Partly allowed

The State of Maharashtra v. Joma Goma Phadake and Others.

Bombay HC17 Sept 2004APEAL/706/1988

Case brief

AI extract

What is this about?

Criminal appeal against acquittal of accused persons in a case involving affray and causing grievous hurt. Court upheld acquittal of most accused but convicted accused 3 for causing grievous hurt to one witness, ignoring recent events and imposing fine.

What did the court decide?

Accused 3 convicted for causing grievous hurt under Section 325 IPC; sentence undergone treated as imposed; fine of Rs. 5,000 ordered.

The State of Maharashtra Vs Joma Goma Phadake and Others. — Cheque Dishonour | Bombay HC (2004)

¶1

AJN

¶2

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

¶3

CRIMINAL APPELLATE JURISDICTION

¶4

CRIMINAL APPEAL NO.706 OF 1988

¶5

The State of Maharashtra Versus	) ...	Appellant (Orig. Complainant)
1. Joma Goma Phadake	)
2. Baban Gotiram Patil	)
3. Kundalik Dharma Patil	)
4. Hasha Narayan Phadake	)
5. Pandurang Dharma Patil	)
6. Ram @ Ramchandra Gotiram Patil)
7. Narayan Goma Phadake	)
8. Gana Goma Phadake	)
9. Shalik Gunaji Popeta	)
10. Vishnu Shalik Popeta	)
11. Jagan Dharma Patil	)
12. Bama Balu Patil	)
13. Janardan Gana Phadake	)
14. Shankar Joma Phadake	)
all r/o. Village Chipale, )
Panvel, Taluka, Dist.Raigad.) ...		Respondents (Orig. Accused.)

¶6

Dr. F.R. Shaikh, Addl. P.P. for the appellant-State.

¶7

Smt. Deepa Sawant for the respondents-accused.

¶8

CORAM: SMT. RANJANA DESAI & A.S. OKA, JJ.

¶9

DATED: 17TH SEPTEMBER, 2004.

¶10

ORAL JUDGMENT :- (Per Smt. Ranjana Desai, J.)

¶11

1.		The	respo	ndents (fo	r con	venience,	original	accu	sed 1
to 14	resp	ectively)		were tried	in	the	court	of	Additional
Sessions	J	udge,	Raig	ad at	Alibag	in	Sessions	Case	No.121
of	1983	for	the	offences	punisha	ble	under se	ctions	147,
148,	307	read	with	section	149 of	the	Indian	Penal	Code
(for	short,		"the	IPC") an	d also	unde	r section	307	read
with	sections		34	and 326,	354	read	with secti	on 149	of

¶12

: 2 :

¶13

the IPC and under section 427 read with section 149 of the IPC and under section 25(1) and section 26 of the Indian Arms Act. By judgment and order dated 29/4/1988,

¶14

the learned judge acquitted all the accused. Hence, the

¶15

State of Maharashtra has preferred the present appeal.

¶16

2. At the trial, the case of the p	rosecutio	n	was	as
follows. The incident in question had	taken		place	on
27/3/1983 at about 6.30 a.m. in	Village		Chipale,	Taluka
Panvel. The complaint is filed by P	W-1		Mangal	Namu
Patil. It appears that there are two	grou	ps	in	the
village, one led by Rama Khandu and the	other		led by	Joma
Goma and the incident in question took	place		because	it
was alleged that, accused 3 Kundalik	outraged		the	modesty
of Anandibai wife of PW-7 Dehu Patil	wh	en	she	was
proceeding to the town with a basket	of		vegetables	early
in the morning. When Anandibai returned	to		the	village
she reported about this incident. T	hereafter		when	the
explanation was sought from accused 1, wh	o i	s	supposed	to
be the leader of the group of the	accu	se	d, by	the
complainant, PW-7 Dehu Patil and others b	y go	in	g to	his
house, he refused to admit anything.	T	he	reupon,	they
told accused 1 that they were going to	the		police	station
to lodge a complaint. They came to	the	co	urtyard of	the
temple. Accused 1 went inside the house	and		came wi	th a
gun. He fired his gun. PW-2 Rama	Khan	du	Patil	received
injury and he fell down. Accused	3		Kundalik	also
assaulted Rama Khandu Patil on his foot	with		an	axe.
Accused 3, 4, 5, 7, 8, 9, 11 to 13 and	14		used sticks	and

¶17

: 3 :

¶18

other weapons to beat the complainant and other witnesses. Accused 3 Kundalik gave an axe blow on the foot of PW-8 Malubai Patil due to which she sustained serious injuries and she fell unconscious. After the complaint (Ex-31) came to be lodged by PW-1 Mangal Patil, an offence came to be registered by P.I. Chowdhari at C.R. No.25 of 1983. The investigation started. The accused came to be arrested. After completion of the

¶19

investigation, the accused came to be charged as

¶20

aforesaid.

¶21

injured witnesses.

¶22

4.	The accused d	enied the	pro	secution case.	Their	case
was	that there was	acute rivalr	y	between the	two	groups
as	a result of w	hich false	p	rosecution has	been	launched
against	them. They	denied	the	incident of	outragin	g the
modesty	of Anandibai.	Acco	rding	to them,	the	entire
incident	has been c	oncocted	to	falsely rope	in	the
accused.	The accused	denied	that	they had	used	any
weapons	like guns,	axes or	stic	ks. It	was	further
contended	by the ac	cused that	the	re was alread	y a	case
pending	against the	prosecution		witnesses filed	by	the
accused	in which the	y have		been convicted	for	the
offences	charged and	sentenced	t	o various	p	unishments
upto	five years or	so and,	ther	efore, the	accused	are
falsely	implicated by	them.	The	evidence led	by	the

¶23

: 4 :

¶24

prosecution did not find favour with the trial judge and,

¶25

hence, he acquitted all the accused.

¶26

5.	We ha	ve	heard	Mr.	Shaik	h, the	learned	Addl.P.P.
appearing	for		the appe	llant-State	and	Ms.	Sawant,	the
learned	counsel		appearing	for	the	accused.	With	the

¶27

assistance of the learned counsel, we have gone through

¶28

the evidence and other record.

¶29

6.	In suppo	rt of the	appeal,	Mr. Shaikh	vehemently
contended	that	the trial	judge	has erred in	acquitting
the	accused.	The trial j	udge	has ignored the	cogent and
consistent	evidence	of injure	d	eye witnesses,	the
injuries	of	the prosecutio	n w	itnesses and the	doctor’s
evidence.	The	learned Addl	.	P.P. further	contended
that	the motive	has also		been established	by the
prosecution.	There	was no		reason for th	e injured
witnesses	to	falsely implica	te	the accused.	He,

¶30

therefore, urged that this court should set aside the

¶31

order of acquittal.

¶32

7.		Ms.		Sawa	nt, the	learned	counsel app	earing	for	the
accused,		on	the	other	hand,	contended	that	the	view	taken
by t	h	e trial		judge is	a	reasonably	possible	view	and	this
court		should	not	upset	the	judgment	of the	trial	court	in
an		appeal		against	acquittal.	She	submitted	that	it	is
true		that		the pro	secution	has led	evidence	of		injured
witnesses		but		considering	the	admitted	enmity	b	etween	the
two		groups,		chances	of fa	lse involv	ement of	the		accused

¶33

: 5 :

¶34

cannot	be	ruled	out.	The learned cou	nsel	subm	itted	that
the	evidence	of	the	prosecution witnesses	is	f	ull	of
contradictions	.	She		submitted that		barring		one
prosecution	witness	i.e.		PW-4 Tukaram Patil,		none	of	the
other	prosecution	wit	nesses	have received		any		gun
injuries.		Therefore,	the	case put up	by	the	pros	ecution
is	obviously	not	true.	The genesis of		the	pros	ecution

¶35

case is suppressed and, therefore, the acquittal order

¶36

should not be disturbed.

¶37

8.	We	have	given	our a	nxious	consider	ation	to the
submissions	a	dvanced	by	both the	cou	nsel.	According	to
the	prosecution,	four		prosecution		witnesses	have	suffered
gun	injuries.	It	is	the case	of	the	prosecutio	n that
PW-2	Rama	Khandu	has	received	gun	injury at	the	hands of
accused	1.	PW-3	Sopan	received	gun	injury	at the	hands
of	accused	2.	PW-4	Tukaram	Patil	suffered	injury	at the
hands	of	accused	2.	PW-5	Ashok	suffered	injury	at the

¶38

hands of accused 2. It is necessary to see how far the

¶39

prosecution story is true.

¶40

9. While	appreciati	ng th	e prosec	ution	evidence, it	is
important to bear in mind that th	e relations betwe	en the
two groups are strained. Previo	usly there was a	case
filed by the accused against the p	rosecution witnes	ses in
which they were sentenced.
10. It is	true that	PW-4	Tukaram,	PW-5	Ashok and	PW-7
Dehu state that	accused	2	fired	at	prosecution	witnesses.

¶41

: 6 :

¶42

But,	PW-1	Mangal	who	is	the	com	plainant	does	not	refe	r to
firing	by	accused	2	at	all.	P	W-2	Rama	says	that	accused
1	fired	at him	but	does	not	say	that	accused	2	fired	at
anybody.		PW-4	Tuka	ram	does	not	say	that	accuse	d 1	fired
at	anyone.		But,		since	the	prosec	ution	witn	esses	are
injured	witnes	ses it	is	n	ecessary	to	s	ee w	hether	there	is

¶43

any corroboration to their evidence to rule out false

¶44

implication on account of admitted enmity.

¶45

11.	PW-12		Dr. Shivaji	Ba	rfe ha	d ex	amined	the
prosecution	witnes	ses	on 27/3/1983.		So	far	as	PW-3
Ashok’s	injur	ies	are concerned	he	has	said	that	probable
weapon	used	was	firearm. He	has	further	stated	that	no
foreign	body	was	present or	palpabl	e.	There	were	no

¶46

exist wounds. Except the skin surrounding one injury

¶47

which is an abrasion there was no blackening of skin.

¶48

has said that no foreign body was palpable, skin was not

¶49

black and there was no exit wound.

¶50

has said that no foreign body was palpable and skin

¶51

surrounding the injuries was not black.

¶52

14.	Howev	er fr	om	injury No	.3 rec	eived	by	PW-4		Tukaram
Patil,	he	recovered	a	pellet.	He	has	opined		that	all
injuries	except	one	are	by	fire	arms.		But	in	the
cross-exami	nation,	he	has	stated	that	ex	cept	as		regards

: 7 :

injuries

received by PW-4

Patil,

cannot

state

Tukaram

definitely whether injuries received by other witnesses

¶62

were caused by firearms.

¶63

15.	It	is	there	fore	necessary to se	e the		evid	ence	of
recovery	of	fi	rearms.		PW-13 Pa	ndurang		Chau	dar,	the
Investigatin	g	Office	r	has	stated that		the		co	mplainant
told	him	that	a	gun	was hidden in	the	hou	se	of	one
Parshuram		Bhopi.		Therefo	re, on 27/3/1	983,	the	hous	e	of
Parshuram	B	hopi	was		searched. The	panch	nama		in	this
connection	is	Ex-62.		The	case of	the	prosec	ution	is	that
this	gun	was	used	by	accused 2.	The	quest	ion	is	whether
this	recovery	is	genuine	and	whether that		gun		can	be
linked	to a	ccused	2	because	accused 2	is	supp	osed	to	have

¶64

fired at PW-4 Tukaram from whose body a pellet was

¶65

recovered.

¶66

16.		PW-1	3	Pandurang	Ch	audar h	a	s		stated	that		Par	shuram
Bhopi	was	arrest	ed in	this	case	but		h	e	does	not		know	what
happened		to	him.	He	does	not		k	now	whe	ther	Pa	rshuram	was
charge-shee	ted	or	no	t.	But		th	e		fact		rem	ains	that
Parshuram		is	not	an acc	used	in this			cas	e n	or	has	he	been
examined		as	a	witness.		According			to	de	fence,		Par	shuram
Bhopi		was	the	main	eye-wit	ness in			th	e	crimin	al	case	that
ended	in	con	viction	of	some	of			the		prosecu	tion	wi	tnesses.
Non-examin	ation	o	f	this	witness	sha	k	es		the		cred	ibility	of
the	pros	ecution	case.	It	is	not		u	nderst	ood	how	t	he	gun
allegedly		recove	red	from	the	house			of	Parsh	uram		can	be
linked	to		accused	2.	No	witness			has	state	d	that	it	is

¶67

: 8 :

¶68

the same gun which was used by accused 2. We find this

¶69

recovery suspicious. Consequently the case that accused

¶70

2 fired at prosecution witnesses becomes doubtful.

¶71

17.	It	is	also	interesting	to	note	that	the	Chemical
Analyser’s		report,	Ex-67	shows	that	the	gun	which	was
allegedly	used	by	accused	1	was	not	in	working	condition.

¶72

No residue of the fired ammunition was detected in the

¶73

barrel washings of that gun.

¶74

18.	So	far as accused	4 to	14	are	concerned, there is
absolutely	no	evidence to	indica	te	thei	r participation in
the	offence	in question.	At	the	trial	, the prosecution
conceded	that	there is	no	e	vidence	against them.
Therefore,	the	possibility	of	false	invo	lvement of the
other	accused	cannot	be ruled		out	particularly because
there	is	enmity between	two gro	ups.		Moreover since we
are	dealing	with an	appeal	ag	ainst	acquittal, unless
there	are	compelling reaso	ns to	over	turn	the order of
acquittal,	merely	because so	me other		view	of the case is
possible,	this	court cannot	interfere		with	the order of

¶75

acquittal if the view taken by the trial court is a

¶76

reasonable and possible view.

¶77

19.	In	such	stat	e	of	evidence	assuming	motiv	e is
established,	we	are	una	ble	to	interfere	with the	ord	er of
acquittal	so		far	as	the	allegations	about the		injuries
caused	to	PW-2,	PW-3,	PW	-4 an	d PW-5	are concerned.		We,
however,	feel	that		so	far	as injury	caused	to	PW-8

¶78

: 9 :
Malubai is concerned, the prosecution has made out its
case. PW-8 Malubai has categorically stated that accused
3 Kundalik came running and gave axe blow on her left
foot and, therefore, her left foot was cut and then she
fell down and became unconscious. So far as this
assertion made by PW-8 Malubai is concerned, there is no
effective cross-examination which would indicate that she
is not telling the truth. She is consistent even in her
cross-examination about the injury caused to her. The
injury certificate of Malubai is on record. PW-12 Dr.

¶79

Shivaji Barfe, who had examined Malubai on the same day

¶80

i.e. 27/3/1983 has described her injury as follows:

¶81

Fractured tibia and middle third.

¶82

Bleeding present 8" x 2" bone.

¶83

protruding out. Bleeding present. 1

¶84

1/2 x 1/3 x bone."

¶85

PW-12 Dr. Shivaji Barfe has stated that the probable weapon in case of injury No.1 is sharp heavy object and in case of injury No.2 is hard and blunt object and probable age of the injury was within 24 hours. He has stated that the injuries are grievous

¶86

: 10 :

¶87

injuries and the patient had to be transferred to Sion Hospital for further treatment. He has proved the certificate Ex-49. He has further stated that injury

¶88

No.1 was sufficient to cause death if the treatment was

¶89

not given in time.

¶90

21.	PW	-8 Malubai is sup	ported by PW-7 Dehu Patil.	He
has	in	his evidence categ	orically stated that when	they
were	at	the corner of	the house of Shalik	Phopheta,
accused	3	Kundalik came and	gave axe blow on Maluba	i, who
was	at	the corner of the	house of Mangal Namu. In	the
cross-exa	mination	also, he	has maintained that	Malubai
received	axe	injuries below he	r knee. On this aspe	ct, he
is co	nsistent.	In our opini	on, the evidence of PW-7	Dehu
Patil	and	PW-8 Malubai	establishes, beyond doubt,	that
accused	3	Kundalik gave axe	blow on the foot of	Malubai
on	accoun	t of which grie	vous injury was caused to	her.
After	ca	refully perusing the	entire evidence, we are	of
the	consid	ered opinion tha	t no other conclusion can	be
drawn	on	the basis of th	e facts before us except	that it
was a	ccused	3 Kundalik who	gave axe blow to Malubai.	We,
therefore,		feel that to the	extent to which the	impugned
order	and	judgment acqui	ts accused 3 Kundalik of	the
charge	o	f causing grievous	hurt to Malubai, it wil	l have
to	be s	et aside and accused	3 will have to be	convicted
for	offence	under section 325	of the IPC. We have	no

¶91

manner of doubt that accused 3 Kundalik has caused

¶92

grievous hurt to PW-8 Malubai.

¶93

: 11 :

¶94

22.	Ms.	Sawa	nt,	the learn	ed	counsel	appe	aring	for	the
accused	urged	that	the	incident	is	of	1983	and	accused	3
Kundalik	is 60	years	of	age	and,	the	refore,	a	kindly	view
may	be taken.		The	learned	cou	nsel	urged	that	instead	of

¶95

sentencing him to imprisonment, a fine may be imposed on

¶96

him.

¶97

23.	We	appreciate this sub	mission.		Much time	has
elapsed	from the	date of incident.	Acc	used	3 is 6	0 years
old.	We,	therefore, think it	improper	at	this stage	to
sentence	him	to imprisonment.	Consid	ering	his age	and
the	passage	of time, we feel	that	the	sentence	undergone
by	him	should be treated as	sentence	f	or offence	under
section	325	of the IPC. H	owever,	in	addition, he	should

¶98

be directed to pay a fine of Rs.5,000/-. Hence, the

¶99

following order:

¶100

O R D E R

¶101

(a) Appeal is partially allowed.

¶102

(b)	The	impugned judgment and order of
	acquittal	dated 29/4/1988 passed by the
	Sessions	Judge, Raigad at Alibag in
	Sessions	Case No.121 of 1983 acquitting
	accused	1, 2 and 4 to 14 is confirmed.
	So far	as order of acquittal of accused
	3	Kundalik Dharma Patil is concerned,
	it is	confirmed except so far as the

¶103

: 12 :

¶104

charge	of causing grievous injury to
PW-8	Malubai is concerned. He is
convicted	under section 325 of the IPC
for	having caused grievous injury to
PW-8	Malubai Dharma Patil. For this
offence,	the sentence already undergone
by	him shall be treated as sentence
imposed	by us. For this offence, he
shall	also pay a fine of Rs.5,000/-
(Rupees	Five Thousand only) in default
of	payment of fine of Rs.5,000/-, he
shall	undergo rigorous imprisonment for
four	months. Fine be deposited within

¶105

a period of six weeks from today in the

trial court.

aforestated terms.

(SMT. RANJANA DESAI, J.)

¶110

(A.S. OKA, J.)

The State of Maharashtra v. Joma Goma Phadake and Others.

Case brief

What is this about?

What did the court decide?

The State of Maharashtra v. Joma Goma Phadake and Others.

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

Parties & counsel

Coram

Case details

Similar cases

The State of Maharashtra Vs Anil Tanhu Dhamunase and Ors.

State vs N.M. Raut. Vs Nandkumar Mohan Raut.

Austin William Luis Pinto Vs the Commissioner of Police Greater Mumbai and Ors.

Sada @ Sadanand Tukaram Ghore Vs the State of Maharashtra

Pahar Singh Roop Singh Parmar Vs the Union of India and Ors.

Prakash Hemandas Java Vs the State of Maharashtra and Anr..