Failure of Prosecutrix to Identify Accused Enhances Entitlement to Bail in POCSO Offenses.

The applicants (Mohseen, Murad Alam, and Moein) were arrested in connection with F.I.R. No. 151 of 2025 for allegedly recording an obscene video of a minor victim and using it to threaten her after she was raped by two other named individuals.

The applicants were not named in the F.I.R. or the initial investigation.

During trial proceedings, the victim (PW-1) named the applicants in her examination-in-chief but failed to recognize them during video conferencing and a subsequent court-ordered Test Identification Parade (TIP).

The applicants have been in judicial custody since May 7, 2025.

1. Whether the applicants are entitled to bail given the lack of identification by the victim and their absence from the initial F.I.R. and Section 183 BNSS statement.

The court considered the penal provisions under Sections 115, 352(2), 351(2), 70(1), and 3(5) of the Bharatiya Nyaya Sanhita (BNS), 2023, alongside Sections 3(a)/4, 5(g), (u)/6, and 13/14 of the Protection of Children from Sexual Offences (POCSO) Act, 2012.

The procedural application of bail was governed by the principles of judicial discretion, focusing on the evidentiary link between the accused and the crime—specifically the reliability of Section 183 B.N.S.S. statements (formerly 164 Cr.P.C.) and the evidentiary value of a Test Identification Parade (TIP).

The court reasoned that the prosecution's case against these specific applicants was weakened by several factors: they were not named in the First Information Report, nor were they mentioned in the victim's statement recorded under Section 183 of the B.N.S.S.

Critically, the court observed that the victim failed to identify the applicants during a TIP held behind a glass screen and during video conferencing, identifying only the co-accused Azam.

Additionally, the court noted that no obscene video was recovered from their possession, and they had no prior criminal antecedents.

Given that the applicants had been incarcerated for nearly ten months and the trial was expected to be lengthy, the court determined that a prima facie case for bail was established.

The court held that the lack of identification and absence of incriminating recovery justified the release of the applicants.

It was ordered that the applicants be released on bail upon furnishing a personal bond and two reliable sureties each to the satisfaction of the trial court.

The court clarified that these observations are limited to the bail stage and do not impact the merits of the trial.