J&K High Court Grants Bail in POCSO Case Where Prosecutrix Turned Hostile and Age Remained Disputed

Justice Sanjay Dhar held that a positive DNA report alone cannot justify continued incarceration when the prosecutrix denied the assault before the trial court and her age at the time of the alleged incident remained genuinely debatable.

The High Court of Jammu & Kashmir and Ladakh at Srinagar has granted bail to Mohammad Ashraf Sheikh, one of four accused charged under Section 64 of the Bharatiya Nyaya Sanhita (BNS) and Sections 4 and 6 of the Protection of Children from Sexual Offences (POCSO) Act, arising out of FIR No. 13/2025 registered with Police Station Herpora, Shopian. Justice Sanjay Dhar, sitting singly, held that although the DNA profiling report positively linked the petitioner to the child born to the prosecutrix, that fact could not be viewed in isolation at the bail stage. The prosecutrix had turned hostile during trial, the question of her age at the time of the alleged incident had become a live dispute on the record, and most material witnesses had already been examined — materially reducing any tampering risk.

The FIR and the Prosecution Case

On 19 April 2025, PW-1, the brother of the prosecutrix, lodged a report with the police after accompanying his sister to a hospital at Pulwama following complaints of back pain. The examining doctor found the prosecutrix to be nine months pregnant. She delivered a female child in the labour room that same day. The initial report described the perpetrator as unknown.

FIR No. 13/2025 was registered for offences under Section 64 of BNS and Section 4 of the POCSO Act. During investigation, DNA samples of the new-born child were collected. The prosecutrix was taken before the Child Welfare Committee, Shopian, and subsequently returned to her family. A school date-of-birth certificate placed her age as 01.01.2007, indicating she was just below 18 years at the time she became pregnant.

The prosecutrix gave her first statement before a Magistrate under Section 183 of the Bharatiya Nagarik Suraksha Sanhita (BNSS) on 21 April 2025, naming one Arshad Manhas, described as a cook at a Darasgah where she was studying the Quran, as the sole perpetrator. She stated he had repeatedly compelled her and eventually committed rape, resulting in her pregnancy.

The Second Statement and Arrest of Four Accused

The prosecutrix later told the police that her first statement was made when she was not in good health and she wished to record a fresh one. On 2 May 2025, she made a second statement before a Magistrate under Section 183 of BNSS naming four persons: the petitioner Mohammad Ashraf Sheikh, Arshad Mohammad Khan, Rashid Yousuf, and Ghulam Nabi @ Irshad Molvi.

In that statement, she described the petitioner arriving at her home when she was alone and raping her. She also described separate incidents involving the other three accused, each connected to the Darasgah or its surroundings. She stated she had not disclosed any of this to her family because Irshad Molvi was her teacher and the Imam of the local mosque, and disclosure would have brought shame upon them.

All four accused were arrested after being identified by the prosecutrix. Their DNA samples were collected along with a sample from the new-born baby. The DNA profiling report showed that the petitioner's sample matched the DNA of the baby girl, while the samples of the other three accused did not. Following investigation, offences under Section 64 of BNS and Sections 4 and 6 of the POCSO Act were found established against all four accused.

The Principal Sessions Judge, Shopian, framed charges against the petitioner and co-accused on 4 September 2025.

Prosecutrix and Her Brother Turn Hostile at Trial

During the trial, the statement of the prosecutrix was recorded before the trial court. She turned entirely hostile. She denied having been raped by any of the four accused and stated she did not recognise any of them. She claimed she had merely experienced stomach pain and had been taken to hospital by her brother, where she was given medicine. She said she remained unconscious for three days.

On cross-examination by the Public Prosecutor, she denied visiting the Darasgah and denied knowing anyone by the name of Mohammad Arshad Manhas or Arshad Molvi. She stated that the statements she made before the Magistrate during investigation were given at the behest of the police and not out of her free will.

On cross-examination by the defence, she stated she was compelled by the police to make a false statement. She denied that any child was born to her. She further stated that the date of birth recorded in her school certificate as 01.01.2007 was not correct, because her father had disclosed a lesser age when admitting her to school. She said she was above 18 years of age at the time of the alleged incident and that she was now married and above 19 years old.

PW-1, the complainant brother, was similarly declared hostile. He stated that it was incorrect that his sister was pregnant, that the medical record to that effect was not correct, and that his sister was 18 or 19 years old at the relevant time. He denied any knowledge of a pregnancy.

The trial court had, by order dated 2 April 2026, declined the petitioner's bail application, relying primarily on the DNA profiling report and distinguishing the petitioner's case from those of the other co-accused against whom DNA did not match.

Arguments Before the High Court

The petitioner's counsel argued that with the prosecutrix and her brother having turned hostile, there was no prima facie material connecting him to the alleged crime. Counsel contended that a DNA profiling report, which remains subject to proof of the manner in which samples were collected, preserved, transmitted and analysed, could not by itself justify indefinite incarceration. It was further submitted that the prosecutrix had repeatedly changed her versions during investigation and at trial, that she had admitted being a major at the time of the alleged incident, and that the POCSO offences were therefore not made out at all against the petitioner.

The State contested bail, submitting that the petitioner faced charges of a heinous nature, that the DNA report was highly reliable evidence establishing him as the biological father of the child born to the prosecutrix, and that enlarging him on bail would prejudice the fair trial of the case.

The prosecutrix was made a party to the proceedings; despite service, no one appeared on her behalf.

How the Court Reasoned Through DNA Evidence and Statutory Presumption

Justice Sanjay Dhar set out the principles governing bail, including gravity of the offence, risk of flight, risk of witness tampering, prima facie satisfaction of the charge, stage of proceedings, and the larger public interest. He then turned specifically to the POCSO Act's evidentiary framework.

Section 29 of the POCSO Act raises a presumption of guilt against a person prosecuted for offences under Sections 3, 5, 7 and 9 of that Act, unless the contrary is proved. Section 30 raises a presumption of culpable mental state. The Court noted that charges had been framed and the statutory presumption under Section 29 was therefore operating against the petitioner. However, Justice Dhar held that the presumption is rebuttable in nature and that an accused is well within his rights to point to material — including evidence emerging from cross-examination during trial — that the foundational facts giving rise to the presumption are prima facie not established, or that trial evidence has rebutted the presumption. He also noted that there is no statutory bar on bail under the POCSO Act and that each case must be considered on its own facts.

On the DNA report, the Court accepted that it constituted strong incriminating scientific material and that DNA evidence is a substantive piece of evidence as a matter of settled law. But it qualified this immediately: the report is subject to proof of the manner in which the sample was collected, preserved, transmitted and analysed. At the bail stage, it could not be viewed in isolation.

The Court observed that the DNA evidence may, prima facie, establish a biological sexual contact, but by itself it does not establish the absence of consent — which is an essential element of the offence alleged. The evidentiary value of the DNA profiling report as against the testimony of the prosecutrix would require full appreciation of evidence at trial. The prosecutrix in her statement before the trial court had not attributed the alleged sexual assault to the petitioner and had in fact denied his involvement altogether.

On the age question, Justice Dhar found the issue genuinely contestable. The school certificate placed the date of birth as 01.01.2007, indicating the prosecutrix was just under 18 at the time she became pregnant. But in her statement before the trial court, she categorically stated she was about 19 years old at the time of making the statement and above 18 at the time of the alleged incident. Even in the statement recorded before the Magistrate during investigation, she had stated she was above 18. Her brother similarly stated she was 18 or 19 at the relevant time and that her father had disclosed a lesser age when admitting her to school — a fact confirmed by the prosecutrix herself.

The Court held that this material on record contradicts the school-certificate date of birth and makes the question of whether the prosecutrix had attained majority at the time of the incident a debatable one. This, the Court said, had to be taken into account for the limited purpose of deciding the bail application.

Taken together — the hostile testimony of the prosecutrix, the contested age question, and the fact that sexual contact by itself does not prove absence of consent — Justice Dhar held that a prima facie case for bail was made out. He also noted that most material witnesses, including the prosecutrix and her brother, had already been examined by the trial court, so there was little practical risk of the petitioner tampering with prosecution evidence if enlarged on bail.

Outcome

Bail Application No. 84/2026 was allowed. The petitioner Mohammad Ashraf Sheikh was admitted to bail subject to four conditions: furnishing a personal bond of Rs. 50,000 with two sureties of the like amount to the satisfaction of the trial court; appearing before the trial court on each and every date of hearing until conclusion of trial; not leaving the territorial limits of the Union Territory of Jammu & Kashmir without prior permission of the trial court; and not intimidating or tampering with prosecution witnesses or evidence.

The Court expressly clarified that the observations made in the order are confined to the decision of the bail application and shall not be construed as an expression of opinion on the merits of the case. The trial before the Principal Sessions Judge, Shopian, continues.