The main legal point established in the judgment is the exercise of discretion in favor of the petitioners for bail based on the distinction between the allegations against accused No. 1 for sexual assault and the allegations against the petitioners for assault with hands and firewood.

JUDGMENT

1. This petition is filed under Section 438 of Cr.P.C. praying this Court to enlarge the petitioner on bail in the event of his arrest in respect of Crime No. 18/2022 registered by the Basavapatna Police Station, Davanagere, for the offences punishable under Sections 448, 376, 323, 307, 355, 504, 143, 147, 148 read with Section 149 of IPC.

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

3. The factual matrix of the case is that on 18.10.2021, accused No. 1 when CW4, 5, 7 were not there in the house, used to visit the house of CW1 and instructed her to marry him and the said fact was revealed to CW4, 5, and 7 by CW1, they called accused Nos.1, 2, 3, 4 and advised them and when CW1's marriage was fixed, accused No. 1 abused CW11 who made arrangements for marriage and told her not to perform CW1's marriage and hence, marriage was not taken place and thereafter, accused No. 1 escaped from the village and that on 25.01.2022, he came back and when CW4, 5 and 7 were not in the house, illegally trespassed into the house of CW1 and outraged the modesty of a women and also caused threat to her and when the said fact came to the knowledge of CW4, 5 and 7, all of them went near the house accused No. 1 and questioned him and accused No. 1 tried to assault CW7 with the iron rod and accused Nos.2 to 6 assaulted CW1, 4, 5, 7 with their hands and fire wood and also abused them in a filthy language and threatened them with dire consequences of life. Based on the complaint, the police have registered the case and after completion of the investigation, charge-sheet has been filed against these petitioners and others for the aforesaid offences.

4. The learned counsel appearing for the petitioners would submit that earlier, these petitioners have lodged the complaint against the complainant and the same is registered in Cr. No. 17/2022 and after that the present complaint is filed and no such incident was taken place as alleged in the complaint and only with an intention to harass the petitioners, the present complaint is filed to over come the earlier complaint given against them and hence, prayed to allow the petition.

5. Per contra, the learned High Court Government Pleader appearing for the State would submit that the case and counter case are registered against each parties and an offence punishable under Section 376 of IPC is attract only against accused No. 1 and the allegation against these petitioners is that they have assaulted with their hands and fire wood on CW1, 4, 5, and 7 hence, there is a prima facie case against these petitioners and prayed to dismiss the petition.

6. Having heard the respective counsel appearing for the parties and also on perusal of the material available on record it discloses that an allegation against accused No. 1 is that he committed the sexual act on CW1 against her wish in the absence of CW4, 5 and 7 and an allegation against these petitioners is that they have assaulted with their hands and fire wood on CW1, 4, 5, and 7 and the injured persons have not taken any treatment in the hospital. When such being the case and Section 376 of IPC attracts against accused No. 1 and not against these petitioners, it is a fit case to exercise the discretion in favour of the petitioners.

7. In view of the discussions made above, I pass the following:

ORDER The petition is allowed. Consequently, the petitioners/accused Nos.2 to 5 shall be released on bail in the event of their arrest in connection with Crime No. 18/2022 registered by the Basavapatna Police Station, Davanagere, for the offences punishable under Sections 448, 376, 323, 307, 324, 355, 504, 506, 143, 147, 148 read with Section 149 of IPC, subject to the following conditions:-

(i) The petitioners shall surrender themselves before the Investigating Officer within ten days from the date of receipt of a certified copy of this order and shall execute a personal bond for a sum of R