DNA Evidence and Vacillating Testimony Rebut POCSO Presumption, J&K HC Grants Bail to Fourth Accused

The Jammu & Kashmir High Court admitted the fourth accused in a POCSO gang-rape case to bail after DNA profiling found no foreign DNA and the victim retracted her implication of co-accused during trial, making the statutory presumption of guilt rebuttable at the bail stage.

Justice Sanjay Dhar, sitting singly at the High Court of Jammu & Kashmir and Ladakh at Srinagar, on 31 July 2026 allowed the bail application of Nisar Ahmad Joo, the fourth accused in a case registered under Section 137(2) and Section 64 of the Bharatiya Nyaya Sanhita and Sections 3 and 4 of the Protection of Children from Sexual Offences Act. The case arises from FIR No. 45/2024 registered with Police Station M.R. Gunj, Srinagar, and is pending before the Special Judge, POCSO Cases, Srinagar. The court found that DNA analysis detected no foreign DNA in the victim’s samples, the prosecutrix had materially retracted her earlier statements during trial, and the trial court had failed to analyse the prosecutrix’s testimony even for the limited purpose of the bail application.

Facts That Led to the FIR and the Petitioner’s Arrest

On 11 November 2024, the father of the victim, Ms. X, filed a written complaint with Police Post, Urdu Bazar, Srinagar, reporting that his daughter, born on 25 November 2008, had been missing since 8 November 2024. FIR No. 45/2024 was registered under Section 137(2) of the BNS with Police Station M.R. Gunj.

Ms. X was recovered by her maternal uncle on 17 November 2024 from the Sunday Market at Lal Chowk, Srinagar. A preliminary enquiry revealed that she had allegedly been forcibly raped by four different persons at four different places on four different dates. Medical examination at Government Lal Ded Hospital, Srinagar, found her hymen ruptured. DNA samples and vaginal swabs were collected, and her statement under Section 183 of the Bharatiya Nagarik Suraksha Sanhita was recorded by a Judicial Magistrate.

In that statement, Ms. X described a sequence of events after she left home with friends on a bike. She named accused Mohammad Ashraf Sheikh (alias Ashu), accused Chaman Lal, and accused Basharat Ahmad Shora as persons who had committed sexual assault upon her. She also described an “uncle type person” who, she alleged, took her to a hotel near Zero Bridge, Srinagar, and forcibly raped her. This person was later identified as the petitioner, Nisar Ahmad Joo.

Three accused persons — Mohammad Ashraf Sheikh, Chaman Lal, and Basharat Ahmad Shora — were arrested between 18 November and 29 November 2024. Test identification parades for all three were conducted in the presence of an Executive Magistrate, First Class, Khanyar, before independent witnesses. Call Data Records, CCTV footage from the relevant hotel, and bank details of Basharat Ahmad Shora were collected during investigation. It was found that Basharat Ahmad Shora had paid an amount to the hotel manager at the location of the alleged assault.

A challan was presented against the three accused before the Special Court, which framed charges on 10 February 2025. Nisar Ahmad Joo was arrested later, on 8 May 2025, after further investigation. His test identification parade was also held before the Executive Magistrate, First Class, Khanyar. A supplementary challan was filed against him, and charges under Section 137(2) and Section 64 of the BNS and Sections 3 and 4 of the POCSO Act were framed against him by the Special Court on 17 July 2025.

Bail Denied by Trial Court; Co-Accused Released by High Court

The petitioner approached the trial court for bail, but his application was rejected by order dated 19 February 2025. The trial court reasoned that his case stood on a different footing because the prosecutrix had supported the prosecution version specifically regarding his role.

By contrast, the three co-accused — Mohammad Ashraf Sheikh, Chaman Lal, and Basharat Ahmad Shora — were enlarged on bail by the High Court itself, by a judgment dated 26 November 2025 in Bail Application Nos. 115 to 117 of 2025.

The petitioner then filed Bail App No. 18/2026 before the High Court. The State contested the application on the ground that the prosecutrix had supported the prosecution in court, the offences were heinous, and there was a risk of witness tampering since statements of other witnesses remained to be recorded.

Whether a Successive Bail Application Before the High Court Was Maintainable

The State raised a preliminary objection: since the trial court had already rejected the petitioner’s bail application post-charge sheet, and there was no change of circumstances, the present application was not maintainable.

The court rejected this objection in clear terms. Relying on the Supreme Court’s decision in Gurcharan Singh & Ors v. State (Delhi Administration), AIR 1978 SC 179, and the Bombay High Court’s decision in Devi Das Raghu Nath Naik v. State, (1987) 3 Crimes 363, the court held that rejection of a bail application by a Sessions Court does not bar the High Court from entertaining a similar application under Section 439 of the Code of Criminal Procedure or Section 483 of the BNSS on the same facts and for the same offence. A superior court may always entertain a successive bail application where the earlier rejection was by an inferior court.

Section 29 of the POCSO Act: Presumption of Guilt and Its Rebuttability

Because charges had been framed against the petitioner, Section 29 of the POCSO Act raised a statutory presumption of guilt for offences under Sections 3 and 5 of the Act. Section 30 separately raises a presumption of culpable mental state. The court acknowledged both presumptions applied but emphasised that they are rebuttable.

The court laid down the applicable principle: an accused may bring to the court’s notice material showing that the foundational facts giving rise to the presumption are not prima facie established, or that evidence led during trial — including through cross-examination or defence evidence — rebuts the presumption. The court also confirmed that there is no statutory bar on granting bail in POCSO cases, and each case must be considered on its own facts.

The court set out the standard bail considerations: gravity of the offence, the accused’s position relative to the victim and witnesses, flight risk, risk of evidence tampering, possibility of repetition of the offence, prima facie satisfaction on the charge, stage of investigation, and larger public interest.

Contradictions in the Prosecutrix’s Testimony and the DNA Report

The petitioner’s counsel pointed to what the court ultimately accepted as major inconsistencies. In her statement under Section 183 of the BNSS, Ms. X had named Mohammad Ashraf Sheikh, Chaman Lal, and Basharat Ahmad Shora as persons who had sexually assaulted her, and had also implicated an “uncle type person” later identified as the petitioner. However, during the trial, she exonerated all three named co-accused entirely.

In her further statement made after the filing of the supplementary charge sheet against the petitioner, Ms. X stated that she did not want any action against anybody, that she wanted the case to be dismissed, and that she had no grievance against the petitioner. Even Ms. X’s father, in his further statement after the supplementary charge sheet was filed, did not support the prosecution’s version regarding the petitioner’s involvement.

On scientific evidence, the court noted that DNA profiling of the vaginal swab from the victim did not reveal the presence of any foreign DNA. The expert report confirmed that DNA profiles from samples marked B-1556-24 and B-1561/24 were consistent with each other and originated from the same human female. The medical report recorded no marks of violence on the victim’s private parts and no evidence of recent sexual intercourse.

The court observed that the prosecutrix’s vacillating stand at various stages — from investigation to trial — offered a sound defence to the charge and made out a case for bail. Without commenting on whether the contradictions would ultimately render her testimony unreliable at trial, the court found the material sufficient to hold that the statutory presumption under Section 29 of the POCSO Act stood rebutted at the bail stage.

The Trial Court’s Error in Refusing Bail

The High Court found that the trial court had erred by failing to analyse the prosecutrix’s statement even for the limited purpose of deciding the bail application. This omission, the court held, rendered the trial court’s order rejecting bail unsustainable in law.

On the State’s argument that the petitioner posed a risk of tampering with witnesses, the court noted that the victim and her near relations had already been examined during trial. The court found no real risk of tampering at this stage.

The court also addressed the severity of the charge. It held that the mere fact that the petitioner faced trial for offences carrying punishment up to life imprisonment was not a sufficient ground to deny bail when his prima facie involvement was highly doubtful. “Concession of bail…cannot be denied just to teach him a lesson or to satisfy the conscience of the society” as that would amount to pre-trial punishment, which the court held is impermissible in law. The petitioner had been in custody for about one year at the time of the order.

Order

The High Court allowed Bail App No. 18/2026 and admitted Nisar Ahmad Joo to bail subject to the following conditions:

• He shall furnish a personal bond of Rs. 50,000 with two sureties of the like amount, to the satisfaction of the trial court.
• He shall appear before the trial court on each and every date of hearing until the conclusion of the trial.
• He shall not leave the territorial limits of the Union Territory of Jammu & Kashmir without the prior permission of the trial court.
• He shall not intimidate or tamper with prosecution witnesses or evidence.

The court clarified that all 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.