JUDGMENT:- Heard Shri. Quazi, Advocate for the appellant and Shri. Mandpe. A.P.P. for state. 2. Appellant - Dinesh is taking exception to his conviction and sentence [or the offences punishable under sections 363 and 376 of I.P.C. in Sessions Trial No.744/1990 by the judgment rendered by the 5th Additional Sessions Judge, Nagpur. 3. The appellant along with other four accused were tried of the offences under sections 363. 376(2)(g). 324, 506, 354. read with section 34 of I.P.C. in the aforesaid trial. 4. The prosecution case was that on 20.5.1999. at about 12.30 midnight at Satrapur, Kanhan. District Nagpur all the accused persons kidnapped the minor girl who was sleeping in her courtyard along with her grandmother. It was alleged that accused came there and forcibly took her along with them on the point of knife and by gagging her mouth. Thereafter, they took her to the bank of Kanhan river and they committed gang rape. It is alleged that the accused no.1 i.e. present appellant caused hurt to said girl by means of a knife. Accused had also threatened said girl of dire consequences. It is the case of the prosecution that the accused had also assaulted said girl and outraged her modesty. When she was being taken to Kanhan river by this accused, her aunt i.e. Gainabai went to the Police Station and lodged the report about the kidnapping of prosecutrix. Police came to the spot. Police went in search of the accused and also the prosecutrix. After hearing shouts of people, the accused allegedly ran away from the spot. Prosecutrix was brought to the police station, she lodged report to Police Station, Kanhan. She was referred to the P.H.C. Kanhan for medical examination. There she was examined by medical officer - Dr. Dilip Patil. Later on she was referred to Mayo Hospital. Nagpur for further medical examination by the expert. It is alleged that during the course of investigation spot panchnarna was prepared. Clothes of the prosecutrix were seized, so also the clothes of accused, particularly present appellant. Later on C.A. Report in respect of the seized articles was received. After due investigation the accused persons came to be charge-sheeted for the aforesaid offences. 5. Charge against the accused was framed for the aforesaid offences. Accused pleaded not guilty to the same. Their defence was that of total denial. Later on C.A. Report in respect of the seized articles was received. After due investigation the accused persons came to be charge-sheeted for the aforesaid offences. 5. Charge against the accused was framed for the aforesaid offences. Accused pleaded not guilty to the same. Their defence was that of total denial. In order to bring home the guilt of the accused. prosecution had examined in all 14 witnesses. Main witnesses are P.W.2 Gainabai, P.W.9 prosecutrix. P.W.12 Executive Magistrate Bhaurao. who had conducted identification parade of the accused in which allegedly the prosecutrix had identitied the present appellant. P.W.13 P.I. Mulekar. I.O. and P.W.14 Dr. Pravina who was working as Medical Officer at Mayo Hospital at the relevant time. besides doctor Dilip Patil who was working as Medical Officer at P.H.C. Kanhan. 6. Learned trial Judge, found that the evidence of P.W.9 prosecutrix was reliable and that appellant could be convicted on that basis. He also found that medical evidence corroborated her version. Apart from this, it is the observation of the learned trial Judge that the rupture of hymeo and vagina patulous which is found by P.W.14 Dr. Parvina Chore had supported the version of the prosecutrix as regards the commission of rape. He also found that though there were some irregularities in holding identification parade. there was enough opportunity to the prosecutrix to see accused prior to the date of incident and therefore her statement before the court regarding identification of the appellant - accused no.1 as regards the main offender could be relied upon for attracting conviction. He further found that the prosecution has failed to establish case against the rest of the accused and therefore, while convicting the appellant for the offences under sections 363 and 376 and 354. and sentencing him accordingly. he acquitted the other accused. The present accused - appellant was also acquitted of the offences under sections 324 and 506. Part-II r/w. 34 of I.P.c. For aforesaid offences, he sentenced the appellant for 3 years and 7 years R.I.. besides fine. 7. It is this judgment of conviction and sentence which is challenged by the appellant in the instant appeal. 8. Learned counsel for the appellant has submitted that testimony of P.W. 9 is not sufficient to invite conviction of the appellant accused no. 1 inasmuch as the same lacks corroboration from the medical evidence. besides fine. 7. It is this judgment of conviction and sentence which is challenged by the appellant in the instant appeal. 8. Learned counsel for the appellant has submitted that testimony of P.W. 9 is not sufficient to invite conviction of the appellant accused no. 1 inasmuch as the same lacks corroboration from the medical evidence. According to him, the answers given by her in cross-examination. cast considerable doubt on the prosecution case and therefore, the appellant would be entitled for acquittal. as benefit of doubt has to go to him. 9. As against this, learned A.P.P. has contended that the evidence of P.W. 9 prosecutrix is sufficient to convict the appellant. The trial court has rightly relied on her evidence as the same is supported by the medical evidence on record. According to him, the appellant was rightly identified by her in the court as well as during the identification parade as she was knowing him prior to the incident as he had been to the house of Gainabai for demanding tobacco on the earlier day. According to him, though there were some irregularities in holding identification parade, same could be relied and therefore, the reasons recorded by the learned trial Judge for coming to the conclusion for finding the appellant guilty of the aforesaid offences, are correct He therefore, submitted that the appeal of the appellant needs to be dismissed. 10. It is necessary to note that the State has not preferred any appeal against the acquittal of the other accused, so also acquittal of the present appellant for the offences under section 324 and 506 r/w.34 of I.P.C. 11. It is obvious that the case of the prosecution rests only on the evidence of prosecutrix. Question would be whether her evidence is sufficiently reliable and trustworthy for basing the conviction, as done by the learned trial Judge. 12. In this context, it is necessary to scrutinize the evidence of P.W.9. From her evidence in examination-in-chief, it is seen that she supported the prosecution case as regards the appellant in clear terms. She has stated that when she was sleeping with her grand-mother in the courtyard, accused came there, they were 4-5 persons, they shut her mouth, she identified the appellant, others were having clothes on their faces. Said accused was accused no.1 who was present before the court, she thus identified the appellant in the court. She has stated that when she was sleeping with her grand-mother in the courtyard, accused came there, they were 4-5 persons, they shut her mouth, she identified the appellant, others were having clothes on their faces. Said accused was accused no.1 who was present before the court, she thus identified the appellant in the court. She in cross-examination stated further, "I had given statement before police my brother was not with me. It is true that at the time of incident, faces of all the persons were covered by cloth. On that night I did not identify any of the persons. I had not stated name of any person to the police. Perusal of this cross-examination goes against the prosecution case." 13. Learned A.P.P. has however, tried to explain such answers in cross examination contending that witness P.W.9 was positive in examination-in-chief in identifying the appellant as the accused no. 1 had committed aforesaid offences. Therefore, according to him, this cross-examination can be ignored or at least should be interpreted to mean that she had identified the appellant correctly. In my opinion, it is not possible. Reasons I would indicate. 14. It is necessary to bear in mind that this cross-examination was after recording the evidence of examination-in-chief which specifically was to the effect that she had identified the accused appellant no.1. It was the duty of the prosecutor who had conducted the case to explain in fe-examination. as to show that answer covering of face by all accused persons, means "by the accused other than appellant" and nothing else. Explanation should also be plausible and acceptable, because she has categorically stated that on that night she did not identify any of the persons and she has not stated name of any person to the police. Learned API' in trial court did not, even attempt, to explain this discrepancy in re-examination. which is really shocking. 15. Learned A.P.P. has pointed out that the witness P.W. 9 had identified the appellant in the court. Thereafter, her evidence can be used for basing conviction. However, in examination-in-chief, itself, when the answer was followed, she stated "I do not know name of the accused". It is impossible to say that she was not knowing the name of the appellant at the relevant time. 16. Thereafter, her evidence can be used for basing conviction. However, in examination-in-chief, itself, when the answer was followed, she stated "I do not know name of the accused". It is impossible to say that she was not knowing the name of the appellant at the relevant time. 16. In this context if one peruses the F.I.R., it would be seen that, she has stated; when my brother came forward to release me, the said persons threatened him and also other persons on the point of knife, then they took me on the bank of river by holding my bands and feet and pressing my mouth. I know the person by name who had held my hands, his name is Dinesh Dhoute. Therefore, it clearly appears that she had given name of the appellant in F.I.R .. not only once, but she has referred to his name in the latter part of the report. In specific allegations she has stated that Dinesh and his 4-5 accomplice carried her away from her house and tried to outrage her modesty. 17. Even at the stage of appeal. explanation as regards as to how she could know name of the appellant at the time of lodging the report, was not available. In these circumstances of the case, it appears that her evidence could not be relied, without the corroboration from independent quarters. Learned A.P.P. has tried to seek such corroboration to her evidence from the medical evidence. 18. In this context, the evidence of P.W.6 Dr. Dilip Patil. shows that the prosecutrix was examined at the relevant time after the incident, some injuries were found on her person, so also she was found to have pain on the side of private part and breast. On perusal of his evidence, in my opinion, it may support the case of the prosecutrix as regards happening of some incident, but the same in no way corroborates the allegations against the "appellant" as regards his committing the said offences. Turning to the C.A. Report, the learned trial Judge has himself found that the CA. Report does not corroborate the prosecution case. 19. Learned A.P.P. has also contended, that evidence of identification parade, supports the case against the appellant and therefore, the impugned judgment is not liable to be set aside. 20. Turning to the C.A. Report, the learned trial Judge has himself found that the CA. Report does not corroborate the prosecution case. 19. Learned A.P.P. has also contended, that evidence of identification parade, supports the case against the appellant and therefore, the impugned judgment is not liable to be set aside. 20. In this context, it is necessary to note that the learned trial Judge has himself observed that it is true that there were some lacunae while holding the identification parade, he has also observed that even otherwise, there was an opportunity to the prosecutrix to see the accused a day prior to date of incident. He has again observed that it has come in her evidence that she had seen accused no.1 Dinesh one day prior to the incident at about 3-4 p.m. when he came to demand tobacco from Gainabai. Gainabai had admitted in her cross-examination that two persons came to demand tobacco from her. This shows that it is the case of the prosecution that the appellant accused no.1 could be identified by the prosecutrix. at the time of incident, as well as in the court. but fact remains that she had named the appellant in F.I.R. I have already pointed out above as to how she came to know the name of the appellant. remained to be explained by the prosecution. In these circumstances. the evidence of PW-9 and for that matter identification of appellant by her in the identification parade is of little help. 21. As regards the evidence of P. W.14 Dr. Pravina. regarding medical examination of the prosecutrix. suffice it to say that it would only prove the happening of the incident. but it would not implicate the appellant in any way. More so because CA.'s report does not implicate appellant. 22. It is well settled that proof in criminal case. requires legal proof and suspicion howsoover is strong; cannot be a suhstitute of a legal proof. Even a very strong suspicion cannot take a place of proof. No judicial decision can rest on mere suspicion. Prosecution story, may be true, but between may be true and must be true, there is inevitably long distance to travel and whole of this distance must be covered by reliable and unimpeachable evidence. In this behalf Mulkraj Vs. State of Haryana, AIR 1996 SC 2868 may be referred. 23. No judicial decision can rest on mere suspicion. Prosecution story, may be true, but between may be true and must be true, there is inevitably long distance to travel and whole of this distance must be covered by reliable and unimpeachable evidence. In this behalf Mulkraj Vs. State of Haryana, AIR 1996 SC 2868 may be referred. 23. In the present case, other relevant witnesses have turned hostile to the prosecution. The learned trial Judge has accepted the evidence of only prosecutrix for basing the conviction. 24. It goes without saying that even if it is assumed that the incident had occurred, it is for the prosecution to prove the complicity of the offender in the said offence beyond reasonable doubt. Here is a case where in crossexamination, the prosecutrix has clearly stated that all the persons had covered their faces by clothes, and in examination-in-chief she stated about the identification of the appellant, said discrepancy was not explained and clarified by re-examining that witness. Her, categorical admission that at night she could not identify any person and she did not state name of any person to the police, would clearly demolish her case and mentioning of the name of the appellant in the F.I.R. would loose its significance. 25. In these circumstances, it is difficult to agree with the learned trial Judge that the evidence of the prosecutrix is sufficient for basing conviction of the appellant without corroboration from other sources which is lacking in the case at hand. As such. the view taken by the learned trial Judge is unsustainable at law. Therefore, the judgment or conviction and sentence of the appellant is liable to be quashed and set aside. Same is set aside. 26. Appeal is allowed, conviction and sentence imposed against the appellant arc hereby set aside. He is acquitted of the aforesaid offences. He be set at liberty, forthwith. His bail bonds stand discharged. Fine, if any, deposited by him, be refunded. Appeal allowed.