Ramesh Godaru Deogade vs State Of ...
2017 Latest Caselaw 6932 Bom

 jcrapeal652of02.odt                       1



          IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                    NAGPUR BENCH, NAGPUR


                     CRIMINAL APPEAL NO.652 OF 2002



 Ramesh Godaru Deogade,
 Aged 29 years,
 Occ. Agriculture labour,
 R/o. Deomundri, Tahsil Mouda,
 District Nagpur                                             ....... APPELLANT


                  ...V E R S U S...


 The State of Maharashtra,
 through Police Station Officer,
 Police Station Mouda, District Nagpur                       ......   RESPONDENT

 -------------------------------------------------------------------------------------------
          Mr. P.R. Agrawal, Counsel for Appellant.
          Mrs. M.H. Deshmukh, Addl. Public Prosecutor for 
          Respondent/State.
 -------------------------------------------------------------------------------------------

                                   CORAM:            ROHIT B. DEO, J. 

                                   DATE:               th
                                                     8    SEPTEMBER, 2017.


 ORAL JUDGMENT

 1]               The appellant is challenging the judgment and order

dated 22.10.2002 in Sessions Trial 353 of 2000 delivered by 7th

Assistant Sessions Judge, Nagpur convicting the appellant of

offence punishable under section 354 and 457 of the Indian Penal

Code and imposing sentence of rigorous imprisonment for one

year and payment of fine of Rs.100/-.

2] Shri. P.R. Agrawal, the learned counsel for the

appellant (hereinafter referred to as "the accused) contends that

the evidence on record is grossly inadequate to bring home the

charge under sections 376, 457 and 354 of the Indian Penal Code

("IPC" for short). He would urge, that the accused faced trial for

offence punishable under section 457 and 354 of IPC. The

testimony of the complainant Pramila (PW 1) is found to be

unreliable and exaggerated and the accused is therefore, acquitted

of offence punishable under section 376 of IPC. The learned

counsel would urge, that the testimony of PW1 ought to be

discarded in entirety, and if the testimony of PW1 is so discarded,

then there is no evidence on record to prove the charge beyond

reasonable doubt.

3] Mrs. M.H. Deshmukh, the learned Additional Public

Prosecutor in rebuttal contends that the principle of falsus in uno,

falsus in omnibus is neither accepted nor recognized in criminal

jurisprudence in India. The entire testimony of a witness can not

be discarded on the principle falsus in uno, falsus in omnibus. The

learned APP would submit, that the part of the testimony of PW1

which speaks of the accused entering into her house in the absence

of the husband of the complainant - PW1 and undressing her, is

implicitly reliable. Learned APP would urge, that the evidence of

PW1 is amply corroborated by the evidence of PW2 Malabai, PW3

Kantabai and PW4 Mahadeo. The learned APP would submit, that

each of the aforesaid three witnesses has consistently deposed that

alerted by the shouts of PW1, they came out and noticed the

accused running from the house of the complainant - PW 1.

4] I have closely scrutinized the evidence on record. I

am inclined to agree with the submission of the learned APP that

the principle of falsus in uno, falsus in omnibus is not recognized

in Indian Penal jurisprudence. The Court is entitled to separate

the chaff from the grain. It is true that a part of the testimony of

PW1 is not reliable and is indeed found to be untrue. The

testimony is found untrue to the extend PW1 states that the

accused established sexual relationship. However, the remaining

part of the testimony that the accused entered the house, at that

time the husband of PW1 was not in the house, that the accused

lifted the saree and removed the undergarment and that PW 1

awoke and raised an alarm, is a version which is sufficiently

corroborated by the other witnesses who have seen the accused

running from the house of the complainant PW1 and the fact that

the report was lodged with promptitude, under the circumstances.

Shri. Agrawal, the learned counsel for the appellant invites my

attention to the fact that initially the appellant was charged only

under sections 354 and 448 of the Indian Penal Code and

therefore, was tried in the Court of Judicial Magistrate First Class,

Mouda, District Nagpur. Several witnesses were examined

including the husband of the complainant PW1. Thereafter, since

charge under section 376 of IPC was added, the case was

committed to the Sessions Court. The learned counsel would

urge, that the evidence of the husband of the complainant was

relevant and the fact that he is not examined during the course of

the trial, has caused prejudice to the appellant. The submission is

noted only for rejection. No such grievance was made before the

learned Sessions Judge. Nothing is demonstrated to suggest that

section 33 of the Indian Evidence Act, 1872 is of any relevance. It

was not the contention of the appellant before the learned

Sessions Judge, that a particular witness who is examined before

the committal is dead or otherwise is not available and that the

testimony of such witness is relevant.

I am not inclined to interfere in the judgment and order

impugned. The appeal is without merit and is rejected.

The bail bond stands cancelled.

The appellant be taken into custody forthwith to serve the

sentence.

Counsel fees fixed at Rs. 5000/-.

JUDGE

Belkhede