ORDER

This petition is filed under Section 439 of Cr.P.C., seeking regular bail of the petitioner/accused No.1 in Crime No.337/2021 of H.D. Kote Police Station, Mysuru District, for the offences punishable under Sections 341, 114, 302, 120-B read with Section 34 of IPC.

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

3. This petitioner is accused No.1. Earlier he had approached this Court by filing Crl.P.No.2774/2022, wherein, this Court considered the material available on record and rejected the bail petition vide order dated 31.05.2022, and also made an observation while rejecting the bail petition is that a liberty was given to the petitioner to approach this Court after receipt of FSL report. The petitioner again approached this Court by filing Crl.P.No.6053/2022 and the said petition was dismissed vide order dated 03.11.2022 since the learned counsel for the petitioner was not appeared before the Court.

In the present petition, the learned counsel appearing for the petitioner would vehemently contend that this Court while rejecting the earlier bail petition made an observation that the petitioner can approach this Court after receipt of FSL report.

4. The learned counsel appearing for the petitioner would vehemently contend that the alleged recovery is dated 28.01.2022 almost after a lapse of three months from the date of incident; the seized articles were also not sent to the FSL and the petitioner has been falsely implicated in the case. The learned counsel also brought to the notice of this Court that the voluntary statement of accused No.2 and he was arrested on 07.11.2021 itself and he categorically in his voluntary statement stated that he could show the place of incident but it was night and hence, he could not identify the place, where they have thrown the weapons which were used for committing the murder.

5. The learned counsel also would submit that when accused No.2 had shown the place of murder in the month of November itself and till date i.e., on 28.01.2022, the recoveries are not made at the instance of accused No.2 and only implicate this petitioner, the seizure was made on 28.01.2022. Hence, it is clear that the recovery itself is doubtful. Apart from that, the seized articles were also not sent to the FSL. The case is rests upon the circumstantial evidence and no chain of events in order to prove the case of the prosecution. Though this Court rejected the bail petition earlier on merits and while rejecting the same an observation was made and an opportunity was given and when there is no FSL report he may be enlarged on bail.

6. Per contra, the learned High Court Government Pleader appearing for the respondent - State would submit that the incident was taken place on 30.10.2021 and accused No.2 was apprehended on 07.11.2021, but he had pointed out only the place of the incident where they committed the murder. But in his voluntary statement, he categorically stated that while throwing the weapons it was dark night. Hence, he could not identify the place where they were thrown the weapons which were used, but he could able to point out the place of incident. Hence, the voluntary statement given by accused No.2 will not help the petitioner as contended. The learned High Court Government Pleader would submit that after apprehending this petitioner on 27.01.2022 on the very next day i.e., on 28.01.2022 he led the investigating officer and showed the place where they had thrown the weapons i.e., iron-rod and club and when the iron rod was seized, it was rusted and almost after three months of the incident. Hence, the seized articles were not sent to the FSL. The learned High Court Government Pleader would vehemently contend that this petitioner himself had purchased the iron-rod from the shop of C.W.23. C.W.23 also identified this petitioner saying that he only purchased the iron-rod from his shop.

7. The learned High Cour