Point of Law: Rejection of bail - Unlawful assembly - Nature of offence is very serious, eye-witnesses reside in close vicinity, petitioner is also involved in four other cases and the material witnesses are yet to be examined.

JUDGMENT :

MUKTA GUPTA, J.

1. By this petition, the petitioner seeks regular bail in Case FIR No. 75/2020 under Sections 144/147/148/149/153A/295A/427/436/380/302/120-B/34 IPC and Section 25/27 Arms Act registered at P.S. Dayalpur.

2. Learned counsel for the petitioner contends that the petitioner is not seen in the CCTV footage relied upon by the prosecution. Rohit Solanki, the brother of the deceased Rahul Solanki, is admittedly not an eye witness even as per his version. The other eye witness Anil Kumar has neither named the petitioner nor identified him. Despite the fact that eye witnesses were available, FIR was registered belatedly on the statement of the Police Officer on 28th February, 2020 for an alleged incident of 24th February, 2020. Version of Rohit and Anil clearly shows that they were not present at the spot. The present case could be a case of mistaken identity as Rohit was speaking about a Sonu living in Gali No. 5/6 and doing the work of welding whereas from the documents filed with the charge-sheet including the customer details of the petitioner’s mobile number as also the Adhaar Card of the petitioner’s wife filed alongwith this petition, it is evident that the petitioner is a resident of Gali No. 4/5 and in the area where the petitioner is residing, lot of people are doing the work of welding and Sonu is a very common name. No TIP of the petitioner has been got conducted from the alleged eye-witnesses. Further, Rohit has identified the petitioner on the pointing out of the Police Officer which identification is meaningless. Claim of Rohit that he took his brother to the hospital is belied by the history noted in the MLC given by Const. Avneet which states that the deceased was found at 9.00 PM. This history totally belies the version of the prosecution that the alleged incident took place between 5.50 to 6.00 PM on 24th February, 2020 and soon after the incident Rohit took his brother Rahul to the various hospitals. The alleged weapon of offence recovered from the petitioner is not connected with the offence. The role attributed to the petitioner is based on confessional statements recorded in the Police custody which are inadmissible in evidence. Even as per Rohit Solanki, he identified the petitioner on 14th May, 2020 at the instance of the Police Officer, however he was arrested on 13th May, 2020 even without there being any identification. The petitioner had no past criminal record except that now the petitioner has been falsely implicated in a number of cases. In view of the vague and unreliable evidence against the petitioner, he be released on bail and he will be available for trial.

3. Learned Special PP for the CBI contends that from the evidence of the eye-witness Rohit Solanki, the brother of the deceased, it is evident that the accused Mustakeen fired upon the deceased Rahul Solanki, however the petitioner was part of the mob and actively taking part in the murder of his brother. Statement of Rohit Solanki about the incident was recorded on 26th February, 2020, however FIR was registered on the 28th February, 2020 on the statement of Police Officer followed by the statement of Rohit dated 8th March, 2020 in which he gave a complete narration as to having seen the incident from a distance and that his cousin brother Anil was with the deceased. After the incident Rohit took Rahul to various hospitals where he could not be provided treatment and was referred to higher centres and finally at G.B. Pant Hospital where he was declared dead. In his statement dated 8th March, 2020 Rohit gave the complete details of Sonu, the place where he was residing and his work, however the investigating agency still did not proceed ahead to arrest the petitioner. Only after co-accused Salman was arrested on 13th May, 2020 and in his disclosure dated 13th May, 2020 the name of Sonu Saifi, the present petitioner emerged with the role of providing pistol, that the petitioner was arrested. Statement of Rohit identifying t