The main legal point established in the judgment is that the evidence of constant communication with the other accused and their proximity to the place of the incident can influence the decision on granting bail.

JUDGMENT

1. This petition is filed under Sec. 439 of Cr.P.C. seeking regular bail of the petitioner in Crime No.83/2021 of Chickballapura Town Police Station, Chickballapura, for the offence punishable under Ss. 120B, 302, 114 read with 34 of IPC.

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

3. The factual matrix of the case of the prosecution is that accused No.1 is the son of the deceased and accused No.2 is the friend of accused No.1. The motive for committing the murder is in respect of the property. Accused Nos.3 to 5 are engaged by accused No.2 since accused No.1 gave supari to accused No.2. That on 15/10/2021 at 8.30 p.m., accused Nos.2 to 5 were watching near the house of the victim and accused Nos.3 and 4 went inside the house of the victim and committed the murder and immediately accused Nos.3 and 4 were caught hold of by the general public at the spot. The case of the prosecution is that all of them stayed together in a lodge before committing the murder and thereafter, the accused persons were apprehended and case is registered and matter is investigated and charge-sheet is filed.

4. The learned counsel for the petitioner submits that the petitioner is accused No.5. The learned counsel submits that the only case against this petitioner is that he was watching outside the house of the victim and no overt-act allegation is made against this petitioner and the prosecution is only relying upon the statement of the lodge boy, but he identified only accused Nos.3 and 4 and not identified this petitioner. Only on suspicion, this petitioner has been implicated in the case. The learned counsel submits that no recovery is made at the instance of the petitioner and hence he may be enlarged on bail.

5. Per contra, the learned High Court Government Pleader appearing for the respondent-State submits that this petitioner and accused No.2 are the friends and accused No.2 knows accused No.3 and accused No.2 gave suprari to accused Nos.3 to 5. The learned counsel submits that CDR collected by the Investigating Officer discloses from 1/10/2021, but the incident of murder was committed on 15/10/2021. The learned counsel submits that this petitioner was using two mobile phones and he was in constant touch with accused Nos.2 to 4. Both the SIMS are seized at the instance of the petitioner herein. The learned counsel submits that all of them stayed together in a lodge and when accused Nos.3 and 4 were caught hold of by general public at the spot, accused No.5 made a phone call to accused No.4 by using his mobile No.96183 85966 and he spoke with him for about 101 seconds, 194 seconds, 246 seconds and 64 seconds. The tower location is also particularly in respect of place of incident. The learned counsel submits that he also called accused No.3 and spoke to him for more than for 266 seconds i.e., at 8.23 p.m. and this petitioner called accused No.4 also at 8.44 p.m. and again he called accused No.3 at 8.55 p.m. and tower location is clear that all of them were together and committed the murder, but when accused Nos.3 and 4 were caught hold of by the public, this petitioner left the place and hence there is a prima facie material before the Court that before committing the murder all of them were in constant touch from 1/10/2021 till the date of committing the murder. Though there is no recovery, CDR report is clear that this petitioner was in place of incident and watching along with accused No.2 outside the house of the victim and accused No.3 and 4 went and committed the murder and they were apprehended.

6. Having heard the learned counsel for the petitioner and the learned High Court Government Pleader appearing for the respondent-State and also on perusal of the material available on record, this petitioner is arraigned as accused No.5 and the case of the prosecution is that all of them joined together in committing the murder of the victim. Accused Nos