Sanchayita Lahkar

The High Court of Judicature at Bombay, Single Bench of Justice Milind N. Jadhav granted bail to an accused in a POCSO case, citing inconclusive medical evidence, procedural delays, and the need to evaluate DNA evidence during the trial and not at the bail stage. The court, while considering the bail application under Section 439 of the Code of Criminal Procedure, directed the release of the applicant on stringent conditions after over two years of incarceration.

The bail application arose from C.R. No.309 of 2022 registered at Koparkhairane Police Station for offences under Section 376(3) of the Indian Penal Code, 1860, and Section 6 of the Protection of Children from Sexual Offences Act, 2012. The FIR was lodged on 03.07.2022 by the mother of the minor prosecutrix, alleging sexual assault by the applicant during her stay at his residence from 26.01.2022 to 27.01.2022.

Also Read: “Dealing With Substance in NDPS Act Schedule Is an Offence Even If Not in NDPS Rules”: Supreme Court Restores Charges, Quashes High Court Orders

According to the FIR, the prosecutrix, who had visited her maternal aunt’s home in Mumbai, was invited by the applicant, her cousin, to his home in Koparkhairane. It was alleged that the applicant outraged her modesty on the night of 26.01.2022 and again sexually assaulted her the following afternoon. The prosecutrix did not report the incidents due to familial ties. She later experienced abdominal pain and discovered her pregnancy, prompting the lodging of the FIR.

Ms. Sana Shaikh, learned counsel for the applicant, submitted that the DNA report indicating that the applicant and prosecutrix were biological parents of the foetus was merely an opinion and untested in court. She relied on the decision in Niraj Uttam Kate vs. The State of Maharashtra to argue against the admissibility of DNA evidence at the bail stage. Shaikh stated the applicant's prolonged incarceration and the improbability of a timely trial. She also noted discrepancies in the statements regarding the incidents and raised doubts about the prosecutrix’s silence for several months.

On the other hand, Ms. Mahalakshmi Ganapathy, APP for the State, and Ms. Priyanka Chavan, Advocate for the prosecutrix, contended that the DNA report corroborated the allegations and should be considered sufficient prima facie evidence. They invoked the statutory presumption under Section 29 of the POCSO Act and argued that the accused’s release could pose a threat to the victim and risk evidence tampering.

The court noted that although a statutory presumption exists under Section 29, it is not absolute and requires foundational facts to be established. It recorded: "Presumption does not mean that the Court cannot take into consideration prima facie facts of the particular case which are evident from the face of record." The Court also acknowledged the discrepancy in dates reported by the prosecutrix and contradictions in the statements from the applicant’s family members.

The court further analysed the DNA report, observing delays in sample analysis and the necessity to prove the report through proper evidentiary procedures during trial. It stated: "If DNA is not properly collected, packaged and preserved, it will not meet the legal and scientific requirements for admissibility in a Court of law."

The court scrutinized both procedural and substantive aspects of the case. Regarding the statutory presumption under Section 29 of the POCSO Act, the court referred to the Kerala High Court's observations in Joy vs. State of Kerala, stating: "The statutory presumption would get activated or triggered only if the prosecution proves the essential basic facts."

Further, the court examined Supreme Court precedents including Pattu Rajan v. State of Tamil Nadu and Manoj v. State of Madhya Pradesh, noting: "Like all other opinion evidence, the probative value accorded to DNA evidence also varies from case to case, depending on facts and circumstances and the weight accorded to other evidence on record, whether contrary or corroborative."

Justice Jadhav pointed out unexplained delays in the DNA analysis, raising concerns about the report's admissibility at the pre-trial stage: "Reading of the DNA Report shows that Analysis commenced on 20.12.2022 and it was completed on 27.12.2022... this delay is prima facie unexplained."

Citing Niraj Uttam Kate, the court remarked that accepting the DNA report at the bail stage without it being proved in evidence would amount to a pre-trial judgment. It added: "Applicant needs to be given an opportunity to cross-examine the author of the said report after it is proved, in evidence."

The court also acknowledged that the prosecutrix’s statements about the duration of her stay at the applicant’s home conflicted with those of the applicant’s family. It observed: "There is prima facie discrepancy regarding the number of days that prosecutrix actually stayed at the Applicant’s house."

Justice Jadhav allowed the bail application subject to the following terms and conditions:

The Court directed that the applicant be released on furnishing a personal bond of ₹15,000 with one or two sureties of like amount. Prior to actual release, the applicant must submit his post-release address to the concerned police station and the trial court. After release, the applicant is required to report to the investigating officer as and when summoned.

The applicant is mandated to appear before the trial court on the first Saturday of every month between 11:00 a.m. and 1:00 p.m. to mark his presence. In the event that the first Saturday falls on a holiday or non-working day, the presence must be marked on the next working day.

The applicant must cooperate with the conduct of trial and attend the trial court on all scheduled dates, unless specifically exempted. Any unnecessary adjournments sought by the applicant will entitle the prosecution to seek cancellation of bail.

The Court further directed that the applicant shall not leave the State of Maharashtra without prior permission of the trial court. He shall not influence or tamper with witnesses or evidence in any manner. He is also prohibited from re-associating with the prosecutrix in any form — physically or electronically — and must not reside in the jurisdiction of the police station where the prosecutrix is residing until the conclusion of trial.

Also Read: "Replica of Police Dossier" and Breach of Article 22(5) Vitiate Detention: J& K High Court Quashes Preventive Custody for Failure to Apply Mind and Maintain Procedural Fairness

Any violation of these conditions or failure to mark attendance for two consecutive months shall trigger cancellation proceedings under Section 439(2) Cr.P.C.

The Court clarified that all observations in the order are limited to bail determination and will not affect the merits of the trial. The legal aid counsel for Respondent No. 2, Ms. Priyanka Brahmdev Chavan, was commended, and the Registry was directed to release her fee within one week of compliance.

Advocates Representing the Parties

For the Applicant: Ms. Sana Shaikh, Ms. Maya Updeshe, Ms. Nisha Lakariya, Mr. Vipul Ghate, Mr. Pratik Thadani, Ms. Ruha Shaikh, Advocates

For the Respondents: Ms. Mahalakshmi Ganapathy, APP; Ms. Priyanka Brahmdev Chavan, Advocate (appointed through legal aid)Conclusion

Case Title: XXXX vs. State of Maharashtra and Anr.

Neutral Citation: 2025: BHC-AS:18202

Case Number: Bail Application No.4504 of 2024

Bench: Justice Milind N. Jadhav

[Read/Download order]