A positive DNA report establishing biological paternity is strong evidence but does not independently prove lack of consent; when combined with hostile witness testimony and disputes over the victim's age, the statutory presumption under the POCSO Act is sufficiently rebutted to justify the grant of bail.

JUDGMENT(ORAL)

1) The petitioner is seeking bail in a case arising out of FIR No.13/2025 for offences under Section 64 of BNS and Section 6/4 of POCSO Act registered with Police Station, Herpora Shopian, which is stated to be pending before the Court of Principal Sessions Judge, Shopian (hereinafter “the trial court”).

2) As per the prosecution case, on 19.04.2025, PW-1, brother of the prosecutrix, lodged a report with the police that his sister, who is aged about 17 years, complained about pain in her back whereafter he along with his brother took their sister to hospital at Pulwama. Upon examination, the doctor diagnosed that the prosecutrix is pregnant by nine months. The prosecutrix was taken into labour room of the hospital where she gave birth to a female child. In the report it was alleged that some unknown person has committed sexual intercourse with the prosecutrix.

3) On the basis of aforesaid report, FIR No.13/2025 for offences under Section 64 of BNS and 4 of POCSO Act was registered and investigation of the case was set into motion. During investigation of the case, DNA sample of the child born to the prosecutrix was taken. The prosecutrix and her new born daughter was taken to Child Welfare Committee, Shopian, whereafter she was questioned. The prosecutrix and the baby girl were handed over to the family of the prosecutrix. The date of birth certificate of the prosecutrix was obtained from the school and it was found that she was aged more than 18 years. The statement of the prosecutrix under Section 183 of BNSS was also recorded. In her statement, the prosecutrix alleged that one Arshad Manhas had committed sexual intercourse with her. However, later on she stated before the police that statement which she had made before the Magistrate on 21.04.2025 is not correct because she was not in proper health at that time and that she wants to get another statement recorded. On 02.05.2025, the second statement of the prosecutrix was recorded before the Magistrate in terms of Section 183 of BNSS, in which she named petitioner, (Mohammad Ashraf Sheikh), Arshad Mohd. Khan, Rashid Yousuf and Ghulam Nabi @Irshad Molvi, as the persons who had committed sexual intercourse upon her. The aforenamed four accused were arrested by the police after getting them identified by the prosecutrix and their DNA samples were also collected. The DNA sample of the new born baby was also collected. The report with regard to DNA samples was also obtained. After investigation of the case, offences under Section 64 of BNS and 4/6 of POCSO Act were found established against the petitioner and co-accused.

4) The prosecutrix in her first statement recorded under Section 183 of BNSS on 21.04.2025 has stated that she developed relations with one Mohammad Arshad Manhas, who was working as a cook in the Darasgah where she was taking lessons of Quran. She further stated that initially on a couple of occasions she refused to develop relations with him but he compelled her to maintain relations. She further stated that the said person used to visit her house and despite her objection, he committed rape upon her, as a result of which she got pregnant. She narrated this fact to the said person on phone but he said that he is helpless in the matter, whereafter he stopped taking her calls and he also stopped coming to her home. She further stated that after nine months and nine days, she gave birth to his daughter.

5) On 2nd May 2025, the prosecutrix made another statement before the Magistrate. In her said statement, she deposed that one day she was all alone in her house and the petitioner came over there and committed rape upon her. She further stated that she told the petitioner that she is unwell and thereafter he did come again to her house. She stated that afterwards accused Arshad Molvi, who was working as a cook in the Darasgah, asked him to keep relations with her. He also committed rape upon her. When she told him that she h