Bombay High Court grants bail in child sexual assault case, cites insufficient evidence

The Bombay High Court has granted bail to a man from northeast India who was arrested in 2023 on charges of sexually assaulting a three-year-old girl. The order was passed by Justice Milind Jadhav after reviewing the evidence presented by both the prosecution and the defence.

The FIR was registered on June 13, 2023, in Mumbai, a day after the incident was said to have occurred. According to the first informant, the girl’s mother, her daughter complained of pain while urinating around 11 p.m. on June 12. The next morning, during the child’s bath, the mother noticed redness and, upon asking, the girl pointed to her private part and used the words “Papa-I” while appearing frightened.

The girl reportedly used the term “Papa-I” to refer to the accused, who had been living with the family in their studio apartment. The man, a fellow native of the same northeastern state as the couple, had been babysitting the child since she was one year old. He regularly took her to and from her creche, and spent most of the day with her while the parents were at work.

The prosecution alleged that the man had used this close relationship to gain the family’s trust, and that the complaint arose after the mother observed him changing the child’s clothes at night, when the child had urinated in bed.

Advocate Aniket Nikam, representing the accused, submitted that the incident was the result of a misunderstanding. He said the first informant had admitted in a later written statement that her daughter told her the injury was caused by a fall while playing, and that she had scratched herself. Nikam also pointed to the Medico Legal Examination Report, which recorded redness but left the final opinion blank.

Opposing the bail plea, the Additional Public Prosecutor and counsel for the first informant cited the nature of the allegations and the initial statements made by the mother.

However, the court noted inconsistencies in the account. Justice Jadhav said, “Though this court is aware about the presumption under Section 29 of the POCSO Act, the presumption is not absolute and courts have to consider the totality of circumstances. The presumption would come into play only when prosecution is able to bring on record facts that would form the foundation for the presumption.”

The court observed that the FIR did not provide a clear account of what the child conveyed, except for a reference to redness and the mention of “Papa-I.” The court also considered the long-standing relationship between the accused and the child.

“The episode of the daughter urinating at night and the accused changing her clothes, which may have prima facie led to the suspicion of the first informant, needs to be considered,” the court said. It also took note of the mother’s own retraction and clarification in a written application.

Referring to the need for clear and consistent evidence in criminal cases, the court added, “In order to sustain conviction, the circumstances taken cumulatively should form a chain so complete that there is no escape from the conclusion that within all human probability, the crime was committed by the accused only and none else.”

The accused has been granted bail while the investigation continues.