Criminal Appeal No. 884 of 2019 · Bombaybench High Court
Case Details
2023:BHC-AUG:26670-DB CriAppeal-884-2019-1- IN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABADCRIMINAL APPEAL NO. 884 OF 2019Parvej 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]Versus1.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 ANDABHAY S. WAGHWASE, JJ.Reserved on: 30.11.2023Pronounced on: 19.12.2023JUDGMENT [ABHAY S. WAGHWASE, J.] : 1.Instant appeal arises out of the judgment and order ofconviction passed by learned Sessions Judge, Parbhani in Special Case CriAppeal-884-2019-2- (POCSO) No. 01 of 2019 dated 03.07.2019 by which appellant is heldguilty for commission of offence punishable under Sections 376AB,506, 323 of the Indian Penal Code [IPC], Section 3(i)(v) of theScheduled Castes and the Scheduled Tribes (Prevention of Atrocities)Act, 1989 [SCST Act] and Section 4 of the Protection of Children fromSexual Offences Act, 2012 [POCSO Act] and sentenced to sufferrigorous imprisonment for life till remainder of his natural life and topay fine as enumerated in the impugned order.FACTS LEADING TO TRIAL ARE AS UNDER2.The conspectus of the prosecution case is that, PW6 victim, asix years old girl studying in 1st standard, appeared for drawing examson 01.11.2018 and she was returning back home by walk. On theway, she was intercepted by unknown person, who posed himself asfriend of her father and offered her chocolate as well as lift and so sheaccompanied him. Instead, he took her to an abandoned buildingnear MSEDCL office and there he committed forceful sexual assault.Victim returned home. Seeing her condition, PW1 i.e. her father madeinquiries with her and she promptly reported the events which tookplace with her and was taken by parents to their landlord, whohimself is a doctor. He also made inquiries with the victim and
Facts
CriAppeal-884-2019-3- thereafter he made telephone call to police, who came and tookvictim as well as her parents to police station where PW1 father setlaw into motion and crime was duly registered which wasinvestigated by PW20 API Alewar and PW21 SDPO Gherdikarrespectively. Investigation revealed involvement of appellant hereinand so he was duly arrested and after carrying out investigation, hewas challaned.Charge was explained to the appellant and on denial of charge,his trial was conducted by learned Sessions Judge, Parbhani, who, onappreciation of evidence and on hearing both sides, held the chargesproved and sentenced the appellant as above.SUBMISSIONSON BEHALF OF APPELLANT3.By instant appeal, the above judgment is questioned by learnedsenior counsel primarily on following grounds:1.Firstly, failure of prosecution to establish identity of realculprit.2.Secondly, inordinate delay in conducting Test Identification[TI] parade. CriAppeal-884-2019-4- 3.Thirdly, utter disregard to the collection of biological andnon-biological evidence rendering the scientific evidencedoubtful, coupled with major lapses further rendering theDNA evidence inadmissible and doubtful for want of linkevidence or establishing chain of custody.4.Pleading false implication, learned senior counsel would submitthat cardinal principle of proving the case beyond reasonable doubthas not been complied by prosecution. He reiterated the story ofprosecution and would submit that apparently and admittedlyappellant is a stranger, unknown to any witness including victim andtherefore, it is his submission that, at the outset it was incumbent onthe part of the investigating machinery to first get identity of the realperpetrator fixed and confirmed. That, no such initial steps are takenand according to him, though implication is claimed on the basis ofphotograph and hand sketch, he would strenuously submit thatneither the victim nor any other witness had provided any descriptionof the culprit and therefore, it is his submission that, case ofprosecution about appellant alone to be the perpetrator has nofoundation at all. He further submitted that alleged occurrence is of01.11.2018 whereas accused, who is resident of other village, isarrested on 08.11.2018 and further, even Test Identification parade isheld almost one month after the occurrence. Therefore, according to CriAppeal-884-2019-5- him, possibility of confrontation of arrested accused to the victimcannot be ruled out. 5.He next submitted that prosecution claims that there was CCTVfootage and even witness has been examined but according to learnedsenior counsel, still the footage did not reveal true identity of theperson appearing in the footage and therefore, it is his submissionsthat, very identification of accused has come under shadow of doubt. 6.He further submitted that victim is subjected to medicalexamination at three different places and investigating machineryclaims to have gathered biological evidence but said samples are notproperly collected, maintained or preserved in safe custody and assuch, possibility of tampering of evidence has thereby not beencompletely ruled out. Further, according to him, so called seizure hasbeen dispatched to the analyzer after inordinate delay and even theperson in whose custody samples were kept or the person whoactually carried muddemal has not been examined. Such majorlapses, according to him, contribute to the very veracity andcredibility of evidence. He emphasized that even otherwise DNAevidence is mere opinion evidence or at the most corroborative pieceof evidence and not substantive piece of evidence. According to him, CriAppeal-884-2019-6- here, there is no other clinching incriminating material to establishthat 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 prosecutionas proved and so he seeks indulgence of this court for setting asidethe impugned judgment by allowing the appeal.ON BEHALF OF STATE8.Per contra, refuting the above submissions, learned APP wouldsubmit that the victim of six years has been sexually assaulted in abrutal manner. According to him, victim has identified accused in TIparade as well as in court and so he questions as to what more isrequired and further according to him, there is no reason for falseimplication. He further submitted that all medical experts, who hadoccasion to subject victim to physical examination and who hadcollected biological evidence, have been examined by prosecution.They are all unanimous about sexual assault. He submitted that evenbiological evidence of victim and accused was picked up from thecrime scene by forensic experts. DNA analysis of the gatheredevidence was conducted and the results are positive confirming CriAppeal-884-2019-7- involvement of none other than appellant. There is no majordeviation or lapses on the part of police or medical experts. Theirevidence has remained intact and therefore, according to him, learnedtrial Judge has committed no error whatsoever in returning the guilt.Consequently, it is his submission that, there being no perversity orillegality in the findings, appeal be dismissed.ON BEHALF OF RESPONDENT NO.2-VICTIM9.Learned counsel representing victim, while supporting thefindings and judgment, would submit that there is overwhelmingevidence 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, wherea minor of six years old has been sexually ravished while she wasreturning from school. This being first appellate court and as we areexercising powers under Section 374 of the Code of CriminalProcedure [Cr.P.C.], we are called upon to re-appreciate, re-examine,re-analyze and re-evaluate the entire oral and documentary evidenceadduced by prosecution in trial court and to further see whether the CriAppeal-884-2019-8- findings arrived at by learned trial Judge are legally sustainable or arerequired to be interfered with.11. Before, dealing with the credibility and veracity of prosecutionevidence, we wish to give a brief account of the status of theprosecution witnesses and the sum and substance of their testimonyin the witness box by categorizing the witnesses as under :FIRST SET OF WITNESSES[Informant, landlord, neighbour, school teacher and victim] PW1Informant and father of victim, who is a shop-keeper, in hisevidence at Exhibit 10 gave her date of birth, standard inwhich she was taking education and name of the school.According to him, on 01.11.2018 around 3.30 p.m., he hadreturned from the shop to his house for some work. Hisneighbour Dashrath brought his daughter up to the gate andthen he noticed condition of his daughter, her clothes havingblood stains and injuries on her person and therefore he andhis wife made queries and according to him, their daughtertold that she was taken by a person on motorcycle while shewas returning from school after offering her a chocolate andalso on assurance to drop her at home and that, his daughtertold the acts committed on her forcibly and thereafter saidperson running away and she returning home. Then, he statedabout approaching police, who referred his daughter to Rural CriAppeal-884-2019-9- Hospital Bori and from their to Parbhani Civil Hospital andfurther to Nanded Civil Hospital where she was admitted andtreated from 02.11.2018 to 04.11.2018. He identified theclothes of his daughter which were on her person. He statedthat approximately after one month, he was called at ParbhaniDistrict Prison for identification. In cross, learned defence counsel in trial courtquestioned him about timings of his shop and he dulyanswered that there is no such fixed timing. He answered thatwhen he reached home that day, his daughter came home 10to 15 minutes thereafter. He admitted that he had notcommunicated with PW3 Dashrath Nitnavare. He answeredthat they were at police station for one hour and thereafterreached hospital by 6.00 to 6.30 p.m. and were there for threeto four hours. He is unable to give timing at which theyreached Parbhani Civil Hospital. He admitted that at policestation, statement of his daughter was not recorded, but hevolunteered that she was in scared condition and was notcommunicating at that time. He admitted that her statementwas recorded after returning from Nanded i.e. on 5th or 6th ofNovember. Regarding TI parade, he answered that there wasno written intimation by police to him. In para 16 certainomissions are brought. Rest is all denial.PW2Landlord as well as an Ayurvedic doctor stated about hearingcries around 04.15 p.m. from the house of his tenant on01.11.2018. He deposed about raising queries and PW1 andhis wife bringing their daughter to his cabin. He also narrated CriAppeal-884-2019-10- condition of her clothes, injuries on her person as well asprivate part. He claims that even victim narrated him theincident which allegedly took place with her. According tohim, hearing her, he realized it to be a medico legal case andtherefore claims to have given call to Police Constable Sanap,who came along with police officer Alewar to the clinic andtook victim and her parents with them. He also identified theclothes of victim shown to him.This witness in his cross is merely asked as to whathappened after police took victim from his clinic. He answeredthat victim and her parents were in his cabin for 20 to 25minutes and he denied that victim did not narrate himregarding the incident.PW3Dashrath stated that on Thursday, which was first day of themonth, between 3.00 to 3.30 p.m. while he was walking to hishouse, he saw the girl with dry blood stains on her legs. Heclaims that he took the girl initially to the shop of her fatherand thereafter he followed her up to her house and he claimshearing shouts and cries from the house of victim.While facing cross, this witness admitted that he doesnot know about the actual incident and that he did notcommunicate with the father of victim. Portion marked “A” isconfronted to him which he denied but he is unable to statehow it is appearing in his statement. CriAppeal-884-2019-11- PW4school teacher, in her evidence at Exhibit 16, confirms victimto be student of 1st standard at her school and about sheappearing for exam on 01.11.2018 and leaving school at 2.30p.m. She claims that around 4.00 p.m. she learnt about theincident and therefore made inquiries with PW2, whonarrated her about the incident with victim. She furtherdeposed about visiting victim at Nanded Civil Hospital andfurther claims about victim giving description of the accused.In cross she is asked about functioning of school, itsshifts, timings, about maintenance of attendance register. Shewas unable to give the name of hospital at Nanded where shemet victim and who all were present when she interacted withthe girl. Omission is brought about victim disclosing that thesaid person was addressed as “mama”.PW6is the victim and at Exhibit 22 she narrated that she appearedfor drawing exam and while she was proceeding back homealone, she met one person who she claims was unknown toher. According to her, he was having black complexion, beardon his chin and he had come on black two wheeler and heoffered to drop her at her father’s place and also promised togive her chocolate and so she went with him and he took herin one house which was under construction behind bijli ghar(MSEB office). Regarding the occurrence, she deposed that heremoved her clothes and inserted his finger in her urinalplace, blood was oozing from her urinal place, he inserted hispenis into her private place, she started weeping, he put hisfoot on her face, he pulled her hair, he pressed her neck also, CriAppeal-884-2019-12- he inserted his penis into her mouth, therefore she omittedand that she sustained injury on her right hand elbow, left sidecheek and left side eyebrow.Further, she stated that the person ran away after theincident. She wore clothes and returned home by walk. On theway, another person brought her home but she is unable togive his name and deposed about narrating the incident to herparents, who took her to the hospital where again shenarrated the incident to the medical officer and then furtherbeing taken to Civil Hospital Parbhani and Nanded. Sheclaimed that she saw the person in jail and that she hadidentified him standing at 4th position in a row comprising ofsix persons and that she identified him by touching him. Her evidence goes to show that the accused wasconfronted to her on video conferencing before Court.PW6, who is star witness, seems to be cross-examinedextensively by posing questions regarding strength of studentsin her class; names of her friends; their residence; aboutexaminations she appeared for; timings of the school; timingof 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 toschool to which she answered in affirmative. To a questionwhether she visited shop after appearing for drawing exam,she answered in negative. She is questioned who takes herstudies. She is asked whether the person who brought her CriAppeal-884-2019-13- home entered her house and she answered in negative. Sheaffirmed that she narrated to her father who dropped her athome. Then she is questioned as to which all places was shetaken and she answered as she was taken to hospital, policestation, Parbhani Civil Hospital and Hospital at Nanded. She isasked whether she informed anything to police but sheanswered in negative. She is further questioned about daysspent in Parbhani Hospital and Nanded Hospital. She is askedwhen she narrated to police, to which she answered that shenarrated after she returned from Nanded Hospital. She isspecifically asked where she narrated and she answered thatshe narrated the incident at the house of Dr. Bakan. She is putquestions regarding her visit to Jintur court, whether policeaccompanied her, how many times, and whether policeconstable was in uniform. She is asked whether she can tellabout hair, mustache and beard on the person who took heron motorcycle and she answered that he was having smallhair, mustache and beard only on chin. She gave description ofclothes as pink colour shirt and blue colour pant. Then she isquestioned about TI parade. She is unable to state whether atthe time of identification, persons standing were also havingbeard or not.SECOND SET OF WITNESSES[Examining Doctor, treating Doctor, Doctor assisting ExaminingDoctor and the Doctor who collected blood samples for DNA analysis]PW7Dr. Pradnya, a medical officer posted at Rural Hospital Bori isexamined at Exhibit 23 wherein she narrated that on CriAppeal-884-2019-14- 01.11.2018, Bori police referred victim for medicalexamination vide communication Exhibit 24 and the victimgirl to be brought by LPC 1189 M. R. Paithane attached to BoriPolice Station. Doctor stated that victim narrated the historyand about being taken on motorcycle by offering her chocolateand further saying that if she denies to come, he would kill herand so the victim went on motorcycle with him, who took herto a building under construction, removed her clothes and thatvictim told acts done with her. Doctor claims that she notedthe history in the words of the victim and thereafter subjectedvictim to physical examination after obtaining consent of herfather at Rural Hospital Bori. Doctor has reproduced injuriesnoticed by her in para 3, 4 and 5 i.e. both, internal andexternal. She even gave description of the clothes on theperson of the victim in para 6 and 7 and opined that the signssuggested recent use of force with recent forceful vaginalpenetration. This medical expert in para 9 stated about collectingvaginal swab, valvul swab, blood, nail clippings and hairfound over genital region. Victim was given treatment andreferred to higher center for gynecological examination andforensic examination. She identified the injury certificateExhibit 25 issued by her. Witness stated that all samples werehanded over to police in sealed condition. She further statedthat on the basis of FSL [Forensic Science Laboratory] report,it is her opinion that the girl was sexually assaulted by accusedas semen detected on the swab collected from the crime scenematched with the male haplotypes obtained from controlled CriAppeal-884-2019-15- blood samples of accused-appellant. She was carrying form bywhich samples were forwarded to the police i.e. on the day ofher evidence and that she is ready to place it on record and itwas duly taken on record as Exhibit 27. She further claimedabout request letter from police for handing over samples andshe identified it at Exhibit 28. She also identified clothes ofvictim. PW8Dr. Dhokte, posted as Assistant Professor at GovernmentMedical College, Nanded, in his evidence at Exhibit 29 gaveevidence that victim was referred on 02.11.2018 withcomplaint of perennial tear in the posterior wall of vagina. Shewas 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. Heclaims that he opined that victim girl has perennial tear due tosexual assault on the basis of his examination. He identifieddischarge card and medical treatment papers Exhibits 30 and31. On the basis of FSL report, he opined that victim wassubjected to penetrative sexual assault by accused. PW10Dr. Chandane, claims that he was attached to Rural HospitalBori on 05.11.2018. He claims that on 01.11.2018 he assistedDr. Alne [PW7], who called him for medical examinationregarding sexual assault. He deposed that after examination,Dr. Alne handed over clothes of victim girl to this witness forsealing the same and so he further took assistance of two staff
Legal Reasoning
CriAppeal-884-2019-43- against the appellant and hence, we are further constrained to extendbenefit of doubt to the appellant.30.We have noticed that learned trial Judge has directed paymentof total amount, i.e. in all Rs.46,000/- by way of fine, to be paid tothe victim but in our considered opinion, the amount so directed isapparently meager and inadequate for the simple reason that thevictim, who resides in a village, has suffered mental and physicalpain, agony and trauma. Evidence shows that the six years old victimwas required to be taken to various places for examination andtreatment and resultantly suffered academic loss too. Compensationhas to be paid under Section 357-A of Cr.P.C.In a case Suresh and another v. State of Haryana ; (2015) 2SCC 227, the Hon’ble Apex Court has expected scrupulous complianceof granting compensation under Section 357-A of Cr.P.C. in deservingcased, even including in cases of acquittal.For above reasons, we find it a fit case to compensate heradequately and hence we direct the District Legal Services Authority(DLSA), Parbhani to conduct thorough enquiry of the current status ofthe victim i.e. both, physical, mental and educational and also enquire
Arguments
CriAppeal-884-2019-16- members of the hospital namely, Deepak Samcharan andShriniwas Kanthe, who acted as panchas, and he claims thathe kept the clothes in one box and sealed it by noting the MLCnumber. He further claims that he personally sealed it on01.11.2018 and police have drawn panchanama on05.11.2018.PW11Dr. Pawar, another doctor posted at Rural Hospital, Bori, atExhibit 35 deposed that on 13.11.2018, victim was referredfor collection of blood samples in DNA kit. According to himafter obtaining consent of father of victim, he collected bloodsample in a dispovan syringe and transferred it in DNA kit andthen sealed it and he further claims to have kept it in one coldbox and even the said box was sealed by him. He claims thathe handed over the DNA kit to API Alewar and constable ofBori police Station. He further deposed that on same day,accused was also referred to him for obtaining blood samplefor DNA. He deposed about collecting blood sample of accusedin two tubes. He also collected his pubic hair, nail clippings,sample from the entry portion of penis and sealed all thesamples by labeling it and further handed over it to the policeon the same day. THIRD SET OF WITNESSES[Panchas]PW12Ramrao, who acted as pancha, at Exhibit 40 gave evidencethat on 01.11.2018 he was called at Bori police station andfrom there they went in a Government vehicle to the spot of CriAppeal-884-2019-17- incident. According to him, forensic lab van was parked at thespot, the spot was a building which was under construction, ata distance of 100 meters from Jintur-Parbhani road, thebuilding had no roof. For entering the building, stones werekept and they all entered. There was darkness at the relevanttime and therefore, headlights of forensic lab van were kepton. Police personnel were carrying batteries and in the light ofvan headlights and batteries they saw the spot and he claimsthat they observed blood stains in the right side room andblood stains, semen stains and omit portion in the back sideroom. A hair pin and hair were found lying there. Forensicexperts collected the samples from the spot. All samples weresealed at the said place by police and forensic team. He claimsthat his signature was obtained and police drew panchanama.He identified panchanama Exhibit 41 as well as his signatureover it. He identified the articles confronted to him in thewitness box. He deposed that blood samples were collectedfrom the cement concrete and kept in polythene bag. He alsoidentified articles E, F, G, H i.e. omit sample, blood sample,hair pin. He identified labels affixed on the seizure envelopExhibits 42, 43, 44, 45. This witness has also identifiedpanchanama of seizure of motorcycle caused on 15.11.2018 aswell as photographs snapped from the scene of occurrence. PW13Deepak is the pancha to seizure of clothes of accused. Hedeposed that on 05.11.2018 he and another pancha ShriniwasKanthe were called to act as pancha. Learned trial court hasnoted his demeanor that witness is unable to say anything andthereafter, in para 3 he deposed that he was called in police CriAppeal-884-2019-18- station and in their presence clothes of accused which were onhis person were removed and seized by police. He gavedescription of clothes as pink full shirt and blue jeans.According to him, police seized and sealed the clothes bydrawing panchanama Exhibit 48 which he identifiedalongwith his signature over it. PW15Johnathan Daund is the witness who has acted as pancha todisclosure and verification panchanama Exhibit 58 done atBori police station on 15.11.2018. FOURTH SET OF WITNESSES[Investigating Officers and Police Personnel]PW9PC Dilwale is the carrier of muddemal and he deposedregarding muddemal being directed on 13.11.2018 by PW20to be taken to FSL, however, he took possession of themuddemal on 14.11.2018. However, in cross he answered that outward letterbearing no. 1213/2018 is of 06.11.2018. Such date shows thatin spite of police preparing communication for dispatch foranalyzer on 06.11.2018, this witness has collected muddemalactually on 14.11.2018 and the delay so caused has not at allbeen explained. He is unable to state in cross as to who wasin-charge of the muddemal section at Bori Police Station whenhe collected muddemal. CriAppeal-884-2019-19- Evidence adduced by prosecution goes to show that in spite ofgathering 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 wasapparently kept lying at Bori police station.PW18Parmanand Gawande, Naib Tahsildar, held the TI parade on04.12.2018.PW20API Alewar and PW21 S.D.P.O. Gherdikar are the InvestigatingOfficers [IO]. They have deposed regarding carrying outinvestigation at respective times. It transpires thatsubsequently when it was revealed that the victim belonged toScheduled Caste, further investigation was handed over toPW21 being a Dy.S.P. ranking officer.PW20 referred victim to medical examination and hehimself proceeded to spot in the evening and with the help offorensic experts, claims to have got incriminating physicalevidence collected and himself sealed it, drew scene ofoccurrence panchanama and thereafter carried out furtherinvestigation like gathering CCTV footage, arresting accused,collecting its panchanama, collecting biological samples frommedical experts, gathering medical papers to form it a part ofchargesheet. CriAppeal-884-2019-20- Similarly, after taking over investigation by PW21, heseized clothes of accused, took steps for procuring DNA kit,got blood samples of victim and accused collected throughdoctor, sent seizure to FSL Aurangabad on 14.11.2018,included papers like logbook extract, caused seizure ofmotorcycle, sought information from RTO, directed holding ofTI parade, gathered injury certificate and chargesheetedaccused. Both IOs are subjected to extensive cross by learneddefense counsel. PW20 admitted in cross that for the first timehe met victim girl and her parents in the house of PW2landlord. He admitted that at said place he did not makeinquiry with the victim. He admitted that when he reached thespot, it was dark. He is unable to give names of the forensicexperts, their strength and that he did not record theirstatements as well as did not obtain their signature on thesamples collected by them. He admitted that sketch of thesuspect was prepared in the night but it is not made part ofthe chargesheet and that he did not take note of drawingsketch in the station diary. He admitted that there is nodocument to show that by way of written communication LCBwas deputed to search for accused and that he did not recordstatement of the LCB officer from whom custody of accusedwas taken nor any report to that extent is made part ofchargesheet. He admitted that he did not record statement ofthe person from whom he obtained CCTV footage and nodistinct panchanama was drawn regarding procedure ofobtaining CD of the CCTV footage. He admitted that he did CriAppeal-884-2019-21- not seize school bag, tiffin bag of the victim and that he didnot note description of clothes on the person arrested andremanded i.e. in the arrest panchanama. He admitted thathand sketch was got drawn on the basis of CCTV footage. Heis unable to give name of the employee with whom muddemalwas forwarded on 06.11.2018 and he did not record thestatement of carrier.While under cross PW21 IO answered that clothes of theaccused were seized from his house. He too admitted that hedid not file hand sketch of the accused along with thechargesheet.12.The other witnesses are either photographer, owner of theshop from whom CCTV footage is obtained, police staff whoarranged DNA kit and who guarded the spot etc. However we do notfeel their evidence to be that important.ANALYSIS13.Learned senior counsel for appellant has raised severalobjections 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 ofreal perpetrator; and secondly, lapses and deviations by both, medicalexperts, police machinery, forensic experts who allegedly participatedin collection of biological and non-biological evidence, thereby CriAppeal-884-2019-22- rendering forensic evidence doubtful. His specific accusation is thatpossibility of tampering has not been ruled out.In the light of above submissions and objections, followingquestions arise for our consideration:1Whether appellant is identified alone to be the perpetratorof crime?2.Whether there are infractions in collection and preservationof biological and non-biological evidence?3.Whether possibility of contamination and tampering ofevidence 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 ofreal perpetrator of crime. Learned senior counsel has not disputedoffence committed on the minor but he has raised issue as to whocommitted it. He is very emphatic that at the threshold prosecutionutterly failed in establishing the very identity of the accused. 15.Admittedly, neither informant father, nor victim has provideddetailed description of real culprit. Only description given by victim is CriAppeal-884-2019-23- that the person was of black complexion and he was sporting beardonly on the chin. Description of the clothes is given as pink shirt andblue jeans. Except such description, no further details about age orother physical features were disclosed by the victim. 16.PW20-first Investigating Officer claims that he got hand sketchdrawn on the basis of CCTV footage. In para 22 of his evidence, PW20deposed that as per instructions of his superior, he searched forpersons who were having criminal records and that time he cameacross name of one Allauddin Sandal and he was accordingly called,interrogated, confronted with CCTV footage and said personAllauddin revealed the identify of present appellant and he to beresident of Jintur and therefore, LCB team was informed, who caughtappellant on 08.11.2018, and thereafter arrested him. But while under cross, PW20 has admitted that hand sketch isnot made part of chargesheet. He has not recorded statement of socalled person interrogated on the basis of criminal record, namely,Allauddin. PW19 Sandip, who retrieved CCTV footage which wasmade the basis of drawing hand sketch, has candidly admitted that,person seen in the footage is not identifiable. PW20 in cross para 32answered that there is no document to show that information was CriAppeal-884-2019-24- passed on to LCB, he has not recorded statement of any of the LCBofficers and no report was forwarded by LCB. He admitted that he hasnot recorded statement of the person from whom he obtained CCTVfootage and that he did not drew panchanama of preparing CD. Therefore, such material shows that there was no concretefoundation or material with either PW20 or PW21 confirmingappellant alone to be the culprit.17.Though PW21 took steps of getting TI parade arranged, it isapparently conducted on 04.12.2018 i.e. almost after one month ofthe occurrence and more than three weeks since arrest of appellantdated 08.11.2018. No explanation has been given for inordinate delaycaused in conducting TI parade even when investigating machinerywas clearly aware that appellant was a stranger. Though TI parade was got conducted through PW18 NaibTahsildar, we are astonished to find that in a case where provisions ofPOCSO Act are attracted, a minor of six years old and victim of sexualassault is made to appear in a jail premises and further made toidentify culprit amongst a line of dummies by making her touch theperson. In fact, POCSO Act itself provides detailed mechanism CriAppeal-884-2019-25- regarding precautions to be taken to, as far as possible, avoid directconfrontation of accused and victim. However, here, such precautionhas apparently not been taken, thereby frustrating the very object ofthe statute like POCSO Act. Therefore, we are compelled to expressour serious concern as regards the procedure adopted by the SpecialExecutive Magistrate i.e. Naib Tahsildar and wish to deal with thesame at appropriate stage. Evidence of PW18 Naib Tahsildar shows that he himself did notdraw the panchanama, rather a Talathi accompanying him scribed itand said Talathi is not examined and secondly, Naib Tahsildar hasadmitted in cross that he did not mention in the panchanama thatdummy persons used were of similar features and personality like thatof suspect. He has not mentioned whether the dummy persons weresporting mustache or beard. Therefore, even the belated exercise ofidentification comes under shadow of doubt as guidelines required tobe followed while conducting TI parade, i.e. arranging dummies ofsimilar age, physical features matching to that of accused, are notfollowed thereby rendering the exercise doubtful. It has also come inthe evidence that victim as well as appellant were called at RuralHospital, Bori on one and the same day for collection of blood samplefor DNA. Such circumstance creates possibility of confrontation of CriAppeal-884-2019-26- appellant to the victim before her testimony in the witness box whereshe had identified him on the video conferencing.Therefore, in the light of above discussed material, as pointedout by learned senior counsel, here, very identification of real culprithas 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-biologicalevidence allegedly gathered during investigation. He also questionedthe very aspect of integrity of the evidence on the ground that linkevidence and chain of custody is not proved. In the light of above objection, we have meticulously visited theevidence of IOs, pancha to spot panchanama, medical witnesses PW7,PW8 and PW11. What is emerging is that though evidence is claimedto be gathered from crime scene on 01.11.2018 itself, apparentlyevidence of IO and pancha clearly shows that the process of collectionwas done in dark allegedly by use of light of vehicle i.e. van ofForensic Science Laboratory and torch. Even collection seems to havebeen done and kept in polythene bags which is in deviation to the CriAppeal-884-2019-27- SOP drawn by Government prohibiting storing of biological samplesin polythene bag to avoid its contamination. Secondly, forensicexperts who allegedly collected and picked up samples are notexamined, nor are signatories to the label over samples as well as spotpanchanama. Samples collected from crime scene are also notdispatched immediately. Biological Samples allegedly collected by PW7 Dr. Pradnya aresurprisingly retained by either herself at her home and some samplesare kept in Rural Hospital itself. No documentation has been drawnby PW7 on 01.11.2018. She has handed over biological samplescollected by her on 01.11.2018 to police on 05.11.2018. There is nomaterial or evidence that samples were properly preserved to avoid itsdegradation and maintain its integrity. Even it is surprising and shocking to note that, PW11 Dr. Pawarhas not collected very semen of appellant in spite of being requested.Further, the treating doctor PW8 Dr. Dhokte has not issued MLCcertificate/injury certificate. As per guidelines, PW7 was expected toforward examination report forthwith to the police along withbiological evidence, however her evidence shows that on the day ofher testimony in the court, she was carrying the form. CriAppeal-884-2019-28- Further, investigating machinery took possession of biologicalsamples on 05.11.2018 and 13.11.2018 and kept the same at Boripolice station up to 14.11.2018 till its dispatch to the laboratory.However, according to carrier, he was called by IO to forward anddeposit muddemal on 13.11.2018 and he further collected it on14.11.2018. Such timeline shows that since 01.11.2018 till14.11.2018, muddemal was lying in Bori police station but muddemalclerk has not been examined to demonstrate its safe custody.Evidence of IO PW20 goes to show that muddemal was notdeposited and accepted by Forensic Science Laboratory, Aurangabadas the same was said to be closed for Diwali vacation and thereforecarrier allegedly brought the muddemal back to Bori police station. Amere entry to that extent has been taken in station diary, however,Investigating Officers in cross are unable to give the name of thecarrier who subsequently took muddemal for FSL and DNA. Such arethe sorry state of affairs in handling muddemal in a serious case ofrape on a minor. Therefore, the objection raised by learned senior counselregarding improper collection and question about safe custody of CriAppeal-884-2019-29- seized muddemal i.e. both, biological and non-biological evidence, isrequired to be sustained. Hence this point is answered accordingly.19.It needs to be noted that Central Forensic Department, HomeMinistry, Government of India as well as Ministry of Health haveissued guidelines for proper collection, documentation, preservationof both, biological and non-biological evidence. The guidelines aremeant to be followed by both, Government hospitals as well asprivate hospitals. However, above discussed material on record clearlyshows that neither medical experts nor investigating machinery hastaken due care to follow the guidelines. Their failure affects thecredibility of prosecution evidence. PW7, who collected biologicalevidence, has not deposed about use of SAFE kit i.e. a kit speciallymeant to maintain Sexual Assault Forensic Evidence. Samples are notshown to be distinctly sealed. Therefore, very question of quality ofsamples crops up. 20.At this juncture, we also wish to deal with the issue of linkevidence/chain of custody evidence raised before us by learned seniorcounsel. The three Judges Bench of the Hon’ble Apex Court in the caseof Rahul v. State of Delhi ; (2023) 1 SCC 83 has elaborately dealt with CriAppeal-884-2019-30- the issue of DNA profiling methodology, statistical analysis and alsoemphasized the importance of proper collection and preservation ofDNA evidence. We wish to borrow and reproduce the observationsmade in para 37 to the extent of collection and preservation ofevidence, which are as under;“37. ……. If DNA evidence is not properly documented,collected, packaged and preserved, it will not meet the legaland scientific requirements for admissibility in a court oflaw. Because extremely small samples of DNA can be usedas evidence, grater attention to contamination issues isnecessary while locating, collecting and preserving DNAevidence as it can be contaminated from other sourcegetting mixed with DNA relevant in the case. This canhappen even when someone sneezes or coughs over theevidence or touches his/her mouth, nose or other parts ofthe face and again touches area that may contain the DNAto be tested. The exhibits having biological specimen, whichcan establish link among victim(s), suspect(s), scene ofcrime 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 DNAevidence inter alia and the genuineness of its recovery was suspected. CriAppeal-884-2019-31- Again in the recent judgment of Hon’ble Apex Court in the caseof Prakash Nishad v. State of Maharashtra ; MANU/SC/0613/23, inpara 54 , it is observed as under;“54. perusal of these documents reveals that samples of theblood and semen of the Appellant were sent for forensicanalysis. Importantly though, there is nothing on record toestablish as to who took such samples, on what date, onhow many occasions and why were they not sent all at once,we notice that none of the police officials have testified tothe formalities of keeping the samples safe and secure beingcomplied with.”Further, in para 60 of the same judgment, the Hon’ble ApexCourt observed as follows;“60. We may observe that the Maharashtra Police Manual,when speaking of the integrity of scientific evidence inAppendix XXIV states-The integrity of exhibits and control samples must besafeguarded from the moment of seizure upto thecompletion of examination in the laboratory. This isbest done by immediately (emphasis laid) packing,sealing, labeling and to prove the continuity ofintegrity of the samples, the messenger or bearer willhave to testify in the court that what he had receivedwas sealed and delivered in the same condition in CriAppeal-884-2019-32- the laboratory. The laboratory must further certifythat they have compared the seals and found them tobe correct. Articles should always be kept apart fromone another after packing them separately andcontact be scrupulously avoided in transport also.”The Hon’ble Apex Court in the said judgment, in observing theneed for expedition in ensuring that samples when collected weresent to the concerned laboratory as soon as possible, has referred tothe “Guidelines for collection, storage and transportation of CrimeScene DNA samples For Investigating Officer – Central ForensicScience Laboratory, Directorate of Forensic Science Services, Ministryof Home Affairs, Government of India”.In para 62, it has been further observed, “the document alsolays emphasis on the ‘chain of custody’ being maintained. Chain ofcustody implies that right from the time of taking of the sample, tothe time its role in the investigation and processes subsequent, iscomplete, each person handling said piece of evidence must duly beacknowledged in the documentation, so as to ensure that the integrityis uncompromised. It is recommended that a document be dulymaintained cataloguing the custody. A chain of custody document inother words is a document, “which should include name or initials of CriAppeal-884-2019-33- the individual collecting the evidence, each person or entitysubsequently having custody of it, dated the items were collected ortransferred, agency and case number, victim’s or suspect’s name andthe brief description of the item”.” 21.In the light of above law settled by the highest court of thisland, here, it is noticed that apart from failure to follow StandardOperating Procedure for collecting biological and non-biologicalevidence, issue about its collection, handling, preservation,documentation and safe custody also arose. Above rulings mandate proving chain of custody. Here, thechain is not shown to be complete since collection of biological andnon-biological evidence dated 01.11.2018, 05.11.2018 till14.11.2018. In view of Judgment of Hon’ble Apex Court in the case ofRahul v. State of Delhi (supra), the observations made in para 37,reproduced in aforesaid para 20 herein, clearly show that precautionsare directed to be taken to prevent contamination from other sourcesand even possibilities of sneeze or cough over the evidence, touchingthe nose, mouth are some of the eventualities which, according to theHon’ble Apex Court, are likely to contaminate the DNA evidence.Here, pancha PW12 Ramrao in cross went to the extent of stating that CriAppeal-884-2019-34- he has taken smell of the semen sample allegedly picked from crimescene. Such answer clearly suggests that evidence has been handledby pancha. Therefore here, there are clear possibilities of contamination ofthe evidence. Coupled with above, when actual persons who werecustodians of the muddemal till it reached Forensic ScienceLaboratory, having not being examined, the very aspect of chain ofcustody also come under cloud. Resultantly, as claimed by learned senior counsel for appellant,here, possibility of tampering with biological and non-biologicalevidence is not completely ruled out. Said point is also answeredaccordingly.DNA EVIDENCE22.PW14 CA, who carried out DNA analysis, narrated the stepstaken by her since receipt of samples till drawing of its results andreports. Her reports upon analysis and interpretation/opinion/resultsare as under :Report (A) - Interpretation :1.The DNA profile obtained from vulval swab, vaginalswab and hair found on genital area of victim andblood stains detected on full open shirt of Parvej Khan CriAppeal-884-2019-35- Rafiz Khan matched with the control DNA profileobtained from blood of victim.2.The DNA profile obtained from semen detected onswab stated to be collected from crime scene matchedwith control DNA profile obtained from blood ofParvej Khan Rafiq Khan. Report (B) – Opinion :Male haplotypes obtained from blood of Parvej KhanRafiq Khan and semen detected on swab stated to becollected from crime scene are from the same paternalprogeny.Consequently, here, though above opinion has been reached byPW14 CA, the DNA evidence, which is without semen control sampleof accused, is even otherwise only corroborative piece of evidence.There is no other independent incriminating evidence orcircumstance. Solely on the basis of DNA evidence, guilt cannot befastened. 23.On the point of evidentiary value of DNA and in support of ourabove view, we wish to quote observations of the Hon’ble Apex Courtin the very recent case of Manoj v. State of M.P. ; (2023) 2 SCC 353wherein, after dealing with what is meant by DNA profilingmethodology, procedure of statistical analysis, importance of CriAppeal-884-2019-36- collection and proper preservation of evidence, on consideration of185th report of Law Commission of India, following observations aremade in para 153 : “153. The Law Commission of India in its Report (185thReport on Review of the Indian Evidence Act, 2003),observed as follows:“DNA evidence involves comparison between geneticmaterial thought to come from the person whose identity isin issue and an sample of genetic material from a knownperson. If the samples do not “match”, then this will provea lack of identity between the known person and theperson from whom the unknown sample originated. If thesamples match, that does not mean the identity isconclusively proved. (emphasis laid) Rather, an expert willbe able to derive from a database of DNA samples, anapproximate 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 every1,00,000: This is described as the “random occurrenceratio” (Phipson 1999, 15th Edn., Para 14.32).Thus, DNA may be more useful for purposes ofinvestigation but not for raising any presumption ofidentity in a court of law.” (emphasis laid) CriAppeal-884-2019-37- Further in para 158, the Hon’ble Apex Court held as under :“158.This Court, therefore, has relied on DNA reports, inthe past, where the guilt of an accused was sought to beestablished. Notably, the reliance, was to corroborate.(emphasis laid) This Court highlighted the need to ensurequality in the testing and eliminate the possibility ofcontamination of evidence; it also held that being anopinion, the probative value of such evidence has to varyfrom case to case.”24.Keeping above legal propositions propounded by the Hon’bleApex Court in mind and applying the same here, we have alreadydiscussed in aforesaid paras that apart from failure to confirm identityof the real perpetrator of crime, very collection, safe preservation ofsamples both, biological and non-biological, has come under seriousdoubt in the light of available material on the point of collection andsafe custody. Chain of custody has not been established which wasessential in a case of such magnitude and gravity. 25.We have noticed that in spite of directions issued by the Hon’bleApex Court time and again regarding meticulous compliance ofStandard Operating Procedure to be adopted during collection ofbiological and non-biological evidence and its preservation to avoid CriAppeal-884-2019-38- its degradation and to further maintain its integrity, the stakeholderslike medical experts, who conducted physical examination of both,victim and accused, and retrieved samples, so also the policemachinery and the forensic experts have shown utter disregard to theprocedure contemplated and spelt out in the form of guidelines, moreparticularly in respect of evidence which is in the biological and non-biological form. There is inordinate delay in sending muddemal to theFSL coupled with the non-acceptance of muddemal by FSL on thecount of Diwali holidays and again samples being brought back topolice station and kept lying there till its further dispatch. This reflectsa very insensitive attitude of all stakeholders like medical experts,police machinery etc. In the very case in hand, we have also noticedthat in spite of claim of investigating machinery about engagingforensic lab experts for picking up biological and non-biologicalevidence from the crime scene and in spite of availability of forensiclab van at the crime scene, evidence so picked up has not beenretained by forensic experts and is rather allowed to be taken byInvestigating Officer to the police station, a place which, here we aredoubtful, was itself suitable for preserving the quality of the evidence.26.Consequently, here, we take opportunity to bring it to the noticeof the State as well as prosecution that, all stakeholders like police, CriAppeal-884-2019-39- medical experts, forensic experts and even prosecutors to be sensitiveto the need of proper collection, sampling, preservation and safecustody to rule out possibility of diminishing and/or degrading thequality of evidence. Such authorities need to keep themselves wellinformed and updated on the guidelines issued by HealthMinistry/Home Ministry. We expect periodic sensitization of allstakeholders by conducting regular workshops and seminars of allsuch stakeholders at one venue and one and the same time. Suchplatform could be used for interactions amongst themselves to meetthe legal requirements. 27.Here, appellant was also chargesheeted for commission ofoffence under Section (3)(2)(v) of the SCST Act. However, onmeticulously going through the charge framed by learned trial Judgeas well as in the operative part of the judgment, it seems thatinadvertently provision is quoted as 3(i)(v) of SCST Act in stead of3(2)(v). Be it so. This provision provides for penal action when onedeliberately and knowing that the victim is belonging to ScheduledCaste or Scheduled Tribe category, commits atrocity. For the sake ofconvenience, we wish to reproduce Section 3(2)(v) as under: CriAppeal-884-2019-40- “3.Punishment for offences of atrocities.-(2)Whoever, not being a member of a Scheduled Caste or aScheduled Tribe, - …..(v)commits any offence under the Indian Penal Code (45 of1860) punishable with imprisonment for a term of ten years ormore against a person or property knowing that such person isa member of a Scheduled Caste or a Scheduled Tribe or suchproperty belongs to such member, shall be punishable withimprisonment for life and with fine.”On going through the above provision, it is evident that thefocal point of above provision is that when atrocity is committed on avictim purposefully and knowing that the victim belongs to ScheduledCaste or Scheduled Tribe and thereby commits offence. Here, goingby the story of prosecution, there is no material to show thatappellant since previously knew that victim belongs to ScheduledCaste or Scheduled Tribe. Prosecution case is admittedly that victimwas lured by a person, who was neither known to victim nor anybodyelse and was rather required to be got identified from so calledfootage or hand sketch. Therefore, the very essence of priorknowledge about category of victim being not known and there beingno distinct material about his knowledge to that extent, in ouropinion, said offence cannot be made out. We seek support to our CriAppeal-884-2019-41- such opinion and conclusion from the recent judgment of the Hon’bleApex Court in the case of Shashikant Sharma and others v. State ofUttar Pradesh and another arising out of SLP (Criminal) No(s). 5323of 2023 reported in 2023 INSC 1036. Here also, prima facieingredients to attract Section 3(2)(v) are patently missing andtherefore, in our considered opinion, said charge is misplaced and thelearned trial Judge failed to consider and appreciate the settled legalposition and rather inflicted punishment for commission of saidoffence and so it cannot be allowed to sustain.SUMMATION28.To sum up, here, firstly, very identity of real culprit has notbeen established. Appellant is shown to be arrested on weak materiallike hand sketch. The very source from whom information regardingpresent appellant is claimed to be gathered, namely, AllauddinSandal, who stated to have consumed liquor with appellant and oneMazhar, is surprisingly not examined as witness. Neither said Mazharis also examined. In fact, on the point of identity, these persons werecrucial witnesses. No investigation seems to have been made onalleged disclosure by said Allauddin regarding all three of themconsuming liquor together. Further, apparently TI parade was got CriAppeal-884-2019-42- arranged after inordinate delay of a month or so resulting into belatedTI parade. Secondly, there is utter disregard to the procedure ofcollection/preservation of crucial biological and non-biologicalevidence, i.e. both, by medical experts as well as police machinery.Thirdly, integrity of the evidence has not been retained and availablematerial shows that possibility of tampering has not been ruled out asa result of lengthy retention of samples at a place like police station.There is no examination of handlers and custodians of muddemal toestablish chain of custody. For all above reasons, though a seriousoffence is proved to be committed on a minor, the major lapses anddefects have rendered the entire evidence doubtful and so cannot bemade 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 acceptableevidence. Mere DNA evidence cannot be made the sole basis ofconviction. Moral conviction has no legal sanctity and what lawrequires is legally acceptable evidence ruling out innocence of theaccused. Here, such quality of evidence is not available and therefore,we are constrained to hold, for the reasons discussed herein, thatunfortunately, case has not been proved beyond reasonable doubt as
Decision
CriAppeal-884-2019-44- whether she is recipient of compensation available from the StateGovernment authorities. Further, if on inquiry it is revealed thatsomething has not been done or something more is required to bedone, then, we direct DLSA to suggest to the Government authoritiesto take appropriate steps which are required for meaningfulrehabilitation. Hence, we proceed to pass the following order:ORDERI.The Appeal is allowed.II.The conviction of the appellant Parvej Khan s/o Rafik Khan inSpecial Case (POCSO) No. 1/2019 dated 03/07/2019 by learnedSessions Judge, Parbhani for the offences punishable under Sections376AB, 506, 323 of IPC, Section 3(i)(v) of the SCST Act and Section 4of the POCSO Act stands quashed and set aside.III.The appellant stands acquitted of the offence punishable underSections 376AB, 506, 323 of IPC, Section 3(i)(v) of the SCST Act andSection 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 appellantafter the statutory period.VI.We clarify that there is no change as regards the order inrespect of muddemal seized in the matter. CriAppeal-884-2019-45- VII.District Legal Services Authority, Parbhani to undertake enquiryas directed in para 30 and report compliance to this Court within onemonth from the date of receipt of copy of this judgment and recordand proceedings.VIII.Registrar (Judicial) to send copy of this judgment and recordand proceeding immediately to District Legal Services Authority,Parbhani.IX.We direct State to formulate suitable guidelines to be adheredto, while conducting TI parade in cases attracting provisions ofProtection of Children from Sexual Offences Act, 2012 and to furthersuggest Standard Operating Procedure to be adopted, keeping inmind the aspect of confidentiality of details of victim and also suggestnecessary precautionary measures to be taken while making victimparticipate in TI parade for identifying perpetrator, with requisiteinfrastructural set up for the same. X.We also direct State to organize periodic sensitizationprogramme of all the stakeholders underscoring need of performingrespective roles whenever they are participating and aiding each otherduring investigation process as dealt in para 26 of the judgment.[ABHAY S. WAGHWASE, J.] [SMT. VIBHA KANKANWADI, J.]vre