POCSO Cases| Bombay HC Directs State Govt To Formulate Guidelines For Conducting Test Identification Parades, Ensure Victim's Confidentiality

The Bombay High Court on Tuesday directed the state government to frame guidelines for conducting test identification parades (TI parades) in cases under the Protection of Children from Sexual Offences (POCSO) Act, 2012.

A division bench of Justice Vibha Kankanwadi and Justice Abhay S Waghwase sitting at Aurangabad also directed the state to come up with a standard operating procedure (SOP) to keep details of the victim confidential while participating in the TI parade.

“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.”

Astonished at the handling of a POCSO case in which a 6-year-old victim was subjected to the identification process within the jail premises, the court criticized the special executive magistrate for not adhering to the stipulated procedures under the POCSO Act, specifically designed to prevent confrontation between the accused and the victim.

“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 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”.

The court was dealing with an appeal filed by one Parvej Khan against his conviction by the Sessions Judge, Parbhani, for various offenses under the IPC, the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989, and the POCSO Act. He was sentenced to life imprisonment for raping a six-year-old girl walking to her home in 2018.

The court noted that the victim did not give a detailed description of the culprit, providing only general features. The court also doubted the identification exercise as guidelines required to be followed while conducting TI parade, i.e. arranging dummies of similar age, and physical features matching to that of the accused, were not followed.

The court examined the procedures followed by medical experts, police, and forensic experts, and pointed out deviations from the Standard Operating Procedure (SOP) for evidence collection, including the use of polythene bags, which contradicts the SOP. The court noted delays in dispatching evidence to the forensic laboratory and questioned the collection, handling, preservation, documentation and safe custody of the evidence. Further, a chain of custody was not shown to be complete, the court said.

The court said that Central Forensic Department and Ministry of Health guidelines for proper collection, documentation, preservation of biological and non-biological evidence were not followed by medical experts or the investigating machinery. “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”, the court observed.

The court underscored that DNA evidence, though corroborative, cannot be the sole basis for conviction, especially in light of the other concerns raised.

The court concluded that the identity of the real culprit was not proven beyond a reasonable doubt and highlighted significant lapses and defects in evidence collection and preservation. The court said that the integrity of the evidence was not retained and the possibility of tampering has not been ruled out as a result of lengthy retention of samples at the police station. Thus, the court gave the appellant the benefit of the doubt and acquitted him of all charges.

Additionally, the court called for a thorough inquiry by the District Legal Services Authority (DLSA) into the victim's current status, covering physical, mental, and educational aspects and whether she is the recipient of compensation available from the State Government authorities.

The court also directed the state to organize periodic sensitization programs for all stakeholders involved in investigations like police, medical experts, forensic experts and prosecutors, on the need of proper collection, sampling, preservation and safe custody of evidence. Such authorities need to keep themselves well informed and updated on the guidelines issued by the Health Ministry and Home Ministry, the court said.

Case no. – Criminal Appeal No. 884 Of 2019

Case Title – Parvej Khan v. State of Maharashtra and Anr.

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