JUDGMENT K.M. Thaker, J. 1. Heard Mr. Shah, learned advocate for the appellant and Mr. Dabhi, learned Additional Public Prosecutor for the respondent State. 2. This Criminal Appeal under Section 374(2) of the Code of Criminal Procedure is filed against the judgment and order dated 19.10.2011, passed by the learned Additional District and Sessions Judge, Gandhinagar in Sessions Case No. 12/11. 3. The appellant was charged with offence punishable under Sections 363, 366, 376 and 377 of the Indian Penal Code. 3.1 By the said judgment and order dated 19.10.2011, the learned Trial Court has convicted the appellant herein for the offence punishable under Sections 363, 366 and 376 of the Indian Penal Code. The learned Trial Court has held that prosecution has failed to prove the charge for offence punishable under Section 377 of the Indian Penal Code. For the offence punishable under Section 363 of the Indian Penal Code, the appellant is sentenced to undergo rigorous imprisonment for 3 years with fine of Rs. 2000/- and in default to make the payment, simple imprisonment for 15 days is imposed. For the offence punishable under Section 366 of the Indian Penal Code, the appellant is sentenced to undergo rigorous imprisonment for 5 years with fine of Rs. 2000/- and in default to make the payment, simple imprisonment for 1 month is imposed. For the offence punishable under Section 376 of the Indian Penal Code, the appellant is sentenced to undergo rigorous imprisonment for 10 years with fine of Rs. 5000/- and in default to make the payment, simple imprisonment of simple imprisonment of 2 months is imposed. The appellant is acquitted from the charge of offence punishable under Section 377 of the Indian Penal Code. 4. Bereft of unnecessary details the case of the prosecution can be summarized thus: a complaint came to be filed on 27.09.2010 by the mother of the minor victim girl, wherein the complainant mentioned that on 26.09.2010, after about 09.00 p.m. She (i.e. the complainant) was sleeping in Varanda (open area abutting the house) along with her two sons and her daughter, who, at the relevant time was 5 years old. Her brother and parents were also sleeping at some distance in the same Varanda. Her brother and parents were also sleeping at some distance in the same Varanda. In the early morning (i.e. 27.09.2010), when her mother woke up and started preparing tea in the kitchen, she noticed that the minor girl was missing and she was not in the bed with her mother. Therefore, her mother woke-up the informant and asked her about the minor daughter. The complainant and her mother looked and searched for minor daughter however, she was not found anywhere in the house or nearby. While the complainant and her mother were looking for the minor girl, the complainant saw the minor girl coming towards the house from other direction so she rushed and picked up the minor girl, who looked very frightened and she took her (i.e. the victim girl) inside the house and there she saw that her daughter (i.e. the minor victim girl, aged about 5 years) was bleeding from her private parts - from vagina and rectum, and therefore, she and her brother immediately rushed to the Government dispensary (C.H.C.) at Dehgam. The Doctor at the Government dispensary attended the minor girl and asked the victim girl as to what had happened. The minor girl said that during the night time, Mr. R (i.e. the accused-appellant) picked her up from the bed and pressed her mouth by his hand so she could not shout or speak and then he took her to a farm and removed his clothes and put himself on her and into her private parts and (mane "Gandu" karyu) after molesting-abusing her sexually, he left her on the road near the house and fled away. When the victim-minor girl told them about the said incident, the complainant lodged the complaint on 27.09.2010 and accordingly F.I.R. for the offence under Sections 363, 366,376 and 377 of the Indian Penal Code came to be registered. 5. According to the prosecution's case, during the investigation, the Investigating Officer got sufficient material to register the case against the appellant-accused Mr. R and consequently charge-sheet came to be filed against the appellant. 6. The case, being triable by Sessions Court, was committed to the Sessions Court. The learned Court then framed charge to which accused-appellant pleaded not guilty and claimed to be tried. The learned Court then conducted the trial. 7. R and consequently charge-sheet came to be filed against the appellant. 6. The case, being triable by Sessions Court, was committed to the Sessions Court. The learned Court then framed charge to which accused-appellant pleaded not guilty and claimed to be tried. The learned Court then conducted the trial. 7. After evidence was recorded, all incriminating material, facts and evidence were put to him by the learned Court and further statement of the accused-appellant was recorded under Section 313 of the Code of Criminal Procedure. In his further statement under Section 313 of the Code the appellant claimed that on the date of incident he was not in the village where the incident took place. 8. After considering the evidence on record and the submissions on behalf of prosecution and the accused-present appellant, the learned Trial Court passed the judgment dated 19.10.2011 recording conviction and above mentioned sentence against the appellant. 9. Mr. Shah, learned advocate for the appellant, while assailing the judgment submitted, inter alia, that the learned Trial Court failed to appreciate that proper identification procedure was not conducted and the evidence on record raise doubt with regard to identification however, by ignoring said vital aspect the learned Trial Court recorded conviction which is wrong, incorrect and unsustainable. Learned advocate for the appellant submitted that the victim said in her statement that it was dark when she was picked up and that therefore the victim could not have properly seen and recognized the person who picked her up. Learned advocate for the appellant further submitted that the name of the person, (who had picked up the minor-victim), which the victim mentioned while stating the history of the incident before the Doctor and then to the Investigating Officer is a very common name in the area and merely because the appellant's name was mentioned by the victim is the same, the conclusion as regards the identification could not have been recorded. Learned advocate for the appellant further submitted that the appellant is not resident of the same village. He also submitted that the appellant was identified and arrested only on the basis of the photograph however, the said photograph was not placed on record. Learned advocate for the appellant further submitted that the appellant is not resident of the same village. He also submitted that the appellant was identified and arrested only on the basis of the photograph however, the said photograph was not placed on record. The learned advocate for the appellant also submitted that the evidence of witnesses examined on behalf of the appellant is not appreciated and though the petitioner had alibi, the said evidence is also not believed and relied upon. The learned advocate for the appellant submitted that the applicant is at young age and aged about 35 years and in view of the facts of the case, benefit of doubt should be given to the appellant. The learned advocate for the appellant relied on the decision in case of Datta Versus State of Maharashtra, reported in (2013) 14 SCC 588. He also submitted that the appellant has already undergone imprisonment for 4 years and that therefore, by giving benefit of doubt the sentence may to be reduced to the extent of sentence undergone. 10. The Learned APP has opposed the appeal. Learned APP submitted that the appellant is convicted for heinous offence of rape to a minor child, aged about 5 years. Learned APP submitted that the victim girl had specifically mentioned the name of the appellant as the person who lifted her and took her away from her mother's side and their custody and guardianship and thereby committed offence punishable Sections 363 and 366 of the Indian Penal Code and also under Section 376 of the Indian Penal Code and that there is no contradictions in the statements by the victim with regard to the appellant and his identity. Learned APP submitted that not only the victim consistently mentioned the name of the appellant, but the victim even identified the appellant in the Court-room during her deposition and that therefore, the contention or objections raised on the ground that there was defect in the investigation or on the ground that identification/T.I. Parade was not conducted does not survive in light of clear identification of the appellant by the victim in the Court during her evidence. The learned APP also submitted that this is not a case where the appellant-perpetrator was not known to the victim and her family inasmuch as the appellant used to work with brother of her mother i.e. with victim's uncle in a musical band (troop) and he frequented the house with her mother's brother and that therefore, the appellant was not a stranger or completely unknown person. Consequently, the contention and objections on the ground of doubt regarding identification of the appellant is baseless. He also submitted that when the person is identified in the Court by the victim herself, absence of Identification/T.I. Parade does not affect the case of the prosecution and/or does not give any benefit to the convict-appellant. The learned APP also submitted that the victim child-minor girl, aged about 5 years was immediately taken to the Government dispensary and was medically attended by the Doctor and the Victim narrated the incident in presence of the Doctor and her parents, and thereafter, mother of the Victim filed the complaint and F.I.R. was registered. Thus, there is no delay in filing F.I.R. and the Victim herself has consistently narrated the incident before the Doctor and during her deposition. Learned APP, with reference to alibi, submitted that the witness/alibi does not help the appellant and that the learned Trial Court has not committed any error in not believing the evidence of the said witnesses on behalf of the appellant. He also submitted that in view of the fact that offence of rape is established even as per the medical evidence and considering the nature and gravity of offence and considering the fact that appellant is convicted for heinous offence, the request to reduce the sentence to the extent of sentence already undergone may not be accepted. Learned APP relied on the decisions in the cases Santosh Devidas Behade & Ors. Versus State of Maharashtra, reported in 2009 (13) SCC 680 , Dana Yadav @ Dahu, reported in 2002 (7) SCC 295 , Mahabir Versus State of Delhi, reported in 2008(2)GLH 536, Jameel Versus State of Maharashtra, reported in 2007 (11)SCC 111 and Mohd. Aslam versus State of Maharashtra, reported in 2001 (9)SCC 362 . 11. So as to establish the charge, the prosecution examined and relied on, 13 witness and about 29 documentary evidence whereas 2 defence witnesses were examined by accused - present appellant. Aslam versus State of Maharashtra, reported in 2001 (9)SCC 362 . 11. So as to establish the charge, the prosecution examined and relied on, 13 witness and about 29 documentary evidence whereas 2 defence witnesses were examined by accused - present appellant. 11.1 The evidence of the doctor who first attended the victim child of 5 years and gave her preliminary and emergency treatment before referring her to hospital is examined as P.W. No. 1 (exhibit 10). In her evidence P.W. No. 1-the doctor has said that she had asked the victim girl as to what had happened i.e. about the history of the incident and the victim girl told her that she was sleeping by the side of her mother and at that time a boy, whose name is Mr. R came there, lifted her from the bed and picked her up and took her to a farm, and removed her undergarment and sexually abused her (Gandoo Kaam/Kharab Kaam Kariyu) because of which she started bleeding and then he left her at the road side and then he ran away. The P.W. No. 1 has also mentioned in her evidence that, the victim had not taken/she was not given bath and she had not passed urine or stool and that her private parts were bleeding and she was bleeding from vagina and there was blood around her rectum as well. In her evidence the P.W. No. 1 has specifically mentioned that the minor victim girl was definitely subjected to forcible rape. 11.2 In the medical certificate issued by the Medical officer (C.H.C.), following observation is made by the medical officer:-- "Bleeding from Vagina and around anus. Internal examination not done due to excess injury". 11.3 The P.W. 1 has also mentioned in her evidence that the accused was brought to CHC on 29.9.2010 and she had examined the accused. The P.W No. 1 also mentioned that she had asked the accused about history when the accused said that from 23.9.2010 to 25.9.2010 (until around 8.30 p.m.) he was at the government dispensary at Bhoi and was attending her mother and that after returning from the government dispensary after 8.30 a.m. on 25.9.2010 he was at his house on 26.9.2010 and on 27.9.2010 at about 8.00 a.m. he had gone to village Kaniyar. 12. The prosecution then examined P.W. 2 whose evidence was recorded at Exh. 20. 12. The prosecution then examined P.W. 2 whose evidence was recorded at Exh. 20. P.W.2 is the Doctor, who was on duty at Gandhinagar Hospital on 27.09.2010. He has mentioned in his evidence that on 27.09.2010, the victim girl was referred to and brought to the hospital and that he had recorded the history as told by the victim, and thereafter, by victim's mother. P.W.2 mentioned in his evidence that the victim girl was conscious to state the details and that on being asked as to what had happened to her the victim had specifically mentioned name of the person who had taken her away from the bed while she was sleeping by her mother's side, and thereafter, he had taken her to a farm where he removed her clothes and then committed "wrong act" with her (mari shathe "Gandu Karel") and had threatened her that if she told anything to her mother, he would kill her. P.W.2 has mentioned that thereafter, he had referred the victim girl to Gynecologist. 13. In his cross-examination, P.W.2 has said that it is true that in the history recorded by him he has not mentioned that the accused had committed sexual intercourse, but has mentioned that the victim girl has said that the accused had committed wrong act with her ("Gandu" kam karel). 14. The evidence of P.W.3, Gynecologist, is recorded at Exh. 23. The said P.W.3 has mentioned in his evidence that the victim girl was brought to him on 27.09.2010. He has also mentioned that the victim girl had mild temperature. 14.1 In his evidence, P.W.3, Gynecologist, also mentioned that the type of injury and bleeding, which the victim suffered, would occur if forcible intercourse is committed. 14.2 The P.W.3 also mentioned that on internal examination of the victim girl, he found that her hymen was ruptured and there was bleeding from her private parts. 14.3 The P.W.3 has also mentioned in his evidence that he had to take internal stitches to stop the bleeding and the victim girl had to be admitted as indoor patient for three days and she was discharged on 30.09.2010. 14.4 In his cross-examination, the P.W.3 said that he would not be able to say whether she was subjected to intercourse through rectum or not. 15. 14.4 In his cross-examination, the P.W.3 said that he would not be able to say whether she was subjected to intercourse through rectum or not. 15. On conjoint reading of the evidence by the Doctors i.e. P.W.1, P.W.2 and P.W.3, it is established that the victim was subjected to forcible sexual intercourse-rape and on account of forcible intercourse her hymen was ruptured and there was vaginal bleeding on account of injury caused due to forcible sexual intercourse and to stop that internal stitches had to taken. 16. The panch-witnesses i.e. P.W.4, P.W.5, P.W.6 and P.W.7 are declared hostile. The Investigating Officer who signed the panchnama has mentioned in his evidence that discovery/recovery panchanama and the panchnama about the place of incident and the panchnama of recovery of clothes were prepared in presence of panchas and signed by him. 17. The evidence of the mother (P.W.7) of the victim child, who is also the complainant (P.W.7) is recorded at Exh. 35. She has said in her evidence that she was sleeping and her sons and her daughter (the victim) were by her side, however, when in the morning, her mother woke up to prepare tea for family members, she saw that the minor daughter was not in the bed, therefore, she woke her up and asked her about the minor child-the victim. P.W. No. 7 has also mentioned in her evidence that while she and her mother were looking for her daughter, she saw the minor girl on the road coming towards her house so she rushed and lifted her and brought her to the house and she noticed that her child was bleeding and her clothes were also stained with blood. The P.W.7 (i.e. the Complainant) has accepted in her cross-examination that in the complaint (Exh. 36), it is not mentioned that her daughter was subjected to rape. Thereafter, she and her brother took the victim to the government dispensary (C.H.C.) where the Doctor at C.H.C. asked her daughter as to what had happened with her and her daughter mentioned the incident and also mentioned the name of the appellant and that the appellant is known to the family and she also knows him. During her cross-examination, the defence has not shaken the evidence of the complainant. 18. The evidence of the victim (P.W.9) is recorded at Exh. 38. During her cross-examination, the defence has not shaken the evidence of the complainant. 18. The evidence of the victim (P.W.9) is recorded at Exh. 38. Initial and opening questions were put to the victim by the Court to ascertain as to whether she was mentally fit, competent and capable to depose as a witness or not and upon being satisfied about the fact that the victim girl is competent and fit to be witness and give evidence, the learned Trial Court decided to let the evidence of victim girl come on record and granted permission to examine the victim as witness (as child witness) and admitted the evidence on record. 18.1 When question about testimony of child witness arises, the Court keeps in focus that child witnesses are liable and they are liable to be easily influenced, shaped and moulded, and therefore, careful scrutiny of their evidence before reaching to the conclusion that there is truth in evidence and no obstacle in the way of accepting the evidence is necessary. On this count, it is relevant to take into account observations in Paragraph No. 9 of the decision in case of Golla Yelugu Govindu v. State of Andhra Pradesh ( AIR 2008 SC 1842 ), wherein Hon'ble Apex observed that:-- "9. The decision on the question whether the child witness has sufficient intelligence primarily rests with the trial judge who notices his manners, his apparent possession or lack of intelligence, and said judge may resort to any examination which will tend to disclose his capacity and intelligence as well as his understanding of the obligation of an oath. The decision of the trial Court may, however, be disturbed by the higher Court if from what is preserved in the records, it is clear his conclusion was erroneous. The precaution is necessary because child witnesses are amenable to tutoring and often live in a world of make beliefs. Though it is established principle that child witnesses are dangerous witnesses as they are pliable and liable to be influenced easily, shaped and moulded, but it is also an accepted norm that if after careful scrutiny of their evidence the Court comes to the conclusion that there is an impress of truth in it, there is no obstacle in the way of accepting the evidence of a child witness." 19. However, in present case, there is nothing on record to indicate such possibility. However, in present case, there is nothing on record to indicate such possibility. There is no history of strained relation and/or any type of animosity between the appellant and/or appellant's family and the family of the victim girl. Any reason or any circumstance to suggest that because of strained relation or because of some animosity or because of any reason or circumstance or inimical relations the family of the victim girl intended to frame the appellant in false case, is neither pleaded or suggested nor proved. There was no reason for the family of the victim girl to pick up the appellant and give his name as the culprit for the offence committed with their minor child. There is no reason for the victim-girl also to mention the name of the appellant while giving details of the incident to the Doctor who first examined her. The victim-girl was taken to the C.H.C. immediately without any delay and while examining and treating her the Doctor had asked the history to the victim-girl and at that time the victim girl, while mentioning as to what happened to her, had mentioned the name of the appellant. In present case, there are no contradictions or untruth in victim's evidence. 19.1. After the learned Court granted permission to let the victim girl testify, the victim faced examination-in-chief as well as cross-examination and has given consistent deposition. 19.2 In her deposition, PW-9 victim girl has, in reply to different questions, during examination-in-chief as well as during cross-examination, specifically mentioned name of the appellant. Moreover, when, during her evidence, she was asked to identify the person from amongst two persons who were sitting in the Court. One of the two persons sitting in the Court was wearing blue colour shirt and the other person (sitting in the Court) was wearing white colour shirt. Out of the two persons in the Courtroom, the victim girl identified the person wearing white colour shirt as the person who committed offence of rape, i.e. the accused - appellant. She also described how she was lifted by the appellant from the bed, how the appellant had pressed her mouth to stop her from screaming and how he had taken her to the place of incident. The victim described the dress/clothes she had worn when she was lifted and taken-away. In the Court, she identified the clothes. She also described how she was lifted by the appellant from the bed, how the appellant had pressed her mouth to stop her from screaming and how he had taken her to the place of incident. The victim described the dress/clothes she had worn when she was lifted and taken-away. In the Court, she identified the clothes. She also specifically mentioned that the accused-appellant had hurt her at her private part and that when he committed the "bad act" (Kharab Kam/Gandu Kam), her clothes were spoiled by her bleeding. She denied the suggestion that she had mentioned the name of the accused-appellant because police had told her to mention that name. She also specifically denied the suggestion that police had instructed her to mention the name of accused and to identify the accused. 19.3. On examination of the evidence by the victim, it has emerged that the victim girl has given clear and specific replies after answering the questions put to her during examination-in-chief as well as during cross-examination and her deposition contains impression of truth and the learned Trial Court is right and justified in recording that her deposition is worth relying, credible and does not create doubt as to the truth about the facts of incident. There is nothing on record which would indicate that the victim girl, is a tutored witness and does not deserve to be relied on or will make the Court to pause and be skeptical about the evidence of the victim. 19.4. Besides this, her deposition gets support from medical evidence as well. The certificate issued by the Doctor, who examined her, the medical treatment given to the victim girl, the internal stitches which had to be taken by the doctor to stop bleeding, lend support to the victim's deposition. 20. The accused-appellant examined three witnesses. On examination of the evidence of the said witnesses i.e. D.W.1 and D.W.2 it emerges that the said witnesses have not mentioned exact date/day when they had seen the appellant. One witness i.e. D.W.1 whose evidence is recorded at Exh. 57 is not specific about the day/date on which the appellant had gone asking for some piece of tree branch to clean teeth. He has mentioned in his deposition (examination in chief) that he does not know or remember the date on which the incident had occurred. One witness i.e. D.W.1 whose evidence is recorded at Exh. 57 is not specific about the day/date on which the appellant had gone asking for some piece of tree branch to clean teeth. He has mentioned in his deposition (examination in chief) that he does not know or remember the date on which the incident had occurred. In his examination in chief the said D.W.1 has mentioned that the accused-appellant had gone to his house at 7.00 a.m. However, the said witness has not mentioned the date/day on which the accused-appellant had gone to his place at 07.00 a.m. He also mentioned in his evidence that, before about one year, the Investigating Officer had gone to his house to record his statement, however, he did not remember and did not mention the date/day on which the Investigating Officer had gone to record his statement. He said that he does not remember even the month when the Investigating Officer had gone to record his statement. All that D.W.1 mentioned in his evidence is that his statement was recorded before about 1 year and that about 4 days before the date on which his statement was recorded, the accused-appellant had gone to his house at around 7.00 a.m. In his cross-examination, the said D.W.1 has admitted that he was not sure about the time at which the appellant had gone to his house. On over all reading of entire deposition of D.W.1, it emerges that D.W.1 is not certain about day/date or even the month on which the appellant had gone to his house and he is also not certain about time at which the appellant had gone to his house. 20.1. The other witness i.e. D.W.2 has said in his deposition that he had seen the appellant at his (i.e. appellant's house) at about 10 p.m. on previous night. But he did not say as to whether the appellant was at his house from 10.00 p.m. of 26.09.2010 and that he had knowledge about appellant's presence at his house from 10.00 p.m. at 26.09.2010 to 07.00 a.m. on 27.09.2010. The said D.W.2 has mentioned that the incident occurred before one year and that on 27.09.2010, the date of incident, at about 07.00 a.m., the appellant had gone to his place to get some milk, sugar and tea leaf. The said D.W.2 has mentioned that the incident occurred before one year and that on 27.09.2010, the date of incident, at about 07.00 a.m., the appellant had gone to his place to get some milk, sugar and tea leaf. However, from the said statement, it cannot be assumed that after 10.00 p.m. and until 7.00/7.30 a.m. on the next day, the appellant was continuously in his house and had not gone anywhere. The said witness i.e. D.W.2 has not mentioned in his evidence that on the next date, he had seen the appellant at his house and in the village before the 7.00 a.m. 21. None of the said two witnesses have given specific details and evidence as to the whereabouts and presence of the appellant from 10 P.M of the previous night(i.e.10.00 P.M of 26.09.2010) until 7.00 a.m. in the morning next day i.e. the date of the incident (27.09.2010). 22. The appellant has challenged the judgment on the ground that there was no proper identification and the prosecutrix had mentioned a name which is a common name in the area as the name of the person who had picked her up and took her to the farm and committed rape. 22.1. On this count, it is relevant to recall that the victim girl specifically mentioned name of the appellant and subsequently she unmistakably identified the appellant in the Court during her deposition. Moreover, when minor-girl, aged about 5 years, is lifted from the bed while she was lying by her mother's side and when her mouth is pressed by hand so as to stop her from screaming or speaking or making any noise and when the person who lifted her walks with a speed to take away the girl at some other place before any one may see them, the child, even if asleep, would naturally wake up, and look at the person. In present case, after having suppressed the child from screaming by shutting her mouth with hand, the appellant, as stated by victim-girl herself in her evidence, had taken her to a field and removed his clothes and then subjected her to sexual abuse and had done "wrong and bad act" (Kharab Kam and Gandoo Kam Karel). In these circumstances, it is obvious that the physical abuse which terribly hurt her, must have woken-up the child and she saw the man. In these circumstances, it is obvious that the physical abuse which terribly hurt her, must have woken-up the child and she saw the man. In view of these circumstances, coupled with the fact that the person is known to the victim child since he used to come at her house and she knew him as a person playing musical instrument with his uncle in musical group, the victim recognized the person. Therefore, there is no reason to doubt and/or discard victim's deposition and/or the identification of the appellant by the victim and the appellant's contention that since it was not full light day-light and it was dark at the time, the victim-girl could not have identified the person, cannot be accepted, more so, when the victim-girl identified the appellant in the Court, during her deposition. 22.2. The contention by the learned advocate for the appellant on the ground that the name mentioned by the victim girl of the person, who sexually abused her is a common name and the appellant is wrongly implicated in the case, is not sustainable in view of the fact that the victim not only mentioned his name, but she pointed the person (who wronged her and hurted her) in the Court and the appellant was identified in person/in his presence in the Court during the evidence by the victim. 22.3. It is pertinent that the victim identified him and picked him from amongst two persons during her deposition in the Court with the fact that while mentioning the name of the appellant, the victim girl had mentioned name of the appellant along with the work which the appellant does (i.e. Band vaja vaalo). All these aspects, when considered conjointly bring out that identity of the person who committed the Act is established. 22.4. The appellant has claimed that he was not in the village on the day when the incident occurred. The appellant has claimed that he was in his village at his house. It is the case of the appellant that his mother and his sister were also at the house on the day of the incident. 22.4. The appellant has claimed that he was not in the village on the day when the incident occurred. The appellant has claimed that he was in his village at his house. It is the case of the appellant that his mother and his sister were also at the house on the day of the incident. However, his mother or his sister, who were present in the house and though both or anyone of them would be best and direct evidence - witness are/is not examined as witness to prove his claim or to support his alibi and establish that before 7.00 a.m. on the day of incident, he was in his house and between 10.00 P.M. of the previous night till 7.00 a.m. on the day of incident, for entire period he was at his house. On the other hand so far as evidence by two witnesses examined by defence is concerned, it is pertinent that both the witnesses have said that the appellant had gone to their respective houses at 07.00 a.m. i.e. he was at two houses at the same time. One of the witnesses i.e. D.W.1 admitted in his evidence that he is not sure about the date/day or month when the appellant had gone to his place and also not certain about the time. More over, when both the witnesses gave identical evidence and both of them mentioned the same time i.e. 07.00 a.m. and claimed that the appellant was, at the same time (i.e. at 07.00 a.m.) their respective house, then the said evidence does not inspire confidence, more so when other evidence, in particular, the medical evidence supports the case of the prosecution and corroborates the evidence of the victim and when the sister or the mother of the appellant who were at appellant's house is/are not examined. 22.5. Beside this, even if the evidence by D.W. No. 1 or No. 2 is considered and taken into account, then also pertinent fact stares in the face of the appellant viz. there is nothing - no cogent and satisfactory evidence or material is on record - to prove that during the relevant period i.e. the period between 10.00 P.M. on previous night (i.e. 26.09.2010) until 07.00 a.m. on the next day (i.e. 27.09.2010 - the day and time of incident), the appellant was at his house. there is nothing - no cogent and satisfactory evidence or material is on record - to prove that during the relevant period i.e. the period between 10.00 P.M. on previous night (i.e. 26.09.2010) until 07.00 a.m. on the next day (i.e. 27.09.2010 - the day and time of incident), the appellant was at his house. Therefore, this Court is in agreement with the finding and conclusion of the learned Trial Court and there is nothing on record to disagree with the findings. 23. From the evidence of the victim and her mother, it has emerged and it is established that the incident occurred some time before 7.00 a.m. of 27.09.2010. The mother of the victim has mentioned in her evidence that when she (i.e. mother of the victim) and her mother i.e. Grand Mother of the victim were looking for and searching for the girl, they saw, at around 7.00 a.m. on 27.09.2010, their minor-child girl was coming towards their house. Thus, evidence of the said two witnesses do not help the appellant to support and prove his claim that he was at his house and in his village at the time of incident. As mentioned earlier, though his mother and sister were in the house, neither mother nor sister has been examined as witness to support and establish the claim that the appellant was in the house from previous night until 7.00 a.m. in the morning or on the day of incident. On overall consideration of evidence, it emerges that the learned Trial Court has not committed any error in rejecting the appellants defence and explanation that he was not present at the time of the incident, but he was at his house at another village. 24. Beside the above discussed aspects and evidence, the forensic report gives out that upon test/examination, presence of semen was found on sample A-1 (Victim's dress/frock) and on sample A-2 (victim's innerwear) also semen mixed blood was found. 25. From the evidence by P.W.10 and P.W.11, it has come out that information to the police was first given by the Doctor (P.W.1). 25. From the evidence by P.W.10 and P.W.11, it has come out that information to the police was first given by the Doctor (P.W.1). In view of the said fact and the fact that while giving the facts/history about the incident to the doctor the victim girl mentioned the name of the accused-appellant brings out that she had mentioned the appellant's name even before the police/Investigating Officer met the victim and inquired about the incident and recorded her statement, rather even before the police was informed about the incident, and that therefore, the suggestion put to the victim during her deposition (cross-examination) that she mentioned the name of the accused-appellant at the instruction of the police, has no basis. 26. Besides this, the vital aspect in present case is that the victim girl not only mentioned the name of the appellant-accused before the Doctor (i.e. P.W.1) who examined the victim, coupled with the fact that even during her deposition in the Court, the Victim identified the accused-appellant as the person who committed the act of sexual abuse to her and the victim has been consistent in her evidence with regard to the facts of the incident and the identification of the accused-appellant. 27. With reference to the contention on the ground of identification, it is appropriate to take into account the observations by the Apex Court in the decision in the case of Mahabir v. State of Delhi, wherein the Apex Court, after referring to the decisions in the case of State of Uttar Pradesh v. Butasing, reported in (1979) 1 SCC 31 , Sureshchandra Bahari v. State of Bihar, reported in (1995) Supplement 1 SCC 80, Ramnath Mahato v. State of Bihar, reported in 1996 8 SCC 630 , Harbhajansing v. State of Jammu & Kashmir, reported in (1975) 4 SCC 480 and Ramanbhai Patel v. State of Gujarat, reported in 2001 Vol.1 SCC 358, observed inter alia, that:-- "10. As was observed by this Court in Matru v. State of U.P. ( 1971 (2) SCC 75 ) identification tests do not constitute substantive evidence. They are primarily meant for the purpose of helping the investigating agency with an assurance that their progress with the investigation into the offence is proceeding on the right lines. The identification can only be used as corroborative of the statement in court. They are primarily meant for the purpose of helping the investigating agency with an assurance that their progress with the investigation into the offence is proceeding on the right lines. The identification can only be used as corroborative of the statement in court. (See Santokh Singh v. Izhar Hussain ( 1973 (2) SCC 406 ). The necessity for holding an identification parade can arise only when the accused are not previously known to the witnesses. The whole idea of a test identification parade is that witnesses who claim to have seen the culprits at the time of occurrence are to identify them from the midst of other persons without any aid or any other source. The test is done to check upon their veracity. In other words, the main object of holding an identification parade, during the investigation stage, is to test the memory of the witnesses based upon first impression and also to enable the prosecution to decide whether all or any of them could be cited as eyewitnesses of the crime. The identification proceedings are in the nature of tests and significantly, therefore, there is no provision for it in the Code and the Indian Evidence Act, 1872 (in short the 'Evidence Act'). It is desirable that a test identification parade should be conducted as soon as possible after the arrest of the accused. This becomes necessary to eliminate the possibility of the accused being shown to the witnesses prior to the test identification parade. This is a very common plea of the accused and, therefore, the prosecution has to be cautious to ensure that there is no scope for making such allegation. If, however, circumstances are beyond control and there is some delay, it cannot be said to be fatal to the prosecution. 12. It is trite to say that the substantive evidence is the evidence of identification in Court. Apart from the clear provisions of Section 9 of the Evidence Act, the position in law is well settled by a catena of decisions of this Court. The facts, which establish the identity of the accused persons, are relevant under Section 9 of the Evidence Act. As a general rule, the substantive evidence of a witness is the statement made in Court. The facts, which establish the identity of the accused persons, are relevant under Section 9 of the Evidence Act. As a general rule, the substantive evidence of a witness is the statement made in Court. The evidence of mere identification of the accused person at the trial for the first time is from its very nature inherently of a weak character. The purpose of prior test identification, therefore, is to test and strengthen the trustworthiness of that evidence. It is accordingly considered a safe rule of prudence to generally look for corroboration of the sworn testimony of witnesses in Court as to the identity of the accused who are strangers to them, in the form of earlier identification proceedings. This rule of prudence, however, is subject to exceptions, when, for example, the Court is impressed by a particular witness on whose testimony it can safely rely, without such or other corroboration. The identification parades belong to the stage of investigation, and there is no provision in the Code which obliges the investigating agency to hold or confers a right upon the accused to claim, a test identification parade. They do not constitute substantive evidence and these parades are essentially governed by Section 162 of the Code. Failure to hold a test identification parade would not make inadmissible the evidence of identification in Court. The weight to be attached to such identification should be a matter for the Courts of fact. In appropriate cases it may accept the evidence of identification even without insisting on corroboration. (See Kanta Prashad v. Delhi Administration ( AIR 1958 SC 350 ), Vaikuntam Chandrappa and others v. State of Andhra Pradesh ( AIR 1960 SC 1340 ), Budhsen and another v. State of U.P. ( AIR 1970 SC 1321 ) and Rameshwar Singh v. State of Jammu and Kashmir ( AIR 1972 SC 102 )." 27.1. In view of the said observations by the Hon'ble Apex Court the contentions raised by the appellant in present case are not sustainable, more particularly because in present case, the victim identified the accused-appellant (as the person who committed wrong (Sexual abuse/rape) to her person), in the Court and identified the appellant from amongst 2 persons. In view of the said observations by the Hon'ble Apex Court the contentions raised by the appellant in present case are not sustainable, more particularly because in present case, the victim identified the accused-appellant (as the person who committed wrong (Sexual abuse/rape) to her person), in the Court and identified the appellant from amongst 2 persons. Thus, when the victim girl herself unerringly and with clarity identified the accused in the Court during her deposition, the said identification is substantive evidence, and that therefore, there is no room to accept the appellant's contention on the ground that identification procedure was not followed and there is no strong reason to disturb the conclusion by the learned Trial Court. 27.2. This view is fortified by the observations by the Apex Court in the above mentioned decision in case of Umar Abdul Sakoor Sorathia v. Intelligence Officer, Narcotic Control Bureau, reported in 1999 CRI.L.J. 3972, the Apex Court considered the case where the case of identification was done by showing photocopy. While considering the objections against such process for identification, the Apex Court observed that:-- "11. It was contended that identification by photo is inadmissible in evidence and, therefore, the same cannot be used. No legal provision has been brought to our notice which inhibits the admissibility of such evidence. However, learned counsel invited our attention to the observations of the constitution bench in Kartar Singh v. State of Punjab 1994 (3) SCC 569 which struck down Section 22 of the Terrorist and Disruptive Activities (Prevention) Act, 1987. By that provision the evidence of a witness regarding identification of a proclaimed offender in a terrorist case on the basis of the photograph was given the same value as the evidence of a test identification parade. This Court observed in that context: "If the evidence regarding the identification on the basis of a photograph is to be held to have the same value as the evidence of a test identification parade, we feel that gross injustice to the detriment of the persons suspected may result. Therefore, we are inclined to strike down this provision and accordingly we strike down Section 22 of the Act." 12. In the present case prosecution does not say that they would rest with the identification made by Mr. Mkhatshwa when the photograph was shown to him. Therefore, we are inclined to strike down this provision and accordingly we strike down Section 22 of the Act." 12. In the present case prosecution does not say that they would rest with the identification made by Mr. Mkhatshwa when the photograph was shown to him. Prosecution has to examine him as a witness in the court and he has to identify the accused in the Court. Then alone it would become substantive evidence....". 27.3. It has come on record and evidence that the accused-convict was member of musical band (troop) of her mother's brother and he used to come to her uncle's house frequently. Thus, the accused person was not unknown or stranger to the victim girl, but he was know to the victim girl and her family and she had identified the appellant and that therefore, absence of identification procedure will not vitiate either the investigation or the proceedings or the conviction recorded by the learned Trial Court. In this context, it would be appropriate to refer to the observations by the Apex Court in Paragraph No. 12 of the decision in the case of Jamil v. State of Maharashtra, reported in (2007) 11 SCC 420 , wherein the Apex Court has observed that:-- "12. The deposition of the prosecutrix, in our opinion, clearly shows that she was absolutely an innocent girl. So far as the submission of the learned counsel in regard to non-holding of the test identification parade of the appellant is concerned, we are of the opinion that having regard to the fact that the appellant was known to the prosecutrix and her family members and she having identified him before lodging of the F.I.R., it would have been futile to hold a test identification parade. Even otherwise the substantive evidence is the evidence of identification in court. [See Amitsingh Bhikamsing Thakur v. State of Maharashtra 2007 (1) SCALE 62 ]. We, therefore, cannot accept the contention that the prosecution has not proved its case." 27.4. It would also be appropriate to also refer to the observations by the Apex Court to the case of Dana Yadav v. State of Bihar, reported in (2002) 7 SCC 295 , wherein the Apex Court observed that:-- "10...... We, therefore, cannot accept the contention that the prosecution has not proved its case." 27.4. It would also be appropriate to also refer to the observations by the Apex Court to the case of Dana Yadav v. State of Bihar, reported in (2002) 7 SCC 295 , wherein the Apex Court observed that:-- "10...... Thus, question arises, if an accused denies the fact that he is known to the prosecution witnesses and challenges his identity by them by filing a petition in court and making a prayer therein for holding test Identification parade, what course a court should adopt? The answer to the question cannot be put in a straitjacket. For example, if an accused is relation of prosecution witnesses who are residing in the same village, it can be reasonably inferred that they are known to each other. Likewise there may be a case where an accused is on visiting terms with the prosecution witnesses or there are cases between them, and they used to attend the same in court whereby had occasion to see each other. These instances are only by way of illustration and in these circumstances, if an accused challenges his Identification by prosecution witnesses, court ordinarily would not grant the prayer for holding test Identification parade. On the other hand, even if accused and prosecution witness are full brothers or close relations, they may not be knowing each other, i.e., where they are residing in different countries or distant places and had never occasion to meet each other after they attained senses. Likewise in case of a relation also, a witness may not know the accused by face as he had never met him and had known him by name only. In these eventualities, if an accused challenges the Identification and prayer for holding test Identification is made, the same may be granted. "11. This question was subject matter of consideration before different High Courts as well as this Court. It is well settled that no test identification parade is called for and it would be waste of time to put him up for identification if the victim mentions name of the accused in the first information report or he is known to the prosecution witnesses from before. Reference may be made in this regard to the cases of Dharamvir & Anr. Reference may be made in this regard to the cases of Dharamvir & Anr. v. State of M.P., [1974] 4 SCC 150 and Mehtab Singh v. State of M.P., [1975] 3 SCC 407. In the case of Sajjan Singh v. Emperor, AIR (1945) Lahore 48 where the Court while examining the case in similar circumstances observed at page 50 thus: "If an accused person is already well-known to the witnesses, an Identification parade would of course, be only a waste of time. If, however, the witnesses claim to have known the accused previously, while the accused himself denies this, it is difficult to see how the claim made by the witnesses can be used as reason for refusing to allow their claim to be put to the only practical test. Even if the denial of the accused is false, no harm is done, and the value of the evidence given by the witnesses may be increased. It is true that it is by no means uncommon for persons who have been absconding for a long time to claim an Identification parade in the hope that their appearance may have changed sufficiently for them to escape recognition. Even so, this is not in itself a good ground for refusing to allow any sort of test to be carried out. It may be that the witnesses may not be able to identify a person whom they know by sight owing to some change of appearance or even to weakness of memory, but this is only one of the facts along with many others, such as the length of time that has elapsed, which will have to be taken into consideration in determining whether the witnesses are telling the truth or not." 28. In light of the above quoted observations, it becomes clear that identification of the accused by the victim in the Court is substantive evidence and when such substantive evidence is available on record, merely because the procedure of identification parade was not conducted, the case of the prosecution, which is established by virtue of evidence of the victim and independent medical evidence as well as forensic report, cannot be thrown out or benefit of that lacuna cannot be granted to the appellant-accused. 29. 29. From the evidence by P.W.10 and P.W.11, it has emerged that the information about the incident was first given to the police authorities from the hospital/by the Doctor where the victim was taken by her parents. The victim and her parents had first gone to the C.H.C. where P.W.1, the Doctor, examined the victim and since the case was related to offence, intimation (vardhy) was given to the police. 30. The foregoing discussion has established that the prosecution has placed on record cleared, unwavered and reliable evidence by the victim of the offence punishable under Sections 376, 363 and 366 of the Indian Penal Code. Upon analysis of the said evidence, the learned Trial Court found the evidence of the victim girl trustworthy, and therefore, the learned Trial Court accepted it and relied on it. This Court has re-examined and re-appreciated the said evidence and it is noticed that the evidence by the victim girl-child inspires confidence and it is trustworthy. The evidence of the victim does not give an impression that it is evidence-deposition by a tutored witness or it is given under influence. In a case related to charge of offence punishable under Section 376 of the Indian Penal Code, the evidence of the victim girl is most vital and when her evidence-deposition is found credible and if it inspires confidence and if it is free of other or extraneous influence and it is also free of doubt then, it can be relied upon even without corroboration. In present case, as discussed earlier, the evidence by way of alibi brought on record defence (i.e. appellant) is not found satisfactory and reliable and it does not inspire confidence. On the other hand, the evidence by the victim girl gets corroboration from medical evidence/certificate of injuries. The victim is child of five years and, as mentioned earlier, there is no reason for her to tell lie of such nature. The Doctor has deposed that the victim's internal injuries were such that internal stitches had to be taken to stop bleeding. Thus, in present case, the victim girl's evidence has corroboration also. 30.1. The victim is child of five years and, as mentioned earlier, there is no reason for her to tell lie of such nature. The Doctor has deposed that the victim's internal injuries were such that internal stitches had to be taken to stop bleeding. Thus, in present case, the victim girl's evidence has corroboration also. 30.1. When a child aged about five years, is sexually abused and by committing forcible sexual intercourse and when the victim girl was seen bleeding from her private parts - from rectum as well as vagina - and when medical evidence has supported and established the fact that the victim was subjected to forcible sexual intercourse and when the doctor has, in his deposition, mentioned that internal stitches had to be taken to stop bleeding, then there is no room to doubt the fact that offence punishable under Section 376 of the Indian Penal Code was committed. The F.S.L. report corroborates victim's evidence and doctor's evidence. When it is established that the victim girl was lifted and picked up from the side of her mother while both were sleeping in the bed in verandah, and when the victim girl was taken to a distant place i.e. in a field/farm and when it is also established that by pressing hand on her mouth to stop her from screaming or making any noise, then the conclusion by the learned Trial Court that when the victim girl was lifted and taken away she was in lawful guardianship of her mother, and then she was physically and sexually abused, therefore, offence under Section 363 and 366 of the Indian Penal Code are established, cannot be faulted. 30.2. The foregoing discussion brings out that the final conclusion by the learned Trial Court that the prosecution has proved and established the case beyond doubt against the appellant does not warrant interference. 31. At this stage, it is relevant to mention that having regard to the facts and evidence of present case, learned advocate for the appellant urged that the order of sentence against the appellant may be modified and the sentence may be reduced. Learned advocate for the appellant, so as to support the said plea relied on the decision in the case of Dutta v. State of Maharashtra, (2013) 14 SCC 588. This Court has considered the said decision. Learned advocate for the appellant, so as to support the said plea relied on the decision in the case of Dutta v. State of Maharashtra, (2013) 14 SCC 588. This Court has considered the said decision. In the cited decision, the victim girl was child of 10-12 years. After taking into account that High Court had reduced the sentence to 7 years, Hon'ble Apex Court declined to grant further reduction in the sentence, though it was urged that the incident had happened before 26 years. 32. In present case, having regard to the manner in which the child of five years was picked up and lifted from bed and was taken to a field and was sexually abused as a result of which she suffered serious injuries in her private parts, the case on had does not justify any lenient view as to the sentence from what is awarded by the learned Trial Court. Actually, despite the facts involved in the case the appellant is visited with only statutory minimum sentence and is not visited with further or higher sentence than statutory minimum sentence. Thus, there is no justification or scope to reduce the sentence. 33. In light of the above discussion and for the foregoing reasons the judgment and order passed by the learned Trial Court and impugned in present appeal does not warrant any interference and the appeal does not deserve to be accepted and granted. Therefore, the appeal is dismissed. The record and proceedings be sent back to the concerned learned Trial Court forthwith. Accordingly the appeal stands dismissed. Appeal Dismissed