POCSO Case Can't Be Closed Merely Because DNA Excludes Accused As Child's Father: J&K&L High Court Orders SIT Probe

The Jammu & Kashmir and Ladakh High Court has refused to quash an FIR registered under the Protection of Children from Sexual Offences (POCSO) Act against a petitioner, even though a DNA report excluded him as the biological father of the child born to the minor victim.The Court expressed astonishment at the slipshod investigation and directed the Inspector General of Police, Jammu to constitute a Special Investigating Team to further investigate and identify the true perpetrator, holding that a fair investigation means finding the real culprit, not merely filing a charge sheet.The Court was hearing a petition filed under Section 482 of the Code of Criminal Procedure seeking quashing of an FIR registered with Police Station Katra for offences under Sections 3 and 4 of the POCSO Act and Sections 376 and 506 IPC.A Bench of Justice Rajnesh Oswal , while observing that “the exceptional nature of this case precludes this Court from remaining a passive onlooker to the flawed manner of the investigation,” held that “if this Court does not exercise its jurisdiction to remedy this failure, the true culprit will escape unpunished and successfully elude the process of law.”It was In 2011 that a couple migrated to Katra with their minor children to seek employment as laborers. Following the death of the mother, the father occasionally took the children to Panjar, District Udhampur. In 2014 the father also died, constraining the two daughters of the deceased couple, including the minor victim (respondent No.2), to leave Katra to ascertain whether their paternal cousins were disposing of family land. En route, they met their step-maternal grandfather, Balak Ram, who offered to escort them. Both girls stayed at Balak Ram's residence for approximately 15 to 20 days. The other sister alleged that Balak Ram, while intoxicated, attempted to outrage her modesty. She fled to Katra, but the victim chose to remain with Balak Ram.The victim continued to reside with Balak Ram until February 2022, during which period she gave birth to a female infant. Her paternal cousin, Shailu Ram, reported the matter to Police Station Panchari, alleging that Balak Ram had raped the victim, caused her pregnancy, and orchestrated the delivery of the child in the forest. However, on 23.04.2022, Balak Ram brought the victim to Police Station Katra and lodged a complaint alleging that the petitioner had raped her and threatened her with death. The FIR was registered accordingly.The victim's statement was recorded under Section 164 CrPC, and age determination examination opined her age to be between 15 and 17 years. The infant later died due to dehydration on 12.07.2022. DNA extraction of the deceased infant was conducted, and the petitioner's blood sample was sent to FSL, Srinagar for comparison. The charge sheet explicitly stated that the DNA profile of the petitioner excluded him as the biological father of the deceased infant.Court's Observation: The Court perused the charge sheet and noted that the victim had stated that the petitioner committed rape upon her, resulting in her pregnancy. However, the Court expressed astonishment at the manner in which the investigation was pursued. The Court observed, “... This Court cannot but express its astonishment at the slipshod manner in which the investigation was pursued. Despite conclusive scientific evidence demonstrating that the petitioner could not have fathered the child, the Investigating Officer failed entirely to take measures to unearth the identity of the actual perpetrator.”The Court further held, “... Admittedly, respondent No.2 is a minor who has been subjected to sexual assault, resulting in pregnancy and subsequent birth of a female child. Since it has been established that the petitioner did not father the child, the identity of the individual responsible for sexually exploiting respondent No.2, and causing her pregnancy, remains altogether shrouded in mystery. It is evident that the Investigating Officer filed the charge sheet with undue haste, seemingly for the sole purpose of precluding the petitioner from obtaining default bail.”Refusing to quash the FIR at this stage, the Court held that the ocular testimony of the victim recorded under Section 164 CrPC cannot be nullified solely on the basis of scientific evidence at the quashing stage. The Court stated, “... The ocular testimony of a victim of sexual assault stands on its own footing, and the impugned FIR cannot be quashed solely on the anvil of scientific evidence.”Relying upon Devendra Nath Singh v. State of Bihar (2023) 1 SCC 48 , the Court observed that the inherent powers under Section 482 CrPC can be exercised to direct further investigation or even reinvestigation where the High Court feels that the investigation is not in the proper direction and to do complete justice. The Court extracted the principles that the powers under Section 482 CrPC are essentially for the purpose of real and substantial justice, and that in an...

POCSO Case Can't Be Closed Merely Because DNA Excludes Accused As Child's Father: J&K&L High Court Orders SIT Probe

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POCSO Case Can't Be Closed Merely Because DNA Excludes Accused As Child's Father: J&K&L High Court Orders SIT Probe

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