Kumarswamy S/O Gangadharayya Hiremath Vs the State of Karnataka

KUMARSWAMY S/O. GANGADHARAYYA HIREMATH, (AS PER FIR) KUMAR S/O. GANGADHARAYYA HIREMATH, (AS PER RATION CARD), AGE: 39 YEARS, OCC: BUSINESS, R/O. NEAR KALMESHWAR HIGH SCHOOL, HOLEALUR, TQ. RON, DIST. GADAG-582203.

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…PETITIONER

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(BY SRI. K. L. PATIL, ADVOCATE)

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AND:

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Digitally signed by RAKESH S HARIHAR Location: High Court of Karnataka, Dharwad Bench

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THE STATE OF KARNATAKA, THROUGH P.S.I. RON P.S., THROUGH RON P.S. REPRESENTED BY STATE PUBLIC PROSECUTOR, HIGH COURT OF KARNATAKA, DHARWAD BENCH, DHARWAD-580011.

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SMT. GOURAVVA W/O. SIDDAPPA AMBIGER, AGE: 40 YEARS, OCC: COOLIE, R/O. NEAR BASAVANNA TEMPLE, HOLE ALUR, TQ. RON, DIST. GADAG-582203.

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…RESPONDENTS

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(BY SHRI ABHISHEK MALIPATIL, HCGP; NOTICE TO R2 SERVED)

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THIS CRIMINAL PETITION IS FILED UNDER SECTION 439 OF CR.P.C. (UNDER SECTION 483 OF BNSS), SEEKING TO ALLOW THE CRIMINAL PETITION AND TO ENLARGE PETITIONER/ ACCUSED NO.2 ON REGULAR BAIL IN CONNECTION WITH RON P.S CRIME NO.32/2025 PUNISHABLE UNDER SECTIONS 64(2)(M)(K), 75(2) R/W. SECTION 3(5) OF BHARATIYA NYAYA SANHITA, 2023 ON THE FILE OF ADDL. CIVIL JUDGE AND JMFC, RON AND ETC.

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NC: 2025:KHC-D:8822 CRL.P No. 101805 of 2025

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HC-KAR

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THIS PETITION IS COMING ON FOR ORDERS, THIS DAY, ORDER WAS MADE THEREIN AS UNDER:

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ORAL ORDER

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(PER: THE HON'BLE MR. JUSTICE VENKATESH NAIK T)

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Heard Shri K.L.Patil, the learned counsel for the petitioner/accused No.2 and Shri Abhishek Malipatil, the learned High Court Government Pleader for the respondent No.1 – State.

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The petitioner-accused No.2 has filed this petition under Section 439 of Cr.P.C., [483 of Bharatiya Nagarik Suraksha Sanhita, 2023] praying to grant bail in S.C.No.65/2025, on the file of learned Sessions Judge, Gadag in connection with Ron P.S. Crime No.32/2025 for the offences punishable under Sections 75(2), 64(2)(k), 64(2)(m) read with Section 3(5) of Bharatiya Nyaya Sanhita, 2023.

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HC-KAR

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The brief facts of prosecution case is as under;

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The de facto complainant lodged a complaint before the respondent-police alleging that her husband Siddappa, died about 3 years ago prior to institution of incident, and she has a son who resides with her parents. She is acquainted with accused No.1-Basavaraj S/o Ishappa Koti and accused No.2-Kumaraswamy S/o Gangadharayya Hiremath for the last 7 to 8 years. The victim is a physically handicapped woman. However, accused Nos.1 and 2 used to have intercourse with her forcibly. During the last week of January-2025, between 8:00 pm to 9:00 pm, when she was near Kalmeshwar school, accused No.2-Kumaraswamy had intercourse with her forcibly and he noticed that her stomach is protruding. Thus, accused No.2 advised the victim to have a check-up at Hospital. It is alleged that about 8 to 10 months ago, accused No.1Basavaraj S/o Ishappa Koti came to her house and had sexual intercourse with her forcibly. So also, accused No.2-Kumaraswamy S/o Gangadharayya Hiremath

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HC-KAR

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committed rape on her against her will. Hence, she became pregnant. Hence, the first informant lodged a complaint to the respondent-police, which led to registration of FIR and initiation of investigation.

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Learned counsel for the petitioner contended that the petitioner is innocent; has not committed any office as alleged by the prosecution; he has been falsely implicated in this case and there is no material against the petitioner. Now the investigation is completed and Investigating Officer has already filed the charge-sheet against the accused persons and there is no necessity of the petitioner to continue in judicial custody. The petitioner is ready to abide by the conditions to be imposed by this Court. With these grounds, the counsel prayed for allowing the petition.

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Per contra , learned High Court Government Pleader contended that there is a prima-facie material against the petitioner. In the statement of the victim recorded under Section 164 of Cr.P.C., she has

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HC-KAR

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categorically stated against accused Nos.1 and 2 and the manner of commission of sexual assault on her. The medical report clearly indicates that at the time of incident, she was pregnant for 29 weeks. If the petitioner is released on bail, he would tamper with the prosecution witnesses and hamper the trial. Hence, he prays to dismiss the bail petition.

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Perused the material available on record.

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On perusal of the material available on record,

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it reveals that the victim is aged about 40 years as on the date of incident. As per the statement of victim recorded under Section 164 of Cr.P.C., she has stated that the petitioner and accused No.1 committed sexual assault on her forcibly on several occasions knowing that she is a physically handicapped woman. The medical report reveals that the victim is pregnant. Learned HCGP vehemently contended that though the investigation is completed, the DNA report is yet to received.

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HC-KAR

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The co-ordinate Bench of this Court in a

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reported judgment in Crl.P.No.6789/2022 in paragraph No.12 and in 2022 SCC OnLine KAR 1542 at paragraph14, wherein, it is clearly held that ‘the DNA report is not a conclusive proof’. The version of the victim as stated in the first information and also in her statement recorded under Section 164 of Cr.P.C., reveals that accused Nos.1 and 2 committed sexual assault on her, thus, she became pregnant. The victim is a major woman. It appears that there was consent on the part of victim. In the statement of victim recorded under Section 164 of Cr.P.C., except the word ‘force’, rest of the statement reveals that she used to have sex with accused Nos.1 and 2 frequently. The petitioner is in judicial custody for last 4 months i.e. from the date of arrest. The trial in the matter may take a considerable amount of time. The petitioner is a permanent resident of the address mentioned in the cause title of the petition and he is ready and willing to abide by the conditions imposed by this Court. Under these

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NC: 2025:KHC-D:8822 CRL.P No. 101805 of 2025

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HC-KAR

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circumstances, the petitioner may be enlarged on bail with

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stringent conditions. Accordingly, the following:

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ORDER

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The criminal petition is allowed.

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The petitioner-accused No.2 is ordered to be enlarged on bail in Crime No.32/2024 (S.C.No.65/2025 pending on the file of Sessions Judge, Gadag) of Ron P.S. for the offences punishable under Sections 75(2), 64(2)(k), 64(2)(m) read with Section 3(5) of Bharatiya Nyaya Sanhita, 2023, subject to following conditions.

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(i) The petitioner-accused No.2 shall execute a personal bond in a sum of Rs.2,00,000/with two sureties for the like sum to the satisfaction of the jurisdictional Court.

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