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. 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 offenc