Presumption Of Guilt U/S 29 POCSO Act Rebuttable: Jammu & Kashmir High Court Grants Bail To Woman Accused Of Facilitating Her Daughter's Rape

The Jammu and Kashmir and Ladakh High Court has granted bail to a woman, accused of assisting the primary suspect in a POCSO case filed over alleged rape of her own daughter.

Presumption of guilt under Section 29 is rebuttable and if the accused can demonstrate to the court during the trial that there is material evidence contradicting the presumption of guilt, they may be granted bail, a bench of Justice Sanjay Dhar maintained.

The case pertains to an FIR registered with the Kupwara Police Station, wherein the victim, a minor girl, alleged that she was sexually assaulted by Shabir Ahmad War on multiple occasions, resulting in her pregnancy. The petitioner, who happened to be the victim's mother, was implicated as an accomplice in the crime. However, during the trial, the victim recanted her previous statement made under Section 164 of CrPC, asserting that her mother had no involvement in the offence.

Adjudicating upon bail application Justice Dhar analysed the victim's statement and statements of other prosecution witnesses to observe that the petitioner had been able to establish a prima facie case for her innocence.

The court pointed to the statements of the victim during her examination in chief and cross-examination whereby she had clearly stated stated that the petitioner never administered any medicine to her for making her unconscious. She had also stated that her previous statement implicating the mother was made statement under the influence of police, the court recorded.

The bench also highlighted the statements of the victim's brothers who also testified in favor of the petitioner, providing no evidence against her.

"Therefore, the petitioner has been able to carve out a prima facie case for grant of bail in her favour. Even otherwise, the petitioner has suffered long incarceration during trial of the case and most of the material witnesses have been examined by the prosecution", the court said.

It also criticised the trial court for not taking into account that the victim had herself exonerated the petitioner.

Case Title: Naseema Begum Vs UT of J&K.

Citation: 2023 LiveLaw (JKL) 160

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