JUDGMENT : M.G. Giratkar, J. 1. In Criminal Appeal No. 3/2005, appellant/accused assailed the judgment of conviction in Sessions Trial No. 77/2003 passed by learned Additional Sessions Judge, Yavatmal by which he was convicted for the offence punishable under Section 376 read with Section 511 of the Indian Penal Code and sentenced to suffer rigorous imprisonment for two years and to pay a fine of Rs. 2,000/- in default to suffer rigorous imprisonment for two months. State has filed Criminal Appeal No. 139/2005 for enhancement of sentence. 2. Case of the prosecution against the appellant-accused in short is as under. (i) That on the day of incident i.e. on 14-5-2003, daughter of complainant aged about 7 years had gone for the marriage. After attending the marriage, she stayed in the house of her paternal grandmother Renukabai. At about 5.30 p.m., daughter of complainant came to house. She was weeping. When complainant asked her daughter as to why she was weeping, then her daughter told that Balya, friend of Raju uncle had given one rupee to her and two rupees to Maya. She purchased pepsi. Appellant lifted her and sit her in white Tata Sumo Jeep saying that he would reach her to her house. Victim told complainant that appellant taken jeep to Jam Road. He had taken out her knicker. He also unchained chain of his full-pant and did obscene act with her. Victim also told her mother that she was having pains in her private part. (ii) Complainant and her husband had taken the victim to the house of Renukabai. Complainant asked Renukabai as to who had taken victim. Renukabai told that she did not know as she was not present in the house. She told that Kamlabai was present. Kamalabai is a dumb woman. When by signs, complainant asked her as to who had taken victim, then Kamlabai taken them to the house of Balya. Mother of Balya was present in the house. She enquired from the mother of Balya, then she told that since morning, he was not in the house. (iii) Thereafter complainant with her daughter returned back. She was taken in the hospital of Dr. Gawarle. On 15-5-2003 in the morning, complainant, her husband and her mother-in-law along with victim-daughter and her niece Maya went to the house of her brother-in-law Raju Sapkal. She narrated the incident to Raju. (iii) Thereafter complainant with her daughter returned back. She was taken in the hospital of Dr. Gawarle. On 15-5-2003 in the morning, complainant, her husband and her mother-in-law along with victim-daughter and her niece Maya went to the house of her brother-in-law Raju Sapkal. She narrated the incident to Raju. Raju brought one album of photographs and shown to victim, Maya and Kamla. Victim, Maya and Kamla identified the photo of Balya saying that accused is the same Balya. Thereafter they went to Police Station, Wadgaon and lodged oral report (Exhibit 36). Crime was registered vide printed First Information Report, Exhibit 37. (iv) Investigating Officer API Gawai arrested the appellant vide arrest panchanama, Exhibit 31. Investigating Officer prepared spot panchanama, seizure panchanama of clothes etc. Investigating Officer sent the victim and accused for medical examination. Investigating Officer has recorded statements of witnesses. Investigating Officer sent seized property to the Office of Chemical Analyzer. After complete investigation, filed the charge-sheet before the Chief Judicial Magistrate, Yavatmal which in turn was committed to the Court of Sessions for trial. (v) Trial Court framed charge at Exhibit 7. Appellant pleaded not guilty and claimed to be tried. Defence appears to be of total denial. (vi) The prosecution has examined following witnesses. (1) P.W. 1 Vijay Prabhakar Kale (Exhibit 14) (2) P.W. 2 Sau. Gumfa w/o Ravindra Sapkal (Exhibit 35) (3) P.W. 3 Ku. Pooja Ravindra Sapkal (Exhibit 39) (4) P.W. 4 Pandurang Daulatrao Potey (Exhibit 43) and (5) P.W. 5 Kishor Bhaurao Gawai (Exhibit 44) (vii) Trial Court recorded statement of the appellant under Section 313 of the Code of Criminal Procedure. Appellant has denied material incriminating evidence against him. He has stated in his statement under Section 313 that case is false. His name is not Balya or Mitthu Balya. On 10-6-2003, statement of victim was not recorded and in that respect, he has produced copy of bail application with order. (viii) After hearing the prosecution and defence, learned trial Court come to the conclusion that appellant attempted to do sexual intercourse with the victim and, therefore, convicted the appellant as stated above. Hence, appellant-accused and State have challenged the impugned judgment. 3. Heard learned counsel Shri Abdul Subhan holding for Shri F.T. Mirza, learned counsel for the appellant. He has pointed out cross-examination of material witnesses and submitted that identification parade was not held. Hence, appellant-accused and State have challenged the impugned judgment. 3. Heard learned counsel Shri Abdul Subhan holding for Shri F.T. Mirza, learned counsel for the appellant. He has pointed out cross-examination of material witnesses and submitted that identification parade was not held. Victim was not knowing the appellant before the incident. She has stated name of Mitthu Balya in her evidence but name of appellant is Dnyaneshwar S/o Ramesh Bobde, therefore, there was no proper identification. 4. Learned counsel has pointed out Medical Certificate, Exhibit 18 issued by the Medical Officer. Learned counsel has submitted that no any injury was found on the person of victim. Learned counsel pointed out spot panchanama, Exhibit 16 and submitted that spot as shown by the victim was by the side of road. There is a Ring Road and there was always traffic. Incident took place at about 5.00 p.m. and it was not probable that appellant commits such a heinous act in such a place which was visible to many persons. 5. Learned counsel has submitted that material witnesses, namely, Maya, Kamlabai and Renukabai not examined by the prosecution. Evidence of victim is not reliable. He has pointed out cross-examination of P.W.3 and submitted that she was tutored by her mother (P.W.2) and therefore, learned trial Court not considered material admissions given by the witnesses. He has pointed out material omissions in the cross-examination of P.W. 2 and P.W.3. At last, learned counsel submitted that prosecution has failed to prove the guilt of appellant beyond reasonable doubt, hence, prayed to acquit the appellant for the offence punishable under Section 376 read with Section 511 of the Indian Penal Code. 6. Heard learned Additional Public Prosecutor Shri Damle for the State. He has submitted that evidence of victim is trustworthy and reliable. There was no any reason to falsely implicate the appellant. Victim has stated in her evidence that appellant gave one rupee to her and two rupees to Maya. Victim and Maya purchased pepsi. Appellant taken victim in his jeep saying that he would reach her to her parents. Appellant attempted to do sexual intercourse. When victim cried, appellant taken her near her house and left her. Learned Additional Public Prosecutor has submitted that her evidence is properly scrutinized by the trial Court. 7. Victim and Maya purchased pepsi. Appellant taken victim in his jeep saying that he would reach her to her parents. Appellant attempted to do sexual intercourse. When victim cried, appellant taken her near her house and left her. Learned Additional Public Prosecutor has submitted that her evidence is properly scrutinized by the trial Court. 7. Learned Additional Public Prosecutor has submitted that trial Court has convicted the appellant for the offence punishable under Section 376 read with Section 511 of the Indian Penal Code but shown leniency while awarding the punishment. Learned Additional Public Prosecutor has submitted that learned trial Court ought not to have shown any leniency to the appellant. Appellant tried to ravish minor girl aged about 7 years and, therefore, maximum punishment should have been awarded. At last, he submitted that appeal filed by the convict/accused is liable to be dismissed and appeal filed by the prosecution/State be allowed. 8. Perused the evidence on record. From the perusal of evidence, it is clear that the case of prosecution is based on the evidence of victim. As per the evidence of complainant, P.W. 2 Gumfa, on the day of incident, her daughter went for attending marriage along with her grandmother. At about 5.30 p.m., victim returned back. She was weeping and disclosed the incident to her stating that Balya removed her knicker and did some obscene act. She disclosed that her private parts were having pain. Therefore, she was taken to Dr. Gawarle. Doctor has given medicine. 9. P.W. 2 has stated that on the next day, she had taken the victim to the house of her brother-in-law Raju. Raju shown photographs to the victim, Maya and Kamla. All of them identified photo of Balya. She has stated that appellant is the same Balya. Thereafter she went to lodge report. 10. The evidence of victim shows that Mitthu Balya taken her and did obscene act with her. Appellant tried to insert his penis in her private part. She had pain and started crying. Thereafter appellant left her near her house. It is argued by learned counsel for the appellant that there was no identification parade. Witnesses have stated name of Balya, Mitthu Balya. Appellant is not a person by name Mitthu Balya or Balya. His name is Dnyaneshwar Ramesh Bobde. Therefore, it was necessary on the part of Investigating Officer to conduct identification parade. 11. It is argued by learned counsel for the appellant that there was no identification parade. Witnesses have stated name of Balya, Mitthu Balya. Appellant is not a person by name Mitthu Balya or Balya. His name is Dnyaneshwar Ramesh Bobde. Therefore, it was necessary on the part of Investigating Officer to conduct identification parade. 11. Victim was a minor girl aged about 7 years at the time of incident. As per her evidence, she was playing with Maya who was also of same age. Mitthu Balya came, gave some money to Maya and victim and taken the victim saying that he would reach her to her parent's house. 12. Victim was not knowing appellant before the incident. Victim was of the age of understanding, therefore, she would not have gone with appellant. Victim has admitted in her cross-examination that she had no any occasion to see Mitthu Balya. She saw him in the Police Station. 13. As per the evidence of P.W.2 mother of victim and P.W.3, Kamlabai was present when appellant taken the victim. Therefore, it was for the prosecution to examine Kamlabai. Victim has stated that Maya was also with her when appellant taken her. Prosecution has also not examined Maya. Therefore, identification of appellant is not proved properly. 14. P.W. 3 has stated in her examination-in-chief that prior to the incident, she did not see Mitthu Balya. P.W. 2 has stated in her evidence that she had taken victim to the house of her brother-in-law Raju. Raju had shown album of photographs to victim, her friend Maya and Kamlabai. They identified Mitthu Balya who had taken the victim. It is pertinent to note that prosecution has not examined Raju, Maya and Kamlabai. Prosecution failed to prove that appellant was the person who had taken victim in his jeep. Evidence of P.W. 2, P.W. 3 who are material witnesses are not reliable. 15. P.W. 2 has admitted in her cross-examination as under: "It is true that when I had taken Ku. Pooja to Dr. Gawarle, at that time, I told to doctor that Pooja is having body ache, she is having fever and coughing. It is true that Dr. Gawarle had examined Ku. Pooja and given prescription. I had not stated to Dr. Gawarle that rape was committed on Pooja. Pooja to Dr. Gawarle, at that time, I told to doctor that Pooja is having body ache, she is having fever and coughing. It is true that Dr. Gawarle had examined Ku. Pooja and given prescription. I had not stated to Dr. Gawarle that rape was committed on Pooja. It is true that there were no injuries on the private part of Pooja." Material omissions are also brought on record in her cross-examination and proved by the Investigating Officer. What she has stated against the appellant in her examination-in-chief that is brought on record as a material omission. She has stated that she had taken victim to Renukabai but Renukabai not stated anything. Kamlabai by signs pointed out the house of appellant etc. are brought on record as omissions. Kamlabai not examined by prosecution. 16. P.W. 3-victim though stated against the appellant in her examination-in-chief but in her cross-examination, she has stated that she had no occasion to visit the house of Mitthu Balya. She pointed out finger towards the appellant/accused before the Court but in cross-examination she has stated that she had no occasion to see Mitthu Balya. She saw him in the police station. When she told to her uncle that he was Mitthu Balya on that her uncle shown her photographs and said that he is Mitthu Balya. 17. Material omission is brought on record in her evidence. She had not stated in her statement to police that when accused started doing something with his penis on her private part, thereafter she shouted. But this material evidence not found place in her statement. It appears from the evidence of P.W.3 that she was tutored by her mother (P.W. 2). She has admitted in her cross-examination that her mother told her as to whom she would identify. Outside the Court Hall, her mother told her that he is Mitthu Balya. 18. Evidence of P.W.3 (victim) itself shows that she was not knowing the appellant before the incident. She was tutored by her mother, P.W. 2. Medical certificate, Exhibit 18 does not show any injury on her person. The spot panchanama, Exhibit 16 shows that spot was having regular traffic. 19. The contents of spot panchanama reads as under : On the eastern side of the said spot of occurrence, there is a ring road leading towards Bhosa. She was tutored by her mother, P.W. 2. Medical certificate, Exhibit 18 does not show any injury on her person. The spot panchanama, Exhibit 16 shows that spot was having regular traffic. 19. The contents of spot panchanama reads as under : On the eastern side of the said spot of occurrence, there is a ring road leading towards Bhosa. On the western side at a distance of 150 meters, there is a road leading from Wadgaon to Jamb. On the southern side, there is the field having wire fence of Maliram Sharma and near it, there is Surana's factory where tractor's trolly are manufactured and on the northern side, there is the field of Thakre Patil and near to it, there is Gitti Khadan (quarry) belonging to Ajil Barde on Jamb road. 20. From the contents of spot panchanama, it is clear that the spot which was shown by the victim was having traffic from all the sides. It was a Ring Road. Incident took place about 5.00 p.m. Looking to the evidence of P.W.2 and P.W.3, prosecution failed to establish that appellant is the person known as Mitthu Balya. Nothing is clarified by the prosecution about the same. Test identification parade was not conducted. Medical certificate does not show any injury on the person of victim. 21. In the same evening, P.W. 2 mother of victim taken her to the hospital of Dr. Gawarle but P.W. 2 not disclosed anything about the incident to Dr. Gawarle. P.W. 2 herself has admitted in her cross-examination that victim was not having any injury on her private parts. Prosecution has miserably failed to prove the guilt of accused beyond all reasonable doubts. 22. Prosecution has utterly failed to prove that appellant attempted to commit sexual intercourse with the victim. Learned trial Court not considered material evidence and wrongly convicted the appellant for the offence punishable under Section 376 read with Section 511 of the Indian Penal Code. Therefore appeal filed by the State is liable to be dismissed and appeal filed by the appellant/accused is liable to be allowed. Hence, we pass the following order. ORDER (i) Criminal Appeal No. 3/2005 is hereby allowed. Impugned judgment of conviction for the offence punishable under Section 376 read with Section 511 of the Indian Penal Code is hereby quashed and set aside. Hence, we pass the following order. ORDER (i) Criminal Appeal No. 3/2005 is hereby allowed. Impugned judgment of conviction for the offence punishable under Section 376 read with Section 511 of the Indian Penal Code is hereby quashed and set aside. (ii) Appellant is acquitted of the offence punishable under Section 376 read with Section 511 of the Indian Penal Code. (iii) The appellant is on bail. His bail bond stands cancelled. (iv) Fine amount, if paid, be refunded to the appellant. (v) Criminal Appeal No. 139/2005 is dismissed. (vi) R & P be sent back to the trial Court.