The Bombay High Court has granted bail to an accused in a POCSO case where the medical report failed to confirm penetrative sexual assault and the victim’s police statement did not corroborate the most serious allegations. This decision underscores the necessity of evidentiary support for invoking aggravated offences under the POCSO Act and reinforces the principle that prolonged pre-trial incarceration must be justified by concrete risk factors.
Background & Facts
The Dispute
The applicant, Mohammed Rafiq Abdul Rashid, was arrested on 18.05.2024 in connection with FIR No. 349 of 2024 registered at Nirmal Nagar Police Station, Mumbai. The case involves allegations of sexual assault against a 9-year-old girl under Sections 376(2)(n) and 506(2) of the Indian Penal Code and Sections 4, 8, and 12 of the Protection of Children from Sexual Offences Act, 2012 (POCSO Act). The prosecution alleges that the applicant pressed the victim’s genital, inserted his finger into her genital, and touched her chest, stomach, and back.
Key Facts
- The victim was aged 9 years at the time of the alleged incident.
- The mother of the victim lodged the complaint leading to registration of the FIR on 18.05.2024.
- The applicant was arrested on 18.05.2024 and has remained in custody since then.
- The charge sheet was filed after completion of investigation.
- The trial court rejected the applicant’s bail application.
- The victim’s statement recorded under Section 164 CrPC was not cited as containing the allegation of finger insertion.
- The police statement of the victim, recorded under Section 161 CrPC, did not mention insertion of finger into the genital.
- The medical report recorded only that "possibility of sexual assault cannot be ruled out" and did not confirm penetrative sexual assault.
- The applicant has been in custody for over two years as of the date of judgment (30.06.2026).
- All material witnesses, including the victim and her mother, have been examined by the trial court.
Procedural History
- 18.05.2024: FIR No. 349 of 2024 registered at Nirmal Nagar Police Station.
- 18.05.2024: Applicant arrested.
- [Date unspecified]: Charge sheet submitted by police.
- [Date unspecified]: Bail application rejected by trial court.
- 30.06.2026: Criminal Bail Application No. 901 of 2025 heard and decided by the Bombay High Court.
Relief Sought
The applicant sought bail on the grounds of prolonged incarceration, lack of corroborative evidence for the most serious allegations, and absence of risk of flight or witness tampering.
The Legal Issue
The central question was whether the applicant could be denied bail under the POCSO Act when the medical evidence does not confirm penetrative sexual assault and the victim’s police statement omits the key allegation of finger insertion, thereby casting doubt on the applicability of Section 376(2)(n) IPC and Sections 4, 8, and 12 of the POCSO Act.
Arguments Presented
For the Appellant/Petitioner
Ms. Farhana Shah, counsel for the applicant, argued that the prosecution’s case hinges on an allegation of penetrative sexual assault under Section 376(2)(n) IPC and Section 6 of the POCSO Act, which is not supported by the victim’s police statement or the medical report. She contended that the medical report only indicated a "possibility" of sexual assault, falling short of the required threshold for aggravated penetrative sexual assault. She further submitted that the applicant has been in custody for over two years, all material witnesses have been examined, and there is no indication of risk of absconding or tampering with evidence. She relied on the principle that bail should not be denied merely because the offence is serious, especially when the evidence does not sustain the gravest charges.
For the Respondent/State
Mr. S.V. Walve, Additional Public Prosecutor, opposed the bail application, asserting that the nature of the allegations, even if partially uncorroborated, warranted continued custody. He argued that the gravity of the offence under POCSO and the vulnerability of the victim justified denial of bail, irrespective of evidentiary gaps.
The Court's Analysis
The Court undertook a careful review of the evidentiary record, particularly focusing on the discrepancy between the allegations in the FIR and charge sheet and the actual contents of the victim’s police statement and medical report. The Court noted that while the FIR and charge sheet alleged insertion of finger into the genital, these specific allegations were absent from the victim’s statement recorded under Section 161 CrPC. The medical report, which is a critical piece of evidence in POCSO cases, only stated that "possibility of sexual assault cannot be ruled out," which is insufficient to establish penetrative sexual assault under Section 6 of the POCSO Act or Section 376(2)(n) IPC.
"Prima facie, there was no case of rape or penetrative sexual assault."
The Court held that in the absence of corroborative medical or testimonial evidence supporting the most serious allegations, the charges under Sections 376(2)(n) IPC and Sections 4, 8, and 12 of the POCSO Act could not be sustained at this stage. The Court further observed that the offence, if proven, would more appropriately fall under Section 9 of the POCSO Act (sexual assault), which carries a minimum sentence of five years and maximum of seven years, as opposed to the life imprisonment or death under Section 6.
The Court emphasized that the applicant has been in custody for over two years, that all witnesses have been examined, and that there is no material suggesting a risk of absconding or witness tampering. The Court also clarified that its observations were strictly confined to the bail stage and did not prejudge the merits of the case.
The Verdict
The applicant succeeded. The Bombay High Court granted bail on the following conditions: (i) execution of a personal bond of Rs. 50,000 with one or two sureties of like amount; (ii) monthly reporting at Nirmal Nagar Police Station between 12:00 noon and 4:00 pm on the first day of every calendar month until trial concludes; (iii) regular attendance at trial proceedings unless exempted by the trial court; (iv) no tampering with evidence or influence on prosecution witnesses; (v) submission and updating of contact and residential details to the Investigation Officer; and (vi) a four-week period to furnish surety, during which the applicant may remain on bail upon depositing Rs. 50,000 in lieu of surety, to be refunded upon furnishing surety.
What This Means For Similar Cases
Medical Evidence Must Support Aggravated Charges
- Practitioners must rigorously scrutinize medical reports in POCSO cases before arguing for or against aggravated charges under Section 6 or 376(2)(n) IPC.
- A report stating "possibility cannot be ruled out" is insufficient to justify denial of bail under the most severe provisions.
- Prosecution must establish a prima facie case of penetration; otherwise, charges may be reduced to Section 9 POCSO.
Prolonged Custody Requires Justification Beyond Gravity of Offence
- Courts must weigh the duration of pre-trial incarceration against the strength of evidence.
- Where witnesses are examined and no flight risk exists, prolonged detention without evidentiary support for the gravest charges violates the presumption of innocence.
- Bail cannot be denied solely on the basis of the nature of the offence when the evidence does not sustain the most serious allegations.
Conditions Can Be Tailored to Balance Public Interest and Liberty
- Courts may impose reasonable reporting conditions (e.g., monthly police reporting) to ensure compliance without resorting to custody.
- Deposit of money in lieu of surety, refundable upon furnishing surety, is a viable interim mechanism to secure appearance.
- Clarifications that bail orders do not prejudge guilt are essential to preserve trial integrity.
