The substantive evidence is the identification in Court, and the absence of a test identification parade does not make the evidence of identification in Court inadmissible.

JUDGMENT :

S. K. SAHOO, J.

1. Heard Mr. Devashis Panda, learned counsel appearing for the petitioner and Mr. Arupananda Das, learned Addl. Government Advocate appearing for the State.

2. This is an application under Section 439 of Cr.P.C. for grant of bail to the petitioner Dhira @ Dhirendra Rout in connection with Special G.R. Case No. 36 of 2017, arising out of Badambadi P.S. Case No.58 of 2017 pending in the Court of learned 3rd Addl. Sessions Judge -cum-Presiding Officer, Children’s Court, Cuttack for commission of offence punishable under sections 366, 376-D of the Indian Penal Code, sections 4, 6 and 14 of the Protection of Children from Sexual Offences Act, 2012 (hereafter ‘POCSO Act’) and section 67-A of the Information Technology Act, 2000.

3. The petitioner moved an application for bail before the learned trial Judge which was rejected on 18.05.2017.

4. The prosecution case as per the first information report submitted by Dibakar Jena before Inspector in charge of Badambadi Police Station is that the accused Jaya Nayak of Khutuni deceitfully induced his daughter (hereafter ‘the victim’) who was aged about seventeen years by pretending love with her and kept physical relationship with her. It is the further prosecution case that the said accused and his friends committed rape on the victim, recorded it on the video and accused Jaya Nayak showed the video recording to the informant three days prior to the lodging of the F.I.R. and threatened the son-in-law of the informant namely Anu Samal to withdraw the previous case from police station or else to viral the video and commit similar offence with the elder daughter of the informant. It is the further prosecution case that since four months, the victim was kidnapped by accused Jaya Naik and her whereabouts is not known to the informant.

5. After registration of the case, the I.O. seized the age proof certificate of the victim and one K series micro SD memory containing obscene video and mobile phone on production by Anu Samal. After search at different places, on 20.03.2017 the I.O. apprehended the accused Jaya @ Jayanta Naik who confessed that his brother Bapuni Naik had kept physical/sexual relationship with the victim and later he also kept physical relationship with the victim giving her false promise of marriage. The said accused disclosed the involvement of accused persons Kalia @ Ranjan Kumar Sahoo and Bidyadhar Naik. The accused Bapuni Naik was arrested and at his instance video recording memory card and his mobile phone were seized from his house. The accused Kalia @ Ranjan Kumar Sahoo was arrested and at his instance, obscene memory card and his mobile phone were seized. The wearing apparels of the accused persons were also seized and sent to F.M. & T, S.C.B. Medical College and Hospital, Cuttack. The victim girl was rescued on 27.03.2017 and on being examined, the victim stated that the petitioner along with other co-accused persons committed gang rape on her and the petitioner took away her mobile phone. Basing on the statement of the victim, the petitioner was arrested on 28.03.2017, he was medically examined and forwarded to the Court.

6. The investigating officer found it to be a true case under section 376-D of the Indian Penal Code and sections 4 and 6 of the POCSO Act against the petitioner and accordingly, submitted charge sheet.

7. Mr. Devashis Panda, learned counsel appearing for the petitioner contended that the victim had affair with other co-accused persons and she fled away from her house on her own sweet will. It is further contended that the victim has named one Dhira and others to have committed gang rape on her in her 164 Cr.P.C. statement and test identification parade in respect of the petitioner has not been conducted to prima facie establish that it is the petitioner who has been named by the victim. It is further contended that the rest of the materials is based on confessional statement of co-accused and even though one Samsung mobile was seiz