Vakil Paswan vs The State Of Bihar
2021 Latest Caselaw 1814 Patna

     IN THE HIGH COURT OF JUDICATURE AT PATNA
                 CRIMINAL APPEAL (SJ) No.3154 of 2019
       Arising Out of PS. Case No.-31 Year-2014 Thana- CHENARI District- Rohtas
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Vakil Paswan, Son of Shankar Paswan, Resident of Village - Karma, Police Station - Chenari, District - Rohtas at Sasaram ... ... Appellant/s Versus THE STATE OF BIHAR ... ... Respondent/s ====================================================== Appearance :

For the Appellant/s : Mr. Vikram Deo Singh, Advocate Mr. Shankar Kumar, Advocate Mr. Sada Nand Roy, Advocate For the Respondent/s : Mr. Syed Ashfaque Ahmad, Advocate ====================================================== CORAM: HONOURABLE MR. JUSTICE BIRENDRA KUMAR C.A.V. JUDGMENT Date : 26-03-2021

This appeal is against the judgment of conviction.

The sole appellant-Vakil Paswan faced trial before the learned

Additional Sessions Judge-V, Rohtas at Sasaram in connection

with Sessions Trial No. 871 of 2014 arising out of Chenari

P.S. Case No. 31 of 2014 registered under Sections 376/511 of

the Indian Penal Code. The learned Trial Judge found the

appellant guilty for offences under Sections 376/511, 354 and

354(B) of the Indian Penal Code by the impugned judgment

dated 27.06.2019. The learned Trial Judge awarded rigorous

imprisonment for seven years and a fine of rupees five

thousand for offence under Sections 376/511 of the Indian

Penal Code and in default of payment of fine rigorous

imprisonment of one year was ordered. Likewise, three years

rigorous imprisonment and a fine of rupees one thousand was Patna High Court CR. APP (SJ) No.3154 of 2019 dt.26-03-2021

awarded for offence under Section 354 of the Indian Penal

Code and in default of payment of fine there is direction of

one month rigorous imprisonment. For offence under Section

354(B) of the Indian Penal Code, rigorous imprisonment of

five years was awarded besides fine of rupees two thousand

and in default of payment of fine, the appellant was directed to

undergo further four months rigorous imprisonment. The

sentences have been ordered to run concurrently by the

impugned order dated 29.06.2010.

2. The prosecution case, as disclosed in the

written report of the prosecutrix (P.W.4), is that on 03.03.2014,

at about 11:00 p.m., the prosecutrix was sleeping inside her

house after closing the doors. The appellant jumped over the

boundary wall and entered into the room of the informant

along with a gun. The appellant sat on the body of the

informant and caught her breast, started to disrobe her but the

victim made alarm and the neighbours Laxman Paswan (P.W.

1), Saroj Paswan (P.W. 2) came then only she could save

herself. She stated that husband and brother of the husband

were out side the village to earn their livelihood. Hence, no

male was there in the house. The written report is Ext. 1.

3. After completion of investigation, the police Patna High Court CR. APP (SJ) No.3154 of 2019 dt.26-03-2021

submitted charge-sheet and, accordingly, the appellant was put

on trial. During course of trial, the prosecution examined

altogether four witnesses. Besides the aforesaid two witnesses

P.W.3 is Ramesh Paswan and P.W. 4, the prosecutrix herself.

4. Learned counsel for the appellant contends

that there is lack of reliable evidence on the identity of the

appellant to be involved in the occurrence. Hence, the

judgment of conviction is not sustainable in law.

According to learned counsel other witnesses

are hearsay witnesses not corroborated by the prosecutrix.

Hence, their testimony has got no evidentiary value.

5. On the other hand, learned counsel for the

State-respondent contents that, in fact, the parties entered into

a compromise and due to compromise, the complainant

changed her statement in the cross-examination. The learned

Trial Judge has taken note of the Supreme Court judgment that

in such a serious case, compromise should not be encouraged.

Hence, conviction of the appellant for the offences proved

does not require any interference.

FINDING:-

6. According to the prosecutrix, the occurrence

took place about one and half years ago. It was night at about Patna High Court CR. APP (SJ) No.3154 of 2019 dt.26-03-2021

11:00 p.m. The prosecutrix was sleeping in her house. The

appellant entered into her room and put his hand on her breast

and started disrobing her. The appellant threatened to kill her.

However, the prosecutrix raised alarm then the villagers came

and the appellant fled away. She further stated that there are

three rooms in her house. The family members were in other

rooms and the children were sleeping along with her. In the

cross-examination, she deposed that it was a dark night, hence,

she could not identify who had entered into the room. She

further deposed that the appellant had also lodged a case

against her husband and the parties have entered into a

compromise voluntarily in both the cases. Hence, the

prosecutrix does not want to proceed with this case.

7. No doubt, a compromise in such cases should

not be encouraged nor the compromise should be made basis

of acquittal or reduction of sentence. However, the Court

cannot shut its eyes to the appreciation of evidence available

on the record ignoring the factum of compromise. The

prosecutrix does not say that other three witnesses P.W. 1

Laxman Paswan, P.W. 2 Saroj Paswan or P.W. 3 Ramesh

Paswan had come to her house on her alarm. Therefore,

testimony of P.Ws. 1, 2 and 3 that they heard about the Patna High Court CR. APP (SJ) No.3154 of 2019 dt.26-03-2021

occurrence from the prosecutrix has no evidentiary value.

Likewise, P.Ws. 1 and 2 deposed that they had seen the

appellant coming out of the house of the prosecutrix. Only on

that evidence, the conviction of the appellant, under Sections

376/511, 354 and 354(B) of the Indian Penal Code, cannot be

sustained unless the prosecutrix asserts that the appellant was

identified as perpetrator of the crime. The evaluation of the

testimony of the prosecutrix or other witnesses could be made

only after perusal of her entire testimony and not only a part.

The evidence coming in cross-examination cannot be

overlooked. If the prosecutrix says that she could not identify

in the darkness of night as to who had entered into her house,

the accused would be justified to rely on this statement.

8. The learned Trial Judge has noticed the

aforesaid evidence of the prosecutrix and recorded that "she

deposed that due to darkness, she could not identify the

accused but she never denied the incident. The prosecution

case is further supported by the fact that the accused had tried

to put pressure on the prosecutrix to compromise, only

because he was guilty". The second part of the finding above

is error of record. There is no evidence that the prosecutrix

entered into a compromise under pressure, rather the evidence Patna High Court CR. APP (SJ) No.3154 of 2019 dt.26-03-2021

shows that she has voluntarily compromised the case and

counter case both.

9. The learned Trial Judge has not assigned any

cogent reason for disbelieving the statement of the prosecutrix

that due to darkness, she could not identify the accused. P.W. 3

has admitted that he reached at the place of occurrence after

ten minutes of the occurrence. The aforesaid statement of P.W.

3 falsifies his claim to have seen the appellant fleeing from the

house of the prosecutrix. Thus, apart from the factum of

compromise, rather even after ignoring compromise, the

prosecution evidence does not inspire confidence regarding

connection between the offences alleged and the involvement

of the appellant. Hence, the appellant deserves benefit of

doubt. According to the prosecutrix other family members

were there in another room at the time of the occurrence, but

they were not examined as prosecution evidence.

10. Appellant is in custody since 27.06.2019 i.e.

the date of conviction and it has been informed by the learned

counsel for the appellant that appellant was in custody for six

months as under trial prisoner as well.

11. The learned Judge has not considered the

aforesaid infirmities in the prosecution case. Hence, the Patna High Court CR. APP (SJ) No.3154 of 2019 dt.26-03-2021

impugned judgment and sentence is fit to be set aside.

Accordingly, this appeal is allowed.

12. Let the appellant be set free at once.

(Birendra Kumar, J)

Kundan/-

AFR/NAFR
CAV DATE                23.03.2021
Uploading Date          26.03.2021
Transmission Date       26.03.2021