'DNA Report Not Conclusive Proof Of Absence Of Consent': J&K High Court Grants Bail To Accused In POCSO Case After Prosecutrix Turns Hostile

"DNA evidence may, prima facie, establish a biological sexual contact, but it, by itself does not establish the absence of consent, which is an essential element of offence alleged." High Court of Jammu & Kashmir and Ladakh, in a significant ruling, held that while a DNA profiling report constitutes strong scientific evidence connecting an accused to biological material, it cannot be viewed in isolation when determining bail, particularly when the prosecutrix has categorically denied the allegations in court.

A bench of Justice Sanjay Dhar observed that even strong forensic evidence does not automatically satisfy the element of non-consent, which remains a core requirement for establishing the offences charged.

The petitioner, Mohammad Ashraf Sheikh, had approached the High Court seeking bail in a case registered under Section 64 of the Bharatiya Nyaya Sanhita (BNS) and Sections 4/6 of the POCSO Act. The prosecution case stemmed from a report lodged by the brother of the prosecutrix, alleging that his minor sister had been impregnated following sexual assault. While the petitioner’s DNA matched that of the child born to the prosecutrix, the prosecutrix and her brother subsequently turned hostile during the trial, denying the allegations and disputing the prosecutrix's age as recorded in school documents.

Court Examines Nature of DNA Evidence

The primary question before the court was whether the petitioner could be denied bail solely on the strength of a positive DNA report despite the prosecutrix and the complainant turning hostile. The court was also tasked with assessing the impact of the prosecutrix's statements regarding her age on the applicability of the POCSO Act.

Presumption of Guilt Is Rebuttable

The court noted that while Section 29 of the POCSO Act raises a statutory presumption of guilt, this presumption is not absolute. Justice Dhar clarified that it remains open for an accused to rebut this presumption by highlighting discrepancies in the prosecution's foundational facts or by relying on evidence emerging during cross-examination.

"There is no statutory bar to grant of bail in a case involving offences under the POCSO Act and each case has to be considered on its peculiar facts and circumstances."

Impact of Hostile Witnesses on Bail

The court highlighted that the testimony of the prosecutrix, who denied the sexual assault and retracted her earlier statements before the Magistrate, significantly alters the landscape of the case for the purpose of bail. The bench emphasized that the evidentiary value of the DNA report when contrasted with the prosecutrix's court testimony is a matter for final trial and not a factor that mandates continued incarceration at the interlocutory stage.

"The evidentiary value and effect of DNA profiling report vis-à-vis the testimony of the prosecutrix would require appreciation of evidence at trial."

Age and Consent as Debatable Issues

Addressing the allegations under the POCSO Act, the court observed that the prosecutrix and her brother have both testified that her official school date of birth is incorrect and that she was a major at the time of the alleged incident. The court ruled that this inconsistency regarding the prosecutrix's age, combined with the fact that she did not report the incident until after the birth of the child, creates a triable issue.

Low Risk of Tampering

The bench further reasoned that since the primary material witnesses, including the prosecutrix and her brother, have already been examined by the trial court, the risk of the petitioner tampering with evidence or influencing witnesses is significantly diminished. Consequently, the court granted bail, finding that the petitioner had made out a prima facie case for release.

The Court allowed the bail application, directing the petitioner to furnish a personal bond of ₹50,000 with two sureties of the same amount. The petitioner is mandated to appear before the trial court on every date of hearing and is prohibited from leaving the Union Territory of J&K without prior judicial permission. The court clarified that these observations are strictly confined to the bail proceedings and shall not influence the final adjudication of the trial.

Date of Decision: 18 August 2026