m) and 302 of the Indian Penal Code, 1860.

The investigation into the aforesaid crime commenced on 15.12.2019, when the deceased-a lady of 26 years, was found hanging in the bedroom of the house where she was staying. Though for several months the investigating team could not identify the accused, after the Crime Branch took over the investigation petitioner was arrested pursuant to the receipt of the report from Forensic Lab relating to the DNA samples. Petitioner was arrested on 23.10.2021. Subsequently, a final report has been filed, and the case is now pending as S.C. No.99 of 2022 on the files of the Additional Sessions Court-III, Pathanamthitta.

Sri.Sijo Pathaparambil Joseph, learned counsel for the petitioner contended that petitioner is innocent of the crime and that he has been implicated as an accused without any evidence to connect him with the crime. The learned counsel further submitted that the deceased, though married to another person, was in a live-in relationship with CW1. He submitted that the report of the Doctor, who conducted the autopsy, indicated the existence of injuries even before the presence of the petitioner was noticed in the vicinity of the house. He further submitted that the investigating agency has, in fact, protected the actual perpetrators of the crime and arrested an innocent man for wriggling out of the difficulty faced by them in identifying and nabbing the accused. Learned counsel asserted that the petitioner has been made a scapegoat and that even the DNA sample obtained from the fingernails of the deceased revealed the presence of CW1, apart from the spermatozoa matching that of CW1. In any event, the learned counsel submitted that continued detention of the petitioner as an under-trial prisoner is not required.

Sri.Sajju S, learned Public Prosecutor, on the other hand, opposed the grant of bail and submitted that the deceased was subjected to a brutal rape and thereafter she was hanged by the accused. The learned Prosecutor pointed out that 52 injuries were noticed on the body of the victim and the postmortem revealed a ruthless sexual assault and indicated brutal anal sexual intercourse. However, the investigating officer could not identify the accused and thereafter, when the Crime Branch was entrusted with the investigation, they took the DNA samples and finally found the presence of cells in the fingernails of the deceased, which matched that of the petitioner. The learned Public Prosecutor further submitted that considering the nature of the offence committed, the brutal nature in which it was executed, and the possibility of the petitioner influencing the witnesses, which looms large, the grant of bail would prejudice the entire trial.

I perused the case diary. The DNA analysis from the nail clippings of the left hand of the deceased matched the DNA of the petitioner. Petitioner is alleged to have visited the house of the victim for purchasing timber, just before the live-in partner of the deceased left the house. The prosecution alleges that the petitioner committed the heinous act after becoming aware that there was nobody else in the house. The brutal rape alleged to have been committed by the petitioner was followed by tying a dhoti on her neck and hanging her from a hook on the ceiling of the room. The prosecution has already filed the final report and the case has been committed to the Sessions Court.

Though the petitioner was arrested on 23.10.2021, considering the nature of crime, I am of the view that this is not a fit case where the petitioner should be released on bail. The apprehension of the prosecution that petitioner may abscond and may not be available for trial of the case, cannot be shrugged aside as insignificant. Accordingly, I find that this is a fit case where custodial trial is essential.

Hence, I find no merit in this bail application and the same is dismissed.