The main legal point established in the judgment is the requirement for decisive culpability to justify denial of bail, especially when the evidence presented by the prosecution is not conclusive.

JUDGMENT

Sandeep Mehta, J. - The instant second bail application under Section 439 CrPC has been preferred by the petitioner Bharat Vaishnav S/o Nawaldas, who is in custody in connection with the F.I.R. No.119/2020 registered at the Police Station Falna, District Pali for the offences under Sections 143, 302/34 and 120-B IPC.

2. Heard learned counsel for the parties and perused the material available on record.

3. Briefly stated, facts of the case are that one Kan singh was murdered by firing gunshots at him while he and his friend Pradeep Singh were having tea at Shivam Tea Stall, Near Khalsa Petrol Pump, Sanderao Road on 20.08.2020 at about 11.30 a.m. It is alleged that two unknown persons came around on a motorcycle and both started firing guns indiscriminately towards Kan Singh. They also fired on the shutter of the shop. Kan Singh fell down at the spot and expired as a result of the firearem injuries. The incident was witnessed by Pradeep Singh, Vijendra Singh, Abid and the hotel owner Pratap Singh. Madan Singh, lodged an FIR regarding the murder at the Police Station Falna on the very same day at about 5.00 pm., wherein he expressed a suspicion that the assailants had conspired together with some other persons to murder his brother. It was also alleged in the typed report that there was a strong suspicion regarding involvement of Bharat Vaishnav and his wife Rinku, Ankita (resident of Abu Road) and Narendra Singh Rajpurohit for the murder. After registration of the FIR, investigation was undertaken.

4. The eye-witnesses, namely, Pradeep Singh, Vijendra singh, Pratap Singh (tea stall owner) and Abid could not identify the assailants. The Investigating Officer claims to have collected evidence to the effect that Bharat Vaishnav's wife Rinku was having an intimate liasion with Kan Singh and the petitioner was enraged thereby and that he had a strong motive to eliminate Kan Singh. The accused petitioner had threatened Kan Singh that he would get him murdered and this apprehension had been shared by Kan Singh with his friend Paras Sompura.

5. Nonetheless Kan Singh continued his illicit liaison with Rinku. As a result and in order to wreak vengeance, the petitioner allegedly engaged the accused Arvind Karan Singh through the accused Ishwar Singh as a hitman to kill Kan singh. A sum of Rs.10 lacs was allegedly paid by the petitioner to Arvind Karan Singh through Ishwar Singh for eliminating Kan Singh. Upon concluding the investigation, the Investigating Officer filed a charge-sheet against the petitioner and the aforesaid Ishwar Singh for the offence. Investigation is still pending against Arvind Karan Singh, Dharma @ Dharmesh and Juber S/o Murtaja Khan, who are reported to be absconding.

6. The prosecution has relied upon two sets of evidence to prove its case, viz.

(1) The theory of motive that is the grievance of the petitioner because of the illicit relationship of his wife with Kan Singh; and

(2) The call detail records.

7. It may be mentioned here that in the 161 CrPC statement of Madan Singh, brother of the deceased, it has categorically been mentioned that in addition to being indulged in an affair with Bharat Vaishnav's wife Rinku, Kan Singh was also having intimate relations with a girl named Ankita Sargara, resident of Abu Road, and the wife of Narendra Singh Rajpurohit. Bharat Vaishnav, his wife Rinku, Ankita and Narendra Singh Rajpurohit were all named as suspects in the FIR. The witness made a conjecture that Narendra Singh could also be responsible for the murder.

8. The Investigating Officer has downloaded and presented the copies of the Whatsapp chats exchanged inter se between Ishwar Singh and Arvind Karan Singh, the absconding accused, (who allegedly murdered Kan Singh); Ishwar Singh and the present petitioner Bharat Vaishnav so as to fortify the allegation of conspiracy. It may be mentioned here that the Investigating Officer has portrayed in the charge-sheet that the conversations, which were exchanged between the p