Victim turning hostile not enough for bail in minor rape case: HC

06/09/2026

JAMMU, Sep 5: The High Court of Jammu and Kashmir and Ladakh has dismissed the bail plea of a man accused of kidnapping and sexually assaulting a 15-year-old girl, observing that the victim turning hostile by itself does not erase the prosecution case when other supporting evidence is available.
Justice Sanjay Parihar dismissed the bail application of 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 accused had sought bail mainly on the ground that the minor victim and her father had not supported the prosecution during the trial. His counsel submitted that the victim neither identified the petitioner before the trial court nor supported the allegations forming the basis of the FIR.
According to the prosecution, the incident occurred on April 13, 2025, when the minor had gone to watch a circus exhibition at Parimpora but failed to return home. She reached her family's rented accommodation in the early hours of the next day.
The prosecution alleged that the girl had initially stated that she was taken from near a petrol pump adjoining the exhibition ground and was transported through Nowgam, Dalgate, Qamarwari and Parimpora Bypass before being taken to a vacant house at Mansoor Colony in Bemina, where she was allegedly sexually assaulted.
During investigation, the victim allegedly identified the house. The prosecution also relied upon electronic and circumstantial evidence, including a UPI transaction of Rs 200 allegedly made by the petitioner for purchasing two shawarmas from a restaurant.
It further relied upon the alleged recovery of long strands of hair from a vehicle bearing registration number UK06AE-2010, said to have been used in the incident. A prosecution witness also allegedly saw the victim in the company of the petitioner when he visited the restaurant.
Medical and forensic evidence, according to the prosecution, showed the presence of human spermatozoa in the victim's vaginal swab, vaginal smear and green salwar. Mixed DNA profiles containing male and female contributors were also generated, though the male contributor could not be identified in the absence of a suitable reference sample.
Advocate Furkan Akram Mir, appearing for the petitioner, argued that the forensic evidence did not connect his client with the alleged offence. 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 prosecution 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, could not be treated as a complete and unequivocal exoneration of the petitioner. The court noted that she had referred to the adverse impact of the incident on her life and expressed, along with her father, a desire to get out 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.
Referring to the Supreme Court judgment in Hemudan Nanbha Gadhvi versus State of Gujarat, the High Court said the testimony of a hostile witness is not completely wiped out from the record. The portions found credible and corroborated by other evidence may still be considered by the trial court.
The court also clarified that the statutory presumption under Section 29 of the POCSO Act does not absolve the prosecution of its initial obligation to establish the foundational facts of the alleged offence.
Justice Parihar held that the prosecution had placed sufficient prima facie material warranting adjudication at trial. The subsequent change in the stand of the victim and her father, the court said, was not sufficient to eclipse the remaining evidence or establish that the foundational facts had been completely erased.
The High Court accordingly held that the trial court's refusal to grant bail did not suffer from illegality, perversity or material irregularity and dismissed the bail application.
The court made it clear that its observations were confined to consideration of the bail plea and would not prejudice the trial court while deciding the case on its merits.

Photo Gallery

BSE Sensex

NSE Nifty