Barin Ghosh, C.J. -
(1.) IN the instant case, the First Information Report was lodged about two days and 10 hours after the incident. The First Information Report was lodged by Rajesh Rawat (PW1), where it was stated that his wife Rashmi Rawat (PW2) was dealt in a manner, which may result in commission of offences punishable under Sections 323, 354 and 376/511 of the Indian Penal Code. Respondent was not named in the First Information Report. The First Information Report was investigated and, in course of investigation, respondent was arrested. PW2 recognised the respondent as the perpetrator of the crime, as was alleged in the First Information Report. Accordingly, a charge -sheet was filed and, on the basis thereof, respondent was charged for having had committed offences punishable under Sections 323, 354 and 376/511 of the Indian Penal Code. PW2, in course of tendering evidence, stated that she was pushed down on the road by the respondent, whereafter the respondent started opening his pant and, at that time, PW2 started crying loudly and also started beating the respondent with the umbrella that she was having. She stated that the respondent, thereafter, fled. In cross -examination, she clarified that the respondent was trying to open the belt of his trouser and had not opened the chain of the trouser or the trouser itself. PW2 stated that she chased the respondent and tried to apprehend him and, at that stage, met Dharam Singh (PW4), who advised her not to chase the respondent. PW2 stated that, thereafter, she and PW4 went to her school. She then stated that, later on, she located a PCO owner Kalika Prasad (PW3) and disclosed before him the features of the respondent, when PW3 informed her that a driver knows the name of a person having similar features and, later, that driver came and gave the name of the respondent, and that having been passed on to the Investigating Officer, respondent was later apprehended. PW3, in course of tendering evidence, stated that he does not know PW2, PW2 never came to him, and he does not know any driver by the name Sandeep, who allegedly supplied the name of the respondent on the basis of the description of respondent allegedly given by PW2 to PW3. PW4, while tendering evidence, stated that the purse and bag of PW2 were taken away by the person, who allegedly assaulted PW2 on the fateful date. That was not the version of PW2 while she tendered evidence, nor the same was mentioned in the First Information Report. It is true that PW2 purported to recognise the respondent as the assailant in court, but the fact remains that no test identification parade was carried out. On the other hand, no sooner the respondent was arrested by the police, PW2 went to the police station and purported to recognise the respondent as the perpetrator of the crime as alleged.
(2.) HAVING regard to the nature of evidence, as was thus brought on record by the prosecution, the court below has not been able to accept that it was the respondent, who committed the crimes alleged and, accordingly, exonerated him of the charges as were levelled against him. We have not been able to persuade ourselves to take a different view. The appeal fails and the same is dismissed. Let a copy of this judgment be sent to the court below along with the lower court records.;