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| Hostile victim not enough for bail in child rape case: HC | | | Early Times Report
JAMMU, Sept 4: The High Court of Jammu and Kashmir and Ladakh has rejected the bail plea of a man accused of kidnapping and sexually assaulting a 15-year-old girl, holding that the victim turning hostile was not enough to erase the prosecution case when other supporting evidence was available.
Justice Sanjay Parihar dismissed the bail application filed by Mahir Ahmad Khachoo, who is facing trial in FIR No. 30/2025 registered at Police Station Parimpora under Sections 137(2), 64 and 65 of the Bharatiya Nyaya Sanhita, read with Sections 3 and 4 of the Protection of Children from Sexual Offences Act.
The petitioner sought bail primarily on the ground that the victim and her father had not supported the prosecution case during the trial. His counsel argued that the girl had neither identified the petitioner before the trial court as the perpetrator nor supported the allegations forming the basis of the FIR.
The case arose from an incident on April 13, 2025, when the minor went to witness a circus exhibition at Parimpora but did not return home. She returned to her family's rented accommodation in the early hours of the following morning.
According to the prosecution, the girl had initially disclosed that she was taken from near a petrol pump adjoining the exhibition ground and transported through Nowgam, Dalgate, Qamarwari and Parimpora Bypass before being taken to a vacant house at Mansoor Colony, Bemina, where she was allegedly subjected to penetrative sexual assault.
The prosecution claimed that the victim identified the house during the investigation. It also relied upon a UPI payment of Rs 200 allegedly made by the petitioner while purchasing two shawarmas from a restaurant.
The prosecution further cited the recovery of long strands of hair from vehicle number UK06AE-2010, allegedly used in the commission of the offence. A prosecution witness was stated to have seen the victim in the company of the petitioner when the latter came to the restaurant to purchase the food.
The medical and forensic evidence showed that human spermatozoa were detected in the victim's vaginal swab, vaginal smear and green salwar. Mixed DNA profiles containing male and female contributors were also generated. However, the male contributor could not be identified in the absence of an appropriate reference sample.
Advocate Furkan Akram Mir, appearing for the petitioner, argued that the forensic report did not connect his client with the alleged sexual assault. He submitted that the prosecution case had been substantially weakened after the victim and her father resiled from their earlier statements.
Senior Additional Advocate General Mohsin Qadri, assisted by Advocate Haaris Khan, opposed the bail plea, submitting that the case was supported by medical, forensic, electronic, testimonial and circumstantial evidence.
The High Court observed that the victim's deposition, when read as a whole, did not amount to a complete and unequivocal exoneration of the petitioner. The girl had referred to the adverse impact of the incident upon her life and expressed her desire, along with her father, to get rid of the case.
"The mere fact that the victim has turned hostile does not, by itself, render the prosecution case false or efface her testimony from the record," the court observed.
Relying upon the Supreme Court's judgment in Hemudan Nanbha Gadhvi versus State of Gujarat, the High Court said the testimony of a hostile witness is not completely erased from the record. Portions of such testimony found credible and supported by other evidence can still be considered by the trial court.
The court also clarified that the statutory presumption under Section 29 of the POCSO Act does not relieve the prosecution of its initial responsibility to establish the foundational facts of the alleged offence.
Justice Parihar observed that the prosecution had placed sufficient prima facie material requiring adjudication during the trial. The subsequent change in the stand of the victim and her father was not sufficient to eclipse the remaining prosecution evidence or establish that the foundational facts had been completely erased.
Holding that the trial court's refusal to grant bail did not suffer from illegality, perversity or material irregularity, the High Court dismissed the bail application.
The court clarified that its observations were confined to the adjudication of the bail plea and would not influence the trial court while deciding the case on its merits.
(JNF) |
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