M.G. Giratkar, J.

1. Appellants have assailed the judgment of conviction awarded by Special Judge, Wardha for the offence punishable under Section 376D of the Indian Penal Code, by which they are sentenced to suffer rigorous imprisonment for 20 years and to pay fine of Rs. 10,000/- in default to suffer rigorous imprisonment for two years.

2. The case of prosecution against appellants in short is as under.

(i) P.W. 1 victim, aged about 16 years was residing at her paternal aunt's house at Wardha. She was studying in 10th Standard. On 26-9-2014, at about 5.15 to 5.30 a.m., she had gone to pluck the flowers near Gode grounds. When she was plucking flowers, two persons came from behind. They caught hold her. One boy was wearing black colour shirt and blue colour pant and other boy was wearing yellow colour shirt. Appellant nos. 1 and 2 were the said persons. After catching hold of her, both appellants took her to a Gode ground. She tried to rescue herself. She shouted, but appellant Vinod gagged her mouth and pressed her throat. Both of them took her inside the Gode ground. She escaped from their clutches but she fell down. They again caught her. Both of them were saying that “HINDI”. Appellant Vinod removed her clothes and did sexual intercourse with her. She dressed up herself and went to her house. She told her parents about the incident. Her brother searched both the accused but not found.

(ii) After the incident, she went to police station along with her brother and lodged report, Exhibit 26. She was examined by Medical Officer. Medical Officer observed that there was sexual intercourse with her.

(iii) Investigating Officer, P.W. 8 API Devkar investigated crime. She came to know from secrete information about the accused. They were arrested in the night. They were sent for medical examination. Permission was obtained from the Court for identification parade of both the accused. After getting permission from the Court, letter was issued to the Executive Magistrate/Tahsildar on 6-10-2014. Tahsildar Priti Dudulkar conducted test identification parade on 8112014. Victim identified both the appellants in presence of panchas. API Devkar sent all the seized property to the Chemical Analyser and after complete investigation, filed chargesheet before the Special Court.

(iv) Charge was framed at Exhibit 12. Same was readover and explained to both the appellants. They pleaded not guilty and claimed to be tried. Their defence appear to be of total denial.

(v) The prosecution has examined following 8 witnesses. (1) P.W. 1 Rachana Balaji Akhud (Exhibit 25) (2) P.W. 2 Dr. Shilpa Ghanshamji Pande (Exhibit 33) (3) P.W. 3 Amit Anil Pande (Exhibit 39) (4) P.W. 4 Vrushab Vijayrao Deshmukh (Exhibit 46) (5) P.W. 5 Shantanu Pradiprao Bhoyar (Exhibit 49) (6) P.W. 6 Priti Mangesh Dudulkar (Exhibit 56) (7) P.W. 7 Vijay Janardhan Tenpe (Exhibit 72) and (8) P.W. 8 Ku. Ujjawal Vitthalrao Devkar (Exhibit 80)

(vi) Learned Special Judge has recorded statements of accused/ appellants under Section 313 of the Code of Criminal Procedure. After hearing the prosecution and defence, learned Special Judge convicted both the appellants for the offence punishable under Section 376D of the Indian Penal Code and sentenced them as aforesaid and hence, the present appeal.

3. Heard learned counsel Shri Mir Nagman Ali for the appellants. He has submitted that there was dark at the time of incident. Victim has stated different identification mark in her evidence. Test identification parade was not carried out as per the Criminal Manual. Appellants were not the persons who committed rape on the victim. They are falsely involved in the case. In support of his submissions, learned counsel for the appellants relied on following decisions.

(1) Soni Vs. State of Uttar Pradesh [1982 (3) SCC 368],

(2) The State of Maharashtra Vs. Dashrath s/o Vishwanath @ Aangrajya Pawar and Ors. [2017 ALL MR(Cri) 3838] and

(3) Dharmendra s/o Laxman Sahare Vs. The State of Maharashtra [2014 ALL MR(C