This petition is filed under Section 439 of Cr.P.C., seeking

regular bail of the petitioner/Accused No.2 in Crime No.124/2021

of Bommanahalli Police Station, Bengaluru City, for an offence

punishable under Section 302 of IPC.

2.

Heard the learned counsel appearing 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 Nos.1 to 3 belonged to West Bengal, Jharkhand and

Tamil Nadu and all of them are staying in Bengaluru. The

deceased is also the resident of Assam. All of them are not

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having any relatives in Bengaluru. The deceased was a rag

picker and while taking the food, a galata was taken place

between them. This petitioner and other accused persons

assaulted the deceased with their hands and at that time

accused No.1 stating that he should not be alive, picked up

photo-frame and assaulted with the same, as a result, he had

sustained the injuries and succumbed to the same. The police

have investigated the matter and filed the charge-sheet.

4.

The learned counsel appearing for the petitioner

would submit that, an only allegation against this petitioner, who

has been arraigned as accused No.2 is that he assaulted with his

hands and only the specific overt act allegation against accused

No.1 is that he assaulted him with photo-frame. The prosecution

mainly relying upon the CCTV footage, the same does not

discloses anything about the very involvement of this petitioner

in committing the murder. The prosecution also relying upon the

extra judicial confession and no other material is found against

the petitioner herein. The learned counsel also submits that the

investigation has been completed and filed the charge-sheet.

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This petitioner is in custody from the date of arrest and no need

of custodial trial. Hence, he may be enlarged on bail.

5.

Per contra, the learned High Court Government

Pleader appearing for the State would submit that CWs.12 and

13 statements are recorded before the learned Magistrate under

Section 164 of Cr.P.C., and the same is with regard to extra

judicial confession and body is shown by accused No.1. Learned

High Court Government Pleader also submits that the blood

stained clothes of this accused is also recovered and the same is

sent to FSL. Seizure mahazar was conducted on 16.09.2021.

When the case is rests upon the circumstantial evidence, the FSL

report plays a vital role in the matter. Hence, at this juncture, it

is not a fit case to exercise the discretion under Section 439 of

Cr.P.C.

6.

Having heard the respective counsel and also on

perusal of the material available on record, the prosecution is

mainly relying upon CCTV footage and the same is not in respect

of the place of residence and also relying upon the extra-judicial

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confession. The specific case of the prosecution is that accused

No.1 assaulted with photo-frame and this petitioner assaulted

with his hands. On perusal of the post-mortem report, there

were 19 injuries and all the injuries are abrasions and the

prosecution also relying upon the recovery of the blood stained

clothes of this petitioner. When such being the factual aspects

of the case and the FSL report is awaited, at this juncture, it is

not a fit case to exercise the discretion under Section 439 of

Cr.P.C.

7.

This Court would like to rely upon the judgment of

the Apex Court in the case of Kumer Singh v. State of

Rajasthan and another reported in 2021 Crl.L.J. 4244,

wherein, in paragraph No.14, the Apex Court while setting aside

the bail order granted by the High Court categorically held that it

is required to be noted that all the accused are charged for the

offences punishable under Sections 302 and 307 read with

Section 149 of IPC. At this stage, the individual role of the

accused is not required to be considered when they are alleged

to have been the part of the unlawful assembly. It is also

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observed that there were 26 injuries fo