JUDGMENT V.K. Agrawal, J. 1. The accused/Appellants stand convicted Under Section 376 (2) (g) & 506-Part-II of the I.P.C. and each of them have been sentenced to undergo R.I. for 10 years and to pay fine of Rs. 1,000/- Under Section 376 (2) (g) I.P.C., while each of them have been sentenced to undergo R.I. for 2 years Under Section 506 Part-II of the I.P.C. by judgment dated 13.8.1997 in S.T. No. 119/1996 by I Additional Sessions Judge, Balaghat. 2. Cr. Appeal No. 2063/1997 has been filed on behalf of accused/ Appellants Tejram, Khunnu @ Sudhram and Aghan. However, the accused/Appellant Khunnu @ Sudhram has also filed Cr. Appeal No. 2064/1997, while the accused/Appellant Aghan has filed Cr. Appeal No. 2065 of 1997 from jail. 3. Since ail the appeals relate to the same judgment, they are being disposed of together by this common judgment. 4. The case of the prosecution in brief is that on 28.9.1995, prosecutrix Sushilabai (P.W.5) along with her friends Hemlata (P.W.6) and Subhadra (P.W.7) had gone to the school at Paraswada. After the school was over at about 4.00 P.M., they were returning back to their home at village Salhe from the thoroughfare going through the jungle. When they reached near Jatar-Nala, the accused/Appellants met them, stopped them and thereafter, the accused/Appellant Tejram caught hold of prosecutrix Sushilabai (P.W.5), dragged her to some distance and fell her down under a tree. Hemlata (PW-6) and Subhadra (PW-7) ran away from the spot. Appellant Tejram thereafter under threat committed forcible sexual intercourse with prosecutrix Sushila Bai (PW-5). Appellant Khunnu @ Sudhram also committed forcible sexual intercouse with Sushila Bai. She was thereafter threatened by the accused/Appellants. Hemlata (P.W.6) and Subhadra (P.W.7) had informad about the incident in the village, upon which Rajendra (P.W.8) brother of prosecutrix and others came and met her. Sushila Bai (P.W.5) thereafter lodged report (Ex.P/7) at the Police Station. Offence on the basis thereof was registered. 5. During investigation, Sushila Bai (P.W.5) was examined by Dr. Anita Parashar (P.W.13). She found that hymen of Sushila Bai was torn and an injury was found on her labia minora. There was clotted blood over it. It was opined that Sushila Bai was not used to sexual intercourse and rape might have been committed with her. 6. The learned Counsel for the accused/Appellants has urged that the prosecution evidence as against the accused/Appellants is infirm. There was clotted blood over it. It was opined that Sushila Bai was not used to sexual intercourse and rape might have been committed with her. 6. The learned Counsel for the accused/Appellants has urged that the prosecution evidence as against the accused/Appellants is infirm. No identification parade has been held during investigation and, therefore, since the prosecutrix and other witnesses did not claim to know the accused/ Appellants from before the incident, the Appellants could not have been held to be the miscreants. Howerver, the learned Counsel for the Respondent/State has supported the conviction as well as the sentence awarded to the accused/ Appellants. 7. Prosecutrix Sushila Bai (P.W.5) has stated that she used to go to School at Paraswada, which is about 9.0 Kms. away from her home at village Salhe. Way to the School is a Kutcha road and goes through the jungle. Hemlata (P.W.6) and Subhadra (P.W.7) also used to accompany her to the school. Narrating the incident, prosecutrix Sushila Bai (P.W.5) has stated that on 28.9.1995, she had gone to the school alongwith Hemlata (P.W.6) & Subhadra (P.W.7) as usual; and after the school was over, they were returning back at about 4.30 P.M. to their village. When they reached Jatar Nala, the three accused met them on the way. Accused/Appellant Tejram caught hold of her hand. Her Friends Hemlata (P.W.6) and Subhadra (P.W.7) had proceeded ahead. Prosecutrix Sushila Bai called for help. Accused/Appellant Tejram forcibly took her beneath a tree, made her to lie down and after gagging her and removing her underwear, committed forcible sexual intercourse with her. He had also threatened her during the incident. Theareafter, accused/Appellant Tejram called the other accused, Khunnu @ Sudhram, who also committed sexual intercourse with her. 8. Prosecutrix Sushila Bai (P.W.5) has further stated that the accused/Appellant Aghanlal did not do anything with her, but was standing on the road. She also states that when after the incident, she proceeded home, the accused/Appellants came after her and asked her name. She disclosed her name to them. Thereafter, Purshottam, Surendra & Rajendra, who had come in search of her met and then she told them about the incident. By then the miscreants had run away. Sushila also states that Purshottam, Surendra and Rajendra went in search of the accused/Appellants. She thereafter went to Police Satition Paraswada alongwith her mother and lodged report (Ex. P/7). 9. Thereafter, Purshottam, Surendra & Rajendra, who had come in search of her met and then she told them about the incident. By then the miscreants had run away. Sushila also states that Purshottam, Surendra and Rajendra went in search of the accused/Appellants. She thereafter went to Police Satition Paraswada alongwith her mother and lodged report (Ex. P/7). 9. Hemlata (P.W.6) and Subhadra (P.W.7), who were accompanying prosecutrix Shuhila Bai (P.W.5) at the time of the incident, have supported her statement regarding the incident. They have stated that the accused/Appellant Tejram had cought hold of the hand of Sushila (P.W.5) and then they had run away to the village and informed about the incident to the mother of Sushila and other persons. They have also stated that thereafter, the brothers of Sushila. namely, Surendra, Purshottam ad Rajendra (P.W.8) went in search of her. Sushila met them on the way and they all went to the Police Station. 10. Rajendra (P.W.8), the brother of Sushila has stated that after knowing about the incident, he as well as his brother Surendra and Purshottam has gone in search of the imscreants. He has further stated that Sushila did not disclose the name of the miscreants, but when they were going to the Police Station, they had inquired about the miscreants from some small children, who had disclosed the names of the miscreants. 11. It is clear the above evidence on record that while Sushila (P.W.5) accompanied by Hemlata (P.W.6) and Subhadra (P.W.7) was returning from the school, three boys, whom they did not know from before, had met them. One of the miscreants had caught hold of Sushila Bai, and had taken her under a nearby tree and thereafter two of the miscreants committed sexual intercourse with her. The statement of the Dr. Anita Parashar (P.W.13) and medical examination report of Sushila (Ex. P/22) would indicate that hymen was torn and there was an injury on labia minora. Her opinion was that rape might have been committed. Medical injury report is Ex. P/22. Similarly, the F.S.L. report (Ex. P/21) indicates that human spermatozoa was found on the underwear, slider of vaginal swab of the prosecutrix Sushila Bai as also on the underwears of the accused/Appellants Tejram and Khunnu. 12. The evidence as above clearly supports the statement of Sushila Bai (P.W.5) that sexual intercourse was committed with her on the date of incident. Similarly, the F.S.L. report (Ex. P/21) indicates that human spermatozoa was found on the underwear, slider of vaginal swab of the prosecutrix Sushila Bai as also on the underwears of the accused/Appellants Tejram and Khunnu. 12. The evidence as above clearly supports the statement of Sushila Bai (P.W.5) that sexual intercourse was committed with her on the date of incident. It may be noticed that though Sushila Bai (P.W.5), Hemlata (P.W.6) and Subhadra (P.W.7) have stated that they did not know the accused/Appellants prior to the incident. Howerver, the accused/Appellants have been named in the FIR (Ex. P/7) lodged by Sushila (P.W.5) at the Police Station. 13. It is true that no test identification parade of the Appellants has been held during investigation. It is also true that the statements of Sushila (P.W.5) & Subhadra (P.W.7) would indicate that the accused/Appellants were brought to the Police Station at the time Sushila lodged report (Ex. P/7), and the report was lodged naming the accused persons therein. Therefore, the material question that arises for considration in the foregoing circumstances is as to whether the absence of test identification parade during ivestigation would vitiate the whole prosecution case and whether on that basis alone, the statements of Sushila (P.W.5), Hemlata (P.W.6) & Subhadra (P.W.7) regarding the identity of the accused/Appellants as the miscreants and perpetrators of the crime should be discarded and disbelieved ? 14. It may be noted in the above context that prosecutrix Ku. Sushila (P.W.5), Hemlata (P.W.6) and Subhadra (P.W.7) have uniformly properly identified the accused/Appellants during trial and all of them have consistently stated that the accused/Appellant Tejram had caught hold of Sushila and had taken her away under the tree. Hemlata (P.W.6) and Subhadra (P.W7) thereafter got frightened and ran away from the spot. Sushila (P.W.5) has further stated that accused/Appellant Tejram and thereafter Appellant Khunnu committed sexual intercourse with her. The dock identification of the Appellants by the prosecutrix as well as her friends Hemlata (P.W.6) & Subhadra (P.W.7) unfailingly establishes that the accused/Appellants were the miscreants. Therefore, even if test identification parade of the accused/Appellants was not conducted during the investigation, in the foregoing circumstances, the prosecution evidence, as above, cannot be disbelived only on that ground. 15. The dock identification of the Appellants by the prosecutrix as well as her friends Hemlata (P.W.6) & Subhadra (P.W.7) unfailingly establishes that the accused/Appellants were the miscreants. Therefore, even if test identification parade of the accused/Appellants was not conducted during the investigation, in the foregoing circumstances, the prosecution evidence, as above, cannot be disbelived only on that ground. 15. In Kanta Prashad v. Delhi Administration ( AIR 1958 SC 350 ), it has been observed that failure to hold an identification parade does not make inadmissible the evidence of identification in Court. However, the weight to be attached to such identification is a matter for consideration of the Court of fact. Similarly, in Laxmiraj Shetty and Anr. v. State of Tamil Nadu ( AIR 1988 SC 1274 ) a contention was raised before the Supreme Court that the identification of the accused before the Court of Session during trial for the first time without any prior test identification parade was not of any value. The apex Court, however, repelled the contention. In Harbhajan Singh v. The State of J.& K. ( AIR 1975 SC 1814 ) and in Jadunath Singh and Anr. v. The State of U.P. ( AIR 1971 SC 363 ), it has been observed that absence of test identification is not necessarily fatal to the prosecution case. Reference in this connection may also be made to Sampat Tatyada Shinde v. State of Maharashtra ( AIR 1974 SC 791 ), wherein it has been observed that test identification is not the only type of evidence regarding identification. The identity of the culprit can be fixed by circumstantial evidence also. Considering the nature of test identification and its legal import, it has been further observed in the said case that the test identification is admissible under Section-9 of the Evidence Act and is the best supporting evidence and can be used only to corroborate the substantive evidence given by the witnesses in Court regarding identification of the accused as the doer of criminal act. 16. In the instant case, the prosecution evidence shows that after the incident took place, the information of the same was immediately given by Hemlata (P.W.6) and Subhadra (P.W.7) to the brothers of prosecutrix Sushila (P.W.5) whereafter her brother Rajendra (P.W.8) and others ran towards the spot. 16. In the instant case, the prosecution evidence shows that after the incident took place, the information of the same was immediately given by Hemlata (P.W.6) and Subhadra (P.W.7) to the brothers of prosecutrix Sushila (P.W.5) whereafter her brother Rajendra (P.W.8) and others ran towards the spot. It also appears from the statement of Rajendra (P.W.8) that he made inquiries from small children, who disclosed the names of the miscreants to them. It also appears that the accused/Appellants were apprehended shortly after the incident and were brought to the Police Station and thus the prosecutrix Sushila lodged the report (Ex. P/7) naming the miscreants therein. In the above facts and circumstances, there is hardly any scope for doubting and to hold that some persons other than the accused/Appellants were the miscreants. Had it been so, even if the accused/Appellants were brought to the Police Station at the time Sushila Bai and her brothers and mother as also others had reahed there, Sushila would not have named the Appellants as the miscreants. 17. It may be noted that the accused/Appellants were the residents of the nearby village and would have been known to the children of the locality, who had disclosed their identity to Rajendra (P.W.8), Sushila Bai (P.W.5) and others. The above circumstances would clearly indicate the culpability of the accused/Appellants. The above finding is corroborated and strengthened by dock identification by Sushila Bai (P.W.5), Hemlata (P.W.6) and Subhadra (P.W.7) of the accused/Appellants during their statements in the trial. It may be noticed that the incident took place at about 4.30 P.M. in full day light and Sushila Bai (P.W.5) as well as her friends Hemlata (P.W.6) and Subhadra (P.W.7) had full opportunity to see and identify the miscreants. The above statements of Hemlata (P.W.6) and Subhadra (P.W.7) during trial identifying the Appellants deserves credence. 18. In State of Madhya Pradesh v. Sunderlal ( AIR 1992 SC 1413 ) test identification parade during investigation was not held and the trial Court had placed reliance on the test identification parade. It was held in that case by the apex Court that the prosecutrix of that case having seen the accused in light and had an opportunity of seeing him for a considerable period, would not fail to identify the accused and it was, therefore, held that test identification parade for establishing the identity of accused was not necessary. 19. It was held in that case by the apex Court that the prosecutrix of that case having seen the accused in light and had an opportunity of seeing him for a considerable period, would not fail to identify the accused and it was, therefore, held that test identification parade for establishing the identity of accused was not necessary. 19. As noticed earlier, the accused/Appellants were apprehended almost immediately and were named by prosecutrix Sushilabai (P.W.5) in the First Information Report (Ex. P/7). The Investigating Officer R.T. Sahu (P.W.12) has stated that since the accused were named in the report as above, test indentification parade was not held. If appears from evidence on record that information of the incident was immediately received by the relatives of he prosecutrix, including her mother and brother Rajedra (P.W.8) and they proceeded to search the miscreants, whereupon, the accused/Appellants were apprehended shortly after the incident, and were brought to the Police Station. Therefore, the test indentification parade, even if conducted, could have been challenged on the ground that the accused/Appellants were seen by Sushila Bai (P.W.5) and others at the Police Station when she lodged the report. It appears that in the above circumstances, the Investigating Officer T.R. Sahu (P.W.12) did not consider it necessary to hold the test identification parade, as has also been stated by him when he was cross-examined on this aspect. 20. If the accused/Appellants claimed that they would not be identified by the prosecutrix or other witnesses, they should have insisted on holding of test identification parade. However, they have not done so. In State of U.P. v. Rajju and Ors. ( AIR 1971 SC 708 ), the accused were arrested on the spot. However, no indentification proceedings were held. It was, therefore, urged that since indentification proceedings were not held, it could not be said that the accused were the persons, who were actually arrested at the spot. The apex Court in the above context approved the finding of the trial Judge holding that it was not necessary for the State to hold indentification parade, when according to the prosecution, they were arrested at the spot. It was further observed in that case that if the accused felt that the witnesses would not be able to identify them, they should have requested for an identification parade. 21. It was further observed in that case that if the accused felt that the witnesses would not be able to identify them, they should have requested for an identification parade. 21. Keeping in view the evidence and the circumstances of this case, as brought on record, it does not appear that the statement of Sushila Bai (P.W.5) or her friends Hemlata (P.W.6) and Subhadra (P.W.7), who were admittedly accompanying her at the time of the incident, should be disbelieved, merely because identification parade in the case was not held. The above witnesses have firmly and unerringly stated that the accused/Appellant had met them on the way and accused/Appellant Tejram had caught hold of Sushila Bai (P.W.5) and had teken her away. It is also established from the statement of Sushila (P.W.5) that the accused/Appellant Tejram first committed sexual intercourse with her and thereafter on his asking, Appellant Khunnu came there and he also committed sexual intercourse with Sushila. Her statement is corroborated by the medical evidence as well as the report of the F.S.L (Ex. P.21), as noticed above. In the circumstances, it is clear that so far as accused/Appellant Tejram and accused/Appellant Khunnu alias Sudhram are concerned, the findings of guilt regarding them are unimpeachable and call for no interference. 22. So far as accused/Appellant Aghan is concerned, prosecutrix Sushila Bai (P.W.5) has stated that he did not do anything with her. He was simply standing on the road at a distance, while the offence as above was committed with her by the accused/Appellants Tejram and Khunnu. However, she had stated that while she was returning back after the incident, the accused/Appellants including Appellant Aghan followed her and asked her name. In this connection, it may be noticed that in her Police Diary Statement (Ex. D/2), there is an omission in the above regard. Therefore, since the accused/Appellant Aghan was standing at a distance, as has been stated by Sushila Bai (P.W.5) herself and had not partaken in the incident at all, it cannot be said that he also either helped the other accused/Appellants or had connived with or abetted them to commit the offence. Therefore, the appeal of accused/ Appellant Aghan deserves to be allowed. 23. Accordingly, the appeals so far as accused/Appellants Tejram and Khunnu @ Sudhram are concerned, stand dismissed. Their conviction and sentence as imposed by the learned trial Court are confirmed, 24. Therefore, the appeal of accused/ Appellant Aghan deserves to be allowed. 23. Accordingly, the appeals so far as accused/Appellants Tejram and Khunnu @ Sudhram are concerned, stand dismissed. Their conviction and sentence as imposed by the learned trial Court are confirmed, 24. The appeal of accused/Appellant Aghanlal, however, is allowed. His conviction as well as sentence is set-aside. He be set at liberty forthwith, if not required to be detained for any other offence.