SRINAGAR: The High Court of Jammu Kashmir and Ladakh at Srinagar has granted bail to Nisar Ahmad Joo, an accused in a case involving the alleged sexual assault of a minor. The court held that major inconsistencies in the victim’s statements, coupled with scientific evidence that did not detect foreign DNA, weakened the prosecution case against him. It held that the evidence had prima facie rebutted the statutory presumption of guilt under the Protection of Children from Sexual Offences (POCSO) Act.
Justice Sanjay Dhar passed the judgment on July 31, 2026, allowing Bail Application No. 18/2026 filed by Joo in connection with FIR No. 45/2024 registered at Police Station M R Gunj, Srinagar, under Sections 137(2) and 64 of the Bharatiya Nyaya Sanhita (BNS) and Sections 3 and 4 of the POCSO Act. The judgment was pronounced and uploaded on July 31.
Joo was represented by Advocates Danish Majeed, Monisa Manzoor and Mehjabeena Gulzar, while the Union Territory of Jammu Kashmir was represented by Senior Additional Advocate General Mohsin Qadiri, assisted by counsel Mohammad Younis.
The court, however, made it clear that its observations were confined to the bail application and would not amount to a final opinion on the merits of the criminal case.
The case began after the father of the minor, identified in the judgment as Ms X, submitted a written complaint at Police Post Urdu Bazar, Srinagar, on November 11, 2024, stating that his daughter had been missing from home since November 8.
An FIR under Section 137(2) of the BNS was subsequently registered at Police Station M R Gunj and investigation commenced. The school record showed the girl’s date of birth as November 25, 2008.
She was recovered by her maternal uncle from Sunday Market, Lal Chowk, Srinagar, on November 17, 2024.
According to the judgment, during preliminary inquiry, the girl alleged that she had been sexually assaulted by several persons at different locations and on different dates. She was medically examined at Government Lal Ded Hospital, Srinagar, where samples including DNA and vaginal swabs were collected. She was subsequently handed over to her parents by the Child Welfare Committee, Srinagar.
In her statement recorded under Section 183 of the BNSS, the girl stated that she had left home with friends Ashu and Junaid on a motorcycle and travelled around Srinagar before going to Nishat. As it became late, she went to Ashu’s house in Rainawari, where she was allegedly scolded by his mother for coming there. The next day, according to her statement, Ashu dropped her near Zero Bridge.
The girl stated that she spent two nights outside a ward at SMHS Hospital before going to Sunday Market, where she met a man identified as Chaman Lal. According to the statement, he took her to a hotel where he sexually assaulted her, and she stayed with him for two days.
She subsequently returned to SMHS Hospital and later met Chaman Lal again before being dropped at Jahangir Chowk.
There, according to the statement, another man whom she described as an “uncle” offered to take her to her destination. She alleged that he instead took her to a hotel near Zero Bridge, where she was sexually assaulted.
The girl also described another episode at Makhdoom Sahib Shrine, where she met a man who allegedly offered her a job and gave her his telephone number. She stated that the man took her in a vehicle and forced her to consume whisky. When she regained consciousness, she found herself in the vehicle near Eidgah, but said she did not know whether the man had sexually assaulted her.
She further stated that she subsequently went with Ashu to his workshop near Makhdoom Sahib, where she stayed overnight and alleged that Ashu sexually assaulted her.
The judgment records that she sought action against Ashu and the two men she described as uncles, including the person who allegedly took her to the hotel near Zero Bridge.
During the investigation, Ashu was identified as Mohammad Ashraf Sheikh and arrested on November 18, 2024. Chaman was identified as Chaman Lal and arrested on November 24, 2024, while the third accused, Basharat Ahmad Shora, was arrested on November 29, 2024.
Test identification parades of Chaman Lal and Mohammad Ashraf Sheikh were conducted on November 26, 2024, in the presence of an Executive Magistrate, First Class, Khanyar, and independent witnesses. A similar identification parade for Basharat Ahmad Shora was conducted on December 2, 2024, in the presence of the Executive Magistrate, independent witnesses and employees of the Child Welfare Committee.
The three accused underwent potency tests and their DNA samples, along with the victim’s samples, were collected for analysis. The investigating agency also sought CCTV footage from the hotel where one of the alleged assaults was said to have occurred and collected call data records of the accused.
According to the investigation, the call data records placed the accused at locations where the alleged incidents occurred. The investigation also found that Basharat Ahmad Shora had paid an amount to the hotel manager where one of the alleged incidents took place.
Based on the victim’s statement and statements of other witnesses, the police concluded that offences under Sections 137(2) and 64 of the BNS and Sections 3 and 4 of the POCSO Act were made out against the three accused. A chargesheet was subsequently filed before the Special Judge, POCSO Cases, Srinagar.
The petitioner, Nisar Ahmad Joo, was arrested on May 8, 2025, during further investigation. His test identification parade was conducted before an Executive Magistrate, First Class, Khanyar. He was also subjected to a potency test, and his DNA sample was collected.
His call data records were obtained during the investigation. The police subsequently concluded that the same offences were made out against Joo and filed a supplementary chargesheet against him before the Special Court.
The trial court had framed charges against the first three accused on February 10, 2025. Following the supplementary chargesheet, similar charges were framed against Joo on July 17, 2025.
The High Court noted that the victim and her parents had already been examined during the trial. Joo had earlier approached the trial court for bail, but his application was rejected on February 19, 2025.
The judgment notes that three co-accused had meanwhile been granted bail by the High Court through a judgment dated November 26, 2025, in Bail Applications Nos. 115 to 117 of 2025. The trial court, however, had distinguished Joo’s case from that of the other accused, observing that the victim had supported the prosecution case insofar as Joo’s alleged role was concerned.
Appearing for Joo, his counsel argued that the trial court had failed to properly appreciate the victim’s testimony and had overlooked material inconsistencies and contradictions. The defence argued that there were inherent inconsistencies in her account and that these made the prosecution story improbable.
It was also argued that the cross-examination of the victim had brought out circumstances capable of rebutting the statutory presumption under Section 29 of the POCSO Act. The defence further submitted that scientific evidence did not support the allegation of sexual intercourse involving Joo.
The State opposed bail, maintaining that the victim had supported the prosecution case in court and that material existed on record indicating the petitioner’s involvement in a “heinous” crime. The State also argued that if released, Joo could potentially influence or tamper with witnesses whose statements were yet to be recorded.
The victim had been made a party to the bail proceedings but did not appear despite service of notice.
Before considering the merits, Justice Dhar addressed the State’s objection that the bail application was not maintainable because there had been no change in circumstances. The High Court rejected the objection.
The court held that where an earlier bail application has been rejected by an inferior court, a superior court can entertain a subsequent bail application.
Justice Dhar relied on the Supreme Court judgment in Gurcharan Singh and Ors. v. State (Delhi Administration), AIR 1978 SC 179, as well as a Bombay High Court judgment in Devi Das Raghunath Naik v. State, (1987) 3 Crimes 363.
The High Court held that rejection of bail by a Sessions Court does not prevent the High Court from entertaining a similar application under the relevant provisions of criminal procedure.
The court then examined the principles governing bail, including the gravity of the offence, nature of the allegations, position of the accused vis-à-vis the victim and witnesses, possibility of fleeing, likelihood of tampering with evidence, possibility of repeating the offence, prima facie strength of the prosecution case, stage of investigation and larger public interest.
Justice Dhar also considered Sections 29 and 30 of the POCSO Act. Section 29 creates a presumption of guilt in prosecutions for specified POCSO offences unless the contrary is proved, while Section 30 concerns the presumption relating to culpable mental state.
The court stressed, however, that the presumption under Section 29 is rebuttable.
“An accused will be well within his rights to persuade the Court,” the judgment said, by relying on circumstances emerging during cross-examination or defence evidence to show that the presumption of guilt has been rebutted.
The court further observed that there is no statutory bar on granting bail in a POCSO case and that each case must be examined on its particular facts and circumstances.
Justice Dhar then examined the statements made by the victim at different stages of the proceedings.
The court noted that in her statement under Section 183 BNSS, the victim had attributed sexual assault to three co-accused, Basharat Ahmad Shora, Mohammad Ashraf Sheikh and Chaman Lal, as well as to an “uncle type” person who was subsequently identified as Joo.
However, while giving evidence during the trial, she exonerated the three other accused.
The defence also pointed out that after the supplementary chargesheet against Joo, the victim made a further statement in which she stated that she did not want action against anyone and wanted the case dismissed. She also stated that she had no grievance against Joo.
The High Court found the differences significant.
“When we have a look at the statement of the prosecutrix made under Section 183 BNSS and compare it with the statement made by her after the presentation of supplementary charge sheet,” Justice Dhar observed, “there are major inconsistencies and contradictions.”
The court said it was not expressing a final view on whether those contradictions would ultimately make the victim’s testimony unreliable at trial.
But, for the purpose of bail, it held that the “vacillating stand of the prosecutrix at various stages of investigation and trial” provided a basis for granting Joo bail.
According to the court, the inconsistencies offered a “sound defence” to the charges against him.
The court also attached significance to the scientific evidence.
Justice Dhar noted that DNA profiling of the victim did not reveal the presence of foreign DNA. The court said that, consequently, the victim’s allegation regarding Joo’s involvement did not receive support from the scientific evidence.
The court also noted that the victim’s father, in his further statement recorded after filing of the supplementary chargesheet, had not supported the prosecution version concerning Joo.
The judgment refers specifically to the DNA samples of Joo and the vaginal swab of the victim. The expert report, according to the court, found no foreign DNA in the sample.
The medical evidence also indicated that there were no marks of violence on the victim’s private parts and no evidence of recent sexual intercourse.
Taking the testimonial and scientific evidence together, the High Court concluded that the petitioner had, at the bail stage, succeeded in rebutting the presumption of guilt arising under Section 29 of the POCSO Act.
The court observed that the trial court, while rejecting Joo’s bail application, had not sufficiently analysed the victim’s statements for the limited purpose of determining whether bail should be granted.
According to Justice Dhar, this omission rendered the trial court’s bail rejection order unsustainable in law.
“Without commenting upon the merits of the case,” the High Court held, the evidence available against the petitioner and the nature of the victim’s statements during trial showed that the statutory presumption of guilt had been rebutted.
The court also took note of Joo’s custody, stating that he had remained in custody for about a year. Since the victim and her close relatives had already been examined, the court found little likelihood of the petitioner influencing or tampering with prosecution witnesses.
The High Court also rejected the argument that the gravity of the charges by itself justified continued detention.
Justice Dhar noted that the offences were undoubtedly serious and carried punishment extending up to life imprisonment, but held that seriousness alone could not justify denying bail where the petitioner’s prima facie involvement appeared doubtful.
“Merely because the petitioner is facing trial for heinous offences which entail punishment extending upto life imprisonment, is not a good enough reason to deny concession of bail,” the court said.
The court further observed that bail could not be refused merely to satisfy societal expectations.
“The concession of bail to the petitioner, in these circumstances, cannot be denied just to teach him a lesson or to satisfy the conscience of the society,” Justice Dhar held, adding that doing so would amount to imposing impermissible pre-trial punishment.
The High Court accordingly allowed Joo’s bail application and directed him to furnish a personal bond of Rs 50,000 with two sureties of the same amount to the satisfaction of the trial court.
The court directed Joo to appear before the trial court on every date of hearing until conclusion of the trial and prohibited him from leaving the territorial limits of Jammu Kashmir without prior permission of the trial court. He was also directed not to intimidate or tamper with prosecution witnesses or evidence.
Justice Dhar clarified that the observations made in the judgment were confined to the determination of the bail application and should not be treated as an opinion on the merits of the criminal trial.
The judgment was pronounced in Srinagar on July 31, 2026.
