[-1-] IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL REVN.APPLN.NO.197 OF 2008 Yogeshsingh Rampratapsingh Thakur ..Applicant Vs. State of Maharashtra ..Respondent ... Mr.R.A.Lokhande advocate for Mr.Sooraj Hulke and Mr.Vikramsingh Yadav Advocates for applicant Mr.S.S.Pednekar A.P.P. for the State ... CORAM: SMT.V.K.TAHILRAMANI,J. CORAM: SMT.V.K.TAHILRAMANI,J. CORAM: SMT.V.K.TAHILRAMANI,J. DATE : AUGUST 22, 2008 DATE : AUGUST 22, 2008 DATE : AUGUST 22, 2008 P.C. P.C. P.C. 1. Heard the learned advocate for the applicant and the learned A.P.P. for the State. 2. The applicant is seeking discharge in Sessions Case No.261 of 2007. The said case pertains to CR No.368 of 2006 of Kurla Police Station. The said case is under Sections 376(2)(g) of IPC. 3. On going through the material, it is seen that the prosecutrix Sunita has stated four unknown persons had committed rape on her. Sunita has identified the present applicant as being one of [-2-] the accused persons who committed gang rape. The learned advocate for the applicant submitted that there is one other witness in the case i.e. Sonabai, however, Sonabai was not called for the identification parade. He has further submitted that one Saira has witnessed the incident, however, the statement of Saira has not been recorded. The prosecutrix has identified the applicant. Hence, in my opinion, no further material is necessary. It is well settled that in a case of rape, the evidence of the prosecutrix does not require corroboration. 4. As far as identification by the prosecutrix, the learned advocate for the applicant submitted that identification by the prosecutrix of the applicant in the parade, cannot be relied upon on two grounds. The first ground is that the parade was held 20 days after the arrest of the applicant and the second ground is that same set of dummies were used in the test identification parade of the present application and the other accused. 5. The objection of the learned defence advocate that there is defect in test identification parade [-3-] held on 1.12.2006 cannot be a ground to be canvassed and even considered by the court at this stage. The defect in the test identification parade by itself cannot be the sole criterion to claim discharge. It is settled position that in each and every case, there is no requirement of holding a test identification parade. Even if the prosecutrix identifies the accused in the court and the surrounding circumstances demonstrate that she had ample opportunity to observe the accused, then in such case, it may not be necessary to conduct test identification parade. Hence, I do not find much merit in this submission. 6. At the time of considering application for discharge, the Court has to look into the basic factor as to whether there is sufficient evidence to proceed against the accused. While dealing with a discharge application, it is not for the court to scan the evidence as if it is a final adjudication and give its verdict. The provisions of Section 227 of the Cr.P.C. provide that a person can be discharged when there is no sufficient ground for proceeding against the accused. This demonstrates that the Court has to exercise its judicial mind [-4-] while dealing with facts of each case and come to a conclusion whether a case for trial has been made out by the prosecution. 7. As stated earlier, the prosecutrix has identified the applicant. Though the evidence of the prosecutrix does not require corroboration, I may mention here that there is corroborating material found in the medical certificate of the accused. The present applicant/accused was medically examined on 9.11.2006 by Dr.Shivaji Daund in which it is stated that there are injuries on his penis, which are abrasion on dorsal aspect behind glands penis 1 x 1 cm. in size, red in colour, tender, two rupture of fraenums seen with redness and tenderness. According to the Medical Officer, age of the injury is 2 to 4 days and caused due to friction. It may also be stated that the height of the applicant/accused referred in the medical certificate is 5 ft. 6 and half inches and incidentally, in the FIR also height of one of the unknown person resembling to the accused is 5 ft. 7". 8. The learned advocate for the applicant has [-5-] placed reliance on the observations made in sub-para 3 of paragraph 10 of the decision in the matter of Union of India Vs. Prafulla Kumar Samal Union of India Vs. Prafulla Kumar Samal Union of India Vs. Prafulla Kumar Samal and another; reported in (1979) 3 SCC 4. and another; reported in (1979) 3 SCC 4. and another; reported in (1979) 3 SCC 4. In this decision, principles in regard to cases where the accused may be discharged, have been set out. The relevant principle no.3 set out in the said decision is that "the test to determine a prima facie case would naturally depend upon the facts of each case and it is difficult to lay down a rule of universal application. By and large however, if two views are equally possible and the Judge is satisfied that the evidence produced before him while giving rise to some suspicion but not grave suspicion against the accused, he will be fully within his right to discharge the accused." Even after applying principles laid down in this decision to the present case, it is seen that the material on record implicates the applicant and there is sufficient material to proceed. Hence, no case is made out for discharge. Revision application is rejected. [SMT.V.K.TAHILRAMANI, J.] [SMT.V.K.TAHILRAMANI, J.] [SMT.V.K.TAHILRAMANI, J.]