OMKAR SHIVAJI KAMBLEversusTHE STATE OF MAHARASHTRA AND ANOTHER

          IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                     BENCH AT AURANGABAD

               949 BAIL APPLICATION NO. 856 OF 2026

                          Omkar Shivaji Kamble
                                   VERSUS
                 The State Of Maharashtra And Another
                                      ...
Mr. Sabnis Ameya N, Advocate for the Applicant
Mr. V. K. Kotecha, Additional P.P. for the Respondent-State
Mr. Murge Estling S. Advocate for Respondent No.2


                        CORAM : HITEN S. VENEGAVKAR, J.
                          Dated : 18th August, 2026
PER COURT :-

1.       By this application under Section 483 of the Bharatiya Nagarik
Suraksha Sanhita, 2023, the applicant, who is the sole accused, seeks
regular bail in connection with Crime No.17 of 2026 registered with
Udgir Rural Police Station, District Latur, for the offences punishable
under Sections 64(1), 64(2)(i), 64(2)(f), 64(2)(m) and 65(1) of the
Bharatiya Nyaya Sanhita, 2023, and Sections 4 and 6 of the Protection
of Children from Sexual Offences Act, 2012.

2.       The period of the alleged occurrence, as stated in the FIR, is
from 5 February 2025 to 12 January 2026. The FIR was registered on
13 January 2026 and the applicant was arrested on the same day. The
investigation is complete and the charge-sheet was filed on 16 February
2026. It is stated that the charge has since been framed. The applicant
has remained in custody from the date of his arrest.

3.       The prosecution case, in brief, is that on 12 January 2026 the
police received a medico-legal intimation from the Government
Hospital at Udgir concerning the victim, who was then about fifteen


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years of age and was found to be pregnant. Upon inquiry, the victim
allegedly disclosed that the applicant, who is her biological brother, had
subjected her to forcible sexual intercourse in the absence of their
mother and had repeated the acts at intervals. The prosecution
attributes the pregnancy to the repeated sexual assault alleged against
the applicant. Since the victim and her mother were initially unwilling
to lodge a complaint, the Police Officer registered the FIR on the basis
of the medico-legal information and the disclosure recorded during the
inquiry.

4.         During investigation, the statement of the victim was
recorded. Her medico-legal examination record contains a history
identifying her brother as the alleged assailant and refers to repeated
sexual abuse. The statements of the mother and the sister of the victim
were thereafter recorded. According to the prosecution, both witnesses
speak about the disclosure made by the victim implicating the
applicant. The medical examination report of the applicant also
contains a history attributed to him. Samples have been forwarded for
DNA analysis; however, the report is yet to be received.

5.         Learned counsel for the applicant submitted that the victim
and her mother were initially unwilling to lodge a complaint and,
therefore, the subsequent statements implicating the applicant require
cautious consideration. He questioned the admissibility of the history
recorded during the medical examination of the applicant and
submitted that it cannot be treated as a confession. It was further
submitted that the investigation is over, the charge-sheet has been filed,
the charge has been framed and the applicant is no longer required for
custodial interrogation. The applicant has no criminal antecedents, is

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not a flight risk and is willing to reside outside the area where the
victim lives, to refrain from contacting the family and to comply with
any condition imposed by the Court. Learned counsel submitted that
the applicant's continued detention is not necessary to secure either his
presence at the trial or a fair trial.

6.        Learned Additional Public Prosecutor opposed the application.
He submitted that the allegation is not of an isolated sexual act but of
repeated penetrative sexual assault upon a child by her own brother,
resulting in pregnancy. He relied upon the victim's disclosure recorded
in the medical papers, the statements of the mother and sister and the
other medical material collected during investigation. He further
submitted that the victim is still residing with the family and the
material witnesses are yet to be examined. Having regard to the close
relationship between the applicant and the witnesses, his release would
expose the child to a real possibility of pressure and would adversely
affect her sense of safety and her ability to depose freely. Learned
counsel appearing for respondent No.2 also opposed the application
and supported the submissions advanced on behalf of the State.

7.        The power to grant bail is discretionary, but the discretion has
to be exercised upon settled parameters. The nature of the accusation,
the manner in which the offence is alleged to have been committed, its
gravity, the role attributed to the accused, the severity of the prescribed
punishment, the period of custody, the stage of the proceeding, the
antecedents of the accused, the likelihood of his absconding and the
reasonable possibility of witnesses being influenced are all relevant.
The so-called triple test is important, but it is not exhaustive. In Zeba
Khan v. State of Uttar Pradesh, 2026 INSC 144, the Supreme Court

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reiterated the principles stated in Ajwar v. Waseem, (2024) 10 SCC
768, that, in a case involving a serious criminal offence, the Court must
consider these factors cumulatively. Equally, the bail Court must not
conduct a mini-trial or return findings upon the admissibility or
ultimate reliability of the material. Its inquiry is confined to whether
the material, taken at its face value, furnishes reasonable grounds for a
prima facie view.

8.       The principal submission that neither the victim nor her
mother initially named the applicant does not prima facie accord with
the record in its entirety. The FIR records that the victim disclosed that
her brother, namely the applicant, had repeatedly subjected her to
sexual intercourse. What is also recorded is that the victim and her
mother were unwilling to lodge a complaint against him. Reluctance to
initiate a prosecution against a close family member is materially
different from the failure to identify the alleged offender. In an
allegation of intra-familial sexual assault upon a child, such reluctance
may arise from fear, trauma, dependence, stigma or familial pressure.
The reason for the initial unwillingness and the evidentiary effect of the
subsequent statements will have to be tested at the trial; it would be
unsafe to treat the initial reluctance, by itself, as a circumstance which
displaces the prosecution material at the stage of bail.

9.       At this stage, the victim's disclosure appearing in the medico-
legal record, the statements of her mother and sister and the fact that
the minor victim was found pregnant constitute prima facie material
connecting the applicant with the accusation. The objection to the
admissibility of the history attributed to the applicant in his medical
examination report is expressly left open. It is neither necessary nor

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appropriate to decide that question in the present proceeding. Even if
that disputed part of the material is kept aside for the limited purpose
of this application, the remaining material cannot be said to be so
deficient as to negate the accusation at the threshold. Likewise, as the
DNA report is awaited, no inference can presently be drawn from it
either in favour of the prosecution or in favour of the applicant.

10.      The nature and gravity of the accusation assume considerable
significance in the facts of the present case. The allegation is that a
child of about fifteen years was repeatedly subjected to penetrative
sexual assault over a period of time by her biological brother within the
domestic environment, and that the acts resulted in pregnancy. The
alleged offender was thus not a stranger but a member of the
household occupying a relationship ordinarily associated with trust,
protection and safety. The accusation, therefore, involves not only an
alleged invasion of the dignity and bodily integrity of a child, but also
an alleged abuse of familial access and breach of the child's sense of
security within her own home. The repetition alleged, the tender age
and vulnerability of the victim, the relationship between the parties and
the consequence of pregnancy collectively impart exceptional gravity
and heinousness to the accusation. These are legally relevant
considerations at the stage of bail; they are not observations upon the
applicant's guilt.

11.      The gravity is also reflected in the punishment prescribed by
law. The offences alleged under Section 65(1) of the Bharatiya Nyaya
Sanhita and Section 6 of the POCSO Act carry a minimum sentence of
twenty years and may extend to imprisonment for the remainder of the
natural life. Severity of punishment cannot be the sole ground for

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refusing bail, but it has a direct bearing upon the nature of the
accusation and must be considered with the prima facie material and
the risk to the fair conduct of the trial.

12.      The apprehension of the witnesses being influenced is not
merely speculative. The applicant is the biological brother of the victim;
the alleged acts occurred within the family; the victim continues to
reside with her mother; and the victim, her mother and her sister are
yet to be examined. The very reluctance within the family to initiate the
prosecution demonstrates the complexity and vulnerability surrounding
the child. In these circumstances, influence may operate indirectly
through familial relationships even if the applicant is directed to reside
outside the district or is prohibited from directly contacting the victim.

13.      The Court has taken into account that the investigation is
complete, that custodial interrogation is no longer required, that the
applicant has no antecedents and that he has undergone custody from
13 January 2026. These circumstances ordinarily weigh in favour of
release. However, the custody undergone until now cannot, having
regard to the stage of the trial and the punishment prescribed, be
regarded as so prolonged as to outweigh the nature and gravity of the
accusation, the prima facie material and the reasonable apprehension
of influence upon a vulnerable child witness. On a cumulative
assessment of the relevant considerations, this is not a fit case to
exercise the discretion in favour of the applicant at this stage.

14.      The Bail Application is, therefore, rejected. Considering that
the charge has been framed and the principal witnesses are a child and
her immediate family members, the learned Special Court shall accord
priority to the trial and endeavour to record their evidence

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           expeditiously, without granting unnecessary adjournments to either
           side and by observing the safeguards prescribed under the POCSO Act.

           15.     It is clarified that the observations made in this order are
           prima facie and confined to the consideration of the present bail
           application. The learned Special Court shall decide the case solely on
           the evidence adduced before it and shall not be influenced by any
           observation made herein.



                                                    (HITEN S. VENEGAVKAR, J.)
JPChavan




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