By Tanvi Mehta.

The father of the Prosecutrix has challenged the bail granted to Respondent No. 2 by the Trial Court on August 27, 2022. The bail was granted in connection with FIR No. 443/2019, filed at Police Station Kapashera, alleging serious offenses under Section 376 IPC and Section 6 of the POCSO Act. The complainant, a 13-year-old girl at the time of the incident, reported repeated sexual assaults by Respondent No. 2, a 60-year-old neighbour, occurring from January 10, 2019, through October 9, 2019.

The Trial Court granted bail to Respondent No. 2, concluding that the allegations did not constitute penetrative sexual assault under Section 3 of the POCSO Act. The Trial Court reasoned that the allegations primarily described sexual acts such as touching and oral sex but did not involve penetration as defined by the Act. The Trial Court also considered the accused’s age and health, alongside the fact that evidence had already been recorded.

The High Court found that the Trial Court erred in its interpretation of Section 3 of the POCSO Act. The evidence, including the Prosecutrix’s testimony and medical records, indicated that the acts described constituted penetrative sexual assault. Section 3 defines penetrative sexual assault as involving penetration or the use of an object or part of the body to penetrate the child’s body. The Prosecutrix’s statements and hospital records showed that the acts included both penetration and other forms of sexual abuse. The High Court emphasized that the Trial Court had misread Section 3 and failed to consider the Prosecutrix’s testimony comprehensively. Citing precedents, the High Court noted that basic requirements for granting bail, including a proper assessment of the evidence, were overlooked.

[Case: KPS vs State NCT of Delhi, Citation: CRL.M.C. 4830/2022 & CRL.M.A. 19399/2022.]

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