DNA Evidence Alone Does Not Establish Absence Of Consent In POCSO Cases, Must Be Assessed With Victim's Testimony: J&K&L High Court

The High Court of Jammu & Kashmir and Ladakh has granted bail to an accused facing trial under the POCSO Act, holding that although a DNA profiling report may constitute strong incriminating scientific evidence connecting an accused with biological material, DNA evidence by itself does not establish the absence of consent.

Justice Sanjay Dhar observed that the evidentiary value of the DNA report had to be assessed alongside the testimony of the prosecutrix at trial, particularly when the prosecutrix had turned hostile and denied that the accused had sexually assaulted her.

“The 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. The evidentiary value and effect of DNA profiling report vis-à-vis the testimony of the prosecutrix would require appreciation of evidence at trial.”, the court said.

The Court was dealing with a bail application arising out of an FIR registered for offences under Section 64 of the Bharatiya Nyaya Sanhita, 2023 and Sections 4 and 6 of the Protection of Children from Sexual Offences Act, 2012.

The trial court had rejected the accused's bail application, primarily relying upon the DNA profiling report which had matched the DNA sample of the accused with that of the child born to the prosecutrix.

Background:

The case arose after the brother of the prosecutrix approached the police in April 2015, stating that his sister, who was then believed to be around 17 years old, had complained of back pain and was taken to hospital, where the family was informed that she was pregnant.

During investigation, DNA samples of the child born to the prosecutrix and the accused persons were collected. The DNA profiling report subsequently matched the sample of the petitioner with that of the child, while the samples of the other accused did not match.

The prosecution case also underwent changes during investigation. In her first statement recorded under Section 183 of the BNSS, the prosecutrix named one Arshad Manhas as the person with whom she had sexual intercourse. Subsequently, in a statement recorded on May 2, 2025, she named the present petitioner and three others. The petitioner was thereafter charge-sheeted along with the co-accused.

The case, however, took a different turn during trial when the prosecutrix did not support the prosecution case. In her testimony before the trial court, she denied that any of the accused had raped or sexually assaulted her. She stated that she did not know the accused and claimed that the statements attributed to her before the Magistrate had been made at the instance of the police and were not given voluntarily. The complainant, who is the brother of the prosecutrix, also turned hostile.

The petitioner relied upon these circumstances to seek bail.

Court Observations:

The High Court acknowledged that the DNA report was significant incriminating scientific evidence connecting the petitioner with the biological material collected from the child. However, the Court held that the report could not be considered in isolation for deciding the question of bail.

Justice Dhar explained that DNA evidence could prima facie establish biological sexual contact, but it could not, by itself, establish that the sexual act was without consent. He observed,

“The 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.”

The Court therefore held that the effect of the DNA report had to be considered in conjunction with the testimony of the prosecutrix and other evidence on record, which was ultimately a matter for appreciation at trial.

The Court also considered the statutory presumptions contained in Sections 29 and 30 of the POCSO Act. It observed that while these provisions raise a rebuttable presumption against the accused once the foundational facts are established, an accused is entitled to bring to the Court's notice material indicating that such foundational facts are prima facie not established or that the evidence led during trial rebuts the presumption.

“It is open to an accused to bring to the notice of the Court the material or lack of it to show that the foundational facts giving rise to the presumption are prima facie not established in the case or that evidence led during the trial of the case rebuts the presumption operating against him.”

In the present case, the Court found that the testimony of the prosecutrix during trial was a relevant circumstance that could not be completely disregarded at the stage of considering bail.

Another factor considered by the High Court was the age of the prosecutrix.While the prosecution relied upon her school leaving certificate to establish that she was a minor at the relevant time, the Court noted that there was other material on record suggesting that she was major.

The prosecutrix had stated before the trial court that she was about 19 years old at the time of her testimony and had been above 18 years of age when the alleged incident took place. Her brother had also stated that she was major.

Against this background, Justice Dhar observed,

“Thus, there is material on record which contradicts the date of birth of the prosecutrix as shown in her school leaving certificate. The material on record makes it a debatable issue as to whether the prosecutrix had attained the age of majority at the time when the alleged incident took place.”

The Court thus found the question of the prosecutrix's age to be a matter requiring consideration during trial.

The High Court further noted that the prosecutrix and her brother, who were among the material witnesses, had already been examined by the trial court. Consequently, the Court found that there was little likelihood of the petitioner interfering with the prosecution evidence if released on bail.

Taking into account the testimony of the prosecutrix, the evidentiary effect of the DNA report, the disputed question of her age, and the fact that material witnesses had already been examined, the Court allowed the bail application.

The petitioner was accordingly directed to be released on bail subject to appropriate conditions.