Bombay HC denies bail to man accused of sexually assaulting minor nieces, says commonly abusers are well known to child

Referring to past Supreme Court judgement, it also observed that mere touching of the penis to the private part of the victim with sexual intent constitutes an offence of penetrative sexual assault under the Protection of Children from Sexual Offences (Pocso) Act.

The high court referred to the Guidelines & Protocols – Medicolegal care for survivors/victims of Sexual Violence and noted that children are more easily threatened and less likely to speak out about the abuse.

Therefore, it said releasing the accused from prison, who is a close relative of the victims, could “adversely impact victims who have already been traumatised”.

“In case of penetrative sexual assault, it is not essential that there must be some injury to the hymen, labia majora, labia minora of the victim. Mere touching of the penis to the private part of the victim constitutes an offence under section 4 of the Pocso Act in view of the definition of “penetrative sexual assault” provided in sections 3 (a) and 3 (b) of the Act,” Justice Chavan noted.

Referring to past Supreme Court judgement, the bench noted that, to constitute offence of rape, it is not at all necessary that there should be complete penetration of the male organ with emission of semen and rupture of hymen.

“Even partial or slightest penetration of the male organ….with or without any emission of semen or even an attempt of penetration into the private part of the victim would be quite enough for the purpose of Sections 375 (rape) and 376 of IPC,” the high court reiterated.

The victims’ mother, who had filed the complaint, had alleged that the accused was sexually exploiting and molesting the nine and thirteen year old girls by betraying their trust. As per the complaint, he was clicking nude photographs of one of the victims, showing her pornographic videos and images and threatening to share her photographs over the internet. He was also accused of administering stupefying substances to victims before sexually assaulting them.

Advocate Nishad Nevagi for the accused submitted that his wife, who was the sister of victims’ father (foofi), was being forced by her brothers to release her share in the property and due to his strong objection to giving such NOC, the false report was filed against him.

The state government lawyer submitted that offences against the accused were serious; however, as per an improved statement by the victim, there was no medical evidence in support of penetrative sexual assault.

The judge said he was not inclined to release the applicant on bail but requested the trial court to expedite the case hearing as the accused has been incarcerated since September 2, 2021.