Mallikarjun Alias Mallappa S/O. Duragappa Haralapur Vs the State of Karnataka

THE STATE OF KARNATAKA, MUNDARAGI POLICE STATION, REPRESENTED BY ITS PUBLIC PROSECUTOR, HIGH COURT, DHARWAD BENCH, HIGH COURT BUILDING, DHARWAD-580011.

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

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MAHADEVI W/O. BASAVARAJ UPPAR, AGE: 38 YEARS, OCC: COOLE, R/O. MEVANDI, TQ. MUNDARAGI, DIST. GADAG-582118.

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…RESPONDENTS (BY SHRI JAIRAM SIDDI, HCGP FOR R1; 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 GRANT BAIL TO THE PETITIONER/ACCUSED IN S.C. NO.82/2024 (POCSO), PENDING ON THE FILE OF ADDL. DISTRICT AND SESSIONS JUDGE, GADAG (CRIME NO.161/2024 REGISTERED FOR THE OFFENCE PUNISHABLE UNDER SECTIONS 376(2)(n), (3) AND 506 OF IPC AND SECTION 6 OF POCSO ACT, 2012 BY THE RESPONDENT NO.1 MUNDARAGI POLICE STATION), IN THE INTEREST OF JUSTICE.

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

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2 -

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NC: 2025:KHC-D:9019 CRL.P No. 102207 of 2025

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HC-KAR

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ORAL ORDER

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

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Heard Sri H.N.Hanchinamani, learned counsel for the petitioner/accused and Sri Jairam Siddi, learned High Court Government Pleader for respondent No.1 - State.

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Notice to respondent No.2 has been served and she remained unrepresented.

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This petition is filed by the petitioner/accused under Section 439 of the Criminal Procedure Code, 1973 (Cr.P.C.” for short) / under Section 483 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (“BNSS” for short) to enlarge him on bail in S.C.No.82/2024 pending on the file of Additional District and Sessions Judge, Gadag (arising out of Crime No.161/2024 of Mundaragi Police Station for the offences punishable under Sections 376(2)(n), (3) and Section 506 of the Indian Penal Code 1860, and Section 6 of the Protection of Children from Sexual Offences Act, 2012 (“POCSO Act” for short).

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HC-KAR

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Brief facts of the case of the prosecution case are

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as under:

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The complainant Mahadevi Uppar (PW.3) lodged a complaint alleging that, she and her husband (CW.13) are working in brick manufacturing factory at Dambal village owned by CW.14 – Allabhaksi D. Benakoppa. The accused/petitioner was also working as tractor driver in the said brick factory. PW.1/the victim girl is the minor daughter of the complainant. The accused met with the victim girl when she came there to see her parents in bricks factory. On 01.03.2024, CW.13/Basavaraj Halappa Uppar sent his daughter victim to bring pan from Pan shop. On the same day at about 12:00 noon, accused forcefully caught hold the victim girl, took her to vacant place behind the brick factory. Despite her resistance, the accused forcefully removed her cloths, committed penetrative and aggravated sexual assault on her. Thereafter accused took the victim girl on his motorcycle bearing registration No.KA.20/R.9719, near Dambal – Petalur road and had forceful penetrative sexual assault on her twice, as a result victim became pregnant.

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HC-KAR

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Hence, the de-facto complainant lodged a complaint to the jurisdictional police, which leads to registration of FIR and investigation. During the course of investigation, the petitioner was arrested by the respondent/Police and in turn, he was remanded to the judicial custody. Now, the investigating officer, after investigating the case, has filed the charge sheet before the Special Court.

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The learned counsel for the petitioner vehemently contended that the petitioner is innocent. He has not committed any offence as alleged by the prosecution and he has been falsely implicated in the case and there is no material against the petitioner. Now, the Investigating Officer, who investigated the case has filed the charge sheet before the jurisdictional Court. He further contended that, the Trial Court proceeded with the Trial, wherein, the victim girl and her mother have been turned hostile to the case of the prosecution. Hence, there is no necessity of the petitioner to continue in judicial custody and the petitioner is ready to abide by the conditions that may be imposed by this Court. Hence, he prayed to allow the bail petition.

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HC-KAR

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Per contra , learned High Court Government Pleader would contend that there is prima facie material against the petitioner. In the statement of the victim recorded under Section 164 of Cr.P.C., she has categorically stated against the accused and the manner of aggravated and penetrative sexual assault made on her. The victim is aged about 12 years 6 months and the DNA report reveals that the petitioner is father of the foetus, if the petitioner is released on bail he may tamper with the prosecution witnesses and hamper the trial. Hence he prayed for dismissal of the bail petition.

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On perusal of the material available on record, it reveals that the victim was a minor at the time of commission of the offence. As per the statement of victim recorded under Section 164 of Cr.P.C., the accused had committed aggravated and penetrative sexual assault on the victim when she visited the working place of her parents, knowing fully well that, the victim was a minor girl.

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HC-KAR

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Now the petitioner is relying on the DNA report issued by the Scientific Officer, RFSL, Hubballi. According to which, the sample blood furnished is included from the blood of the biological father of the foetus.

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The Co-ordinate Bench of this Court in a reported judgment in Crl.P.No.6789/2022 in paragraph No.12 and in 2022 SCC OnLine KAR 1542 at paragraph-14, clearly held that ‘the DNA report is not a conclusive proof’. The victim was stated before the learned Magistrate against the petitioner. According to her statement under Section 164 of Cr.P.C., she has stated against the accused where as in the evidence, the victim and her mother have not supported the case of the prosecution and they turned hostile. When that extent the contention taken by the prosecution that PWs.1 to 5 have turned hospital and not supported the case of the prosecution. 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 circumstances, the petitioner may be

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HC-KAR

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enlarged on bail with stringent conditions. Accordingly I proceed to pass the following:

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ORDER

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The criminal petition is hereby allowed.

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The petitioner-accused is ordered to be enlarged on bail in S.C.No.82/2024 on the file of Additional District and Sessions Judge, Gadag (arising out of Crime No.161/2024 of Mundaragi Police Station) registered for the offence punishable under Section 376(2)(n), 376(3) and 506 of IPC and Section 6 of POCSO Act, on the following conditions.

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(i) The petitioner-accused 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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