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J&K High Court Grants Bail In POCSO Case, DNA Report Cannot Prove Rape Without Consent
In a significant ruling, the granted bail to a man accused under the , holding that a —while a strong piece of scientific evidence—cannot by itself establish the , which is an essential element of the alleged offence. Justice Sanjay Dhar allowed the bail application of Mohammad Ashraf Sheikh, who had been charged under and after his DNA matched that of a child born to the prosecutrix.
The Facts That Unravelled
The case began in when the brother of a 17-year-old girl reported to the police that his sister complained of back pain and was taken to hospital, where doctors discovered she was nine months pregnant. She soon delivered a female child. During investigation, the prosecutrix initially named a man named Mohammad Arshad Manhas as the person who raped her. But in a second statement recorded in , she implicated four men, including the present petitioner, Mohammad Ashraf Sheikh, along with Arshad Mohd. Khan, Rashid Yousuf, and Ghulam Nabi @Irshad Molvi.
DNA samples of all four accused were collected and matched against the baby's sample. Only the petitioner's DNA matched, making him the biological father. The other three were excluded.
Trial Takes Dramatic Turn
When the trial began, the prosecution's case collapsed dramatically. The prosecutrix turned hostile, denying that any of the accused had raped her. She told the court she did not know the petitioner and claimed her earlier statements to the magistrate were made under police pressure. She also asserted she was over 18 years old at the time of the incident, contradicting the school certificate that recorded her birth as (making her just under 18 at the relevant time). Her brother, the complainant, also turned hostile and denied that his sister was ever pregnant.
Court's Legal Reasoning
The trial court had earlier rejected the petitioner's bail application, relying heavily on the DNA match. But the High Court took a broader view. Justice Dhar acknowledged the under , but noted that such presumptions are . He observed that at the , the court must consider all material on record, including the testimony of the prosecutrix and the disputed question of her age.
"The DNA evidence may,
, establish a
, but it, by itself does not establish the
, which is an
alleged,"
the court said. The judge emphasised that the of the DNA report vis-à‑vis the prosecutrix's testimony would require appreciation at trial, not at the .
The court also noted the contradictory evidence on the prosecutrix's age. While the school certificate put her below 18, she and her brother claimed she was over 18.
"Thus, there is material on record which contradicts the date of birth of the prosecutrix as shown in her school leaving certificate,"
Justice Dhar observed, adding that this made the applicability of the POCSO Act itself a debatable issue.
Bail Granted With Conditions
Since most of the material witnesses, including the prosecutrix and her brother, had already been examined, the court found little risk of the petitioner tampering with evidence if released. Consequently, bail was granted subject to the following conditions:
- A personal bond of ₹50,000 with two sureties of the like amount to the satisfaction of the trial court.
- Regular appearance before the trial court on each hearing date.
- No departure from the Union Territory of Jammu & Kashmir without prior permission.
- No intimidation or tampering with prosecution witnesses or evidence.
The court clarified that its observations were confined to the bail decision and would not influence the merits of the trial. The ruling underscores that scientific evidence, however strong, must be assessed alongside other evidence, particularly when the of the alleged crime are in dispute.
