IRSHAD AHMAD MALIK vs UNION TERRITORY OF J AND K AND ANR. (HOME)

IN THE HIGH COURT OF JAMMU & KASHMIR AND
LADAKH AT SRINAGAR
Reserved on: 31.08.2026
Pronounced on: 10.09.2026
Uploaded on: 10.09.2026
Whether the operative part or full
judgment is pronounced: Full
Crl R No.65/2025
IRSHAD AHMAD MALIK
...PETITIONER(S)/APPELLANT(S)
Through: - Mr. Sajad Ahmad Mir, Advocates.
Vs.
UT OF J&K & ANR.
…RESPONDENT(S)
Through: - None.
CORAM:
HON’BLE MR. JUSTICE RAJNESH OSWAL, JUDGE
JUDGMENT
1) Initially, the petitioner was convicted by the Court of
nd
2 Additional Sessions Judge, Srinagar (‘the trial court’), in
th
terms of the judgment dated 29 May, 2023, for
commission of offence under Section 376 RPC in the charge
sheet arising out of FIR No.33/2012 of Police Station,
Soura, Srinagar, and vide order dated 31.05.2023, was
sentenced to undergo rigorous imprisonment for a period of
ten years along with a fine of Rs.25,000/.
2) Aggrieved by the aforesaid judgment and order, the
petitioner preferred an appeal bearing CrlA(S) No.05/2023,
which was disposed of by the Coordinate Bench of this

2 Crl R No.65/2025
Court in terms of the judgment dated 27.12.2024 with the
following observations:
“16. In his statement under Section 342 of J&K Cr. P. C,
the appellant had taken a definite stand that he had
undergone sterilization and, as such, was incapable of
committing sexual intercourse and could not have
fathered a child. To rebut this defence of the appellant,
the prosecution examined Dr. Shabir Ahmad to prove
the certificate, EXC.W-1, but this certificate has not
been put to the appellant for his explanation. The
learned trial court, while recording conviction against
the appellant/accused, has used the aforesaid
certificate as evidence against him.
17. The omission on the part of the trial court to put the
aforesaid pieces of incriminating circumstances to the
appellant/accused for his explanation has caused
grave prejudice to him, which is a serious irregularity.
The question that arises for consideration is as to
whether on account of this irregularity, the appellant
deserves to be acquitted or the matter should be
remanded to the trial court for recording further
statement of the appellant/accused under Section 342
of J&K Cr. P. C
18. In the instant case, the incident has taken place in
the year 2012. Although 12 years have elapsed since
the date of the incident, yet we are dealing with a case
where allegation against the appellant/accused is
relating to sexual assault upon a minor girl, who, prima
facie, appears to have supported the prosecution
case. The only question which remains to be
determined is whether the prosecutrix, was minor at
the relevant time and whether the appellant/accused
was capable of performing sexual intercourse at the
relevant time. If the appellant/accused, in these
circumstances, is acquitted of the charge on the basis
of a technicality, it may result in failure of justice.
Conversely, if the appellant/accused is given a chance
to explain the material circumstances as indicated
hereinbefore, he will be able to put up his defence and
explain these circumstances and there would be no
failure of justice even from the perspective of the
appellant/accused.
19. In view of the fact that all the material
circumstances appearing in the prosecution evidence
have not been put to the appellant/accused while

3 Crl R No.65/2025
recording his statement under Section 342 of J&K Cr. P.
C, the impugned judgment of conviction and the order
of sentence passed by the learned trial court are set
aside. The case is remanded to the learned trial court
with a direction to record further statement of the
appellant/accused under Section 342 of the J&K Cr. P.
C for seeking his explanation regarding incriminating
circumstances appearing in the prosecution evidence,
as enumerated hereinbefore. After recording further
statement of the appellant under Section 342 of J&K Cr.
P. C, he shall be afforded an opportunity to produce
evidence in defence, whereafter the learned trial court
shall pass fresh judgment in accordance with the law.
The needful shall be done by the learned trial court
within a period of six months from the date a copy of
this judgment is received by it.”

3) As is evident, the matter was remitted to the learned
trial court for putting all the material circumstances
appearing in the prosecution evidence not put to the
petitioner while recording his statement under Section 342
of the J&K Cr. P. C. Further, the petitioner was to be
afforded an opportunity to produce evidence in his defence.
4) After the matter was remitted to the learned trial
th
court, the petitioner filed an application on 15 April, 2025,
seeking a DNA test of the child born to the prosecutrix, on
the ground that the DNA test is crucial for the just
determination of the case and is the most reliable method
for establishing or excluding paternity. Yet another
application came to be filed on 21.05.2025 to club the
th
aforesaid application with application dated 28 November,
th
2014, as it was urged that the application dated 28

4 Crl R No.65/2025
November, 2014 is still pending and has not been disposed
of by the court.
5) The learned trial court, however, in terms of order
th
dated 16 July, 2025, dismissed the applications preferred
by the petitioner, with an observation that the application
th
dated 28.11.2024 was already decided vide order dated 26
May, 2018 and in that view of the matter, successive
application for similar relief is not maintainable.
6) The petitioner has filed the instant petition thereby
th
assailing order dated 16 July, 2025, inter-alia , on the
ground that the trial court failed to properly appreciate the
significance of DNA evidence in determining the guilt or
innocence of the accused as DNA testing is crucial scientific
evidence that can either corroborate the prosecution case
or establish the innocence of the accused and is a key tool
to ensure truth and justice. It is also contended that the
petitioner was granted an opportunity by the Coordinate
Bench of this Court to lead evidence in his defence but the
learned trial court has failed to provide opportunity to the
petitioner to prove his innocence.
7) Heard learned counsel for the petitioner and perused
record of the case.

5 Crl R No.65/2025

8) The record depicts that an application was filed on
th
15 April, 2025 for conducting DNA test of the child born
to the prosecutrix. Another application came to be filed by
the petitioner for clubbing of the pending application along
th
with previous application filed by him on 28 November,
th
2014, which was disposed of in terms of order dated 26
May, 2018. Strangely, in the application filed before the
learned trial court, it was stated that the application filed
th
on 28 November, 2014 was not decided and pending,
whereas in para-10 of the petition, it is stated that defective
th
disposal of the earlier application vide order 26 May, 2018,
has created confusion.
9) In terms of the judgment passed by the Coordinate
Bench of this Court in the appeal preferred by the
petitioner, the matter was remanded to the learned trial
court for recording statement of the petitioner afresh after
putting all the incriminating circumstances appearing in
the prosecution evidence to him. The learned trial court in
th
terms of the impugned order dated 16 July, 2025 has
dismissed the aforesaid application on the ground that in
th
terms of the application filed by the petitioner on 18
November, 2014, composite relief for producing the child
before the Court and for issuance of direction for
conducting the DNA test, was sought and after seeking the

6 Crl R No.65/2025
objections from the prosecution, the application was
th
dismissed in terms of the order dated 26 May, 2018. The
learned trial court has observed that once the application
for similar reliefs stands dismissed, the successive
application would not be maintainable.
th
10) As is evident from the judgment dated 27 December,
2024, in the appeal preferred by the petitioner, the plea was
raised by the petitioner that his plea for DNA test was
denied by the trial court without cogent reasons, but still
the Coordinate Bench, while remitting the matter to the
learned trail court did not allow the prayer of the petitioner
for conducting DNA test. Rather, the Coordinate Bench of
this Court vide judgment dated 27.12.2024 has observed
that the only question which remains to be determined is
whether the prosecutrix, was minor at the relevant time and
whether the petitioner was capable of performing sexual
intercourse at the relevant time and bearing these two
issues in mind, the Coordinate Bench of this Court remitted
the matter to the learned trial court to record further
statement of the petitioner under Section 342 of the J&K
Cr. P. C and after recording of the statement, he be afforded
an opportunity to produce evidence in defence. The
judgments relied upon by learned counsel for the petitioner

7 Crl R No.65/2025
are not applicable in the facts and circumstances of the
present case.
11) Learned counsel for the petitioner has stated that the
statement of the petitioner has already been recorded. Now
the learned trial court has only to proceed in terms of the
th
judgment dated 27 December, 2024, and, of course, after
allowing the petitioner to produce evidence in defence but
under the garb of producing evidence in defence, the
petitioner cannot re-open the issue that stands already
adjudicated upon by the learned trial court in the earlier
application preferred by the petitioner.
12) After having examined the order passed by the learned
trial court, this Court does not find any reason to show
indulgence. The petition is found to be misconceived and
the same is dismissed accordingly.
(Rajnesh Oswal)
Judge

Srinagar,
10.09.2026
“Bhat Altaf-Secretary”

Whether the judgment is reportable: YES/NO