JUDGMENT :- The Appellant herein was tried in Sessions Trial No.592 of 1991 in the Court of Second Additional Sessions Judge, Nagpur, under Sections 363, 342 and 376 of Indian Penal Code. 2. The learned Sessions Judge acquitted the accused of the offences under Sections 363 and 342, Indian Penal Code, however, held him guilty for offence punishable under Section 376, Indian Penal Code, and sentenced Rigorous Imprisonment for ten years. 3. The appellant-accused was charged for allegedly having kidnapped Ms. Ritu Dhomne, aged 7 years, on 21st December, 1990 between 7.45 p.m., and 9.00 p.m. at Gandhibag Garden, Nagpur, from lawful guardianship of her father, wrongfully confined and raped her, thereby committing offences under Sections 363, 342 and 376, Indian Penal Code, respectively. 4. The case involves the most unfortunate event where prosecutrix Ritu was raped when she was hardly eight years old. It is positively proved that the prosecutrix was subjected to sexual assault. 5. The Appellant raises a grievance against the Judgment holding him guilty. However, unfortunate the incident of assault is, it would be equally unfortunate to hold a person named accused as guilty if he was not properly identified to be the person committing the offence, and the Appellant claims that he is such a victim. According to the Appellant, the Judgment of conviction, which is based on assumption about identification, calls for interference, as it cannot be sustained. According to the learned Advocate for the Appellant, the identification of the accused done by the prosecutrix Ritu before the Court does not answer the requirement of law of identifying the accused. 6. On perusal of evidence of prosecutrix Ritu, other evidence and contents of Judgment, what reveals is as follows:- The prosecutrix has said before the Court in relation to the accused as follows:- "I left Laxmi at the house of my grandmother. Then, I returned home. The accused who is sitting before the Court told me that he would take me at the shop of my father. (At this stage, witness pointed out the accused by finger.) Then, he lifted me on bicycle. But, accused took me in the garden of gandhibag. He removed my wearing nicker. He showed me knife. He removed his wearing pant. He committed rape on me and thereafter, brought me at my house. (At this stage, witness pointed out the accused by finger.) Then, he lifted me on bicycle. But, accused took me in the garden of gandhibag. He removed my wearing nicker. He showed me knife. He removed his wearing pant. He committed rape on me and thereafter, brought me at my house. I cried, when accused committing rape on me." [quoted from para 1 at page nos.38 and 39 of the Paper-Book] In the cross-examination, Ritu stated about the accused as follows : "2) At the time of incident, I was about 7 years old. I was studying in 2nd Std. I was not knowing the particular about the accused. I was not knowing the surroundings of the spot. I saw the accused today for the first time after I saw him after 2 1/2 months after the incident." [quoted from para 2 at page no.39 of the Paper-Book] 7. In the body of Judgment, the learned Sessions Judge has discussed about the manner in which the accused was first time seen and how she had identified. Learned Sessions Judge further observed that from the Arrest Memo is sufficiently clear and eloquent enough, suggesting that the accused was identified by the prosecutrix and in this background the learned Public Prosecutor was right in not bringing before the Court the evidence of Identification Parade of the accused conducted by Special Executive Magistrate on 25th February, 1991. The discussion in this regard is appearing in para 13, which is quoted below: "13. It appears that the prosecutrix is of very tender age. She is about 13 years old. She plainly stated in her evidence that she saw the accused 2 1/2 months after the incident. In fact her, evidence should be read as a whole and not a piecemeal. No doubt, the learned advocate for the accused hampered much on the point that the witness i.e., prosecutrix stated in her testimony that she saw the accused 2 1/2 months after the incident and thereafter, she told to her mother about the accused. In fact if we read her whole evidence it can be said that the prosecutrix identified the accused when the accused was standing near the liquor shop. It may be the fact that through "Illegible" the prosecutrix might have told that she saw the accused 2 1/2 months after the incident. In fact if we read her whole evidence it can be said that the prosecutrix identified the accused when the accused was standing near the liquor shop. It may be the fact that through "Illegible" the prosecutrix might have told that she saw the accused 2 1/2 months after the incident. This circumstance can be considered along with the arrest report of accused (Exh.25). It is of dated 12-01-91. In the arrest report it has stated that the accused arrested on the said date at the instance of the prosecutrix Miss Ritu. If this document can be considered along with the evidence of the prosecutrix, then it can be said that the accused was identified by the prosecutrix on 12-01-91 itself. So, the learned A.P.P. for the State was right in not leading evidence of identification parade of the accused conducted by the Special Judicial Magistrate on 25-02-91. Under these circumstances I am unable to accept the submission put forth by the learned advocate for the accused that the benefit of doubt be given to the accused because, the prosecutrix did not identify the accused on 12-01-91." [quoted from para 13 at page nos.88 and 89 of the Paper-Book] 8. A fact requires to be noted is that the learned Sessions Judge has construed the fact that admittedly Identification Parade was conducted, however, the record relating to Identification Parade is not coming before the Court in an exactly opposite dimension. The law requires the accused to be identified before the Court and record of Identification Parade would always be a piece of corroboration. Had the record and evidence of Identification Parade been brought on record, it could have only proved the fact that Identification Parade was conducted and a fact further that the accused may have been or were not identified during such parade. 9. Identification Parade having been conducted, failure to bring its evidence before the Court such corroborative evidence will have to be construed against the prosecution limited to the extent that Identification Parade was not at all conducted. If the fact of holding Identification Parade is admitted, then an inference that results of such Identification Parade were not brought on record, those being unfavourable to the prosecution. Be it that the facts as to holding of Identification Parade, the case could be of either way. If the fact of holding Identification Parade is admitted, then an inference that results of such Identification Parade were not brought on record, those being unfavourable to the prosecution. Be it that the facts as to holding of Identification Parade, the case could be of either way. The fact of identification before the Court will have to be tested on the basis of the evidence relating to the identification that has come before the Court. 10. It is pertinent to note that admittedly the accused is not a person of prior acquaintance. The prosecutrix has, or may not have, seen the culprit during the commission of offence. Whenever the witness/prosecutrix had an occasion to come across or face the culprit or see him make up some impressions about some marks of identification, or features or any other description due to which the witness may, or could, identify the accused, the fact that the witness/prosecutrix may identify the culprit always exists as a strong possibility. 11. In the present case no evidence is coming forward from the prosecution as to whether, based on narration of features or even without narrating features, but on the basis of memory which the prosecutrix had about the culprit, she identified the accused. All that is coming forward is that some time after two-and a-half-month, the prosecutrix has identified the accused. 12. Fact enquired to be noted is that there were two more persons, who were dealt with as suspects during the process of investigation. Their clothes were subjected to enquiry and sent to Chemical Analyzer along with the appellant. It is not coming on record as to why and in what circumstances or due to what reasons, other two accused were eliminated from the process of identifying the suspects and the accused-Appellant alone was focussed. It is in this background the identification of the Appellant by the prosecutrix has to be tested. 13. It is a common ground that the prosecution has not brought on record any circumstance, including description of features or any other description of the accused, was by the prosecutrix. It has also not come on record if the identification of the accused was done by the prosecutrix even without narrating the features sheerly on account of some factor, such as image, style or personality of the accused, or any other description, which got imprinted in the mind of the prosecutrix. 14. It has also not come on record if the identification of the accused was done by the prosecutrix even without narrating the features sheerly on account of some factor, such as image, style or personality of the accused, or any other description, which got imprinted in the mind of the prosecutrix. 14. It has also not come on record as to any special evidence or the circumstances due to which two-and-half-months after the incident, how the prosecutrix had identified the accused as the culprit assaulting her. It is in this background, the identification by the prosecutrix and her admission has to be read together. Prosecutrix admitted before the Court that: "I was not knowing the particulars about the accused." She further stated that: "I saw the accused today for the first time, after] saw him 2 1/2 months after the incident." Identification of the accused by the prosecutrix before the Court by pointing out to him is, thus, surrounded by the clouds of doubt. 15. The learned Public Prosecutor placed reliance on reported Judgment of Supreme Court in case of Ronny alias Ronald James Alwaris, etc. Vs. State of Maharashtra (1998 Cri.L.J. 1638 : [1998 ALL MR (Cri) 898 (S.C.)]) that Test Identification Parade is only a circumstance in aid, and without corroboration of identification parade as well, the accused could be identified. The Supreme Court held that Test Identification Parade is not a substantive evidence, further that if the witness identifies the accused in the Court for the first time after long time, the probative value of such uncorroborated evidence becomes minimal, so much so, that it becomes unsafe to rely on such piece of evidence. Their Lordships further laid an exception, namely : "But if a witness has known an accused earlier in such circumstances which lend assurance to identification by him in Court and if there is no inherent improbability or inconsistency, there is no reason why his statement in Court about the identification of accused should not be relied upon as any other acceptable but uncorroborated testimony." 16. This Court had an occasion to deal with catena of Judgments on the point of identification of accused persons either before the Court for the first time, based on Identification Parade, or otherwise, in Criminal Appeal No.468 of 2004. This Court had an occasion to deal with catena of Judgments on the point of identification of accused persons either before the Court for the first time, based on Identification Parade, or otherwise, in Criminal Appeal No.468 of 2004. This Court has, after taking resume of almost forty-two Judgments cited on behalf of the accused and two judgments cited by the prosecution, drawn as a test for its own guidance, as rules of identification of accused. The ratio found by this Court as noted in Criminal Appeal No.468 of 2004 is as follows:- "What emerges on well settled position of law after perusal and careful reading of all the precedents cited at bar by both sides is as follows: (a) That the identification of the accused before the Court is of prime importance. (b) Delay in conducting identification parade or identification before the Court would constitute a ground for suspicion. (c) Further sole reliance on test identification parade conducted during investigation would not be permissible. (d) If the complainant or witness had in his memory the identity of the accused engraved or embossed because of the circumstances of the case, identification before the Court alone even if done after years of incident could be sufficient. (e) Identification of unknown accused unless is supported by such engraved impression about the identify could create a suspicion. (f) Identification during test identification parade or even before the Court shall get vitiated and would be unreliable if photographs of accused so identified were published in newspapers before such identification. (g) Whether identification done before Court should be ultimately trusted on objectively guided opinion that the trial Court forms after hearing the evidence, and any rigid rule in this Court cannot be formulated or laid down, as it would depend upon facts of each case." 17. By applying above test to the evidence, which is discussed in foregoing paragraphs, this Court is of the view that the prosecution has failed to bring on record as to how the witness had in her memory the identity of accused engraved or embossed. By applying above test to the evidence, which is discussed in foregoing paragraphs, this Court is of the view that the prosecution has failed to bring on record as to how the witness had in her memory the identity of accused engraved or embossed. This engravement or embossing could have occurred because of the circumstances of the case which led the prosecutrix to identify the accused even after lapse of considerable period and even in absence of her disclosing and narrating to the police and recording by the police of any features, grounds or circumstances on the basis of which engravement of the personality of the accused had occurred in the mind of the prosecutrix. 18. In the result, the situation, in which this Court has to find out whether the accused was identified in present case, can be summarized as follows: (1) Prosecutrix had never seen the accused any time in past. (2) Test Identification Parade was conducted, but is withheld from the Court. (3) Prosecutrix identified the accused before the Court on the basis of her having seen him first, two-and-half-month after the incident. (4) No evidence is coming forward as to the features or other grounds as to how and why the witness remembered the accused. OR (5) A positive statement that the witness has remembered the accused firmly and, therefore, even in absence of earlier narration of any description of accused, the prosecutrix was able to identify the accused. 19. In the aforesaid situation, as noted in the reported Judgment in Ronny alias Ronald James Alwaris's case [1998 ALL MR (Cri) 898 (S.C.)] (supra), while the identification before the Court would not by itself be vitiated due to the accused person's having been identified for the first time, such identification would definitely come under doubt. The cloud of doubt, so appearing and shadowing the identification, could have withered away, had the prosecution successfully demonstrated before the Court the circumstances as to how the complainant was able to recapitulate the personality and identity of the accused even without revealing to the investigating machinery the features. 20. No such evidence and circumstances or explanation has come forward. This renders the identification done by the prosecutrix before the Court doubtful. Benefit of this doubt ought to go to the accused. In the result, the Judgment and Order of conviction and sentence calls for interference, and being set aside. 21. 20. No such evidence and circumstances or explanation has come forward. This renders the identification done by the prosecutrix before the Court doubtful. Benefit of this doubt ought to go to the accused. In the result, the Judgment and Order of conviction and sentence calls for interference, and being set aside. 21. In the result, the Appeal is allowed. Judgment and Order of conviction and sentence is set aside.