‘Sexual assault’ by neighbour on minor not ‘ordinary offence’: HC

Srinagar, Aug 17: Observing that ‘sexual assault’ by neighbour on minor is not an ‘ordinary offence’,the High Court of J&K and Ladakh has rejected bail application of a 41-year-old man accused of sexual assault on minor girl in Nowshera area of Srinagar last year.
According to prosecution, on 31 March 2022, a complainant was received from a resident of Baramulla, putting up at a rented house at Nowshara here, that her two minor daughters were playing in the lawn of the house and one person namely Amit Ambardar who was also residing on ground floor in the same house, called both of them in his room and gave some money to one and sent her outside for purchasing chewing gums. Then he allegedly attempted to rape her second daughter, the police said.

Accordingly, FIR No 27/2022 under sections 376-AB IPC and section 7/8 of POCSO Act was registered. During investigation, it said, the statement of the victim was also recorded under section 164 of Cr.P.C. and her medical examination was also conducted. After the completion of investigation, the prosecution said, the offences under section 376 IPC and 7/8 of POCSO Act were “established” against Ambardar and a chargesheet was presented against him on 27 May 2022.  Ambardar, a resident Jannipur Jammu, was charged under section 506 IPC and 9/10 of POCSO Act by the trial couit on 27 June 2022.
“In the present case the petitioner is alleged to have committed aggravated sexual assault on the victim who is aged only six years. It is true that maximum punishment prescribed for offence under Section 9 punishable under Section 10 of the POCSO Act is seven years but that is only one of the considerations for grant of bail,” a bench of Justice Sanjaj Dhar said. The other considerations like nature of offence, the position of the accused with reference to the victim and the witnesses and the public interest are some of the other considerations which are also required to be taken into account while considering the bail plea of an accused, the court noted.
“In the instant case, prima facie, it appears that the victim while making her statement before the trial court during trial of the case has not deviated from the version of occurrence which she narrated in her statement under Section 164 of the Cr. P. C,” the court said, adding, “It is true that parents of the victim have not supported the prosecution version while making their statements before the trial court during trial of the case but then besides the statement of the victim, the medical opinion of the doctor, the DNA profiling report which has been substantiated by the statements of the doctor and DNA Expert of FSL, Srinagar, whose statements have been recorded during trial of the case, prima facie, support the version of occurrence given by the victim in her statement.”

The court observed that accused being about 41 years of age was living in the same building in which the victim along with her family was living and she would call him as her uncle.
“There was fiduciary relationship between the petitioner (accused) and the victim, who would repose trust and confidence in him being her neighbourer. By indulging in abhorrent behaviour with the child victim, the petitioner has shaken this trust and confidence and brought bad name to the relationship of a child with her neighbourer who is as good as her father”. So, it is not an ordinary offence where an accused has tried to molest a major woman having no acquaintance with her, the court noted.
“It is a case where the petitioner has committed sexual assault upon a girl child who is about 1/6 th of his age. The gap in age of the petitioner and the victim makes his alleged act more heinous and it shows an element of perversion in the offence alleged,” the court said and eventually rejected the bail application.