DNA evidence alone cannot establish non-consensual intercourse where the victim’s age and testimony are disputed.

The petitioner sought bail in FIR No. 13/2025 registered at Police Station Herpora, Shopian, for offences under Section 64 of the Bharatiya Nyaya Sanhita, 2023 and Sections 4/6 of the Protection of Children from Sexual Offences Act, 2012 (“POCSO Act”).

The FIR was lodged after the prosecutrix, stated initially to be about 17 years old, was taken to hospital with back pain and was found to be nine months pregnant, subsequently giving birth to a female child.

During investigation, the prosecutrix made two statements under Section 183 of the Bharatiya Nagarik Suraksha Sanhita, 2023: in the first, she implicated another individual; in the second, she implicated the petitioner and three co-accused.

The petitioner’s DNA profile matched that of the child, while the DNA profiles of the co-accused did not.

Charges were framed, and during trial the prosecutrix and her brother turned hostile.

The trial court rejected the petitioner’s bail application, principally relying on the DNA report.

Whether the petitioner was entitled to bail despite the DNA report prima facie establishing that he was the biological father of the child born to the prosecutrix?

Whether the prosecutrix’s hostile trial testimony, together with the disputed question regarding her age and the examination of material witnesses, constituted sufficient grounds for grant of bail?

Whether the presumptions under Sections 29 and 30 of the POCSO Act precluded the Court from granting bail at the present stage?

The Court applied the general principles governing bail, including consideration of the gravity and nature of the accusation, the prima facie strength of the prosecution case, the likelihood of flight, the possibility of witness intimidation or evidence tampering, the likelihood of repetition of the offence, the stage of investigation or trial, and the larger interests of justice.

Sections 29 and 30 of the POCSO Act create rebuttable presumptions regarding commission of specified offences and the existence of the requisite culpable mental state, but they do not impose an absolute statutory bar on the grant of bail.

DNA evidence is substantive and potentially strong incriminating evidence, but its evidentiary value remains subject to proof of the collection, preservation, transmission and analysis of the samples; moreover, DNA evidence indicating biological sexual contact does not, by itself, establish the absence of consent.

The Court further recognised that material emerging during trial may be considered at the bail stage to assess whether the foundational facts supporting the statutory presumption are prima facie established or whether the presumption has been rebutted.

Although the DNA report strongly connected the petitioner to the child, the Court held that this circumstance could not be considered in isolation.

The prosecutrix had denied the petitioner’s involvement in her trial testimony and had alleged that her earlier statements were made under police pressure.

Her age was also disputed: the school certificate suggested that she was below 18 years at the relevant time, whereas both she and her brother stated that she was a major and that the school-recorded date of birth was incorrect.

The Court observed that the DNA evidence might establish biological contact but did not, without more, prove the absence of consent, an essential element of the alleged offence under Section 64 of the BNS.

The prosecutrix’s failure to disclose the alleged assault until after childbirth, the conflicting versions recorded during investigation and trial, and the unresolved issue of her age collectively made the prosecution case debatable for the limited purpose of bail.

Since the prosecutrix and her brother, along with most material witnesses, had already been examined, the Court found little likelihood of the petitioner tampering with the prosecution evidence.

Accordingly, the rebuttable POCSO presumptions did not justify continued incarceration in the circumstances of the case.

The petitioner be released on bail upon furnishing a personal bond of ₹50,000 with two sureties of the like amount to the satisfaction of the trial court.

He was required to appear before the trial court on every date of hearing, not leave the territorial limits of the Union Territory of Jammu & Kashmir without prior permission, and not intimidate or tamper with prosecution witnesses or evidence.

The Court clarified that its observations were confined to the determination of the bail application and would not affect the merits of the pending trial.