DNA Clears Accused but True Perpetrator Unknown: J&K HC Orders SIT Probe in POCSO Rape Case

The Jammu & Kashmir High Court refused to quash the FIR but directed an SIT after DNA evidence excluded the accused as the biological father of the minor victim’s child, finding the investigation slipshod and the true perpetrator entirely unidentified.

The High Court of Jammu & Kashmir and Ladakh at Jammu has directed the Inspector General of Police, Jammu, to constitute a Special Investigating Team (SIT) to identify the true perpetrator in a POCSO and rape case where the charge sheet itself recorded that DNA profiling excluded the accused as the biological father of the minor victim’s deceased infant. Justice Rajnesh Oswal, sitting singly, declined to quash FIR No. 116 of 2022 registered at Police Station Katra but found the investigation so deficient that the court could not remain a passive onlooker. The charge sheet had been filed, in the court’s assessment, with undue haste and seemingly to foreclose the accused’s right to default bail, while the identity of the actual perpetrator remained altogether unresolved.

The FIR and the Families Behind It

The case has its roots in 2011, when a couple — referred to in the judgment as Mr. Y and Mrs. Z — migrated from Panjar, District Udhampur, to Katra with their minor children to work as labourers. The mother of the petitioner, Shani Devi, provided them shelter in exchange for household work. Mrs. Z died in 2014 during childbirth; Mr. Y died in 2018. The couple left behind five children, four daughters and one son, with no relatives willing to adopt or care for them.

In February 2021, two of the daughters, including Respondent No. 2 (the minor victim, whose identity is protected), left Katra ostensibly to check whether paternal cousins were disposing of family land in Panjar. On the way, they met their step-maternal grandfather, Balak Ram, who offered to take them to their paternal uncle’s house. Both girls stayed at Balak Ram’s residence for approximately 15 to 20 days.

According to the account of the other sister, Balak Ram, while heavily intoxicated, one night attempted to outrage her modesty. She fled and returned to Katra the next morning, urging Respondent No. 2 to come with her. Respondent No. 2 chose to stay. She continued to reside with Balak Ram until February 2022, during which period she gave birth to a female infant.

Upon learning of the birth, the victim’s paternal cousin, Shailu Ram, filed a complaint at Police Station Panchari alleging that Balak Ram had raped Respondent No. 2, caused her pregnancy, and arranged for the delivery in a forest. Despite this complaint, the police took no action against Balak Ram.

On 23 April 2022, Balak Ram brought Respondent No. 2 to Police Station Katra and lodged a complaint in Urdu alleging that the petitioner, Pawan Kumar @ Raja, had raped her and threatened her with death if she revealed his identity, forcing her to flee to her grandfather’s home where she delivered the child. FIR No. 116 of 2022 was registered against the petitioner under Section 3/4 of the Protection of Children from Sexual Offences (POCSO) Act, 2012 read with Sections 376 and 506 of the Indian Penal Code.

The Petition for Quashing and the DNA Evidence

The petitioner approached the High Court under Section 482 of the Code of Criminal Procedure seeking quashing of the FIR. His central argument was that the charge sheet itself contained the DNA profiling result, which excluded him as the biological father of the deceased infant. He contended that Balak Ram, anticipating arrest for the crime, engineered the presentation of Respondent No. 2 at Police Station Katra to falsely implicate him.

The prosecution’s investigation had proceeded as follows. The victim’s statement was recorded under Section 164 of the CrPC before the Additional Special Mobile Magistrate, Reasi. An age determination examination at Government Hospital, Sarwal, Jammu placed her age between 15 and 17 years at the time of examination. The infant died on 12 July 2022 due to dehydration at SMGS Hospital, Jammu. On 15 July 2022, DNA extraction of the deceased infant was conducted at GMC, Jammu. Two exhibits were prepared — Exhibit A (humerus bone) and Exhibit B (hair samples with roots) — sealed and forwarded to the FSL, Srinagar. Following the petitioner’s arrest on 11 February 2024, his blood sample was sent to FSL, Srinagar, for comparison. The DNA profile report excluded the petitioner as the biological father.

The prosecution nonetheless filed the charge sheet. A Coordinate Bench of the High Court, by order dated 8 May 2024, permitted the Investigating Officer to file the charge sheet but restrained the trial court from taking cognizance until further orders.

The Government Advocate, Mr. Sumeet Bhatia, appearing for Respondent No. 1, argued that the DNA exclusion could not nullify the victim’s statutory deposition recorded under Section 164 CrPC. He submitted that the ocular testimony of a victim of sexual assault stands on its own footing and the FIR could not be quashed solely on the basis of scientific evidence.

The Court’s Assessment of the Investigation

Justice Oswal did not accept the petitioner’s prayer for quashing, but the court’s findings on the quality of the investigation were pointed. The charge sheet itself recorded that the DNA profile excluded the petitioner as the biological father. Despite this, the Investigating Officer filed no steps to identify the actual perpetrator.

The court observed that the Investigating Officer filed the charge sheet “with undue haste, seemingly for the sole purpose of precluding the petitioner from obtaining default bail.” It found that the identity of the individual responsible for sexually exploiting the minor victim and causing her pregnancy remained “altogether shrouded in mystery.”

The court acknowledged that Respondent No. 2 is a minor who was subjected to sexual assault resulting in pregnancy and the birth of a child. Since it had been established that the petitioner did not father the child, the court held that the true perpetrator had to be identified. Remaining passive, it said, would allow the actual culprit to escape and elude the process of law.

To support the exercise of its inherent jurisdiction to direct further investigation even after a charge sheet has been filed, the court relied on Devendra Nath Singh v. State of Bihar, (2023) 1 SCC 48, where the Supreme Court had held that the High Court’s powers under Section 482 CrPC extend to ordering further investigation or reinvestigation in exceptional cases where the investigation has not proceeded in the proper direction, and that Section 173(8) CrPC does not limit those powers. The court noted that such powers are to be exercised sparingly and with circumspection, but the facts here warranted their exercise.

Directions Issued

Justice Oswal directed the Inspector General of Police, Jammu, to constitute an SIT within seven days of receipt of the order. The SIT is to be headed by an officer not below the rank of Superintendent of Police and is tasked with further investigating the matter to unearth the identity of the true perpetrator responsible for sexually exploiting the minor victim.

The learned Sessions Judge, Reasi, was directed to return the charge sheet to the SHO, Police Station Katra, for further investigation in accordance with the court’s directions.

The prayer for quashing FIR No. 116 of 2022 was declined at this stage.

Order

The petition was disposed of on 22 May 2026. The IGP, Jammu, was directed to file a status report on compliance with the court’s directions by 29 June 2026, on which date the matter is to be listed before the Registry. Copies of the order were directed to be forwarded to the IGP Jammu, SHO Police Station Katra, and the learned Sessions Judge, Reasi, for compliance. The petitioner, Pawan Kumar @ Raja, remains on bail.