Reliance on Unproven DNA Report at Pre-Trial Bail Stage Not Conclusive, Bombay HC Grants Bail in POCSO Case - 2025-04-25

Bombay High Court Grants Bail in POCSO Case, Holds Unproven DNA Report Not Conclusive at Pre-Trial Stage

Mumbai: The Bombay High Court recently granted bail to an individual accused under serious sections of the Indian Penal Code and the Protection of Children from Sexual Offences (POCSO) Act, emphasizing that a DNA report, while significant, is merely opinion evidence and cannot be treated as conclusive proof at the pre-trial bail stage, especially when its reliability has not been tested through trial. The court also considered the extensive period of incarceration already served by the applicant and prima facie discrepancies in the prosecution's case.

Justice Milind N.Jadhav presided over the bail application filed under Section 439 of the Code of Criminal Procedure, 1973, concerning a case registered at Koparkhairane Police Station for offences under Section 376(3) IPC and Section 6 of the POCSO Act.

Case Background and Allegations

The case stems from an FIR lodged on July 3, 2022, by the mother of the prosecutrix. It was alleged that the applicant, a cousin of the minor victim, committed sexual assault on her during visits to his house in Koparkhairane between January 26, 2022, and February 2, 2022. The victim reportedly discovered she was pregnant in early July 2022, leading to a medical checkup and the subsequent FIR.

A key piece of evidence cited by the prosecution was a DNA report dated January 5, 2023, which concluded that the applicant and the prosecutrix were the biological parents of the fetus's femur bone sample. The applicant was arrested on July 22, 2022, and had been in custody for nearly two years and nine months pending trial, which had not yet commenced.

Defence and Prosecution Arguments

Ms. Sana Shaikh, counsel for the applicant, argued for bail primarily on three grounds: the applicant's long incarceration pending trial, the nature of the DNA report as mere opinion evidence requiring proof at trial, and prima facie discrepancies in the prosecution's narrative. She submitted that relying solely on the DNA report at the bail stage would amount to a pre-trial judgment. She also highlighted the victim's significant delay (January to July 2022) in reporting the alleged incidents and questioned the feasibility of the first alleged assault occurring at night in a small room where other family members (applicant's sister and niece) were also sleeping. She pointed out that statements of the sister and niece did not corroborate the victim's version.

Conversely, Ms. Mahalakshmi Ganapathy, APP for the State, and Ms. Priyanka Chavan , advocate for the victim's mother (appointed through legal aid), vehemently opposed bail. They contended that the victim's word carried a presumption of truth, especially in POCSO cases, and should be believed unless disproven at trial. They placed substantial reliance on the positive DNA report as prima facie establishing the applicant's involvement. They also expressed concerns about the applicant potentially influencing or tampering with evidence and witnesses if released, given his relationship to the victim. Ms. Chavan cited the presumption under Section 29 of the POCSO Act, arguing that a positive DNA report at the pre-trial stage created a strong prima facie case that necessitated rejection of bail.

Court's Assessment of Evidence and Legal Principles

Justice Jadhav carefully considered the arguments and evidence on record. The Court noted prima facie discrepancies regarding the alleged dates of the incidents (FIR vs. medical report) and the duration of the victim's stay at the applicant's house, based on contrasting statements from the victim and other family members present.

Crucially, the Court delved into the weight to be attached to the DNA report at the pre-trial bail stage. Referring to its own decision in Niraj Uttam Kate Vs. The State of Maharashtra and Anr. and various Supreme Court precedents ( Pattu Rajan , Manoj , Prakash Nishad , Rahul ), the Court reiterated that DNA evidence is opinion evidence, not infallible, and its probative value depends on the specific facts and circumstances, requiring formal proof during the trial. The Court highlighted concerns about sample collection, preservation, and potential contamination. It also observed an unexplained delay in the commencement and completion of the DNA analysis itself.

> "In so far DNA Report is concerned and the weightage to be required to be given to the DNA Report at the interim stage of bail when the DNA Report has been placed on record and not proved in accordance with law, in the case of Niraj Uttam Kate (1st supra), this Court while dealing with an identical proposition for considering positive DNA Report at the bail stage after referring to various citations of the Supreme Court and High Court noted as follows: '...like all other opinion evidence, the probative value accorded to DNA evidence also varies from case to case... we have not yet reached a juncture where it may be said to be infallible... Notably the reliance DNA test result was to corroborate... being an opinion, the probative value of such evidence has to vary from case to case.'"

The Court stressed that accepting the DNA report as conclusive at this stage without the applicant having an opportunity to contest and challenge it at trial would be detrimental to his case and pre-judge the matter.

Regarding the presumption under Section 29 of the POCSO Act, the Court clarified that while the presumption exists, it is not absolute. Citing decisions from the High Court of Kerala ( Joy Vs. State of Kerala , XXXXXX Vs. State of Kerala ), the Court held that the presumption only comes into play when the prosecution establishes the foundational facts. It does not mean the prosecution's version is automatically accepted as gospel truth, especially when there are patent absurdities, inherent infirmities, or improbabilities evident from the record. The Court noted that prima facie doubts were raised by the delay in reporting, the presence of other family members during the alleged incidents, and the contradictory statements.

> "This Court is not oblivious of the fact that there is a statutory presumption under Section 29 of the POCSO Act. However it does not mean that the prosecution version has to be accepted as gospel truth in every case. Presumption does not mean that the Court cannot take into consideration prima facie facts of the particular case which are evident from the face of record. Court is of the opinion that presumption would come into play only when prosecution is able to bring on record facts that would form the foundation for the presumption... The presumption under Section 29 of the POCSO Act is not absolute."

Finally, the Court took into account the long period of incarceration (2 years 8 months 25 days) and the uncertainty regarding the commencement and conclusion of the trial.

Decision and Conditions

Based on these prima facie observations, the Court concluded that the applicant was entitled to be enlarged on bail. The Bail Application was allowed, subject to specific terms and conditions, including furnishing a personal bond, reporting to the Investigating Officer when required, attending the trial court periodically to mark presence, cooperating with the trial, not leaving Maharashtra without permission, and refraining from influencing witnesses or contacting the victim.

The Court explicitly stated that the observations made in the bail order were limited to the purpose of granting bail and should not influence the trial court's decision on the merits of the case, which must be based solely on the evidence presented during the trial.

The judgment underscores the principle that while scientific evidence like DNA reports is important, its full weight is only realized after it is formally proved and subjected to scrutiny during a criminal trial, and that other factors like procedural delays, discrepancies in evidence, and the period of pre-trial detention remain crucial considerations in deciding bail applications, even in serious cases under the POCSO Act.