IMPORTANT POINT
Absence of Test Identification Parade, while being a procedural lapse, does not automatically vitiate prosecution case, particularly when accused’s identity was allegedly disclosed by himself to victim.

JUDGMENT

Amit Borkar, J.—By way of this bail application filed under Section 439 of the Criminal Procedure Code, 1973, the applicant seeks regular bail in connection with Crime Register No.1017 of 2024 registered at Malawani Police Station, Mumbai. The applicant stands accused of committing offences punishable under Sections 137(2) and 126(2) of the Bharatiya Nyaya Sanhita, 2023, as well as under Sections 4, 6, 8, and 12 of the Protection of Children from Sexual Offences Act, 2012.

2. According to the prosecution story, on 31st July 2024, a 17-year-old victim boy himself approached the police station and lodged a complaint regarding the alleged incident. In his complaint, the victim stated that he was in the habit of visiting Aksa Beach along with his friends for the purpose of fishing. On the fateful day of 31st July 2024, at approximately 4:00 p.m., the victim had gone to Aksa Beach accompanied by his friend Satish Jaiswal for their usual fishing activity. After successfully catching some fish, both of them were sitting on the beach premises when the alleged incident occurred.

3. At around 6:30 p.m., an unknown person approached them and questioned them as to why they were sitting at that particular location. The said person then told the victim that he should accompany him to see what had transpired in the nearby bushes. Initially, both the informant and his friend refused to go with the unknown person. However, the said person persisted in his conversation and succeeded in taking the informant to the bushes situated near Aksa Beach. Upon reaching the bushes, the informant could not observe anything unusual, following which he attempted to leave the spot. However, the unknown person prevented him from departing and forcibly removed the informant’s clothing. The accused then allegedly inserted his private part into the victim’s anus, thereby committing unnatural carnal intercourse with him against his will and consent. Despite the victim’s attempts to resist and oppose the said act, he was unable to do so effectively as the accused person possessed greater physical strength than him. The victim was overpowered and subjected to the alleged sexual assault against his will.

4. Subsequent to the commission of the alleged offence, the victim began crying, whereupon the accused person revealed his identity as Mayur Wankhede and callously told the victim that he was free to inform anyone about what had transpired. Immediately thereafter, the victim fled from the spot and approached his friend, to whom he disclosed the entire incident. Following the disclosure, both the victim and his friend proceeded to the victim’s residence, where they informed the victim’s mother about the occurrence. Subsequently, they approached the local police station and lodged a formal complaint regarding the incident. Upon registration of the First Information Report, the accused was arrested, and a thorough investigation was conducted by the investigating agency, culminating in the filing of a charge-sheet before the competent court.

5. The learned Advocate appearing for the applicant has drawn the attention of this Court to various aspects of the case, including the statement of the victim, statements of witnesses, and the medical examination report. He has vehemently contended that there exist material inconsistencies in the manner of assault as described by the victim, which create serious doubts about the veracity of the prosecution case. The learned counsel has particularly emphasized that initially, in his complaint, the victim described the accused as an “unknown person.” However, contradictorily, in the later portion of the same FIR, the victim has specifically mentioned the applicant’s name as Mayur Wankhede. This inconsistency, according to the Applicantcounsel, is fatal to the prosecution case, especially when no Test Identification Parade has been conducted to establish the identity of the accused. Furthermore, the learned counsel has argued t