JUDGMENT & ORDER : (Sanjeev Kumar Sharma, J.) Heard Mr. A. Ahmed, learned counsel for the appellant. Also heard Ms. A. Begum, learned Addl. Public Prosecutor, for the State respondent. None appears for the respondent No. 2. 2. This appeal has been preferred against the impugned Judgment and Order dated 11.03.2022 passed by the learned Special Jude (POCSO) Kokrajhar in Special Case No. 08/2018 convicting the appellants, namely, 1. Sukur Ali 2. Najir Hussain, under Section 6 of the POCSO Act and under Section 376 D of IPC and sentencing them to undergo rigorous imprisonment for 20 years each with further sentence to pay a fine of Rs. 50000/- each in default to undergo further imprisonment for 2 years. 3. The facts leading to the present case is that one xxx, father of the victim lodged an FIR at Patgaon O.P, alleging that while his daughter had gone to bring her younger brother from the house of her maternal grandmother, accused (declared as CCL), Sukur Ali and Atowar Rahman (declared absconder) dragged his daughter to the Samabay Samiti Office and raped her one by one. She was found in a unconscious state in Samabay Samiti Office. 4. On receipt of the FIR, a case under Section 120(B)/376(g) of IPC, read with Section 4 of POCSO Act was registered and after completion of the investigation, a charge sheet was laid against the accused persons A1 A2, CCL and one Atowar Rahman for commission of offence under Section 120 (B)/376(g) of IPC, R/W Sec.4 of POCSO Act. Atowar Rahman was chargesheeted as absconder and since his presence could not be secured despite coercive processes, he was declared as absconder. In the course of inquiry, one xxx (named withheld) was found to be a child in conflict with law and hence the case against was made over to Juvenile Justice Board, Kokrajhar. 5. Upon hearing both sides, charge under Section 376D of IPC, read with Section 6 of POCSO Act were framed against the accused persons Al and A2 (present appellants) to which they pleaded not guilty and claimed trial. 6. In the course of trial, prosecution examined 16 (sixteen) witnesses. At the closure of prosecution evidence, the accused persons were examined under Section 313 of the Cr.P.C. The defence plea is of total denial and the accused persons declined to adduce any evidence. 7. 6. In the course of trial, prosecution examined 16 (sixteen) witnesses. At the closure of prosecution evidence, the accused persons were examined under Section 313 of the Cr.P.C. The defence plea is of total denial and the accused persons declined to adduce any evidence. 7. At this stage, the evidence of the case may be discussed. 8. PW-1 xxx, victim's mother deposed that her son, aged about 2 years, had gone to the house of her mother located near her house. At about 6-30 PM, she asked her daughter xxx, the victim, aged about 13 years, to bring her son. She went to bring her son but did not return. After a while, they started searching for the victim. They found her at about 1-30 AM (night) in the office of Co- operative Society. Her body was covered with a plastic paper. She was unconscious. They brought her home and after pouring some water on her face, she regained her senses. She told them that one of the accused dragged her and committed rape on her. Later, that accused brought the other two accused person and then the other two accused also committed rape on her. After hearing this, in the morning hours, they took their daughter to Jharbari Health Centre but they could not treat her. Later, they took her to Balagaon Health Center but there too she was not treated. They then returned home and then in the evening hours went to Patgaon O.P. Her husband lodged the FIR. Her daughter was examined at RNB Civil Hospital, Kokrajhar. She was also produced before the Magistrate for recording of her statement. Police had seized the wearing apparel of her daughter. Exhibit- is the seizure list. Exhibit-1(1) is her signature. M. Ext.1 (collectively) are the seized 5 wearing apparels. 9. In cross examination, PW-1 had deposed that the Cooperative Society Office is at a distance of 1 minutes' walk from her home. Some construction was going on in the Society Office two years prior to the date of occurrence. She admitted that she does not know the names of the accused persons. She had personally not gone to Society Office at night to search for her daughter. Her husband, her brother in law and some other villagers had gone searching her daughter. She did not accompany her husband to the Police station at the time of lodging the FIR. She admitted that she does not know the names of the accused persons. She had personally not gone to Society Office at night to search for her daughter. Her husband, her brother in law and some other villagers had gone searching her daughter. She did not accompany her husband to the Police station at the time of lodging the FIR. It is true that the FIR was lodged on 23.7.2017 at 12 noon. 10. PW-1 admitted that it is a fact that she stated before Police that at night they made their daughter sleep and did not ask her anything. It is also a fact that she stated before the Police that on the next morning her daughter divulged the facts to her. 11. Police had not come to their residence prior to lodging of FIR. The wearing apparels were seized after lodging of FIR at 6-30 PM. When her daughter was brought from Society office she was wearing her dress. She had revealed the entire incident to her husband. Her daughter did not tell anything to her husband. She did not know the names of accused nor did she tell the names of accused to her husband. 12. PW-1 denied the suggestions regarding her omission to state before the I.O., seeking parts of her statements in her examination-in-chief put to her by the defense. 13. PW-2 xxx, victim, deposed that she knows the accused persons. About two years back, her mother had asked her to bring her brother who was in the residence of her maternal grand-mother. At about 6 PM, when she reached the society office, CCL, (the victim signified the accused who has been held as child in conflict with law and case against him has been made over the JJB) gagged her mouth and dragged her to Society office. He tied her hand and legs and committed rape on her. Thereafter, he called the present two accused and these two accused also committed rape on her. She became unconscious and later she was recovered by her paternal Uncle at night. She was brought home. She explained the incidents to her mother. On the following day, she was taken to hospital. She was also produced before the Magistrate for recording of her statement under Section 164 CrPC. Exhibit-2 is her statement and Exhibit-1(1) (2)(3)(4) and (5) are her signatures. She was also medically examined by the Doctor. She was brought home. She explained the incidents to her mother. On the following day, she was taken to hospital. She was also produced before the Magistrate for recording of her statement under Section 164 CrPC. Exhibit-2 is her statement and Exhibit-1(1) (2)(3)(4) and (5) are her signatures. She was also medically examined by the Doctor. 14. In cross examination, PW-2, deposed that the Cooperative Society Office is at a distance of 1 minutes' walk from her home. She had seen the accused persons even before the occurrence. The accused (now in JJB) was also working as construction worker in their village. The accused persons still visit their village for construction works. It was not raining when she went to bring her brother but it was dark at that time and nothing could be seen. 15. She admitted that she had stated before the Police and also before the Magistrate that an unknown Muslim boy had dragged her to Society and she does not know his name. 16. She had also stated before the Magistrate that she had not seen the boys before the occurrence. The boy (now in JJB) who first committed rape on her was first seen by her at the Police Station. The present two accused were not arrested at the first instance. 17. She had stated before the Magistrate that at night when her father was searching her and calling out her name she could not reply because her mouth was wrapped. 18. When her father and uncle took her home she was conscious. She was in a position to speak. She does not know how her father collected the names of the accused persons named in the FIR. Her wearing apparel was stained with blood. She had also sustained injuries in her private parts and other parts of body. She was medically examined after her father went to Police Station. Prior to that, she was not examined by any Doctor. She deposed that she was not shown the present two accused persons at Police Station. She also deposed that there were only three persons in the commission of offence. 19. PW-2 denied the suggestion that she had stated before the Police that out of three only two persons committed "bad act" with her. 20. PW-2 deposed that the place where the accused committed rape on her was a house with only roof and no walls. She also deposed that there were only three persons in the commission of offence. 19. PW-2 denied the suggestion that she had stated before the Police that out of three only two persons committed "bad act" with her. 20. PW-2 deposed that the place where the accused committed rape on her was a house with only roof and no walls. PW-2 also deposed that in her statement under Section 164 Cr.P.C she had not stated that her uncle had recovered her. 21. PW-2 denied the suggestion that accused persons did not commit rape on her. PW-2 also denied the suggestion that they had falsely implicated the accused persons. 22. PW-3 xxx, victim's father, deposed that about 2 years back, he had returned from his works and was taking rest at his house. At that time his daughter, xxx, had left to bring his son from the residence of his mother-in-law. At about 9 PM, he realised that his daughter has not returned. He went to the residence of his mother-in-law and she told her that her daughter has not attended her home. He then started searching his daughter along with his brother Madhab Roy. They kept searching but found no trace of her. At about 1-30 PM, he noticed movement of legs beneath a plastic paper in the Office of Society. He removed the plastic and saw his daughter lying. She was lying and bleeding. He immediately took her home. After sprinkling water on her face she gained her composure and n divulged that the boys working in the camp had committed rape on her. On the following morning, he took his daughter to Jharbari Health Centre but there she was not treated. Then they took their daughter to Kokrajhar Hospital but they refused to treat her without a police case. They then returned home and then lodged the FIR at Patgaon O.P. Thereafter, his daughter was taken to Civil Hospital, Kokrajhar where she was medically treated. While they were returning home after medical treatment they received a phone call from Patgaon O.P that two accused have been arrested. They went to Patgaon O.P where his daughter identified the accused persons. The third accused who was younger (sent to JJB) was arrested few days later. He had put thumb impression in the FIR. 23. In cross examination, PW-3 deposed that he had personally not seen the occurrence. They went to Patgaon O.P where his daughter identified the accused persons. The third accused who was younger (sent to JJB) was arrested few days later. He had put thumb impression in the FIR. 23. In cross examination, PW-3 deposed that he had personally not seen the occurrence. He lodged the FIR on the following day in the afternoon hours. The FIR was written as per his dictation. The FIR was read over to him. His daughter did not know the names of the culprits. He had named the accused persons in the FIR because they were the last lot of labourers working in the Society Office as per the information given by Chairman. 24. PW-3 deposed that today he cannot identify the accused by their names but he had named the present two accused persons in the FIR. 25. PW-3 denied the suggestion that he had not named the present two accused in the FIR. 26. PW-3 has also denied the suggestion that he had stated before the Police that out of three only two persons committed "bad act" with his daughter. 27. PW-3 deposed that he had stated before Police that his daughter missing at 4 PM and after searching her she was found at about 2 AM in semi-nude condition. 28. PW-3 denied the suggestion that he did not state before the Police that at about 1-30 PM he noticed movement of legs beneath a plastic paper in the office of Society and that he removed the plastic and saw his daughter lying and that she was lying and bleeding. 29. PW-4 Mr. Uttam Kumar Ray deposed that he knows the accused persons. He had seen them in the Patgaon O.P. In the year 2017, pw 3 informed that his daughter pw 2 has been raped by some persons. On his request, he came to Patgaon and saw the present two accused persons there. The police had seized the mobile from the accused persons. He had signed on the seizure list. Exhibit-3 is the seizure list. Exhibit-3(1) is his signature. 30. PW-5 Ms. Maloti Roy deposed that she knows the accused persons. She had seen them in Patgaon O.P. In the year 2017, she came to know that pw 2, daughter of PW-3, has been raped by some persons. He had signed on the seizure list. Exhibit-3 is the seizure list. Exhibit-3(1) is his signature. 30. PW-5 Ms. Maloti Roy deposed that she knows the accused persons. She had seen them in Patgaon O.P. In the year 2017, she came to know that pw 2, daughter of PW-3, has been raped by some persons. On hearing this, she visited the Patgaon O.P and there on inquiry with PW-2, she told that present accused persons committed rape on her. 31. PW-6 Mr. Prahalad Adhikary deposed that he knows the accused persons. He had seen them in Patgaon O.P. In the year 2017, Kangkan Roy informed him that daughter of PW-3 has been raped by some persons. He had come to Patgaon O.P to inform the incident. Later, the accused persons were arrested and he had come after receiving information of their arrest. Police had seized a mobile phone from Nazir Hussain. He had signed on the seizure list. Exhibit-3(2) is his signature in the seizure list. 32. PW-6 denied the suggestion that in his statement under Section 161 CrPC he had not stated that he had come to Patgaon O.P to inform the incident and that later the accused persons were arrested and he had come after receiving information of their arrest. 33. PW-7 Alari Narzary, has deposed that he knows the informant. He had seen the accused persons but does not know them by their names. About 2 years back, he was informed by PW-3 that accused persons along with one more person, who were working as Mistri, have raped his daughter, PW-2. He had inquired from PW-3 and she confirmed that she was raped by the 3 Mistri. 34. PW-7 denied the suggestion that he did not state in his statement under Section 161 CrPC that he was informed by PW-3 that accused persons along with one more persons, who were working as Mistri, have raped her daughter PW-2 and that he had inquired from PW-2 and she confirmed that she was raped by the 3 Mistri. 35. PW-9 xxx, paternal Uncle of the victim, deposed that he had seen the accused persons but does not know them by their names. About 2 years back, pw 3 informed him that his daughter is missing. They kept searching for her daughter and at about 2 a.m they found the daughter in Samabay Samiti Office covered with a plastic sheet. PW-9 xxx, paternal Uncle of the victim, deposed that he had seen the accused persons but does not know them by their names. About 2 years back, pw 3 informed him that his daughter is missing. They kept searching for her daughter and at about 2 a.m they found the daughter in Samabay Samiti Office covered with a plastic sheet. The victim informed that she has been raped by three persons. 36. In cross examination, PW-9 deposed that PW-2 is his niece. On the date of occurrence, father of the victim had rebuked her and she had gone out of her residence. PW-9 deposed that when the victim was recovered she was not in her senses. She regained her senses on the following day. He had no conversation with the victim after the occurrence. 37. PW-10, Smt. Jayanti Roy deposed that she knows the accused persons. They were working as construction worker in their village. About 2 years back, PW-2, a minor girl of their village, went missing in evening. His father was looking after her and there was a commotion. Later, PW-2 was found in the Camp area. She had gone to the residence of PW-2. PW-2 told that she had gone to fetch her younger brother from the residence of her grand-mother. On the way, three construction labourers dragged her and committed rape on her. Police had seized the wearing apparels of PW-2 and she had signed in the Seizure list. Exhibit-1(2) is her signature. 38. In cross examination, PW-10 has deposed that her house is very near to the residence of PW-2. PW-2 went missing at about 10 PM. She came to know that PW-2 is missing, after 10 PM. When she went to the residence of PW-2, at about 12 mid-night, she found her in her home. She was able to talk and on inquiry by her parents she divulged the incident. 39. PW-10 denied the suggestion that she stated before the police that pw 2 told that the construction workers "committed bad Act". 40. PW-10 denied the suggestion that at night PW-2 was not in a position to talk. PW-10 deposed that she knows the accused because they were working as construction workers in their village for last many years. 41. PW-12, Sri Nibash Ray deposed that he knows the accused persons. 40. PW-10 denied the suggestion that at night PW-2 was not in a position to talk. PW-10 deposed that she knows the accused because they were working as construction workers in their village for last many years. 41. PW-12, Sri Nibash Ray deposed that he knows the accused persons. About 2 years back, he heard sounds coming from the residence of PW-3 that his daughter is missing. When he went to the residence of PW-3, he came to know that victim had gone to the residence of her grandmother to bring her younger brother but she has not returned. Along with the other villagers, he also went out in-search of PW-2. They found PW-2 lying near the Somabay Somittee Office. Her body was covered by a plastic sheet. They brought PW-2 to her residence and after a while, she told that 3 boys gagged her mouth and committed rape on her. Later, she came to know that the accused persons have committed the offence. Exhibit-1(3) is her signature in the seizure list. Material Exhibit-1 collectively are the wearing apparel of the victim seized by police. 42. In cross examination, PW-12 deposed that that he did not state before police that the victim divulged the incident before him. He had personally not seen the occurrence. He had personally not seen who abducted the victim. Wearing apparel were seized by police at night, at about 2 AM, immediately after the recovery. He deposed that he knows the accused persons from before and they are working in their village. 43. PW-13 Monindra Barman and PW-14 NK Manoj Basumatary are witnesses to the seizure of wearing apparels of the victim. 44. PW-15 Dr. Sushma Brahma deposed that on 22.07.2017 she was posted as Senior Medical & Health officer at RNB Civil Hospital, Kokrajhar. On that day on police requisition, she examined the victim and gave her findings as follows: Total number of teeth-26, Auxiliary hair- scanty Pubic hair- nil, Breast- Developed Injuries, Secondary areola and Secretion - not found. Mark of violence- not found, Vulva and Vagina-Developed. Vaginal Canal- Admit two fingers with difficulty, Presence of injuries- not found, Hymen- Ruptured. Final Opinion :- After clinical examination vaginal smear and ossification test, the following points are noted:- 1. The age of the girl is 12 years old but below 14 years. 2. No injury found on her body and private parts. 3. Vaginal Canal- Admit two fingers with difficulty, Presence of injuries- not found, Hymen- Ruptured. Final Opinion :- After clinical examination vaginal smear and ossification test, the following points are noted:- 1. The age of the girl is 12 years old but below 14 years. 2. No injury found on her body and private parts. 3. She has been exposed to sexual intercourse several times previously. Exhibit-6 is the Medical report and Exhibit-6(1) is her signature. 45. In cross examination, PW-15 deposed that she had not recorded the history of the victim. The victim was not subjected to sexual intercourse within 72 hours, on her examination. If the girl has had sexual intercourse then spermatozoa may be found within 72 hours, if the girl has not taken bath or washed her private parts. 46. PW-16, Sri Jitendra Singh deposed that on 23.07.2017 he was posted as In-charge at Patgaon Police Out Post. On that day he was entrusted with the investigation of an FIR lodged by PW-3. In the course of investigation, he recorded the statement of witnesses. He also sent the victim to RNB Civil hospital, Kokrajhar, for medical examination and took steps for getting the statement of victim recorded u/S 164 of CrPC. In the course of investigation, the garments of the victim were sent to FSL for examination and the report was collected. Accused Sukur Ali, Nazir Hussain and Sahidul Hoque were arrested and forwarded to Court. Having found sufficient materials against the accused persons, Sukur Ali, Nazir Hussain, Sahidul Hoque and Atowar Rahman for commission of offences U/S 120B/376(G) of IPC, R/W Section 4 of POCSO Act, he submitted a chargesheet against them. Exhibit-7 is the FIR which was given to him for investigation. In the seizure list Exhibit-3, Exhibit-3(3) is his signature. In the seizure list Exhibit-1, Exhibit-1(3) is his signature. In the seizure list Exhibit-4, Exhibit-4(2) is his signature. In the seizure list Exhibit-5, Exhibit-5(2) is his signature. Exhibit-8 is the charge sheet and Exhibit-8(1) is his signature. 47. In cross examination, PW-16 deposed that he found materials against the 4 accused persons in his investigation. The date of occurrence was on 21.7.2017. Accused Nazir and Sukur were brought to Patgaon Police Out Post before the FIR was lodged. The accused persons were brought to P.S. on 22.7.2017. PW-3 is the father of victim. 47. In cross examination, PW-16 deposed that he found materials against the 4 accused persons in his investigation. The date of occurrence was on 21.7.2017. Accused Nazir and Sukur were brought to Patgaon Police Out Post before the FIR was lodged. The accused persons were brought to P.S. on 22.7.2017. PW-3 is the father of victim. On 22.7.2017, at 6-40 PM, pw 3 came to Patgaon Police Out Post and informed about the incident but he had not mentioned any name of accused persons. In the FIR, 3 accused persons were mentioned including absconding accused Atowar. The charge sheet was submitted against 4 accused persons. The information received on 22.7.2017 was not registered as FIR. He had also seized the wearing apparel of accused Sukur and Sahidul. The wearing apparel of the accused were sent to FSL and reported that it get positive of human semen but there was no DNA matching. 48. PW-3 did not state before him that he came to know about the accused persons from the Chairman. PW-3 did not state before him that PW-2 had gone to his mother-in-law's house to fetch her brother. PW-3 did not state before him that at about 9 PM, he realized that his daughter has not returned. PW-3 did not state before him that he went to the residence of his mother-in-law where he came to know from his mother-in-law that PW-2 did not come to her house. PW-3 did not state before him that he went out with his brother, in search of his daughter. PW-3 did not state before him that at about 1.30 PM he noticed movement of leg beneath a plastic paper. 49. PW-1, did not state before him that her daughter told her that one of the accused dragged her and committed rape on her and later that accused brought the other two accused and then the other two accused also committed rape on her. PW-1 did not state before him that in the morning hours she took her daughter at Jharbari health centre but they could not treat and later they took her daughter to Balagaon but there too she was not treated and then they returned home and in the evening hours they went Patgaon Police Out Post. 50. PW-2 stated before him that out of three only and two persons committed bad act with her. 50. PW-2 stated before him that out of three only and two persons committed bad act with her. Victim did not mention the name of any accused. 51. PW-5 Maloti Roy did not state before him that on inquiry from PW-2 she told her that present accused persons committed rape on her. 52. PW-7 Alari Narzary did not state before him that he was informed by PW-2 that she was raped by 3 mistri. 53. PW-10 Jayanti Roy stated before her that construction workers had committed bad act. 54. PW-12 Nibash Ray did not state before him that the victim divulged the incident before him. 55. PW-16 denied the suggestion that they framed the accused persons in this case. 56. The evidence of the rest is not of much relevance and need not be discussed. 57. The learned counsel for the appellant submitted that besides the fact that the victim's evidence itself is full of contradictions, no test identification (TIP) was arranged by the I.O and it appears from the evidence that the present accused/appellants were brought by the IO to the police station. Thereafter, he called the father of the victim, who arrived at the police station along with the victim where the victim allegedly identified the accused persons as the perpetrators of the offense. It is submitted that the IO not only failed to follow the prescribed procedure by conducting the TIP, but took it upon himself to get the appellants identified as the persons responsible for the offense to the victim at the police station and therefore, the same cannot be said to be proper identification. Since the accused/appellants were shown to the victim beforehand at the police station, the identification of the said appellants by the victim on the dock at the trial is of no consequence. 58. The learned counsel has also referred to the medical evidence wherein the IO as PW-15 has stated in her cross-examination that the victim was not subjected to sexual intercourse within 72 hours, and since the victim was examined within 72 hours of the commission of the offense, the medical evidence does not support the prosecution case. 59. In the course of his arguments, learned counsel has referred to the decision of the Hon’ble Apex Court in Ranvir Singh & Ors. Vs. 59. In the course of his arguments, learned counsel has referred to the decision of the Hon’ble Apex Court in Ranvir Singh & Ors. Vs. State of Madhya Pradesh , reported in (2023) 14 SCC 41 , wherein it has been held as follows: “36. Having found that Ext. P-28 cannot be believed, we are inclined to hold that the evidence adduced by the prosecution through the eyewitnesses also is not trustworthy. The witnesses are not able to name the accused over which we do not wish to say anything. However, they have identified the accused, only after 2 to 3 years for the first time in the court. We are quite conscious about the evidentiary value of a test identification parade. Certainly, in a case of this nature, it ought to have been done. Though a test identification parade is not a substantive piece of evidence, at times, it adds strength to the case of the prosecution by giving more credibility to the statements of the eyewitnesses which we find as grossly lacking. 37. This Court in Gireesan Nair v. State of Kerala , held: (SCC pp. 194-95, paras 28-30) “28. We may, at the outset, note that the eyewitnesses questioned by the prosecution did not give out the names or identities of the accused participating in the riot and involved in the destruction of public property. Therefore, the 1O (PW 84) had to necessarily conduct a TIP. The object of conducting a TIP is threefold. First, to enable the witnesses to satisty themselves that the accused whom they suspect is really the one who was seen by them in connection with the crime. Second, to satisfy the investigating authorities that the suspect is the real person whom the witnesses had seen in connection with the said occurrence. Third, to test the witnesses memory based on first impression and enable the prosecution to decide whether all or any of them could be cited as eyewitnesses to the crime (Mulla v. State of U.P., SCC paras 44, 45 & 55). 29. TIPs belong to the stage of investigation by the police. It assures that investigation is proceeding in the right direction. 29. TIPs belong to the stage of investigation by the police. It assures that investigation is proceeding in the right direction. It is a rule of prudence which is required to be followed in cases where the accused is not known to the witness or the complainant (Matru v. State of U.P., SCC para 17; Mulla v. State of U.P., SCC paras 41 & 43 and C. Muniappan v. State of T.N., SCC para 42). The evidence of a TIP is admissible under Section 9 of the Evidence Act. However, it is not a substantive piece of evidence. Instead, it is used to corroborate the evidence given by witnesses before a court of law at the time of trial. Therefore, TIPs, even if held, cannot be considered in all the cases as trustworthy evidence on which the conviction of an accused can be sustained (State of H.P. v. Lekh Raj, SCC para 3 and C. Muniappan v. State of T.N., SCC para 42).” 60. Continuing on the point of proper identification, learned counsel has also referred to the decision of the Hon’ble Apex Court in Jafar Vs. State of Kerala , reported in (2024) 19 SCC 503 , wherein the Hon’ble Court observed that in the absence of proper identification parade being conducted, the identification for the first time in Court cannot be said to be free from doubt. It was a case where the witness who identified the accused persons for the first time in Court admitted that the police had shown him these two people, and as such, he has identified them. The facts of the present case also appear to be similar. 61. Per contra, the learned Additional Public Prosecutor has submitted that it is not always mandatory to conduct a test identification parade, and depending on the facts and circumstances, identification for the first time in court, can also be accepted. Learned Additional Public Prosecutor has relied upon a decision of the High Court of Jammu and Kashmir and Ladakh in Crl.A No. 21 of 2018 Arvind Verma & Another Vs. State of J&K , where a Division Bench of the Hon’ble High Court observed as follows: “29. Section 9 of the Evidence Act deals with relevancy of facts. It provides that facts which establish the identity of anything or person whose identity is relevant, insofar as they are necessary for the purpose, are relevant. State of J&K , where a Division Bench of the Hon’ble High Court observed as follows: “29. Section 9 of the Evidence Act deals with relevancy of facts. It provides that facts which establish the identity of anything or person whose identity is relevant, insofar as they are necessary for the purpose, are relevant. Therefore, it is entirely up to the prosecution to establish the identity of a thing or a person, which is relevant for the purpose. The prosecution, in its wisdom, may rely upon the testimonies of witnesses to prove the identity of a thing or a person. It is well settled in law that Test Identification Parade remains in the realm of investigation. There is nothing in the Code of Criminal Procedure which mandates to hold Test Identification Parade. Test Identification Parades are conducted by investigative agencies, with a view to strengthen the credibility of witnesses at the stage of investigation only. Neither investigating agencies are obliged, under CrPC to hold Test Identification Parades nor it is a right conferred upon the accused to claim Test Identification Parade.” 62. It was further held in the said judgment that identification in the dock is substantive evidence, and in appropriate cases, the court can accept the evidence of dock identification without insisting upon a test identification parade and if a witness had a chance to interact with the accused or an opportunity to observe the distinctly distinctive features of the accused, evidence of identification in the court shall be sufficient to prove the identity of the accused. The aforesaid decision is in line with the decision of the Hon’ble Apex Court in Dana Yadav Vs. State of Bihar , reported in (2002) 7 SCC 295 . In the said decision, it was observed that ordinarily, identification of an accused for the first time in court by a witness should not be relied upon, the same, being from its very nature, inherently of a weak character, unless this is corroborated by his previous identification in a test identification parade or any other evidence. However, there may be exceptions. However, there may be exceptions. For example, when the court is impressed by a particular witness on whose testimony it can safely rely without other corroboration or, if a witness had any particular reason to remember about the identity of an accused or, where the accused/witness had a chance to interact with or notice the distinctive features of the accused, which lends assurance to his testimony in court, the evidence of identification in court for the first time by such a witness cannot be thrown away merely due to absence of a test identification parade. 63. The crux of the matter in the instant case is the proper identification on the perpetrators of the offense. The victim/P.W.2, who is a minor girl of about 14 years, had deposed in her cross-examination that she had seen the accused/appellants before the occurrence and that they used to visit her village for construction work. But she also admitted having stated before the Magistrate that she had not seen any of the boys (accused persons) before the occurrence, which contradicts her claim to have seen them prior to the occurrence. The further aspect of the matter is that, although the victim stated that she was not shown the present two accused/appellants at the police station, the said version is contradicted by the version of her own father, who is P.W.3, who stated that while they were returning home after medical treatment, they received a phone call from the Patgaon OP, that two accused persons had been arrested, and they went to Patgaon OP where his daughter, i.e., the victim, identified the accused persons. 64. From the above, it would be safe to conclude that it was at the police station that the present accused/appellants were shown to the victim, who identified them as the perpetrators of the offense. Therefore, the question that begs an answer is, on what basis was the identification made. Normally, of course, it would be on the basis of having seen them from close quarters during the rape encounter. But in the instant case, the victim stated in cross-examination that at that time, it was dark and nothing could be seen. 65. Therefore, the question that begs an answer is, on what basis was the identification made. Normally, of course, it would be on the basis of having seen them from close quarters during the rape encounter. But in the instant case, the victim stated in cross-examination that at that time, it was dark and nothing could be seen. 65. When, from her own evidence, it is established that she had not seen the perpetrators prior to the occurrence, it is difficult to believe that she would remember/recall the faces of not one, but three complete strangers whom she encountered, albeit at close quarters, in total darkness where going by her own version, nothing could be seen. There is no other evidence to suggest the presence of any kind of light, natural or otherwise, at the place of occurrence, which would have helped her in noticing and identifying the faces of the perpetrators. 66. From the above, it appears that the victim identified the accused/appellants as the perpetrators of the offense only because they were shown to her by the police. 67. The accused/appellants have been charged under the provisions of the POCSO Act, which, by virtue of Section 29, raises a presumption of guilt upon the accused persons and casts a burden upon the accused to rebut the said presumption. In this regard, the Hon’ble Apex Court in Debraj Dutta Vs. The State of West Bengal & Anr. , reported in Crl.A No. __ of 2026 (@ SLP(Crl.) No. 16838 of 2025) , decided on 07.04.2026, held as follows: “15. Unless the testimony of a victim child is found to be fully credible and trustworthy, the question of applying the presumption on the strength of such statement alone would not arise. The foundational fact of a sexual assault that would attract the presumption under Section 29 of the POCSO Act would require more than PW-1’s statement which, on the face of it, was not credible as what she had stated to her mother was not borne out by her own statement before the trial court.” 68. The foundational fact of a sexual assault that would attract the presumption under Section 29 of the POCSO Act would require more than PW-1’s statement which, on the face of it, was not credible as what she had stated to her mother was not borne out by her own statement before the trial court.” 68. In the present case, as discussed above, in view of the failure of the prosecution to establish the foundational fact, that it was none other but the present accused/appellants who were the perpetrators of the offense, by proof of proper identification, it cannot be said that the prosecution has established the foundational facts, implicating the present appellants, and therefore, the presumption under Section 29 of the POCSO Act cannot be said to have arisen, requiring the appellants to rebut the same. 69. It is also noticed that the learned Trial Court, while dealing with this aspect of the matter, failed to notice or record any finding with regard to the absence of light at the time and place of occurrence, which goes to the very essence of the question of proper identification. 70. In view of the above discussion, we are of the view that the appeal deserves to succeed and accordingly, the impugned Judgment & Order as well as the sentence imposed are hereby set aside and the appellants are acquitted of the offences under which they have been convicted. They be set at liberty forthwith. 71. Appeal stands allowed accordingly. 72. Send back the TCR.