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. 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 prose

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