Bail is the rule and jail is the exception, and the seriousness of the offence should be balanced with the applicant's compliance with bail conditions and good character.

JUDGMENT

Amit Sharma, J. The is the second application under Section 439 of the Code of Criminal Procedure, 1973 (`CrPC') seeking grant of regular bail in FIR No. 132/2019 dated 03.03.2019 under Section 307 of the Indian Penal Code, 1860 (`IPC') and Sections 25/27/54/59 of the Arms Act, 1959 registered at PS Vasant Kunj. The previous application was dismissed as withdrawn vide order dated 29.04.2021.

2. The contents of the FIR No. 132 dated 03.03.2019, as recorded by Sub-Inspector Om Prakash are reproduced in vernacular as under:

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3. Learned counsel appearing on behalf of the applicant submits that the present case is one where the real victim has been made an accused by the investigating agency and the real offenders/criminals have been shown as victims. It is pointed out that it was applicant's wife who had made the first call to PCR, wherein it was said "PADHOSHI GHAR MAI GUS KAR JHAKRA KAR RAHA HAI OR GUN DIKHA KER GAYA HAI". It is submitted that despite a complaint being made by the wife of the applicant, no action was taken.

4. It is the case of the applicant that the latter and his family reside on the 4th floor of the building where the incident occurred and he also has roof rights in his name. It is submitted that on the date of the incident, the applicant's wife was preparing her daughter for her exam which was scheduled for next day and when she came outside to put the garbage, she saw Mohit (who resides on the 3rd Floor of the same building alongwith his family) his friends were drunk and were hurling abuses at each other. When the applicant's wife requested them to refrain themselves as her daughter was preparing for her exams, Mohit and his friends started abusing her and misbehaved with her, on account of which she started screaming. At this point, it is stated that the applicant reached there and a scuffle took place between the applicant and Mohit and his friends, during which the present applicant was badly beaten. It is submitted that at that stage, one of them took out a pistol, after which the applicant's wife ran inside and called the Police Control Room (`PCR').

5. In nutshell, the case of the applicant is that the victim Mohit was shot accidentally by one of his friends. It is submitted that the present applicant is a family man having no previous involvements of any kind and he could not possibly own a weapon. It is argued that on the other hand, Mohit and his friends, who were present at the spot, have previous involvements, which have come on record by way of a status report filed on behalf of the Investigating Officer.

6. Learned counsel appearing on behalf of the applicant has also placed on record footage recorded on a mobile phone, which was played in the Court and was stated to be of the date of incident, at about 12:39 AM. In the said footage, it is seen that the police was present at that point of time at the house of the applicant. Subsequently, the main Investigating Officer was called to the Court. He identified one of the police personnel as SI Sanjani and confirmed the fact that the said police officer was posted at the police station at the relevant point of time. It is the case of the applicant that since the police was already present at the applicant's house, the seizure memo with regard to the alleged recovery of the pistol from the present applicant at 7:30 AM on the said day is not possible. It was also pointed out that PW-7, in his examination has admitted that the applicant was present at the police station, at the time of seizure of weapon.

7. Learned counsel appearing on behalf of the applicant has also drawn the attention of this Court to certain portions of cross-examination of the witnesses, including the injured witness and pointed out contradictions in their story. It is pointed out that in the cross-examination of PW-1/Mohit, he has stated that he did not consume alcohol in the car or at the Hookah Bar and neither did he purchase liquor from Hauz K