Point of Law : No material is collected against this petitioner cannot be accepted when he was part of the unlawful assembly and accompanied with deadly weapons and assailants. [Para 17]

ORDER :

This is a successive bail petition is filed under Section 439 of Cr.P.C. praying this Court to enlarge the petitioner-accused No.2 on bail in respect of Crime No. 63/2017 of Ullal Police Station, Mangaluru City for the offences punishable under Sections 120B, 143, 144, 147, 148, 341, 504, 506, 302, 307, 326 R/W 149 of IPC and Sections 3, 25(1)(1B), 7, 25(1)(1A) and 27(3) of Arms Act.

2. Heard the learned counsel for the petitioner and the learned High Court Government Pleader appearing for the respondent-State.

3. This petition is a successive bail petition filed by the petitioner-accused No.2. Earlier, this petitioner has approached this Court filing the Crl.P.No.4023/2022 and the same was rejected vide order dated 22.06.2022 and while rejecting the bail petition, this Court referred the judgment of the Apex Court in the case of KUMER SINGH vs. STATE OF RAJASTHAN AND ANOTHER reported in 2021 (6) SCJ 227 relying upon paragraph 14 wherein it is held that it is required to be noted that all the accused are charged for the offences punishable under Sections 302, 307 read with Section 149 of IPC, the Court cannot consider the individual role of the accused and the same is not required to be considered when they alleged to have been the part of the unlawful assembly and rejected the bail petition.

4. The petitioner has also approached the Apex Court filing Special Leave Petition (Crl.) No.7655/2022 and the same was rejected vide order 29.08.2022 and while rejecting SLP considered the material on record and held that we do not feel persuaded to entertain the SLP at this stage, particularly looking to the facts that in relation the incident of the year 2017 and the petitioner was allegedly absconding and through body warrant only he was apprehended and also taken note of the conduct of the petitioner. However, leave it open for the petitioner to renew his prayer for bail, if the trial is not proceeded expeditiously and if there be any legitimate ground for making such prayer. It is further observed that none of the observations occurring in the order impugned shall come in the way of consideration of renewed bail plea of the petitioner at the appropriate stage.

5. Now the petitioner has moved the successive bail petition before this Court. The main grounds urged in the successive bail petition is that after the arrest of this petitioner conducted the test identification parade and CW1 to 4 have not identified this petitioner and the presence of this petitioner is in committing the crime is ruled out. After his arrest, pistol which is said to have been used to fire on the deceased was recovered and the same was sent to FSL and the FSL report which is received is clear that the pistol is not used in the incident. The previous bail application was rejected only because this petitioner shot fire with the pistol. When there is conflict of eyewitness version with ballistic experts opinion, it is an incurable defect and cause of death as per the PM report is due to chop and stab wounds and not due to injury No.26. The name of the petitioner was not mentioned in the FIR and in the other material documents, because he was not the participant and he has been falsely implicated in the case. It is further contended that he has been arrested on 12.11.2021 in Cr.No.37/2020 and got remanded to JC and he was secured by issuing the body warrant and there is no prima facie case against the petitioner herein. Now the matter is pending before the I Additional Sessions Judge, Mangalore, in which almost all witnesses have been examined who are the witnesses i.e., PW1 to PW22 and none of them have implicated this petitioner. It is also contended that petitioner’s mother was aged about 62 years and she is suffering from multiple diseases of Spondylosis of Dorso Lumbar Spine, Oesteorthritis of both knees and hypertension and she needs to undergo surgery for knee replacement and this petitioner is also having permanent abode having wife and two months baby