1. This petition is filed under Section 439 of Cr.P.C. seeking regular bail of the petitioner in Crime No.211/2021 of Hunsur Rural Police Station, Mysuru, for the offence punishable under Sections 376(2)(L), 376(2)(n), 323, 506 read with 34 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 of the prosecution is that the victim is a deaf and dumb having disability in one of the legs. She was residing along with her mother and her mother died in the month of March 2021. Thereafter, the victim was residing alone in the house. On 29.07.2021, when the complainant, who is the niece of the victim went to the house of the victim to see her, at that time, she noticed the hospital card with the victim and it showed that the victim was 34 weeks pregnant and also the victim appeared to be pregnant. When the complainant enquired by sign as to who is responsible for the same, the victim showed two houses situated in front of the house. Therefore, the complainant lodged the complaint and the case is registered and during the investigation, the police got recorded 164 statement of the victim before the learned Magistrate and the victim identified the photographs of two accused, who are the petitioners herein. The accused persons were arrested subsequently and since 19.08.2021 they are in custody. The police have investigated the matter and filed the charge-sheet.

4. The learned counsel for the petitioners would submit that no doubt, there is an allegation against the petitioners that they are responsible for the act of making the victim pregnant. But the learned counsel vehemently contend that though 164 statement was recorded, but for DNA blood sample was not drawn from the petitioners and now the victim has given birth to a child also. When DNA test is not conducted, the petitioners are entitled for bail.

5. Per contra, the learned High Court Government Pleader appearing for the respondent-State submits that first of all, the victim is a deaf and dumb and she made the sign that these petitioners are responsible and apart from that, when the statement was recorded before the learned Magistrate, she identified the photographs of two petitioners and it is in the process of getting DNA test report, since the victim gave birth to a child recently. Hence, there is a sufficient material against the petitioners.

6. Having heard the learned counsel for the petitioners and the learned High Court Government Pleader appearing for the respondent-State and also on perusal of the material on record, the prosecution is mainly depending upon the statement of the victim who made the statement before the learned Magistrate under Section 164(5) of Cr.P.C. wherein she has identified two photographs of the petitioners. Apart from that, her statement is also recorded and the victim has given birth to a child consequent to the sexual act and no doubt, DNA report is not before the Court. When such being the factual aspects of the case and taking note of the heinous offence of Section 376 of IPC against a deaf and dumb and the petitioners are neighbors and when the deaf and dumb victim identifies the photographs of these petitioners before the learned Magistrate, there is a prima facie case against the petitioners. If the blood samples are not drawn from the accused as well as the baby, the Investigating Officer is directed to get the DNA report immediately following the procedure as contemplated under the Cr.P.C. and the petitioners can be given an opportunity to approach this Court after getting the DNA report.

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

ORDER

The petition is rejected. However, liberty is given to the petitioners to approach this Court after receipt of the DNA report.