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 1 of 7 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 2 of 7 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 3 of 7 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 4 of 7 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 5 of 7 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 6 of 7 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 7 of 7