IMPORTANT POINTS
(1) Bail application – In case of non-bailable offences which do not carry a sentence of death or imprisonment for life in alternative, bail is a rule and its denial an exception.
(2) Presumptions under Sections 29 and 30 of POCSO Act are not absolute but are rebuttable presumptions – Such provisions of Act are to be considered at conclusion of trial and they do not operate as bar for grant of bail.

JUDGMENT

The instant bail application has been filed under the provisions of Section 483 of Bharatiya Nagraik Suraksha Sanhita, 2023, [hereinafter referred to as ‘BNSS, for short], corresponding to Section 438 of the repealed Code of Criminal Procedure, 1973, [hereinafter referred to as ‘ Code’ for short], for grant of bail in favour of the petitioner/accused in case FIR No. 116/2022 of Police Station, Katra, the investigation wherein has already culminated into the filing of final police report/challan filed before the court of learned Principal Sessions Judge, Reasi [hereinafter referred to as ‘the Trial Court’] in terms of the provisions of Section 193 of the BNSS, corresponding to Section 173 of the Code under sections 376, 506 IPC and 3/4 of Protection of Children from Sexual Offences Act 2012, [herein referred to as ‘POCSO Act’] pursuant to the dismissal of his earlier bail application by the Trial Court.

2. The bail has been sought on the grounds that petitioner/accused has been falsely and frivolously involved in the case FIR No. 116/2022 of Police Station, Katra, registered under Sections, 376,506 IPC and 3/4 of POSCO Act, which has culminated in the filing of final report/challan pending before the learned Trial Court. That an earlier bail application filed for and on behalf of the petitioner/accused before the learned Trial Court on 14th February, 2024, came to be dismissed by the learned Trial Court vide Order dated 8th June, 2024 as being non-maintainable on the ground that this Court in a criminal petition filed under Section 482 of the Code, corresponding to Section 528 of the BNSS, stayed the process of taking cognizance on the final report/challan while allowing the presentation of the same vide Order dated 8th May, 2024. That aggrieved by the Order dated 8th June, 2024, passed by the learned Trial Court while dismissing the bail application, the petitioner/accused approached this Court with a bail application bearing No. 133/2024 and this Court, vide Order, dated 21st June, 2024, set-aside the Order dated 8th June, 2024, of the learned Trial Court, directing for adjudication of the bail application on merits. That the learned Trial Court pursuant to the Order dated 21st June, 2024, of this Court heard the bail application afresh and disposed of the same on merits while dismissing the same vide Order dated 10th July, 2024, which necessitated the filing of instant bail application. That the medical evidence, FSL opinion and more especially, the DNA Analysis Report have ruled out the involvement of the petitioner/accused in the commission of alleged crime. That basically a couple, namely, “X” [husband] and “Y” [wife] residents of Panjar District Udhampur along with their minor children came to Katra in the year 2011 in search of their employment as labourers/private workers on account of their extreme poverty. That the mother of the petitioner/accused gave them shelter and in lieu of the same, Mrs. “Y” used to attend the house hold works of the mother of the accused when “X” used to go for begging at Railway Track, out of which amount the major portion was used to be taken by the mother of the accused. That “Y” while giving birth to her 5th child in the year 2015 expired and later on her husband “X” also died in the year 2018. That the children of the deceased couple consisting of four daughters and one son continued to live with mother of the accused even after the death of their parents as none of their relatives came forward to own them. That in February, 2021, two daughters of the deceased couple including the prosecutrix ran away from Katra on the pretext of seeing their land at their parental village Panjar, Udhampur, as they came to be informed by some villagers that their parental uncles are going to sell out their share in the land also. That while going to their native village Panjar, Udhampur, they met their step maternal grandfather and thereafter both the girls stayed at his residence for 15 to 20 d