The main legal point established in the judgment is that previous involvements in criminal cases should not be the sole factor for denying bail if the available material justifies the discretion exercised by the court. The judgment also emphasizes the need to scrutinize evidence carefully in cases involving rival group enmities and to give the benefit of doubt to the accused.

JUDGMENT

Amit Sharma, J.

1. The present application under Section 439 of the Code of Criminal Procedure, 1973 (`CrPC') seeks regular bail in case FIR No. 341/2016, under Sections 302/394/120B of the Indian Penal Code, 1860 (`IPC') and Sections 25/27 of the Arms Act, 1959 registered at P.S. Harsh Vihar.

2. The case of the prosecution, as per the status report dated 16.02.2023, authored by Inspector Balram Singh Beniwal, SHO, P.S. Harsh Vihar, is as under:

"Briefly stated the facts of the case are that on 27.10.2016 an information was received at PS Harsh Vihar, Delhi to the effect that dead body of a male person was lying near A-3 Block, Harsh Vihar, Delhi. Pursuant to the receipt of the said information, Inspector Sanjeev Kumar along with the staff reached the spot and found the dead body of a male person having gunshot injury. At the spot one Hakim s/o Fazru upon enquiry identified the deceased as Shakir s/o Dinu and told that deceased and he both resident of village DausRas, PS Gowardhan, District Mathura UP. In this regard case FIR No. 341/2016 under section 302 IPC was registered at Police Station Harsh Vihar Delhi.

2. That after the registration of FIR investigation was carried out. During the course of investigation statements of witnesses were recorded, evidences were collected and it was revealed that the deceased was murdered due to gang/group rivalry. That deceased belonged to the group/gang of Fakru. Fakru gang is rival group/gang of the petitioner herein. That petitioner belongs to one gang of Jafru. During the course of investigation it was found that the petitioner had given the contract/Supari of Rs. 5 lakhs to co-accused Banne Singh for the murder of the deceased Shakir. During the further course of investigation accused persons, including the petitioner herein, were arrested and after the completion of investigation charge sheet under section 302/394/34 IPC and 25/27/54/59 Arms Act was filed against them before the concerned court. Presently the case is pending trial before the Ld. Trial court. "

3. Learned counsel appearing on behalf of the applicant submitted that the present applicant was arrested on 20.09.2017. The case of the prosecution qua the present applicant is as under:

i. A rivalry existed between two groups in the village. The victim/deceased was a member of the Fakrudin group and the applicant was a member of the rival group.

ii. Iqbal Hussain, in his statement under Section 161 of the CrPC alleged that "Shakir ki hatya se lagbagh dedh mahina pehle jab main khet par jaa raha tha toh maine Shaukat weh Zafru ko Baniya ko yeh kehte suna tha jis din tu Teetar ka kaam kar dega usi din tujhe paanch lakh rupye mil jayenge. Maine dar ki wajah se yeh baat kisi ko nahin batlayi thi".

iii. After the alleged offence was committed, accused no. 1 in the present case, i.e., Banne Singh allegedly called the applicant to the spot.

iv. Asif and Hariom Sharma, in their statements recorded under Section 161 of the CrPC, allegedly stated that they spoke with the applicant on his mobile number.

It was submitted that the prosecution has relied upon the statements of Iqbal Hussain, Asif and Hariom Sharma to link the present applicant with the aforesaid murder. It was case of the prosecution that Iqbal Hussain had overheard the present applicant speaking with co-accused Jafru regarding contract killing. It was the case of prosecution that accused no.1, i.e., Banne Singh, after killing the deceased, had called the present applicant on a mobile number, on which Hariom Sharma and Asif had spoken with the applicant. It is submitted on behalf of the applicant that the aforesaid witnesses namely PW-2/Iqbal Hussain, PW-6/Asif and PW-7/Hariom Sharma have not supported the case of the prosecution as mentioned hereinabove. It was submitted that there is nothing on record to connect the alleged mobile number, on which the said accused had allegedly called and spoken with the applicant. It was further submitted that the applicant had giv