2023:BHC-AUG:26670-DB 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 (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 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.

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