JUDGMENT - BRAHME P.S., J.: - Heard Mrs. Maldhure, learned Counsel for the appellant and Mr. Lanjewar, learned A.P.P. for the respondent-State. The appellant has preferred this appeal challenging his conviction for offence under sections 376 and 363 of Indian Penal Code and sentence for R.I. for 10 years and to pay fine of Rs. 2000/-, in default to undergo R.I. for one year and R.I. for 7 years and to pay fine of Rs. 2000/-, in default R.I. for one year, respectively. 2. According to the prosecution case the occurrence which gave rise to this prosecution against the appellant took place on 6-2-1999. The prosecutrix who was daughter of Kishor Charandas (P.W. 12) and Jivnabai (P.W. 1) was born on 10-6-1986. Gumfabai (P.W. 2) was grandmother of the prosecutrix residing with them. On the date of occurrence, admittedly, prosecutrix at late evening went to reach her father-Kishor who wanted to go to Chalisgaon and after reaching him at Gopal Nagar she returned home. Her grand mother and one neighbour Manjubai were watching Television while her mother Jivnabai was sleeping in the house. As the prosecutrix wanted to purchase wool and needle, she went out on her bicycle after taking Rs. 10/- from her grandmother. At the shop of one Raut at Mahavir Nagar the knitting niddles were not available at his shop. The prosecutrix went to Shankarnagar in or to purchase the same. However, the shops at Shankar Nagar were then closed, the prosecutrix started returning home. It is the case of the prosecution that on her way the appellant stopped her and alleged that the prosecutrix had beaten his daughter. When the prosecutrix refuted, saying that she did not assault his daughter as she was not knowing him and his daughter, the appellant told that he would take her to the hospital where his daughter was admitted and if his daughter identifies her as her assailant, he would hand over her to police of else, he would reach her to her house. The place where the appellant stopped the prosecutrix near the shop of Raut and as there was mercury street lamp, the prosecutrix could see the face of the appellant. The accused and the prosecutrix went on foot holding their bicycles in their hands towards the hospital as suggested by the appellant. The place where the appellant stopped the prosecutrix near the shop of Raut and as there was mercury street lamp, the prosecutrix could see the face of the appellant. The accused and the prosecutrix went on foot holding their bicycles in their hands towards the hospital as suggested by the appellant. It is the case of the prosecution that when they moved some distance, the appellant slapped the prosecutrix and showed her dagger and taking her to a lonely place at Sutgirni ground fell her down, removed her clothes and also removed his own pant and then committed rape on her. After completing the act of sexual intercourse with her, the appellant got up and put on his pant and taking out the key of the bicycle of the prosecutrix threw it away and also snatched Rs. 10/- which the prosecutrix was having with her and left that place on his bicycle. After he left that place the prosecutrix got up and searched for her clothes, however, she could find her sweater only, she put on the sweater on her person, she was frightened and started crying, she went towards the Sutgirni and found Choukidar to whom she disclosed the incident that took place, some persons who were in the quarters of Sutgirni also came there, when Choukidar gave call and the prosecutrix narrated the incident to them and amongst them was witness-Rajesh (P.W. 3). She took them to the spot, where the rape was committed on her. In the light of the scooter other clothes of the prosecutrix were traced, she put on those clothes on her person and after bringing auto rickshaw she was reached to her house with bicycle being kept in the autorikshaw. 3. Here at the house of the prosecutrix, as she did not returned though much time has lapsed, her grandmother became worried and she went out to search her and nearby shops and other places, but she did not find the prosecutrix and after she returned, Jivnabai the mother of the prosecutrix when came to know about the absence of prosecutrix, both of them, went to search prosecutrix in the nearby locality, but their search was in vain and therefore, both of them decided to report the matter to the police and accordingly they reached to Rajapeth Police Station and lodged report Exhibit 16 about missing of the prosecutrix from the house. 4. 4. Before the mother and grandmother of prosecutrix reached home, the prosecutrix had reached home and as both the ladies were not at home the prosecutrix was at the house of their neighbour. After reaching home Jivnabai and Gumfabai found the prosecutrix in the house of their neighbour and time the prosecutrix narrated the incident of rape to them. Grandmother of the prosecutrix then immediately took her to the Rajapeth Police Station, where she lodged the report- Exhibit 20 on the basis of which information the report exhibit 21 was prepared. The prosecutrix was sent for medical examination at Dafrin Hospital (General Hospital for Women) Amravati, there she examined by Mrs. Charushila Durge, the Medical Officer and found injury marks on her private part, that she noted in the certificate exhibit 27 issued by her Dr. found that the prosecutrix had not attained puberty and that her hymen was ruptured, she gave definite opinion that the prosecutrix was raped. 5. As the prosecutrix was having unbearable pains, Gumfabai took her to Kunwar Nagar on 10-2-1999 so that she should be shown to a doctor, however, the hospital at Kunwar Nagar was closed at night, they were returning home and when they were passing by Kunwar Nagar, the prosecutrix saw the accused/appellant going on bicycle, she immediately recognised him and told her grandmother that he was the same person who had committed rape on her. After reaching home their neighbour Dadasaheb Kshirsagar (P.W.) gave phone call to the Police Station Rajapeth informing that the appellant was sighted. So police came in jeep to the house of prosecutrix and taking her and her grandmother in the jeep the police proceeded towards Kunwarnagar where they searched for the accused, however, the accused was not noticed, therefore, they came towards Gopal Talkies area, when they reached near Gopal Talkies in front of Ram Mandir the prosecutrix noticed the appellant going on foot with holding his bicycle by his hand. She immediately told police by pointing towards the appellant that he was the person who committed the rape on her. The appellant was apprehended then and there only and he was identified by the prosecutrix immediately. 6. It was revealed that the real name of the appellant was Raju Baliram Pahurkar, as near Gopal Talkies when he was apprehended, he gave his name as Sandip Ingle. The appellant was sent for medical examination, where Dr. The appellant was apprehended then and there only and he was identified by the prosecutrix immediately. 6. It was revealed that the real name of the appellant was Raju Baliram Pahurkar, as near Gopal Talkies when he was apprehended, he gave his name as Sandip Ingle. The appellant was sent for medical examination, where Dr. Anil Kavimandan (P.W. 5) examined him and noticed abrasion caused by scratching by nail on his forehead, left chick, face and thigh as noted in the certificate-Exhibit 10 issued by him. Police seized clothes of the prosecutrix which were on her person at the time of incident in panchnama so also prepared spot panchnama Exhibit 24. While the appellant was in the police custody, he made disclosure to produce the clothes which were on his person when interrogated by the Investigating Officer and accordingly the police and panchas taking the appellant with them went to his house and on going there the appellant produced the clothes and the dagger which came to be seized under panchnama Exhibit 39. The bicycle of the appellant on the handle of which his name was engraved was also seized under panchnama. During the medical examination of the appellant the sample of his pubic hair, semen and blood were taken, so also the sample of blood, vaginal smear of the prosecutrix was taken by Dr. Charushila Durge. The property that came to be seized was sent to the Chemical Analyser for analysis. After receiving the reports vide Exhibits 63, 64, 65, and 66 from the Chemical Analyser and after completing the investigation the charge-sheet was filed in the Court of the Judicial Magistrate, Court No. 6, Amravati who in turn committed the case to the Court of Sessions, Amravati by order dated 31-5-1999. The appellant pleaded not guilty to the charge framed by the Sessions Court. His defence was that of total denial. 7. The prosecution examined in all 13 witnessed including Jivnabai (P.W. 1)-mother, Gumfabai (P.W. 2) Grandmother of the prosecutrix, Rajesh Rahatge (P.W. 3) the person who was called by Choukidar in whose presence the prosecutrix disclosed about the commission of rape on her and also showed the place where the rape was committed on her. The prosecutrix (P.W. 4), Dr. Anil Kavimandan (P.W. 5), Dr. The prosecutrix (P.W. 4), Dr. Anil Kavimandan (P.W. 5), Dr. Charushila Durge (P.W. 6), witness- Divakar Ramrao Bhoyar (P.W. 7) who happened to be Headmaster of Sharda Kanya Vidyalaya, Amravati where the prosecutrix had her education, Dadasaheb Kshirsagar (P.W. 9) who acted as panch, who accompanied the police and prosecutrix in search of the appellant and who identified him when he was sighted near Gopal Talkies. It is not disputed before the trial Court that the prosecutrix was minor girl. It was also not disputed that in incident that took place at night in the ground of Sutgirni the prosecutrix was sexually assaulted. The medical evidence as stated earlier positively indicated that rape was committed on the prosecutrix. It was the claim of the defence that the prosecutrix was a consenting party, that plea is not available to the appellant, having regard to the fact that the prosecutrix was admittedly a minor girl. The trial Court accepting the evidence of the prosecutrix, medical evidence and also evidence where under the appellant was identified as the person committed the rape. Accordingly, the trial Court convicted the appellant holding the appellant guilty for the offence with which he was charged. The trial Court convicted and sentenced him as stated earlier. Hence the appeal. 8. As to the factum of commission of rape the trial Court has accepted the evidence of prosecutrix-Babita, her grandmother Gumfabai, her mother Jivnabai and medical evidence of Dr. Charushila Durge . The prosecutrix in her evidence has stated as to how in the night on the day of occurrence she went out of her house for buying wool and niddle and then while returning the appellant made her to follow him towards open ground of Sutgirni. She has also stated in her evidence that the appellant had sexual intercourse with her inspite of all resistance by her. Her evidence in that regard has remained unshaken, though she was subjected to cross-examination . 9. The prosecutrix had stated in her evidence that after she returned home she immediately disclosed to her mother and grand-mother about the fact that rape was committed on her. Defence has not controverted this fact. Therefore, disclosure by the prosecutrix to her mother and grandmother does speak of her natural conduct. 9. The prosecutrix had stated in her evidence that after she returned home she immediately disclosed to her mother and grand-mother about the fact that rape was committed on her. Defence has not controverted this fact. Therefore, disclosure by the prosecutrix to her mother and grandmother does speak of her natural conduct. To substantiate this the prosecution examined witness Jivnabai (P.W. 1) the mother of the prosecutrix, who in her evidence stated that after she returned from lodging missing report in Police Station she found her daughter in the house of their neighbour-Kshirsagar and she disclosed that one person took her to Sutgirni and after removing her clothes, that man committed rape on her. This evidence of mother of prosecutrix is not specifically challenged by the defence. The grandmother of the prosecutrix-Gumfabai (P.W. 2) has candidly stated in her evidence that when inquired with prosecutrix-Babita, she disclosed weepingly that one person snatched Rs. 10/- from her and after removing her clothes rape was committed by that man near Sutgirni. Her evidence also remained undisturbed and controverted on this point. What is surprising to note that whatever these witnesses have stated about commission of rape of prosecutrix in their evidence, has not been specifically controverted by the defence. Even the tenor of cross-examination by the defence of this witness would show that the factum of prosecutrix having taken to Sutgirni premises and there rape was committed to her is not specifically challenged. It is matter of record that immediately after Babita disclosed to her mother and grand mother about the commission of rape on her, she was taken to Police Station, where she lodged report where her mother lodged report Exhibit 15 and on the basis of that report offence was registered. It is crystal clear from the recitals of the report Exhibit 15 that the name of the culprit was not disclosed. All that has been stated was that the person who was having bicycle had taken the prosecutrix towards the Sutgirni at night, and by putting under the threats with the dagger which he was having with him succumbed her to sexual intercourse despite of resistance she made. All that has been stated was that the person who was having bicycle had taken the prosecutrix towards the Sutgirni at night, and by putting under the threats with the dagger which he was having with him succumbed her to sexual intercourse despite of resistance she made. The fact that immediately the report was lodged with the Police Station disclosing the fact that rape was committed on prosecutrix-Babita lends assurance to the claim of the prosecutrix and her mother and grandmother as to occurrence that took place in which the prosecutrix was sexually ravished. The last but not the least is the medical evidence wherein Dr. Charushila Durge (P.W. 6) who was Medical Officer at Darfeen Hospital, Amravati, who admittedly examined the prosecutrix on 7-2-1999. The prosecutrix complained of rape on her at 9.00 p.m. on 6-2-1999. Dr. Charushila Durge stated in her evidence that the prosecutrix was complaining of rape. On examination she found injury marks on her back, on local examination she found congestion and adima on vulva and vagina and her hymen was ruptured with tags seen pariferily. In her opinion the prosecutrix was not in her menses. The Medical Officer gave her opinion that the patient has undergone rape. Accordingly, she issued certificate- Exhibit 27 giving detail account of her examination. She found the age of the prosecutrix as 13 years. The evidence of the Medical Officer on opinion that rape was committed on prosecutrix based on her findings on examination of the prosecutrix have not been challenged by the defence. Therefore, with this evidence, the prosecution has clinchingly established that the prosecutrix was subjected to sexual violence on the night of 6-2-1999 at the place and time as stated by her and as such rape was committed on her. The trial Court has rightly come to the conclusion that the rape was committed on prosecutrix-Babita. 10. The crucial question is about the involvement of the appellant. The trial Court has found that the appellant committed rape on her as his identity has been established on the evidence on record. That has been challenged vehemently by the Counsel for the appellant. 10. The crucial question is about the involvement of the appellant. The trial Court has found that the appellant committed rape on her as his identity has been established on the evidence on record. That has been challenged vehemently by the Counsel for the appellant. The learned Counsel submitted that though the appellant was not known and the prosecutrix had no occasion to see him prior to occurrence, no identification parade was held and therefore, identification by the prosecutrix, the manner in which it is stated in the evidence is doubtful and in all probability it would be a case of mistaken identity. The learned Counsel submitted that the incident has taken place at night at a place where there was no source of light. The prosecutrix could not have any opportunity to see even the face of the appellant when he committed act of sexual assault on her. In such situation the claim of the prosecutrix to have identified the appellant while she was passing by the road in jeep after seeing the person by the road holding on his bicycle, does not show any authenticity as also certainty about the identification of the appellant. It is submitted by the learned Counsel that in the absence of any evidence connecting the appellant with the act of commission of rape, identification of the appellant on the strength of the version of the prosecutrix is doubtful. In that regard, the learned Counsel pointed out from the report Chemical Analyser- Exhibit 66 that blood group of semen found on Exhibit 6 can not be determined. As per the report of the Chemical Analyser Exhibit 66, though semen was detected on Exhibit 6, the underwear of the prosecutrix, in the absence of blood group of semen of the appellant, detection of semen, it does not tally with the semen detected on Exhibit 5 or the semen of the appellant. It is submitted that no medical evidence is brought on record as to detection of blood and semen of the appellant, therefore, the appellant is entitled to the benefit of doubt. It is submitted that the appellant was arrested on 11-2-1999 vide arrest panchnama Exhibit 38 around 1435 hours. The prosecutrix and her grandmother having stated in their evidence about the presence of panch Kshirsagar with them in the jeep. It is submitted that the appellant was arrested on 11-2-1999 vide arrest panchnama Exhibit 38 around 1435 hours. The prosecutrix and her grandmother having stated in their evidence about the presence of panch Kshirsagar with them in the jeep. Therefore, the identification or pointing of the appellant by the prosecutrix as recorded in the panchnama Exhibit 37 does not inspire confidence. It is submitted that the appellant has been implicated falsely by police as a result of mistaken identity. It is submitted that the appellant was stranger and the prosecutrix had no occasion to see him and therefore, her identification on seeing him while going on bicycle by the road, is as shaky and doubtful as possible and therefore, in the absence of test identification parade, the evidence of the prosecutrix as to identification of the appellant becomes doubtful and no implicit reliance could be placed on it. 11. In this context, the learned A.P.P. Mr. Lanjewar submitted that as per the evidence on record when the appellant was accosted he gave false name, but later on it was revealed that his name was Raju. The appellant after he was arrested was referred to Medical Officer Dr. Anil Kavimandan (P.W. 5) who on examining found abrasion because of nail scratching on his forehead, left chick, face and thigh as recorded in the certificate-Exhibit 10. There is no explanation by the appellant as to how he suffered these injuries, the prosecutrix has stated about causing abrasions by scratching by nail by way of offering resistance when the appellant committed rape on her. The learned A.P.P. submitted that as stated by the prosecutrix the appellant was with her for about 2 hours. The incident was very fresh. The prosecutrix identified the appellant immediately when she along with police went out in jeep to search for the appellant and incidentally appellant was found near Gopal Talkies while going on bicycle. She identified him and accordingly the factum of identification was recorded in the panchnama Exhibit 17 as stated by the witness-Kshirsagar. In view of this situation, when the appellant was identified by the prosecutrix, the learned A.P.P. submitted that there was no reason to hold test identification parade. Therefore, the identification of the appellant by the prosecutrix does not suffer from any infirmity and doubt. Evidence of the prosecutrix in that regard is quite natural and truthful. 12. In view of this situation, when the appellant was identified by the prosecutrix, the learned A.P.P. submitted that there was no reason to hold test identification parade. Therefore, the identification of the appellant by the prosecutrix does not suffer from any infirmity and doubt. Evidence of the prosecutrix in that regard is quite natural and truthful. 12. After assessing the evidence of prosecutrix in correct perspective, I am of the opinion that the identification by the prosecutrix of the appellant/accused was certainly carrying ring of truth and there is absolutely no reason to hold that it was a case of mistaken identity. The plea of the evidence of false implication is as fallacious and baseless as it could be. It is pertinent to note that initially missing report was lodged by the mother of the prosecutrix, then after the prosecutrix was found and she disclosed about the commission of rape on her, a complaint was lodged alleging that rape on her, a was committed on her, without disclosing the name of the culprit. It was not known to the prosecutrix as to who was the person who committed rape on her. In my opinion this has significance in the sense if at all the prosecutrix or say her mother and grandmother wanted to implicate the appellant falsely, in this case, it was easy for them to name the appellant in the report itself which lodged immediately in the Police Station. Apart from that there is no plausible reason assigned by the appellant to indicate to spell out even that there was even slightest cause for the prosecutrix or her parents to implicate the appellant as culprit for commission of rape on her. 13. It has come in the evidence of the prosecutrix that on that night she had gone for buying wool and niddle and after she found that the shop at Shankarnagar was closed, she was returning, the appellant met her and asked her to accompany him to the hospital where his daughter was admitted. He has ingeniously swayed the prosecutrix to accompany with him telling her that the prosecutrix has beaten his daughter. He has ingeniously swayed the prosecutrix to accompany with him telling her that the prosecutrix has beaten his daughter. Naturally when the prosecutrix refused the allegation that his daughter was beaten by her, the appellant very intelligently told her that if his daughter recognised the prosecutrix as the girl who has beaten him, he would take her to the police and in case his daughter does not identify the prosecutrix as the girl who has beaten her, he would reach the prosecutrix to her house. That is how the prosecutrix was let to believe on the statement of the appellant and she followed him for going to the hospital. The prosecutrix in her evidence stated as to what had happened thereafter when the appellant alongwith the prosecutrix was near the place where there was darkness and he immediately changed and put her alarm and so to say holding threats by showing dagger, made her to accompany her to ground near Sutgirni and then committed rape on her. It has come in the evidence that at the place where the rape was committed on the prosecutrix, there was darkness, therefore, there is no difficulty in saying that there was no opportunity for the prosecutrix to see the appellant at the place where actually the rape was committed on her. But then it has come in the evidence that at the place where the appellant accosted the prosecutrix and took her by road, on the pretext of taking her to the hospital to show his daughter, the prosecutrix had opportunity to see the face of the appellant as there was mercury street light. So, it is in this context that the opportunity was to the prosecutrix to see his face for sufficient time. The appellant had conversation with the prosecutrix, if that is taken into consideration, I do not think that the identification of the appellant by the prosecutrix in the manner in which she has stated and it was as fresh as it could be after the occurrence, could be said to be a case of mistaken identity. The learned Counsel for the appellant has no doubt placed reliance on the decision of the Apex Court reported in 2003 All.M.R.(Cri.) 2367(S.C.), (Devinder Singh and others v. State of Himachal Pradesh)1, in which it is found that the fact of identification of the accused by the prosecutrix was doubtful. The learned Counsel for the appellant has no doubt placed reliance on the decision of the Apex Court reported in 2003 All.M.R.(Cri.) 2367(S.C.), (Devinder Singh and others v. State of Himachal Pradesh)1, in which it is found that the fact of identification of the accused by the prosecutrix was doubtful. It was a case of gang rape and according to the prosecutrix five persons have alleged to have committed rape on her and four of them were named in the First Information Report lodged on 6th day. She however, did not name them in her deposition. The accused were not put up for identification though they were arrested within few days of the incident. There was no evidence that the prosecutrix knew them before and she had only fleeting glimpse of them in the torch. Torch was recovered from one of the accused, but there were no identifying marks on the torch. In such factual situation the accused came to be acquitted as it was not safe to rely on the sole testimony of the prosecutrix as to identification of the accused. The identification of the accused in that case was found doubtful in that factual situation and not only because test identification was not held, the prosecutrix had only fleeting glimpse of the accused and that too in the torch light and therefore, the Court found that the identification of the accused was doubtful which was based on solitary testimony of the prosecutrix and that was much more so that when there was no evidence of the prosecutrix knowing them before. The factual position in the case before hand is entirely different. As stated earlier the appellant was identified immediately by the prosecutrix and nothing could be inferred even that the version of the prosecutrix as to identification of the appellant is tainted. There is evidence of the grandmother of the prosecutrix who was supported that claim of the prosecutrix as to having identified the appellant when she saw him coming in a jeep. She pointed out fingers towards the appellant who was passing by the road with his bicycle that he was person who committed rape on her. The identification was extempo i.e. at the spur of movement as soon as she saw the appellant. There was no question of mistake in identification of the appellant. She pointed out fingers towards the appellant who was passing by the road with his bicycle that he was person who committed rape on her. The identification was extempo i.e. at the spur of movement as soon as she saw the appellant. There was no question of mistake in identification of the appellant. That is much more so, when there was no reason for the prosecutrix to implicate the appellant falsely. Therefore, I do not find any fault on the part of the trial Court in accepting the evidence of the prosecutrix on identification of the appellant. It that is accepted, then it clinches the issue and the offence of committing rape on the prosecutrix by the appellant is brought home to. The trial Court has committed no error in awarding sentence of 10 years R. I. In my considered opinion, therefore, no interference is called for in the judgment recorded by the trial Court. The appeal therefore, merits no consideration at all. Same deserves to be dismissed. Hence the order. ORDER 14. The appeal is dismissed. The appellant who is in jail to serve out remaining part of sentence. The Appeal was conducted by Mrs. Maldhure, the learned Counsel who has been appointed by the Court from legal aid panel. Therefore, her fees in this matter is quantified at Rs. 2,000/- to be paid to her. Appeal dismissed. -----