The main legal point established in the judgment is that bail should be granted when the evidence does not conclusively establish the accused's involvement in the alleged crime or conspiracy, and when the accused's previous involvements have resulted in discharge, acquittal, or bail.

JUDGMENT :

ANISH DAYAL, J.

1. By this application the petitioner seeks regular bail in FIR No.226/22 registered at PS Laxmi Nagar under Sections 120B/302/149/34 IPC and Sections 25/27 of the Arms Act. The chargesheet has been filed and charges are yet to be framed. The petitioner has been in custody since 10th February, 2022 and previous two applications for bail before the Sessions Court have been dismissed.

2. The background facts in the matter, as per the case of the prosecution, are that on receiving a PCR call vide a DD No.01A on 3rd February, 2022 police from PS Laxmi Nagar reached the place of occurrence i.e. Girotra Store near Balaji Rasoyi Restaurant where they came to know that the victim, Mayur Chouhan, aged 23 years had been shifted to Max Hospital, Patparganj, Delhi. On reaching the hospital, MLC was received where the doctor had declared the victim as brought dead. Subsequently the FIR was registered on the statement of eyewitness Harsh Kumar. The eyewitness stated that on 2nd February, 2022 he was present with the deceased at his office when the deceased received a call from accused Vipin Nagar who asked him to meet at Balaji Rasoyi Restaurant. When they reached the restaurant, accused Vipin Nagar along with other associates reached there and the accused asked his companions to kill the deceased, who tried to escape but they followed him and shot him and then ran away from the spot. The petitioner was arrested pursuant to disclosures by various witnesses particularly of Md. Inam whose statement was also recorded under Section 164 Cr.P.C. Apparently as per the disclosure of the petitioner, a conspiracy was hatched between him, Nitish Kumar Bhardwaj and Vipin Nagar for attack and murder of the rivals Sunder Bhati and Himanshu Sharma living in Shakarpur area and Mayur Chouhan living in Laxmi Nagar area. The petitioner had assured Nitish Kumar and Vipin Nagar that he would help them financially and provide shelter to them till the matter cools down. As per plan, Vipin Nagar and Nitish Kumar along with associates viz. Chirag, Sidharth, Hardik, Kartik, Ashish, Jasvinder, Rahul Gupta, Ashish, Mudit Chouhan, Sumit Chandila, Harsha Gujjar, Navin Khatana and others gathered at the flat of Vipin Nagar and thereafter reached Shakarpur area and fired at the flat office of Sunder Bhati and Himanshu Sharma. Hardik told them that they had fired mistakenly at the wrong house, so they fled from there and assembled at Preet Vihar petrol pump and called Mayur Chouhan to meet Vipin Nagar at Balaji Rasoyi Restaurant where they murdered Mayur Chouhan. As per the State, the petitioner gave Rs. 20,000/- in cash to co-accused Nitish Kumar and Vipin Nagar after the murder and also received mobile phones of Vipin Nagar, Jasvinder, Hardik, Kartik and Ashish which was supplied to him by Vipin Nagar after the incident and all these five phones were allegedly recovered at his instance from Yamuna Khadar, Vikash Marg.

3. The Ld. Senior Counsel appearing for the petitioner argued that the mere fact that the offence accused of involves Section 302 IPC itself is not a disqualification for bail since Section 439 Cr.P.C. does not contain an additional threshold which is provided with respect to such offences in Section 437 Cr.P.C. The Ld. Senior Counsel thereafter stressed on the fact that the petitioner was neither reported to be present on the spot of incidence by the eyewitness, nor in the dying declaration by the deceased, nor was he seen in the CCTV footage. To substantiate this contention, the Ld. Senior Counsel adverted to the following:

(i) The FIR which was based on the complaint of Harsh stated that when he reached Balaji Rasoyi Restaurant along with the deceased, some motorcycles and a Swift Car had come from which Vipin Nagar with 7-8 associates alighted and surrounded the deceased. When the deceased tried to escape Vipin Nagar shot him with his gun and the deceased received bullets on his back. Harsh then narrated the incident to his friend