ORDER :

This petition is filed under Section 439 of Cr.P.C., seeking regular bail of the petitioner/accused No.2 in Crime No.313/2021 of Hunusur Rural Police Station, Mysuru District, which is numbered as S.C.No.76/2022 on committal and the offences invoked against him under Sections 120-B, 302, 201 read with Section 34 of IPC.

2. This is a successive bail petition. Earlier after filing of the charge-sheet both accused Nos.1 and 2 have approached this Court seeking for regular bail, the same has been considered on merits vide order dated 20.06.2022 in Crl.P.No.4072/2022.

3. The present petition is a successive bail petition filed by accused No.2, wherein, it is contended that the motive is attributed to accused No.1 only that he had illicit relationship with the wife of the deceased. According to CW-5, accused No.1 said to have called the deceased to his land by phone on 27.11.2021 and not by this petitioner. The allegation is also that accused No.1 said to have assaulted with club on head, which is the possible view of cause for death and no overt act is attributed to this petitioner. The recovery of dead body is not at the instance of this petitioner or accused No.1 because the place of burial of dead body was known to the complainant and many villagers, which is mentioned in the FIR. Therefore, the recording of voluntary statements of accused and showing recovery which was already known to many persons and the Police, the same is not admissible. For burial of dead body, there is no material as to presence of this petitioner at the relevant point of time and absolutely no incriminating circumstances against the petitioner. Though previously, the bail petition was considered by this Court, individual role of the petitioner was not considered and therefore, now the petitioner being innocent and no prima facie case, he is entitled for bail.

4. The learned senior counsel appearing for the petitioner reiterated the very same grounds in his arguments and mainly brought to the notice of this Court the mahazar of recovery of dead body. He contended that the same is at the instance of accused No.1 and not at the instance of this petitioner. The learned senior counsel also as directed by this Court produced the missing complaint and placing the same contend that no suspicion in the said missing complaint dated 27.11.2021. Only stated that he left the house at 6 p.m., and not seen. The dead body is also though allegedly recovered but the same was aware where the body was buried prior to arrest of this petitioner. Hence, the petitioner is entitled for bail.

5. Per contra, the learned High Court Government Pleader appearing for the respondent -State would submit that CW.5 lodged a missing complaint. CWs.1 and 2 are the witnesses, who have last seen i.e., on the previous day categorically stated that this petitioner was there along with accused No.1 and deceased Krishna and all of them together consuming alcohol. Apart from that the body is also recovered at the instance of this petitioner and accused No.1, immediately after their arrest. The very contention of the learned senior counsel for the petitioner is that the body was recovered at the instance of accused No.1 only, cannot be accepted.

6. The learned High Court Government Pleader appearing for the State brought to the notice of this Court that both this petitioner and accused No.1 led the Investigating Team in the presence of panch witnesses and both of them went in Police Jeep at 4’o clock and instructed the Police to stop the vehicle and showed the place where the body was buried and the body was recovered. The chappal and rope were also removed and mahazar was drawn from 16:30 to 18:30 p.m. Hence, it is clear that the discovery at the instance of accused No.1 and accused No.2, and not only at the instance of accused No.1 as contended by the learned senior counsel for the petitioner. The learned High Court Government Pleader also would vehemently contend that there is no any changed c