The importance of conducting a test identification parade and the need for corroborating evidence to establish guilt beyond reasonable doubt.

JUDGMENT :

N. R. BORKAR, J.

This appeal takes an exception to the judgment and order dated 26-2-1998 passed by the learned IInd Additional Sessions Judge, Solapur in Sessions Case No. 239 of 1997. By the impugned judgment and order, the appellants, who were the accused Nos.1 and 2 respectively before the trial court, have been convicted for the offence punishable under section 376-G of the Indian Penal Code, 1860 (for short “IPC”) and sentenced to suffer Rigorous Imprisonment for a period of five years and to pay fine of Rs.3,000/- each, in default, to suffer Rigorous Imprisonment for six months.

2. Appellant No.1/accused No.1 died during the pendency of the appeal.

3. We have heard the learned counsel for the appellant No.2/accused No.2 and the learned APP for the respondent – State.

4. The prosecurtirx was residing at village Wadachiwadi, Tal. Mohol, Dist. Solapur. The incident took place on 22-7-1997. According to the prosecutrix, on the date of incident, at about 2.00 p.m., she had gone to village Chikhali to offer Naivedya to Goddess Mariai-Laxmi. After offering Naivedya, she came to Chikhali Phata and was waiting for the Bus to return to her village. At that time, the accused No.1 came there and told her that her nephew is sitting at his Dhaba and he called her there. She, therefore, accompanied accused No.1 to his Dhaba.

5. According to the prosecutrix, when she reached there at the Dhaba of accused No.1, accused No.2 was sitting there and her nephew was not there. According to her, the accused No.1 forcibly took her in one room and closed the door from inside. She tried to open the door, however, accused No.1 locked the door from inside. According to the prosecutrix, the accused No.1 then made her to lie down on the floor and thrice committed rape on her. According to her, then accused No.2 came inside the room. Accused No.2 also made her to lie down and thrice committed rape on her. The accused then allowed her to go home and threatened her of dire consequences, if she dares to disclose about the incident to anybody else.

6. In the cross-examination conducted on behalf of the accused, the prosecutrix has admitted that she had gone to Mohol police station, one year prior to the present incident, in order to file a complaint against one person as he tried to outrage her modesty. She has admitted that she was not knowing the name of accused No.1 prior to the incident and she was not acquainted with him. She has further admitted that when she went to the Mohol police station on the next day of incident in order to lodge a compliant, Dy. Sarpanch Arun Yadav of village Chikhali was present there and he told the name of the accused No.1 to the police.

7. The prosecutrix has further admitted that in the report at Exhibit-22, she has not mentioned the name of accused No2. She has admitted that the surface of floor of room was rough. She has further admitted that on the date of incident, she reached home at about 6.00 p.m. and on that day, she did not try to inform about the incident either to Police Patil or to Sarpanch of the village.

8. Admittedly, after lodging the report, the prosecutrix was referred for medical examination.

9. PW-5 Dr. Mariamma Paul, the doctor who examined the prosecutrix, has stated in her evidence that on 23-7-1997, she was attached to Civil Hospital, Solapur. On that day, she examined the prosecutrix. She found that the general condition of prosecutrix was good and there were no external injuries. On local examination, she found that there was bleeding, i.e., to perinium. The hymen was torn (old tear). On internal examination, she found that that there was bleeding and injury of 1 cm on the posterior fornix. According to her, the bleeding was on account of forceful intercourse. According to her, the prosecutrix might have been subjected to sexual intercourse.

10. In the cross-examination conducted on behalf of the accused, PW-5 has admitted that since there was injury on the posterior fornex, she said that the p