JUDGMENT 1. - This is an appeal from the judgment and order dated 26.8.95 made by the learned Addl. Sessions Judge, Baran in Sessions case No. 36/94, holding Kishna Appellant guilty of the offence under Section 376 IPC, convicting him therefor, and sentencing him to Rigorous Imprisonment for 8 years and fine of Rs. 100/-. 2. The prosecution case is that on March 8, 1985 at about 11.00 A.M. PW 8 Kumari Zahida @ Bebi, then aged about 12-14 years, was cutting grass in the field of the Zamindar of village Kishanganj, that the appellant reached there, caught-hold of Kumari Zahida from behind and committed rape upon her. After committing rape on Zahida the appellant ran-away. Zahida reached the village Nursery where her grandmother, PW 1 Smt. Khatoon, was working, Smt. Khatoon noted that Silwar of Zahida was stained with blood. She suspected that Zahida might have mensurated for the first time, therefore, advised her to go to the house. After some times Zahida's brother PW 6 Ishaq, reached the house from his school and found Zahida in unconscious condition. He immediately informed his grandmother, Smt. Khatoon at the Nursery about the unconscious state of Kumari Zahida. Smt. Khatoon reached her house and found Kumari Zahida in unconscious condition. PW 4 Ramesh and one Salim were sent to call for PW 10 Shanta, A.N.M., from the local hospital. On examining Kumari Zahida and seeing her bleeding per her vazina, the A.N.M. advised the witnesses to remove Kumari Zahida to the hospital at Baran. Kumari Zahida, therefore, was taken to the Government hospital at Baran in a jeep and admitted in the Zanana ward. The doctor on duty admitted her on 8.3.85 for treatment. However, on 9.3.85 at 10.00 A.M. PW 14 Dr. B.D. Lahoti examined Kumari Zahida @ Bebi for her injuries and also for determining her age. Dr. Lahoti examined the girl in the presence of lady Dr. PW 16 Dr. Usha Agrawal. The witnesses noted the following injuries on the person of Kumari Zahida : "Bleeding RV. + P.V. done by one finger Hymen patchalus. Cerux-small tear felt in posterior and right lateral yonnex sige about 1 " x diameter. P/S Vaginal tear in posterior and right lateral yonnex" They opined that Kumari Zahida might have been raped. Usha Agrawal. The witnesses noted the following injuries on the person of Kumari Zahida : "Bleeding RV. + P.V. done by one finger Hymen patchalus. Cerux-small tear felt in posterior and right lateral yonnex sige about 1 " x diameter. P/S Vaginal tear in posterior and right lateral yonnex" They opined that Kumari Zahida might have been raped. They further opined that she was aged about 14-15 years but subjected their opinion regarding her age to her radiological examination. PW 13 Dr. G.R Khandelwal, on conducting the X-ray examination of several bones of the girl opined that she was aged between 12 to 14 years. Dr. Lahoti and Dr. Usha Agrawal also agreed with Dr. Khandelwal in that behalf. 3. Any way, the matter was reported to the police where-upon PW 15 Nand Lal A.S.I. recorded the statement of Kumari Zahida at the hospital. Kumari Zahida narrated the above facts to the A.S.I. Crime No. 8/85 under Section 376 IPC was registered on the basis of such statement of Kumari Zahida, Ex.R 1 and investigation commenced. 4. In the course of investigation PW 15 Nand Lal inspected the place of occurrence. It was a field near the ABADI of village Kishanganj, lying on the east of a thorough fare running between the fields of Seth Kishan Chand and PW 5 Duli Chand. The A.S.I. found certain pieces of bangles scattered on the place of occurrence and seized them. Sarson crop was standing in the field and plants were about 5-6 fit and height. But the investigating officer noted that the field had been watered and, therefore, no marks or signs of struggle in-side the crop were present. This site inspection had been made after some time of the occurrence. 5. The bleeding stained Silwar of Kumari Zahida had though been seized by the police on 10.3.85 vide Ex.P. 4, yet another one was also seized on the next day i.e. 11.3.85 vide Ex.P. 3. A report from the chemical examiner/serologist regarding presence of human blood and/or semen on the Silwar of the child has not been placed on the record either of the lower court or of this Court. 6. In the course of investigation the Investigating Officer came to know that the rapist of Kumari Zahida was the present appellant who was then working as a hired laborer to PW 5 Duli Chand. 6. In the course of investigation the Investigating Officer came to know that the rapist of Kumari Zahida was the present appellant who was then working as a hired laborer to PW 5 Duli Chand. It was further known that the appellant was a permanent resident of village Amlawada. It was also known that the appellant had' left the services of Dulichand after the occurrence and thereafter he was not traceable at his permanent place of residence. Proceeding under Section 87 and 88 of Cr.P.C. were taken and since the appellant could not be arrested, a report under Section 173 Cr.P.C. was filed against him and prayer was made that proceedings under Section 299 Cr.P.C. be taken against him. The learned Magistrate recorded the evidence under Section 299 Cr.P.C. and consigned the record. 7. The appellant could be arrested on 12.8.94. PW 12 Shri Harveer Singh Beniwal, Magistrate, held the test identification parade at sub-jail Baran. Kumari Zahida identified the appellant at such parade as her rapist. A supplementary charge-sheet was, therefore, filed against the appellant. 8. The learned trial judge charged the appellant with offence under Section 376 IPC. The prosecution examined 16 witnesses at the trial. The appellant took no specific plea in his defence and on being examined under Section 313 Cr.P.C. he stated that he had been falsely implicated in the case due to enmity and party politics. No evidence in defence was, however, produced by him. The learned trial judge accepted the prosecution evidence, held the appellant guilty of the offence under Section 376 IPC, convicted him as such and sentenced him in the manner stated above. 9. Mr. Deepak Goyal who was appointed Amicus-curiae in the case to argue before this Court on behalf of the appellant led me through the entire evidence on the record of the trial court and mainly stressed the following points : (i) that the identity of the appellant as rapist of Kumari Zahida was not established on record beyond doubt, (ii) that although commission of heinous crime like rape, particularly on teen aged girls, can never been condoned and ignored but until and unless the appellant is proved, by cogent and reliable evidence, as rapist of Km. Zahida, he should not be held guilty for committing such ghastly crime against her, and (iii) that after the arrest of the appellant after a lapse of about 9 years Kumari Zahida could not have been in a position to identify her rapist. Even if, for the sake of arguments, it be assumed that she could have identified her rapist the investigation was not fair in as much that after his arrest on 12.8.94, the identification parade was held on 19.9.94 and before holding such parade the appellant was kept in police custody and could have been shown to Kumari Zahida by the police as he had not been kept Baparda in such custody. 10. On the other hand, Mr. Tiwari, learned P.P. submitted that in the present case commission of the offence of rape on Kumari Zahida can hardly be disputed. The learned P.R further submitted that just-after the occurrence the identity of the present applicant as being servant of PW 5 Duli Chand had been established and such evidence was adduced at the trial of the appellant. The learned P.P. thus submitted that since the identity of the present appellant as the rapist of Kumari Zahida had been established soon-after the occurrence, there could be no doubt in his being the rapist of Kumari Zahida. 11. I have given thought-ful consideration to the arguments advanced before me and have critically examined the evidence available on the record of the lower court. 12. That Kumari Zahida had been subjected to rape by a male of grown-up age on 8.3.85 at about 11.00 A.M. on field situated out-side ABADI of village Kishanganj is not a disputed fact in the present case. Kumari Zahida was bleeding from her Vagina and after the incident she had reached the Nursery where her grandmother was working alongwith other workers. Although Kumari Zahida stated that she had narrated the incident to her grand mother at the Nursery but Smt. Khatoon has not corroborated her in that behalf. What Smt. Khatoon has stated that on seeing blood on the Shalwar of Km. Zahida she suspected that Kumari Zahida might have experienced her first mensuration and therefore, she had asked her to go to the house, Any-way, at the house Kumari Zahida was seen in unconscious state by her brother PW 6 Ishaq who immediately informed his grand-mother Smt. Khatoon at the Nursery. Zahida she suspected that Kumari Zahida might have experienced her first mensuration and therefore, she had asked her to go to the house, Any-way, at the house Kumari Zahida was seen in unconscious state by her brother PW 6 Ishaq who immediately informed his grand-mother Smt. Khatoon at the Nursery. Smt. Khatoon, as also other villagers reached the house where they had found Kumari Zahida in unconscious condition. PW 10 Smt. Shanta, A.N.M. had been called at the house who had also seen the girl bleeding per her vagina and advised the witnesses to remove her to the hospital. PW 3 Abdul Hafeez had helped the witnesses to remove the girl to the hospital and thereafter Kumari Zahida had been taken to the 'Government Hospital at Baran in a Jeep. At the Government hospital PW 14 Dr. B.D. Lahoti and PW 16 Dr. Usha Agrawal had noticed injuries on the private parts of the girl and were of the view that she had been raped. This court has no reason to doubt the testimony of these witnesses which stands fully corroborated by other witnesses on the record of the case. Thus, I am satisfied that it is prove on record that Kumari Zahida had been subjected to sexual inter-coursed against her consent on the relevant day and time. 13. I, further, feel satisfied that Kumari Zahida at the time of offence, was a child aged between 12-14 years. In this behalf, the evidence of PW 13 Dr. J.P. Khandelwal is acceptable as the same is based on X-ray examination and supported by the testimony of PW 14 Dr. B.D. Lahoti and PW 16 Dr. Usha Agrawal, who had examined the girl clinically. 14. However, the pertinent question that arises in the present case is whether the prosecution has been successful in proving the identity of the appellant as the rapist of Kumari Zahida. In this behalf the most vital and main evidence is that PW 8 Kumari Zahida herself. 15. At the time when Km. Zahida was examined at the trial she was aged 24 years. The offence against her had been committed on 1.3.85 when she was a minor girl aged between 12-14 years. 16. Narrating the incidence, Km. In this behalf the most vital and main evidence is that PW 8 Kumari Zahida herself. 15. At the time when Km. Zahida was examined at the trial she was aged 24 years. The offence against her had been committed on 1.3.85 when she was a minor girl aged between 12-14 years. 16. Narrating the incidence, Km. Zahida stated that when she was cutting grass in the field the appellant came from her behind, caught hold of her, undressed her and himself and then committed rape on her. She was a teen aged girl at that time and could have been over powered by a young boy of about 18-19 years of age. She stated that she did not know the appellant that time by name. On being questioned about the identity of her rapist who that he was young boy of about 18 years and that he had moustaches and a beard on his face and from long hair his head. She further stated that she had not seen that man prior to the commission of rape on her. But then she improved her statement by stating that she used to see the appellant daily in the field as he used to water the same. 17. The present appellant has given his age as 45 years in his examination under Section 313 Cr.P.C. That is also the age written in his arrest memo. In the estimation of the court his age at the time of his examination under Section 313 Cr.P.C. was about 35 years. 18. Mr. Goyal, learned Amicus-curiae, pointed-out that a boy of 18 years at the time of commission of the offence against Kumari Zahida in the year 1985 would not become a man of about 45 years or even of 35 years in the year 1994. The learned counsel further submitted that when Zahida was a girl of about 12-14 years in 1985 she could have committed mistake in identifying her rapist in the year 1994 and in this behalf the learned counsel referred to the statement of Kumari Zahida wherein she had admitted that she had not recognised the face of her rapist as the same was covered with moustaches and beard. Mr. Mr. Goyal further submitted that a lapse of about 9 years could have brought in some changes in the face figure and features of a lad of 18 years of age and it would be very difficult for Kumari Zahida to identify her rapist in the year 1994, particularly when she had not fully and properly identified him at the time of commission of rape on her due to presence of moustaches and beard on his face. Mr. Goyal further submitted that it was very difficult for Kumari Zahida to have identified a grown-up man of 35-40 years of age as being her rapist, of the age of 18 years who had committed rape on her about 9 years back. The objections raised by Mr. Goyal require close scrutiny of the testimony of Kumari Zahida. 19. Kumari Zahida has stated that she had been raped in the field where Sarso crop was growing and that Sarso plants were broken at the place where the offence was committed against her. She has further stated that the place of occurrence lay in the field of Sambhu Singh Zamindar and in between the said field and the thorough fare there situated the field of PW 5 Dulichand. Mr. Goyal referred to the site map Exhibit P5 and submitted that the occurrence, is shown to have taken place at point 'B' which lies in the field of Dulichand and that field is adjoining the thorough fare in the west. Mr. Goyal further pointed-out that the field of Shambhu Singh Zamindar has been shown by mark 'C' and in between that field and the thorough fare in the west there situates a field belonging to PW 5 Dulichand. Mr. Goyal thus highlighted the facts that according to the statement of Kumari Zahida the offence was committed in the field marked 'C' and not in the field mark 'A'. Mr. Goyal further referred to the fact that at the time of inspection of the place of occurrence no mark of struggle were found at point 'A' or B' and no plants were seen broken as that field was found watered by the time the inspection was made. By highlighting all these facts the submission of Mr. Mr. Goyal further referred to the fact that at the time of inspection of the place of occurrence no mark of struggle were found at point 'A' or B' and no plants were seen broken as that field was found watered by the time the inspection was made. By highlighting all these facts the submission of Mr. Goyal was that it was a employee of Shambhu Singh Zamindar who had committed rape on Kumari Zahida but due to the influence of the Zamindar the name of the present applicant was substituted for that employee. In this behalf Mr. Goyal highlighted certain other facts also. 20. Mr. Goyal pointed-out that when Kumari Zahida was examined by A.S.I. Nand Lal and her statement Exhibit P1 was recorded in the hospital, she had simply stated that the HALI of the Zamindar had committed rape on her. In that statement she had clearly stated that she did not know her rapist but could identify him as he used to work for the Zamindar Sahib. It was submitted that such statement was recorded by the A.S.I. when Kumari Zahida had regained consciousness at the hospital. Had she told her grand-mother or other witnesses about the identity of her rapist as the employee of PW 5 Dulichand i.e. the present appellant, even if he be assumed so, such facts could have been stated to the A.S.I. but no such were stated to the A.S.I. and are not found contained in Exhibit P4. PW 15 Nand Lal, A.S.I. has stated that he had neither examined Sambhu Singh Zamindar in the course of investigation nor inspected his field at point 'C' as shown in site map Exhibit P5. In fact, Nand Lal A.S.I., who is the investigating officer, has stated that Dulichand himself used to work as HALI. He further stated that in the course of investigation only this fact could be known that an occurrence had taken place in the field of Zamindar and that the identity of the rapist of Kumari Zahida as being the present applicant, could be known only from the statement of Dulichand recorded under Section 161 Cr.P.C. PW 5 Doolichand had though stated in the examination in chief that the present appellant had been working for him at his fields for the last about 15 days and that the appellant used to live some times at Kishanganj and some times at Amlawada. He further stated that on the day of occurrence he had instructed the appellant to go to his field to look-after the cattle there but when it was known that Zahida had been raped by some person then the appellant was searched in the village but neither he nor his children could be traced either in the village Kishanganj or in village Amalwada. But in the last lines of his cross-examination the witness admitted that it was under the influence of police that he had stated that the appellant used to work for him as his HALI. When the statement of this witnesses is read as a whole it leaves much for doubt. If the appellant had been engaged as a labourer on this field and he used to go to village Kishanganj from Amlawada and used to keep his family there. He could not have ample time either to leave village Kishanganj or even village Amlawada alongwith members of his family. PW 5 Doolichand had stated that the appellant has his own land and house at village Amlawada. He had not stated to the police that the appellant used to work for him and was not traceable in the village after the occurrence. The testimony of this witness is quite doubtful and, therefore, on the basis of his statement it can not safely be concluded that the appellant used to work at his field at the relevant day and that he was not traceable in village Kishanganj or in village Amlawada after the occurrence. 21. Coming now to the evidence of identification it cannot be lost sight of that test identification parade was held after the lapse of about 9 years. This long period could have reasonably brought in material changes in the features of the rapist of Kumari Zaida. 21. Coming now to the evidence of identification it cannot be lost sight of that test identification parade was held after the lapse of about 9 years. This long period could have reasonably brought in material changes in the features of the rapist of Kumari Zaida. A rapist of 18 years age, would have been a young man of 27 or 28 years by that time and it would normally be very difficult for a child of about 12-14 years who could not identity her rapist properly at the time of commission of rape on her due to the presence of moustaches and beard on the face of the rapist and long hair on his head, after lapse of a period of 9 years when that duration might have brought in significant facts acquire more care and caution on the part of the Court, in appreciating the evidence in this case. When we find that the accused was arrested on 12.8.94, but the identification parade was held on 19.9.94 that is about 1 month after his arrest. At the time of occurrence he was not kept BAPARDA, as no such version has been given in his arrest memo. On a perusal of the remand-sheet it is gathered that first the police had obtained appellant's police remand upto 19.8.94 and he was produced before Magistrate on 20.8.94 when he was remanded in judicial custody for 15 days, i.e. upto 2.9.94. He was not produced BAPARDA before the Magistrate and was not kept Baparada during the period in police custody. Again no directions were given by the Magistrate to keep him BAPARDA in judicial custody also. During the period of his police custody the appellant was kept at the police station and thus the prosecution had an opportunity to show him to Kumari Zahida at the police station. That apart, Kumari Zahida has stated that on one occasion she had visited the Court premises to tender her evidence but she was not examined at that time. On that day of hearing also Kumari Zahida could have seen the appellant in custody in the court premises. That apart, Kumari Zahida has stated that on one occasion she had visited the Court premises to tender her evidence but she was not examined at that time. On that day of hearing also Kumari Zahida could have seen the appellant in custody in the court premises. We further find that she has further stated that at the time of the identification parade the appellant was prominent by his height and that he was having a black mark on his shirt while other under-trials, who had been mixed-up with the appellant, did not have that much height and any mark on their shirt. Taking all these facts together it can be concluded that it is not safe to base the conviction of the appellant on the evidence of test identification held in the course of investigation and thereafter at the trial of the appellant in the Court. 22. To sum-up, I am of the opinion that there remains a wide gape between 'may be' and 'must be' in so far as the identity of the present applicant as the rapist of Kumari Zahida is concerned. In criminal trials conviction of the offender is to be based when the guilt of the offender is established beyond reasonable doubt. On my appreciation of the prosecution evidence on the identity of the appellant as the rapist of Kumari Zahida. I come to the conclusion that such evidence is of doubtful character and should not be made the basis of conviction of the appellant under Section 376 IPC in the facts and circumstances of the case. I accordingly hold that the prosecution had failed to prove their case against the appellant for committing the rape on Kumari Zahida beyond reasonable doubt. 23. In the result, the impugned judgment and order are set-aside and the conviction and sentence of the appellant for offence under Section 376 IPC are hereby set-aside. The appellant is acquitted of the offence under Section 376 IPC. He is in jail, he shall be released forthwith, if not wanted in any other case.The appeal stands allowed.Appeal Allowed-Accused Acquitted. *******