JUDGMENT

SWARANA KANTA SHARMA, J.

1. The present bail application under Section 439 of the Code of Criminal Procedure, 1973 (‘Cr.P.C.’) has been filed on behalf of the petitioner seeking regular bail in case arising out of FIR bearing No. 100/2020, registered at Police Station Bawana, for offences punishable under Sections 302/34 of the Indian Penal Code, 1860 (‘IPC’) and Sections 25/54/59 of the Arms Act, 1959.

2. Brief facts of the case are that on receiving an information vide DD No. 6A, on 21.02.2020, at about 06:26 AM, Police had reached the spot. On enquiry and reaching the hospital, where the injured person namely Sh. Sarvind had been taken to, they were informed that he had been taken to another hospital. The investigation revealed that during the medical treatment of the victim, a bullet was found lodged in his head. Statement of wife of the injured was recorded, and a case under Section 307 of IPC and 25/27 of the Arms Act was registered at P.S. Bawana. After the victim had succumbed to the injuries, Section 307 was replaced by Section 302 of IPC. The wife of the victim had informed that she worked with her husband in a grocery shop. On 20.02.2020, at about 10 PM, when she was about to close her shop, her husband was standing outside with one neighbour Bijender. Accused persons namely Rakesh @ Balle and Raghav were also standing at some distance. Suddenly, her husband had fallen down and had started bleeding from the head. When he was taken to LNJP Hospital for medical treatment, a bullet was found lodged in his head. During investigation, statement of son of the victim was also recorded, and CCTV footage was also seized. The investigation revealed that an empty cartridge was found lying near the stairs in front of the shop of victim. The bullet recovered from the body of the victim and blood for toxicology, and gun-shot residue were also seized. The statements of witnesses Sushil, Bijender and Suraj were also recorded, who were present at the spot. CCTV footage was also recovered during the course of investigation. Thereafter, the accused persons were arrested and a country made pistol with two live cartridges inside the magazine was recovered from the possession of applicant Raghav, and three live cartridges were recovered from the house of co-accused Rakesh @ Balle. The post-mortem report also revealed that the victim had died due to the gun-shot injury. Thereafter, charge-sheet was filed and charges were framed by the learned Trial Court.

3. Learned counsel appearing on behalf of the present accused/ applicant submits that the applicant has no past criminal antecedents, and he is in judicial custody for last four years. It is further submitted that the applicant is not the main accused as he has not fired at the victim. It is also stated that the applicant had been granted interim bail on 30.10.2023 which was extended vide order dated 03.11.2023 till 10.11.2023, and he had not misused the liberty of interim bail. Learned counsel for the applicant also submits that the material witnesses have already been examined and the other witnesses who are yet to be examined are not appearing before the learned Trial Court despite summons to them for the last six months. It is also argued that as per the site plan, there was approximately 30 meters distance between the place from when the victim was allegedly shot at and since the alleged weapon of offence was a desi katta, it was not possible to have fired or hit the victim. It is also argued that even if the bullet was fired by co-accused Rakesh, it may have hit the victim accidentally but was not intended to kill him. Learned counsel also states that if the applicant would have intended to kill the victim, he would not have taken him to home or would have not tendered medical attention to him. Therefore, it is prayed that the present bail application be allowed.

4. Learned APP appearing on behalf of the State has argued that the allegations in the present case are serious i