A serious POCSO prosecution unravelled in open court as the prosecutrix withdrew rape allegations, key witnesses failed the prosecution, and forensic evidence offered no support—prompting the Jammu & Kashmir High Court to intervene and restore personal liberty by granting bail.
Jammu & Kashmir: The Jammu & Kashmir and Ladakh High Court at Srinagar has granted bail to a 75-year-old accused in a serious POCSO case after finding that the prosecution story collapsed during trial. The Court made it clear that bail cannot be denied only because allegations are serious, especially when evidence does not support them.
The case arose from an FIR registered at Police Station Anantnag under Section 64 of the Bharatiya Nyaya Sanhita and Sections 5(n) and 6 of the POCSO Act. The complainant initially alleged that her grandfather had sexually assaulted her over a long period. Based on her complaint, investigation was carried out, statements were recorded, medical and forensic tests were conducted, and a charge sheet was filed.
However, once the trial began, the entire prosecution story started falling apart.
During her examination before the trial court, the prosecutrix clearly stated that no sexual assault ever took place. She admitted that she had made the complaint in anger and under external influence. She categorically told the court that the petitioner had only scolded her and had never committed any sexual act. She went on to apologise for making false allegations.
The prosecutrix was declared hostile by the prosecution, yet even after lengthy cross-examination, she did not support the charges. She denied recording any video, denied being the person visible in the alleged clip, and stated that she saw the video for the first time in court. She further disclosed that she had been influenced by a third party who assured her of property benefits if she made such statements.
The father of the prosecutrix also did not support the prosecution. His testimony revealed internal family disputes and pressure tactics relating to property. He confirmed that similar allegations had been made earlier against another family member, which eventually resulted in acquittal after trial.
Medical and forensic evidence also failed to support the prosecution. The DNA report did not implicate the petitioner. The alleged video was held to be unreliable as the girl in the footage was not identifiable.
Despite these developments, the Sessions Court had earlier rejected bail, treating the offence as heinous solely because it was registered under POCSO.
Correcting this approach, the High Court made it clear that POCSO does not impose an absolute bar on bail. While Section 29 of the POCSO Act raises a presumption of guilt, the Court emphasised that this presumption is rebuttable, especially when trial evidence itself demolishes the prosecution case.
The Court observed that all material witnesses, including the prosecutrix and her father, had already been examined. There was no possibility of tampering. The petitioner had remained in custody for nearly one year, was over 75 years of age, and was suffering from multiple ailments.
In one of the most significant lines of the judgment, the Court held:
“Just to teach him a lesson or to satisfy the conscience of the society as it would amount to inflicting pre-trial punishment upon him, which is impermissible in law.”
Relying on settled Supreme Court principles that bail is the rule and jail is the exception, the Court reiterated that seriousness of allegations alone cannot override constitutional liberty when evidence is weak or unreliable. The High Court also reaffirmed that rejection of bail by a Sessions Court does not bar the High Court from granting bail, in line with Gurcharan Singh v. State (Delhi Administration).
Importantly, the Court strongly cautioned against using incarceration as a tool of punishment before conviction. The High Court observed that denying bail in such circumstances would be unjustified and stated,
“Denying bail merely to satisfy societal conscience amounts to impermissible pre-trial punishment.”
The bail was granted with standard conditions, including appearance before the trial court, restriction on travel, and a strict direction not to influence witnesses.
This judgment is a reminder that criminal law cannot be used as a tool of punishment before conviction, and that even under special laws like POCSO, courts must examine what actually emerges during trial—not what was alleged in anger or under pressure.
Justice delayed should not turn into silent punishment, especially when truth finally speaks in court.
Explanatory Table: Laws & Sections Involved
| Law/Section | Explanation | How Applied in this case |
| Section 483, BNSS | Power of High Court to grant bail | HC entertained and allowed bail despite Sessions Court rejection |
| Section 64, BNS | Punishment for rape | Charge framed, but evidence during trial weakened prosecution |
| Sections 5(n) POCSO Act | Aggravated penetrative sexual assault | Allegation failed after prosecutrix denied assault in court |
| Section 6, POCSO Act | Punishment for aggravated POCSO offence | Severity noted, but bail granted due to lack of supporting evidence |
| Section 29, POCSO Act | Presumption of guilt | Presumption held rebutted after hostile testimony |
| Section 30, POCSO Act | Presumption of culpable mental state | Could not survive once core allegation collapsed |
| Section 183, BNSS | Magistrate statement | Earlier statement contradicted during trial |
Case Details
- Case Title: Ghulam Nabi Ganie v. Union Territory of J&K & Anr., Bail Application No. 231/2025
- Court: High Court of Jammu & Kashmir and Ladakh at Srinagar
- Bench: Hon’ble Mr. Justice Sanjay Dhar
- Dates:
- Judgment Reserved: 16.12.2025
- Judgment Pronounced: 26.12.2025
- Judgment Uploaded: 26.12.2025
- Counsels:
- For Petitioner: Mr. Shafqat Nazir, Advocate, with Ms. Hina Baqal, Advocate
- For UT: Mr. Ilyas Laway, Government Advocate
- For Respondent No.2: Mr. Mir Umar, Advocate
Key Takeaways
- POCSO presumption is rebuttable: When the prosecutrix withdraws allegations in court, Section 29 cannot be used to justify continued custody.
- Hostile testimony matters: Conviction cannot rest on an FIR alone when the victim and key witnesses do not support the prosecution during trial.
- Evidence must be conclusive: Inconclusive video evidence and DNA not linking the accused cannot sustain incarceration.
- Bail is not punishment: Denying bail merely due to the gravity of charges amounts to unconstitutional pre-trial punishment.
- Liberty applies equally: Age, health, completion of key witness testimony, and lack of tampering risk must protect an accused man’s Article 21 rights.
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