BNS Section 483 | DNA Evidence & Hostile Witness Testimony Justify Bail in POCSO Case : Karnataka HC

The Karnataka High Court recently granted bail to an accused in a case involving serious offences under the Bharatiya Nyaya Sanhita, 2023 (BNS) and the Protection of Children from Sexual Offences Act (POCSO Act), highlighting the significance of DNA evidence and hostile witness testimony in bail considerations. The judgment underscores that prolonged custody without conclusive evidence may warrant bail, even in grave offences, if the investigation fails to substantiate allegations against the accused.

Background & Facts

The Dispute

The petitioner, Deepu, aged 23, was arrested on 19.06.2025 in connection with Crime No. 79/2025, registered by the Kempapura Agrahara Police Station, Bengaluru. The case arose from a complaint filed by the mother of a minor victim girl, alleging offences under Sections 65(1), 64(2)(m), 70(2), 351(2) read with Section 3(5) of the BNS, 2023 and Sections 4(2), 5(J)(ii), 5(l), and 6 of the POCSO Act. The petitioner was arraigned as Accused No. 3 in the charge sheet filed subsequently.

Key Facts

• The FIR (Crime No. 79/2025) was registered on 22.05.2025 based on the complaint by the victim’s mother.
• The petitioner was arrested on 19.06.2025 and remanded to judicial custody.
• The charge sheet implicated the petitioner as Accused No. 3, alongside two other accused (Accused Nos. 1 and 2).
• Accused Nos. 1 and 2 were granted regular bail by the Sessions Court.
• A DNA test report of the foetus, whose pregnancy was terminated pursuant to an order in W.P. No. 15395/2025, revealed that Accused No. 2 was the biological father of the foetus, not the petitioner.
• The victim girl was examined as P.W. 2 before the trial court and was declared a hostile witness during cross-examination by the Public Prosecutor.

Procedural History

• 22.05.2025: FIR registered under the aforementioned sections.
• 19.06.2025: Petitioner arrested and remanded to judicial custody.
• Subsequent date: Charge sheet filed, arraigning the petitioner as Accused No. 3.
• 28.03.2026: Bail application (Crl.Misc.No. 2503/2026) rejected by the trial court.
• 22.06.2026: Present criminal petition (Crl.P No. 5872 of 2026) filed under Section 483 of the Bharatiya Nagarik Suraksha Sanhita (BNSS), 2023, seeking regular bail.

Relief Sought

The petitioner sought enlargement on bail in Spl.C.No. 1621/2025, pending before the Additional City Civil and Sessions Judge-FTSC-V, Bengaluru, arising out of Crime No. 79/2025.

The Legal Issue

The central question before the Court was whether Section 483 of the BNSS, 2023 permits the grant of bail to an accused in a POCSO case where:

1. The DNA evidence exonerates the accused of paternity of the foetus;
2. The victim turns hostile during trial; and
3. Co-accused have already been granted bail by the trial court.

Arguments Presented

For the Petitioner

• The petitioner, aged 23, has no criminal antecedents and has been in custody for over one year.
• Accused Nos. 1 and 2 have already been granted regular bail by the Sessions Court.
• The DNA test report conclusively establishes that Accused No. 2 is the biological father of the foetus, not the petitioner.
• The victim girl was declared a hostile witness during her deposition as P.W. 2, undermining the prosecution’s case.
• The petitioner’s continued incarceration, in the absence of conclusive evidence, violates the principles of natural justice and personal liberty under Article 21 of the Constitution of India.

For the Respondents

• The State Public Prosecutor and counsel for the complainant (Respondent No. 2) opposed the bail petition but did not dispute the factual submissions made by the petitioner’s counsel.

The Court's Analysis

The Court examined the merits of the bail petition in light of the following key considerations:

1. Absence of Petitioner’s Name in FIR: The Court noted that the petitioner’s name was not mentioned in the initial FIR and was added only during the course of investigation. This raised questions about the strength of the prosecution’s case against him.

2. DNA Evidence: The DNA test report of the foetus, whose pregnancy was terminated pursuant to an order in W.P. No. 15395/2025, was a critical piece of evidence. The report exonerated the petitioner by establishing that Accused No. 2 was the biological father of the foetus. The Court observed:

   "The DNA test report of the foetus of the victim girl... would go to show that accused No. 2 is the biological father."

   This finding significantly weakened the prosecution’s case against the petitioner.

3. Hostile Witness Testimony: The victim girl was examined as P.W. 2 before the trial court and was declared a hostile witness during cross-examination by the Public Prosecutor. The Court emphasized that this development undermined the credibility of the prosecution’s case, as the victim’s testimony could no longer be relied upon to establish the allegations against the petitioner.

4. Prolonged Custody: The petitioner had been in judicial custody for over one year without trial. The Court reiterated the principle that prolonged pre-trial detention is antithetical to the right to personal liberty under Article 21 of the Constitution, particularly when the investigation fails to substantiate the allegations.

5. Bail Granted to Co-Accused: The Court noted that Accused Nos. 1 and 2, who were similarly situated, had already been granted regular bail by the Sessions Court. This created a disparity in treatment, which the Court sought to rectify by granting bail to the petitioner.

6. No Criminal Antecedents: The petitioner’s clean criminal record was a mitigating factor in the Court’s decision to grant bail.

The Court concluded that the cumulative effect of these factors - DNA evidence exonerating the petitioner, the victim turning hostile, prolonged custody, and bail granted to co-accused - warranted the grant of bail under Section 483 of the BNSS, 2023.

The Verdict

The Court allowed the petition and directed the petitioner’s enlargement on bail in Spl.C.No. 1621/2025, subject to the following conditions:

1. The petitioner shall execute a personal bond for Rs. 1,00,000 (Rupees One Lakh only) with two sureties for the like sum, to the satisfaction of the jurisdictional court.
2. The petitioner shall appear regularly on all dates of hearing before the trial court unless exempted for valid reasons.
3. The petitioner shall not tamper with prosecution witnesses or threaten them directly or indirectly.
4. The petitioner shall not involve in similar offences in the future.
5. The petitioner shall not leave the jurisdiction of the trial court without its permission until the case is disposed of.

What This Means For Similar Cases

DNA Evidence as a Decisive Factor

• This judgment establishes that DNA evidence can be a game-changer in bail proceedings, particularly in cases involving allegations of sexual assault under the POCSO Act.
• Practitioners should insist on DNA testing where paternity or biological linkage is a contested issue, as it can exonerate the accused and weaken the prosecution’s case.
• Courts may be more inclined to grant bail where DNA evidence contradicts the allegations, especially if the victim’s testimony is unreliable.

Hostile Witnesses and Bail Considerations

• The Court placed significant weight on the fact that the victim turned hostile during trial. This underscores that hostile witness testimony can severely undermine the prosecution’s case.
• Defence counsel should scrutinize the victim’s deposition for inconsistencies or retractions, as these can be powerful grounds for bail.
• Prosecutors must ensure witness protection and credible testimony to avoid such outcomes, which can lead to bail being granted to accused persons.

Prolonged Custody and Bail Jurisprudence

• The judgment reaffirms that prolonged pre-trial detention without conclusive evidence violates Article 21 of the Constitution.
• Courts may lean towards granting bail where the accused has been in custody for over a year without trial, particularly if the investigation fails to substantiate the allegations.
• Practitioners should highlight delays in trial and lack of progress in investigation as grounds for bail, especially in cases where co-accused have already been granted bail.

Disparity in Bail Grants

• The Court rectified the disparity in treatment where co-accused were granted bail while the petitioner remained in custody.
• This sets a precedent that bail should not be denied arbitrarily where co-accused in similar circumstances have been granted relief.
• Defence counsel should compare the merits of co-accused bail orders to argue for parity in bail grants.