Due to lack of reliable evidence on the appellant’s identity, the conviction shall be deemed to be not sustainable in law: High Court Of Patna

IN THE HIGH COURT OF JUDICATURE AT PATNA CRIMINAL APPEALNo.31519 Arising Out of PS. Case No. 31 Year 2014 Thana CHENARI District Rohtas Vakil Paswan Son of Shankar Paswan Resident of Village Karma Police Station Chenari District Rohtas at Sasaram THE STATE OF BIHAR ... Appellant s ... Respondent s For the Appellant s Mr. Vikram Deo Singh Advocate Mr. Shankar Kumar Advocate Mr. Sada Nand Roy Advocate Mr. Syed Ashfaque Ahmad Advocate For the Respondent s CORAM: HONOURABLE MR. JUSTICE BIRENDRA KUMAR 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. 8714 arising out of Chenari P.S. Case No. 314 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. APPNo.31519 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 prosecutrixis 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 PaswanSaroj Paswan 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. APPNo.31519 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 6. According to the prosecutrix the occurrence took place about one and half years ago. It was night at about Patna High Court CR. APPNo.31519 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. APPNo.31519 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 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. APPNo.31519 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. APPNo.31519 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

Summary: The petitioner was held liable in a case and was sentenced to 7 years of imprisonment along with fines and other imposition of punishments. The Petitioner however established the grounds for granting bail on the basis of the conviction being not sustainable under law. Hon’ble High Court of Patna before Justice Mr. Birendra Kumar in the matter Vakil Paswan v. The State of Bihar[Criminal Appeal (SJ) No.3154 of 2019].  The facts of the case were that the learned Trial Judge viewed the litigant to be entirely blameworthy for offenses under Sections 376/511, 354, and 354(B) of the Indian Penal Code by the criticized judgment. The learned Trial Judge granted thorough detainment for a considerable length of time and a fine of rupees 5,000 for an offense under Sections 376/511 of the Indian Penal Code and in default of installment of fine thorough detainment of one year was granted for an offense under Section 354 of the Indian Penal Code and in default of installment of fine, there is heading of one-month thorough detainment. For an offense under Section 354(B) of the Indian Penal Code, thorough detainment of five years was granted other than a fine of rupees 2,000 and in default of installment of fine, the litigant was coordinated to go through additional four months thorough detainment. The sentences have been requested to run simultaneously by the condemned request. Learned direction for the appealing party battles that there is the absence of dependable proof on the personality of the litigant to be engaged with the event. Subsequently, the judgment of conviction isn’t economical in law. a trade-off in such cases ought not to be supported nor the trade-off ought to be made the premise of absolution or decrease of the sentence. Nonetheless, the Court can’t close its eyes to the enthusiasm for proof accessible on the record disregarding the factum of giving and take. The prosecutrix doesn’t say that the other three observers P.W. 1 Laxman Paswan, P.W. 2 Saroj Paswan, or P.W. 3 Ramesh Paswan had gone to her home on her caution. In this way, the declaration of P.Ws. 1, 2, and 3 that they found out about the event from the prosecutrix has no evidentiary worth. The learned Trial Judge has not doled out any relevant justification for distrusting the assertion of the prosecutrix that because of haziness, she was unable to distinguish the denounced. P.W. 3 has conceded that he came to at the spot of event following ten minutes of the event. The previously mentioned proclamation of P.W. 3 adulterates his case to have seen the litigant escaping from the place of the prosecutrix. Accordingly, aside from the factum of giving and take, fairly even in the wake of disregarding compromise, the arraignment proof doesn’t rouse certainty in regards to the association between the offenses affirmed and the inclusion of the appealing party. Consequently, the litigant merits the advantage of uncertainty. As per the prosecutrix, other relatives were there in one more space at the hour of the event, however, they were not inspected as arraignment proof. The Hon’ble High Court of Patna held,” The learned Judge has not considered the aforesaid infirmities in the prosecution case. Hence, the impugned judgment and sentence is fit to be set aside. Accordingly, this appeal is allowed.”