Bombay High Court
Parvej Khan S/O. Rafik Khan vs The State Of Maharashtra on 19 December, 2023
Author: Vibha Kankanwadi
Bench: Vibha Kankanwadi
2023:BHC-AUG:26670-DB
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CRIMINAL APPEAL NO. 884 OF 2019
Parvej Khan s/o Rafik Khan,
Age 21 years, Occu. Labour,
R/o Village Pusegaon,
Taluka Sengaon,
District Hingoli.
At present Jamjam Colony,
Jintur, Taluka Jintur,
District Parbhani. ... Appellant
[Orig. Accused]
Versus
1. The State of Maharashtra,
through the Bori Police Station,
District Parbhani.
2. XYZ ... Respondent
.....
Mr. Rajendra Deshmukh, Senior Advocate i/by Mr. Devang R.
Deshmukh, Advocate for the Appellant.
Mr. S. D. Ghayal, Advocate for Respondent No.1-State.
Mr. Anil M. Gaikwad, Advocate for Respondent No.2.
.....
CORAM : SMT. VIBHA KANKANWADI AND
ABHAY S. WAGHWASE, JJ.
Reserved on : 30.11.2023
Pronounced on : 19.12.2023
JUDGMENT [ABHAY S. WAGHWASE, J.] :
1. Instant appeal arises out of the judgment and order of
conviction passed by learned Sessions Judge, Parbhani in Special Case
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(POCSO) No. 01 of 2019 dated 03.07.2019 by which appellant is held
guilty for commission of offence punishable under Sections 376AB,
506, 323 of the Indian Penal Code [IPC], Section 3(i)(v) of the
Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities)
Act, 1989 [SCST Act] and Section 4 of the Protection of Children from
Sexual Offences Act, 2012 [POCSO Act] and sentenced to suffer
rigorous imprisonment for life till remainder of his natural life and to
pay fine as enumerated in the impugned order.
FACTS LEADING TO TRIAL ARE AS UNDER
2. The conspectus of the prosecution case is that, PW6 victim, a
six years old girl studying in 1st standard, appeared for drawing exams
on 01.11.2018 and she was returning back home by walk. On the
way, she was intercepted by unknown person, who posed himself as
friend of her father and offered her chocolate as well as lift and so she
accompanied him. Instead, he took her to an abandoned building
near MSEDCL office and there he committed forceful sexual assault.
Victim returned home. Seeing her condition, PW1 i.e. her father made
inquiries with her and she promptly reported the events which took
place with her and was taken by parents to their landlord, who
himself is a doctor. He also made inquiries with the victim and
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thereafter he made telephone call to police, who came and took
victim as well as her parents to police station where PW1 father set
law into motion and crime was duly registered which was
investigated by PW20 API Alewar and PW21 SDPO Gherdikar
respectively. Investigation revealed involvement of appellant herein
and so he was duly arrested and after carrying out investigation, he
was challaned.
Charge was explained to the appellant and on denial of charge,
his trial was conducted by learned Sessions Judge, Parbhani, who, on
appreciation of evidence and on hearing both sides, held the charges
proved and sentenced the appellant as above.
SUBMISSIONS
ON BEHALF OF APPELLANT
3. By instant appeal, the above judgment is questioned by learned
senior counsel primarily on following grounds:
1. Firstly, failure of prosecution to establish identity of real
culprit.
2. Secondly, inordinate delay in conducting Test Identification
[TI] parade.
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3. Thirdly, utter disregard to the collection of biological and
non-biological evidence rendering the scientific evidence
doubtful, coupled with major lapses further rendering the
DNA evidence inadmissible and doubtful for want of link
evidence or establishing chain of custody.
4. Pleading false implication, learned senior counsel would submit
that cardinal principle of proving the case beyond reasonable doubt
has not been complied by prosecution. He reiterated the story of
prosecution and would submit that apparently and admittedly
appellant is a stranger, unknown to any witness including victim and
therefore, it is his submission that, at the outset it was incumbent on
the part of the investigating machinery to first get identity of the real
perpetrator fixed and confirmed. That, no such initial steps are taken
and according to him, though implication is claimed on the basis of
photograph and hand sketch, he would strenuously submit that
neither the victim nor any other witness had provided any description
of the culprit and therefore, it is his submission that, case of
prosecution about appellant alone to be the perpetrator has no
foundation at all. He further submitted that alleged occurrence is of
01.11.2018 whereas accused, who is resident of other village, is
arrested on 08.11.2018 and further, even Test Identification parade is
held almost one month after the occurrence. Therefore, according to
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him, possibility of confrontation of arrested accused to the victim
cannot be ruled out.
5. He next submitted that prosecution claims that there was CCTV
footage and even witness has been examined but according to learned
senior counsel, still the footage did not reveal true identity of the
person appearing in the footage and therefore, it is his submissions
that, very identification of accused has come under shadow of doubt.
6. He further submitted that victim is subjected to medical
examination at three different places and investigating machinery
claims to have gathered biological evidence but said samples are not
properly collected, maintained or preserved in safe custody and as
such, possibility of tampering of evidence has thereby not been
completely ruled out. Further, according to him, so called seizure has
been dispatched to the analyzer after inordinate delay and even the
person in whose custody samples were kept or the person who
actually carried muddemal has not been examined. Such major
lapses, according to him, contribute to the very veracity and
credibility of evidence. He emphasized that even otherwise DNA
evidence is mere opinion evidence or at the most corroborative piece
of evidence and not substantive piece of evidence. According to him,
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here, there is no other clinching incriminating material to establish
that appellant alone is the perpetrator of the crime on the minor.
7. Lastly, he submitted that in spite of such weak evidence,
learned trial court has unfortunately accepted the case of prosecution
as proved and so he seeks indulgence of this court for setting aside
the impugned judgment by allowing the appeal.
ON BEHALF OF STATE
8. Per contra, refuting the above submissions, learned APP would
submit that the victim of six years has been sexually assaulted in a
brutal manner. According to him, victim has identified accused in TI
parade as well as in court and so he questions as to what more is
required and further according to him, there is no reason for false
implication. He further submitted that all medical experts, who had
occasion to subject victim to physical examination and who had
collected biological evidence, have been examined by prosecution.
They are all unanimous about sexual assault. He submitted that even
biological evidence of victim and accused was picked up from the
crime scene by forensic experts. DNA analysis of the gathered
evidence was conducted and the results are positive confirming
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involvement of none other than appellant. There is no major
deviation or lapses on the part of police or medical experts. Their
evidence has remained intact and therefore, according to him, learned
trial Judge has committed no error whatsoever in returning the guilt.
Consequently, it is his submission that, there being no perversity or
illegality in the findings, appeal be dismissed.
ON BEHALF OF RESPONDENT NO.2-VICTIM
9. Learned counsel representing victim, while supporting the
findings and judgment, would submit that there is overwhelming
evidence regarding involvement of none other than appellant.
Forensic evidence confirms his complicity and culpability and as such,
learned trial Judge has rightly convicted him.
10. Here is an unfortunate case, of which there is no dispute, where
a minor of six years old has been sexually ravished while she was
returning from school. This being first appellate court and as we are
exercising powers under Section 374 of the Code of Criminal
Procedure [Cr.P.C.], we are called upon to re-appreciate, re-examine,
re-analyze and re-evaluate the entire oral and documentary evidence
adduced by prosecution in trial court and to further see whether the
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findings arrived at by learned trial Judge are legally sustainable or are
required to be interfered with.
11. Before, dealing with the credibility and veracity of prosecution
evidence, we wish to give a brief account of the status of the
prosecution witnesses and the sum and substance of their testimony
in the witness box by categorizing the witnesses as under :
FIRST SET OF WITNESSES
[Informant, landlord, neighbour, school teacher and victim]
PW1 Informant and father of victim, who is a shop-keeper, in his
evidence at Exhibit 10 gave her date of birth, standard in
which she was taking education and name of the school.
According to him, on 01.11.2018 around 3.30 p.m., he had
returned from the shop to his house for some work. His
neighbour Dashrath brought his daughter up to the gate and
then he noticed condition of his daughter, her clothes having
blood stains and injuries on her person and therefore he and
his wife made queries and according to him, their daughter
told that she was taken by a person on motorcycle while she
was returning from school after offering her a chocolate and
also on assurance to drop her at home and that, his daughter
told the acts committed on her forcibly and thereafter said
person running away and she returning home. Then, he stated
about approaching police, who referred his daughter to Rural
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Hospital Bori and from their to Parbhani Civil Hospital and
further to Nanded Civil Hospital where she was admitted and
treated from 02.11.2018 to 04.11.2018. He identified the
clothes of his daughter which were on her person. He stated
that approximately after one month, he was called at Parbhani
District Prison for identification.
In cross, learned defence counsel in trial court
questioned him about timings of his shop and he duly
answered that there is no such fixed timing. He answered that
when he reached home that day, his daughter came home 10
to 15 minutes thereafter. He admitted that he had not
communicated with PW3 Dashrath Nitnavare. He answered
that they were at police station for one hour and thereafter
reached hospital by 6.00 to 6.30 p.m. and were there for three
to four hours. He is unable to give timing at which they
reached Parbhani Civil Hospital. He admitted that at police
station, statement of his daughter was not recorded, but he
volunteered that she was in scared condition and was not
communicating at that time. He admitted that her statement
was recorded after returning from Nanded i.e. on 5 th or 6th of
November. Regarding TI parade, he answered that there was
no written intimation by police to him. In para 16 certain
omissions are brought. Rest is all denial.
PW2 Landlord as well as an Ayurvedic doctor stated about hearing
cries around 04.15 p.m. from the house of his tenant on
01.11.2018. He deposed about raising queries and PW1 and
his wife bringing their daughter to his cabin. He also narrated
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condition of her clothes, injuries on her person as well as
private part. He claims that even victim narrated him the
incident which allegedly took place with her. According to
him, hearing her, he realized it to be a medico legal case and
therefore claims to have given call to Police Constable Sanap,
who came along with police officer Alewar to the clinic and
took victim and her parents with them. He also identified the
clothes of victim shown to him.
This witness in his cross is merely asked as to what
happened after police took victim from his clinic. He answered
that victim and her parents were in his cabin for 20 to 25
minutes and he denied that victim did not narrate him
regarding the incident.
PW3 Dashrath stated that on Thursday, which was first day of the
month, between 3.00 to 3.30 p.m. while he was walking to his
house, he saw the girl with dry blood stains on her legs. He
claims that he took the girl initially to the shop of her father
and thereafter he followed her up to her house and he claims
hearing shouts and cries from the house of victim.
While facing cross, this witness admitted that he does
not know about the actual incident and that he did not
communicate with the father of victim. Portion marked "A" is
confronted to him which he denied but he is unable to state
how it is appearing in his statement.
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PW4 school teacher, in her evidence at Exhibit 16, confirms victim
to be student of 1st standard at her school and about she
appearing for exam on 01.11.2018 and leaving school at 2.30
p.m. She claims that around 4.00 p.m. she learnt about the
incident and therefore made inquiries with PW2, who
narrated her about the incident with victim. She further
deposed about visiting victim at Nanded Civil Hospital and
further claims about victim giving description of the accused.
In cross she is asked about functioning of school, its
shifts, timings, about maintenance of attendance register. She
was unable to give the name of hospital at Nanded where she
met victim and who all were present when she interacted with
the girl. Omission is brought about victim disclosing that the
said person was addressed as "mama".
PW6 is the victim and at Exhibit 22 she narrated that she appeared
for drawing exam and while she was proceeding back home
alone, she met one person who she claims was unknown to
her. According to her, he was having black complexion, beard
on his chin and he had come on black two wheeler and he
offered to drop her at her father's place and also promised to
give her chocolate and so she went with him and he took her
in one house which was under construction behind bijli ghar
(MSEB office). Regarding the occurrence, she deposed that he
removed her clothes and inserted his finger in her urinal
place, blood was oozing from her urinal place, he inserted his
penis into her private place, she started weeping, he put his
foot on her face, he pulled her hair, he pressed her neck also,
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he inserted his penis into her mouth, therefore she omitted
and that she sustained injury on her right hand elbow, left side
cheek and left side eyebrow.
Further, she stated that the person ran away after the
incident. She wore clothes and returned home by walk. On the
way, another person brought her home but she is unable to
give his name and deposed about narrating the incident to her
parents, who took her to the hospital where again she
narrated the incident to the medical officer and then further
being taken to Civil Hospital Parbhani and Nanded. She
claimed that she saw the person in jail and that she had
identified him standing at 4th position in a row comprising of
six persons and that she identified him by touching him.
Her evidence goes to show that the accused was
confronted to her on video conferencing before Court.
PW6, who is star witness, seems to be cross-examined
extensively by posing questions regarding strength of students
in her class; names of her friends; their residence; about
examinations she appeared for; timings of the school; timing
of drawing examination; whether all children walk home;
which road they use and whether they all came together;
whether shop of her father is on the way to road going to
school to which she answered in affirmative. To a question
whether she visited shop after appearing for drawing exam,
she answered in negative. She is questioned who takes her
studies. She is asked whether the person who brought her
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home entered her house and she answered in negative. She
affirmed that she narrated to her father who dropped her at
home. Then she is questioned as to which all places was she
taken and she answered as she was taken to hospital, police
station, Parbhani Civil Hospital and Hospital at Nanded. She is
asked whether she informed anything to police but she
answered in negative. She is further questioned about days
spent in Parbhani Hospital and Nanded Hospital. She is asked
when she narrated to police, to which she answered that she
narrated after she returned from Nanded Hospital. She is
specifically asked where she narrated and she answered that
she narrated the incident at the house of Dr. Bakan. She is put
questions regarding her visit to Jintur court, whether police
accompanied her, how many times, and whether police
constable was in uniform. She is asked whether she can tell
about hair, mustache and beard on the person who took her
on motorcycle and she answered that he was having small
hair, mustache and beard only on chin. She gave description of
clothes as pink colour shirt and blue colour pant. Then she is
questioned about TI parade. She is unable to state whether at
the time of identification, persons standing were also having
beard or not.
SECOND SET OF WITNESSES
[Examining Doctor, treating Doctor, Doctor assisting Examining
Doctor and the Doctor who collected blood samples for DNA analysis]
PW7 Dr. Pradnya, a medical officer posted at Rural Hospital Bori is
examined at Exhibit 23 wherein she narrated that on
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01.11.2018, Bori police referred victim for medical
examination vide communication Exhibit 24 and the victim
girl to be brought by LPC 1189 M. R. Paithane attached to Bori
Police Station. Doctor stated that victim narrated the history
and about being taken on motorcycle by offering her chocolate
and further saying that if she denies to come, he would kill her
and so the victim went on motorcycle with him, who took her
to a building under construction, removed her clothes and that
victim told acts done with her. Doctor claims that she noted
the history in the words of the victim and thereafter subjected
victim to physical examination after obtaining consent of her
father at Rural Hospital Bori. Doctor has reproduced injuries
noticed by her in para 3, 4 and 5 i.e. both, internal and
external. She even gave description of the clothes on the
person of the victim in para 6 and 7 and opined that the signs
suggested recent use of force with recent forceful vaginal
penetration.
This medical expert in para 9 stated about collecting
vaginal swab, valvul swab, blood, nail clippings and hair
found over genital region. Victim was given treatment and
referred to higher center for gynecological examination and
forensic examination. She identified the injury certificate
Exhibit 25 issued by her. Witness stated that all samples were
handed over to police in sealed condition. She further stated
that on the basis of FSL [Forensic Science Laboratory] report,
it is her opinion that the girl was sexually assaulted by accused
as semen detected on the swab collected from the crime scene
matched with the male haplotypes obtained from controlled
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blood samples of accused-appellant. She was carrying form by
which samples were forwarded to the police i.e. on the day of
her evidence and that she is ready to place it on record and it
was duly taken on record as Exhibit 27. She further claimed
about request letter from police for handing over samples and
she identified it at Exhibit 28. She also identified clothes of
victim.
PW8 Dr. Dhokte, posted as Assistant Professor at Government
Medical College, Nanded, in his evidence at Exhibit 29 gave
evidence that victim was referred on 02.11.2018 with
complaint of perennial tear in the posterior wall of vagina. She
was admitted for three days. After giving general anesthesia,
she was treated for the perennial tear and even sutures,
prescribed medicines and was discharged on 04.11.2018. He
claims that he opined that victim girl has perennial tear due to
sexual assault on the basis of his examination. He identified
discharge card and medical treatment papers Exhibits 30 and
31. On the basis of FSL report, he opined that victim was
subjected to penetrative sexual assault by accused.
PW10 Dr. Chandane, claims that he was attached to Rural Hospital
Bori on 05.11.2018. He claims that on 01.11.2018 he assisted
Dr. Alne [PW7], who called him for medical examination
regarding sexual assault. He deposed that after examination,
Dr. Alne handed over clothes of victim girl to this witness for
sealing the same and so he further took assistance of two staff
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members of the hospital namely, Deepak Samcharan and
Shriniwas Kanthe, who acted as panchas, and he claims that
he kept the clothes in one box and sealed it by noting the MLC
number. He further claims that he personally sealed it on
01.11.2018 and police have drawn panchanama on
05.11.2018.
PW11 Dr. Pawar, another doctor posted at Rural Hospital, Bori, at
Exhibit 35 deposed that on 13.11.2018, victim was referred
for collection of blood samples in DNA kit. According to him
after obtaining consent of father of victim, he collected blood
sample in a dispovan syringe and transferred it in DNA kit and
then sealed it and he further claims to have kept it in one cold
box and even the said box was sealed by him. He claims that
he handed over the DNA kit to API Alewar and constable of
Bori police Station. He further deposed that on same day,
accused was also referred to him for obtaining blood sample
for DNA. He deposed about collecting blood sample of accused
in two tubes. He also collected his pubic hair, nail clippings,
sample from the entry portion of penis and sealed all the
samples by labeling it and further handed over it to the police
on the same day.
THIRD SET OF WITNESSES
[Panchas]
PW12 Ramrao, who acted as pancha, at Exhibit 40 gave evidence
that on 01.11.2018 he was called at Bori police station and
from there they went in a Government vehicle to the spot of
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incident. According to him, forensic lab van was parked at the
spot, the spot was a building which was under construction, at
a distance of 100 meters from Jintur-Parbhani road, the
building had no roof. For entering the building, stones were
kept and they all entered. There was darkness at the relevant
time and therefore, headlights of forensic lab van were kept
on. Police personnel were carrying batteries and in the light of
van headlights and batteries they saw the spot and he claims
that they observed blood stains in the right side room and
blood stains, semen stains and omit portion in the back side
room. A hair pin and hair were found lying there. Forensic
experts collected the samples from the spot. All samples were
sealed at the said place by police and forensic team. He claims
that his signature was obtained and police drew panchanama.
He identified panchanama Exhibit 41 as well as his signature
over it. He identified the articles confronted to him in the
witness box. He deposed that blood samples were collected
from the cement concrete and kept in polythene bag. He also
identified articles E, F, G, H i.e. omit sample, blood sample,
hair pin. He identified labels affixed on the seizure envelop
Exhibits 42, 43, 44, 45. This witness has also identified
panchanama of seizure of motorcycle caused on 15.11.2018 as
well as photographs snapped from the scene of occurrence.
PW13 Deepak is the pancha to seizure of clothes of accused. He
deposed that on 05.11.2018 he and another pancha Shriniwas
Kanthe were called to act as pancha. Learned trial court has
noted his demeanor that witness is unable to say anything and
thereafter, in para 3 he deposed that he was called in police
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station and in their presence clothes of accused which were on
his person were removed and seized by police. He gave
description of clothes as pink full shirt and blue jeans.
According to him, police seized and sealed the clothes by
drawing panchanama Exhibit 48 which he identified
alongwith his signature over it.
PW15 Johnathan Daund is the witness who has acted as pancha to
disclosure and verification panchanama Exhibit 58 done at
Bori police station on 15.11.2018.
FOURTH SET OF WITNESSES
[Investigating Officers and Police Personnel]
PW9 PC Dilwale is the carrier of muddemal and he deposed
regarding muddemal being directed on 13.11.2018 by PW20
to be taken to FSL, however, he took possession of the
muddemal on 14.11.2018.
However, in cross he answered that outward letter
bearing no. 1213/2018 is of 06.11.2018. Such date shows that
in spite of police preparing communication for dispatch for
analyzer on 06.11.2018, this witness has collected muddemal
actually on 14.11.2018 and the delay so caused has not at all
been explained. He is unable to state in cross as to who was
in-charge of the muddemal section at Bori Police Station when
he collected muddemal.
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Evidence adduced by prosecution goes to show that in spite of
gathering biological and non-biological evidence on 01.11.2018 i.e.
both, found at crime scene as well as on examination of victim,
muddemal is dispatched directly after almost two weeks and it was
apparently kept lying at Bori police station.
PW18 Parmanand Gawande, Naib Tahsildar, held the TI parade on
04.12.2018.
PW20 API Alewar and PW21 S.D.P.O. Gherdikar are the Investigating
Officers [IO]. They have deposed regarding carrying out
investigation at respective times. It transpires that
subsequently when it was revealed that the victim belonged to
Scheduled Caste, further investigation was handed over to
PW21 being a Dy.S.P. ranking officer.
PW20 referred victim to medical examination and he
himself proceeded to spot in the evening and with the help of
forensic experts, claims to have got incriminating physical
evidence collected and himself sealed it, drew scene of
occurrence panchanama and thereafter carried out further
investigation like gathering CCTV footage, arresting accused,
collecting its panchanama, collecting biological samples from
medical experts, gathering medical papers to form it a part of
chargesheet.
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Similarly, after taking over investigation by PW21, he
seized clothes of accused, took steps for procuring DNA kit,
got blood samples of victim and accused collected through
doctor, sent seizure to FSL Aurangabad on 14.11.2018,
included papers like logbook extract, caused seizure of
motorcycle, sought information from RTO, directed holding of
TI parade, gathered injury certificate and chargesheeted
accused.
Both IOs are subjected to extensive cross by learned
defense counsel. PW20 admitted in cross that for the first time
he met victim girl and her parents in the house of PW2
landlord. He admitted that at said place he did not make
inquiry with the victim. He admitted that when he reached the
spot, it was dark. He is unable to give names of the forensic
experts, their strength and that he did not record their
statements as well as did not obtain their signature on the
samples collected by them. He admitted that sketch of the
suspect was prepared in the night but it is not made part of
the chargesheet and that he did not take note of drawing
sketch in the station diary. He admitted that there is no
document to show that by way of written communication LCB
was deputed to search for accused and that he did not record
statement of the LCB officer from whom custody of accused
was taken nor any report to that extent is made part of
chargesheet. He admitted that he did not record statement of
the person from whom he obtained CCTV footage and no
distinct panchanama was drawn regarding procedure of
obtaining CD of the CCTV footage. He admitted that he did
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not seize school bag, tiffin bag of the victim and that he did
not note description of clothes on the person arrested and
remanded i.e. in the arrest panchanama. He admitted that
hand sketch was got drawn on the basis of CCTV footage. He
is unable to give name of the employee with whom muddemal
was forwarded on 06.11.2018 and he did not record the
statement of carrier.
While under cross PW21 IO answered that clothes of the
accused were seized from his house. He too admitted that he
did not file hand sketch of the accused along with the
chargesheet.
12. The other witnesses are either photographer, owner of the
shop from whom CCTV footage is obtained, police staff who
arranged DNA kit and who guarded the spot etc. However we do not
feel their evidence to be that important.
ANALYSIS
13. Learned senior counsel for appellant has raised several
objections which are taken note of in para 3, 4, 5, 6 and 7 i.e.
regarding false implication on the ground of failure to fix identify of
real perpetrator; and secondly, lapses and deviations by both, medical
experts, police machinery, forensic experts who allegedly participated
in collection of biological and non-biological evidence, thereby
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rendering forensic evidence doubtful. His specific accusation is that
possibility of tampering has not been ruled out.
In the light of above submissions and objections, following
questions arise for our consideration:
1 Whether appellant is identified alone to be the perpetrator
of crime?
2. Whether there are infractions in collection and preservation
of biological and non-biological evidence?
3. Whether possibility of contamination and tampering of
evidence has been completely ruled out.
We proceed to answer the above questions here as under:
14. The fundamental objection raised before us is about identity of
real perpetrator of crime. Learned senior counsel has not disputed
offence committed on the minor but he has raised issue as to who
committed it. He is very emphatic that at the threshold prosecution
utterly failed in establishing the very identity of the accused.
15. Admittedly, neither informant father, nor victim has provided
detailed description of real culprit. Only description given by victim is
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that the person was of black complexion and he was sporting beard
only on the chin. Description of the clothes is given as pink shirt and
blue jeans. Except such description, no further details about age or
other physical features were disclosed by the victim.
16. PW20-first Investigating Officer claims that he got hand sketch
drawn on the basis of CCTV footage. In para 22 of his evidence, PW20
deposed that as per instructions of his superior, he searched for
persons who were having criminal records and that time he came
across name of one Allauddin Sandal and he was accordingly called,
interrogated, confronted with CCTV footage and said person
Allauddin revealed the identify of present appellant and he to be
resident of Jintur and therefore, LCB team was informed, who caught
appellant on 08.11.2018, and thereafter arrested him.
But while under cross, PW20 has admitted that hand sketch is
not made part of chargesheet. He has not recorded statement of so
called person interrogated on the basis of criminal record, namely,
Allauddin. PW19 Sandip, who retrieved CCTV footage which was
made the basis of drawing hand sketch, has candidly admitted that,
person seen in the footage is not identifiable. PW20 in cross para 32
answered that there is no document to show that information was
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passed on to LCB, he has not recorded statement of any of the LCB
officers and no report was forwarded by LCB. He admitted that he has
not recorded statement of the person from whom he obtained CCTV
footage and that he did not drew panchanama of preparing CD.
Therefore, such material shows that there was no concrete
foundation or material with either PW20 or PW21 confirming
appellant alone to be the culprit.
17. Though PW21 took steps of getting TI parade arranged, it is
apparently conducted on 04.12.2018 i.e. almost after one month of
the occurrence and more than three weeks since arrest of appellant
dated 08.11.2018. No explanation has been given for inordinate delay
caused in conducting TI parade even when investigating machinery
was clearly aware that appellant was a stranger.
Though TI parade was got conducted through PW18 Naib
Tahsildar, we are astonished to find that in a case where provisions of
POCSO Act are attracted, a minor of six years old and victim of sexual
assault is made to appear in a jail premises and further made to
identify culprit amongst a line of dummies by making her touch the
person. In fact, POCSO Act itself provides detailed mechanism
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regarding precautions to be taken to, as far as possible, avoid direct
confrontation of accused and victim. However, here, such precaution
has apparently not been taken, thereby frustrating the very object of
the statute like POCSO Act. Therefore, we are compelled to express
our serious concern as regards the procedure adopted by the Special
Executive Magistrate i.e. Naib Tahsildar and wish to deal with the
same at appropriate stage.
Evidence of PW18 Naib Tahsildar shows that he himself did not
draw the panchanama, rather a Talathi accompanying him scribed it
and said Talathi is not examined and secondly, Naib Tahsildar has
admitted in cross that he did not mention in the panchanama that
dummy persons used were of similar features and personality like that
of suspect. He has not mentioned whether the dummy persons were
sporting mustache or beard. Therefore, even the belated exercise of
identification comes under shadow of doubt as guidelines required to
be followed while conducting TI parade, i.e. arranging dummies of
similar age, physical features matching to that of accused, are not
followed thereby rendering the exercise doubtful. It has also come in
the evidence that victim as well as appellant were called at Rural
Hospital, Bori on one and the same day for collection of blood sample
for DNA. Such circumstance creates possibility of confrontation of
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appellant to the victim before her testimony in the witness box where
she had identified him on the video conferencing.
Therefore, in the light of above discussed material, as pointed
out by learned senior counsel, here, very identification of real culprit
has not been established beyond reasonable doubt.
Hence this point is answered in negative.
18. Now let us deal with the second criticism regarding non-
compliance of Standard Operating Procedure [SOP] for collection,
maintenance, safe custody of both, biological and non-biological
evidence allegedly gathered during investigation. He also questioned
the very aspect of integrity of the evidence on the ground that link
evidence and chain of custody is not proved.
In the light of above objection, we have meticulously visited the
evidence of IOs, pancha to spot panchanama, medical witnesses PW7,
PW8 and PW11. What is emerging is that though evidence is claimed
to be gathered from crime scene on 01.11.2018 itself, apparently
evidence of IO and pancha clearly shows that the process of collection
was done in dark allegedly by use of light of vehicle i.e. van of
Forensic Science Laboratory and torch. Even collection seems to have
been done and kept in polythene bags which is in deviation to the
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SOP drawn by Government prohibiting storing of biological samples
in polythene bag to avoid its contamination. Secondly, forensic
experts who allegedly collected and picked up samples are not
examined, nor are signatories to the label over samples as well as spot
panchanama. Samples collected from crime scene are also not
dispatched immediately.
Biological Samples allegedly collected by PW7 Dr. Pradnya are
surprisingly retained by either herself at her home and some samples
are kept in Rural Hospital itself. No documentation has been drawn
by PW7 on 01.11.2018. She has handed over biological samples
collected by her on 01.11.2018 to police on 05.11.2018. There is no
material or evidence that samples were properly preserved to avoid its
degradation and maintain its integrity.
Even it is surprising and shocking to note that, PW11 Dr. Pawar
has not collected very semen of appellant in spite of being requested.
Further, the treating doctor PW8 Dr. Dhokte has not issued MLC
certificate/injury certificate. As per guidelines, PW7 was expected to
forward examination report forthwith to the police along with
biological evidence, however her evidence shows that on the day of
her testimony in the court, she was carrying the form.
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Further, investigating machinery took possession of biological
samples on 05.11.2018 and 13.11.2018 and kept the same at Bori
police station up to 14.11.2018 till its dispatch to the laboratory.
However, according to carrier, he was called by IO to forward and
deposit muddemal on 13.11.2018 and he further collected it on
14.11.2018. Such timeline shows that since 01.11.2018 till
14.11.2018, muddemal was lying in Bori police station but muddemal
clerk has not been examined to demonstrate its safe custody.
Evidence of IO PW20 goes to show that muddemal was not
deposited and accepted by Forensic Science Laboratory, Aurangabad
as the same was said to be closed for Diwali vacation and therefore
carrier allegedly brought the muddemal back to Bori police station. A
mere entry to that extent has been taken in station diary, however,
Investigating Officers in cross are unable to give the name of the
carrier who subsequently took muddemal for FSL and DNA. Such are
the sorry state of affairs in handling muddemal in a serious case of
rape on a minor.
Therefore, the objection raised by learned senior counsel
regarding improper collection and question about safe custody of
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seized muddemal i.e. both, biological and non-biological evidence, is
required to be sustained. Hence this point is answered accordingly.
19. It needs to be noted that Central Forensic Department, Home
Ministry, Government of India as well as Ministry of Health have
issued guidelines for proper collection, documentation, preservation
of both, biological and non-biological evidence. The guidelines are
meant to be followed by both, Government hospitals as well as
private hospitals. However, above discussed material on record clearly
shows that neither medical experts nor investigating machinery has
taken due care to follow the guidelines. Their failure affects the
credibility of prosecution evidence. PW7, who collected biological
evidence, has not deposed about use of SAFE kit i.e. a kit specially
meant to maintain Sexual Assault Forensic Evidence. Samples are not
shown to be distinctly sealed. Therefore, very question of quality of
samples crops up.
20. At this juncture, we also wish to deal with the issue of link
evidence/chain of custody evidence raised before us by learned senior
counsel.
The three Judges Bench of the Hon'ble Apex Court in the case
of Rahul v. State of Delhi ; (2023) 1 SCC 83 has elaborately dealt with
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the issue of DNA profiling methodology, statistical analysis and also
emphasized the importance of proper collection and preservation of
DNA evidence. We wish to borrow and reproduce the observations
made in para 37 to the extent of collection and preservation of
evidence, which are as under;
"37. ....... If DNA evidence is not properly documented,
collected, packaged and preserved, it will not meet the legal
and scientific requirements for admissibility in a court of
law. Because extremely small samples of DNA can be used
as evidence, grater attention to contamination issues is
necessary while locating, collecting and preserving DNA
evidence as it can be contaminated from other source
getting mixed with DNA relevant in the case. This can
happen even when someone sneezes or coughs over the
evidence or touches his/her mouth, nose or other parts of
the face and again touches area that may contain the DNA
to be tested. The exhibits having biological specimen, which
can establish link among victim(s), suspect(s), scene of
crime for solving the case should be identified, preserved,
packed and sent for DNA profiling......"
Likewise, in the case of Manoj v. State of Madhya Pradesh ;
(2023) 2 SCC 353, the Hon'ble Apex Court refused to rely on DNA
evidence inter alia and the genuineness of its recovery was suspected.
CriAppeal-884-2019
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Again in the recent judgment of Hon'ble Apex Court in the case
of Prakash Nishad v. State of Maharashtra ; MANU/SC/0613/23, in
para 54 , it is observed as under;
"54. perusal of these documents reveals that samples of the
blood and semen of the Appellant were sent for forensic
analysis. Importantly though, there is nothing on record to
establish as to who took such samples, on what date, on
how many occasions and why were they not sent all at once,
we notice that none of the police officials have testified to
the formalities of keeping the samples safe and secure being
complied with."
Further, in para 60 of the same judgment, the Hon'ble Apex
Court observed as follows;
"60. We may observe that the Maharashtra Police Manual,
when speaking of the integrity of scientific evidence in
Appendix XXIV states-
The integrity of exhibits and control samples must be
safeguarded from the moment of seizure upto the
completion of examination in the laboratory. This is
best done by immediately (emphasis laid) packing,
sealing, labeling and to prove the continuity of
integrity of the samples, the messenger or bearer will
have to testify in the court that what he had received
was sealed and delivered in the same condition in
CriAppeal-884-2019
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the laboratory. The laboratory must further certify
that they have compared the seals and found them to
be correct. Articles should always be kept apart from
one another after packing them separately and
contact be scrupulously avoided in transport also."
The Hon'ble Apex Court in the said judgment, in observing the
need for expedition in ensuring that samples when collected were
sent to the concerned laboratory as soon as possible, has referred to
the "Guidelines for collection, storage and transportation of Crime
Scene DNA samples For Investigating Officer - Central Forensic
Science Laboratory, Directorate of Forensic Science Services, Ministry
of Home Affairs, Government of India".
In para 62, it has been further observed, "the document also
lays emphasis on the 'chain of custody' being maintained. Chain of
custody implies that right from the time of taking of the sample, to
the time its role in the investigation and processes subsequent, is
complete, each person handling said piece of evidence must duly be
acknowledged in the documentation, so as to ensure that the integrity
is uncompromised. It is recommended that a document be duly
maintained cataloguing the custody. A chain of custody document in
other words is a document, "which should include name or initials of
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the individual collecting the evidence, each person or entity
subsequently having custody of it, dated the items were collected or
transferred, agency and case number, victim's or suspect's name and
the brief description of the item"."
21. In the light of above law settled by the highest court of this
land, here, it is noticed that apart from failure to follow Standard
Operating Procedure for collecting biological and non-biological
evidence, issue about its collection, handling, preservation,
documentation and safe custody also arose.
Above rulings mandate proving chain of custody. Here, the
chain is not shown to be complete since collection of biological and
non-biological evidence dated 01.11.2018, 05.11.2018 till
14.11.2018. In view of Judgment of Hon'ble Apex Court in the case of
Rahul v. State of Delhi (supra), the observations made in para 37,
reproduced in aforesaid para 20 herein, clearly show that precautions
are directed to be taken to prevent contamination from other sources
and even possibilities of sneeze or cough over the evidence, touching
the nose, mouth are some of the eventualities which, according to the
Hon'ble Apex Court, are likely to contaminate the DNA evidence.
Here, pancha PW12 Ramrao in cross went to the extent of stating that
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he has taken smell of the semen sample allegedly picked from crime
scene. Such answer clearly suggests that evidence has been handled
by pancha.
Therefore here, there are clear possibilities of contamination of
the evidence. Coupled with above, when actual persons who were
custodians of the muddemal till it reached Forensic Science
Laboratory, having not being examined, the very aspect of chain of
custody also come under cloud.
Resultantly, as claimed by learned senior counsel for appellant,
here, possibility of tampering with biological and non-biological
evidence is not completely ruled out. Said point is also answered
accordingly.
DNA EVIDENCE
22. PW14 CA, who carried out DNA analysis, narrated the steps
taken by her since receipt of samples till drawing of its results and
reports. Her reports upon analysis and interpretation/opinion/results
are as under :
Report (A) - Interpretation :
1. The DNA profile obtained from vulval swab, vaginal
swab and hair found on genital area of victim and
blood stains detected on full open shirt of Parvej Khan
CriAppeal-884-2019
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Rafiz Khan matched with the control DNA profile
obtained from blood of victim.
2. The DNA profile obtained from semen detected on
swab stated to be collected from crime scene matched
with control DNA profile obtained from blood of
Parvej Khan Rafiq Khan.
Report (B) - Opinion :
Male haplotypes obtained from blood of Parvej Khan
Rafiq Khan and semen detected on swab stated to be
collected from crime scene are from the same paternal
progeny.
Consequently, here, though above opinion has been reached by
PW14 CA, the DNA evidence, which is without semen control sample
of accused, is even otherwise only corroborative piece of evidence.
There is no other independent incriminating evidence or
circumstance. Solely on the basis of DNA evidence, guilt cannot be
fastened.
23. On the point of evidentiary value of DNA and in support of our
above view, we wish to quote observations of the Hon'ble Apex Court
in the very recent case of Manoj v. State of M.P. ; (2023) 2 SCC 353
wherein, after dealing with what is meant by DNA profiling
methodology, procedure of statistical analysis, importance of
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collection and proper preservation of evidence, on consideration of
185th report of Law Commission of India, following observations are
made in para 153 :
"153. The Law Commission of India in its Report (185 th
Report on Review of the Indian Evidence Act, 2003),
observed as follows:
"DNA evidence involves comparison between genetic
material thought to come from the person whose identity is
in issue and an sample of genetic material from a known
person. If the samples do not "match", then this will prove
a lack of identity between the known person and the
person from whom the unknown sample originated. If the
samples match, that does not mean the identity is
conclusively proved. (emphasis laid) Rather, an expert will
be able to derive from a database of DNA samples, an
approximate number reflecting how often a similar DNA
"profile" or "fingerprint" is found. It may be, for example,
that the relevant profile is found in 1 person in every
1,00,000: This is described as the "random occurrence
ratio" (Phipson 1999, 15th Edn., Para 14.32).
Thus, DNA may be more useful for purposes of
investigation but not for raising any presumption of
identity in a court of law." (emphasis laid)
CriAppeal-884-2019
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Further in para 158, the Hon'ble Apex Court held as under :
"158. This Court, therefore, has relied on DNA reports, in
the past, where the guilt of an accused was sought to be
established. Notably, the reliance, was to corroborate.
(emphasis laid) This Court highlighted the need to ensure
quality in the testing and eliminate the possibility of
contamination of evidence; it also held that being an
opinion, the probative value of such evidence has to vary
from case to case."
24. Keeping above legal propositions propounded by the Hon'ble
Apex Court in mind and applying the same here, we have already
discussed in aforesaid paras that apart from failure to confirm identity
of the real perpetrator of crime, very collection, safe preservation of
samples both, biological and non-biological, has come under serious
doubt in the light of available material on the point of collection and
safe custody. Chain of custody has not been established which was
essential in a case of such magnitude and gravity.
25. We have noticed that in spite of directions issued by the Hon'ble
Apex Court time and again regarding meticulous compliance of
Standard Operating Procedure to be adopted during collection of
biological and non-biological evidence and its preservation to avoid
CriAppeal-884-2019
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its degradation and to further maintain its integrity, the stakeholders
like medical experts, who conducted physical examination of both,
victim and accused, and retrieved samples, so also the police
machinery and the forensic experts have shown utter disregard to the
procedure contemplated and spelt out in the form of guidelines, more
particularly in respect of evidence which is in the biological and non-
biological form. There is inordinate delay in sending muddemal to the
FSL coupled with the non-acceptance of muddemal by FSL on the
count of Diwali holidays and again samples being brought back to
police station and kept lying there till its further dispatch. This reflects
a very insensitive attitude of all stakeholders like medical experts,
police machinery etc. In the very case in hand, we have also noticed
that in spite of claim of investigating machinery about engaging
forensic lab experts for picking up biological and non-biological
evidence from the crime scene and in spite of availability of forensic
lab van at the crime scene, evidence so picked up has not been
retained by forensic experts and is rather allowed to be taken by
Investigating Officer to the police station, a place which, here we are
doubtful, was itself suitable for preserving the quality of the evidence.
26. Consequently, here, we take opportunity to bring it to the notice
of the State as well as prosecution that, all stakeholders like police,
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medical experts, forensic experts and even prosecutors to be sensitive
to the need of proper collection, sampling, preservation and safe
custody to rule out possibility of diminishing and/or degrading the
quality of evidence. Such authorities need to keep themselves well
informed and updated on the guidelines issued by Health
Ministry/Home Ministry. We expect periodic sensitization of all
stakeholders by conducting regular workshops and seminars of all
such stakeholders at one venue and one and the same time. Such
platform could be used for interactions amongst themselves to meet
the legal requirements.
27. Here, appellant was also chargesheeted for commission of
offence under Section (3)(2)(v) of the SCST Act. However, on
meticulously going through the charge framed by learned trial Judge
as well as in the operative part of the judgment, it seems that
inadvertently provision is quoted as 3(i)(v) of SCST Act in stead of
3(2)(v). Be it so. This provision provides for penal action when one
deliberately and knowing that the victim is belonging to Scheduled
Caste or Scheduled Tribe category, commits atrocity. For the sake of
convenience, we wish to reproduce Section 3(2)(v) as under:
CriAppeal-884-2019
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"3. Punishment for offences of atrocities.-
(2) Whoever, not being a member of a Scheduled Caste or a
Scheduled Tribe, -
.....
(v) commits any offence under the Indian Penal Code (45 of
1860) punishable with imprisonment for a term of ten years or
more against a person or property knowing that such person is
a member of a Scheduled Caste or a Scheduled Tribe or such
property belongs to such member, shall be punishable with
imprisonment for life and with fine."
On going through the above provision, it is evident that the
focal point of above provision is that when atrocity is committed on a
victim purposefully and knowing that the victim belongs to Scheduled
Caste or Scheduled Tribe and thereby commits offence. Here, going
by the story of prosecution, there is no material to show that
appellant since previously knew that victim belongs to Scheduled
Caste or Scheduled Tribe. Prosecution case is admittedly that victim
was lured by a person, who was neither known to victim nor anybody
else and was rather required to be got identified from so called
footage or hand sketch. Therefore, the very essence of prior
knowledge about category of victim being not known and there being
no distinct material about his knowledge to that extent, in our
opinion, said offence cannot be made out. We seek support to our
CriAppeal-884-2019
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such opinion and conclusion from the recent judgment of the Hon'ble
Apex Court in the case of Shashikant Sharma and others v. State of
Uttar Pradesh and another arising out of SLP (Criminal) No(s). 5323
of 2023 reported in 2023 INSC 1036. Here also, prima facie
ingredients to attract Section 3(2)(v) are patently missing and
therefore, in our considered opinion, said charge is misplaced and the
learned trial Judge failed to consider and appreciate the settled legal
position and rather inflicted punishment for commission of said
offence and so it cannot be allowed to sustain.
SUMMATION
28. To sum up, here, firstly, very identity of real culprit has not
been established. Appellant is shown to be arrested on weak material
like hand sketch. The very source from whom information regarding
present appellant is claimed to be gathered, namely, Allauddin
Sandal, who stated to have consumed liquor with appellant and one
Mazhar, is surprisingly not examined as witness. Neither said Mazhar
is also examined. In fact, on the point of identity, these persons were
crucial witnesses. No investigation seems to have been made on
alleged disclosure by said Allauddin regarding all three of them
consuming liquor together. Further, apparently TI parade was got
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arranged after inordinate delay of a month or so resulting into belated
TI parade. Secondly, there is utter disregard to the procedure of
collection/preservation of crucial biological and non-biological
evidence, i.e. both, by medical experts as well as police machinery.
Thirdly, integrity of the evidence has not been retained and available
material shows that possibility of tampering has not been ruled out as
a result of lengthy retention of samples at a place like police station.
There is no examination of handlers and custodians of muddemal to
establish chain of custody. For all above reasons, though a serious
offence is proved to be committed on a minor, the major lapses and
defects have rendered the entire evidence doubtful and so cannot be
made the basis of conviction.
29. Though actual occurrence has been proved to have taken place,
except DNA evidence, there is no full proof or legally acceptable
evidence. Mere DNA evidence cannot be made the sole basis of
conviction. Moral conviction has no legal sanctity and what law
requires is legally acceptable evidence ruling out innocence of the
accused. Here, such quality of evidence is not available and therefore,
we are constrained to hold, for the reasons discussed herein, that
unfortunately, case has not been proved beyond reasonable doubt as
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against the appellant and hence, we are further constrained to extend
benefit of doubt to the appellant.
30. We have noticed that learned trial Judge has directed payment
of total amount, i.e. in all Rs.46,000/- by way of fine, to be paid to
the victim but in our considered opinion, the amount so directed is
apparently meager and inadequate for the simple reason that the
victim, who resides in a village, has suffered mental and physical
pain, agony and trauma. Evidence shows that the six years old victim
was required to be taken to various places for examination and
treatment and resultantly suffered academic loss too. Compensation
has to be paid under Section 357-A of Cr.P.C.
In a case Suresh and another v. State of Haryana ; (2015) 2
SCC 227, the Hon'ble Apex Court has expected scrupulous compliance
of granting compensation under Section 357-A of Cr.P.C. in deserving
cased, even including in cases of acquittal.
For above reasons, we find it a fit case to compensate her
adequately and hence we direct the District Legal Services Authority
(DLSA), Parbhani to conduct thorough enquiry of the current status of
the victim i.e. both, physical, mental and educational and also enquire
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whether she is recipient of compensation available from the State
Government authorities. Further, if on inquiry it is revealed that
something has not been done or something more is required to be
done, then, we direct DLSA to suggest to the Government authorities
to take appropriate steps which are required for meaningful
rehabilitation. Hence, we proceed to pass the following order:
ORDER
I. The Appeal is allowed. II. The conviction of the appellant Parvej Khan s/o Rafik Khan in
Special Case (POCSO) No. 1/2019 dated 03/07/2019 by learned Sessions Judge, Parbhani for the offences punishable under Sections 376AB, 506, 323 of IPC, Section 3(i)(v) of the SCST Act and Section 4 of the POCSO Act stands quashed and set aside.
III. The appellant stands acquitted of the offence punishable under Sections 376AB, 506, 323 of IPC, Section 3(i)(v) of the SCST Act and Section 4 of the POCSO Act.
IV. The appellant be set at liberty if not required in any other case.
V. Fine amount deposited, if any, be refunded to the appellant after the statutory period.
VI. We clarify that there is no change as regards the order in respect of muddemal seized in the matter.
CriAppeal-884-2019 -45- VII. District Legal Services Authority, Parbhani to undertake enquiry as directed in para 30 and report compliance to this Court within one month from the date of receipt of copy of this judgment and record and proceedings.
VIII. Registrar (Judicial) to send copy of this judgment and record and proceeding immediately to District Legal Services Authority, Parbhani.
IX. We direct State to formulate suitable guidelines to be adhered to, while conducting TI parade in cases attracting provisions of Protection of Children from Sexual Offences Act, 2012 and to further suggest Standard Operating Procedure to be adopted, keeping in mind the aspect of confidentiality of details of victim and also suggest necessary precautionary measures to be taken while making victim participate in TI parade for identifying perpetrator, with requisite infrastructural set up for the same.
X. We also direct State to organize periodic sensitization programme of all the stakeholders underscoring need of performing respective roles whenever they are participating and aiding each other during investigation process as dealt in para 26 of the judgment.
[ABHAY S. WAGHWASE, J.] [SMT. VIBHA KANKANWADI, J.] vre