Dismissed

Smt.Ratnaprabha Vithal Tople v. Sabestain D'Conha and 5 Ors.

Bombay HC18 Sept 2007APEAL/155/1996

Case brief

AI extract

What is this about?

The High Court dismissed the appeal filed by the complainant against the original court's order of acquittal of the accused in a domestic violence case. The single judge held that the trial court's view was a reasonably possible one and there was no compelling reason to interfere with the acquittal.

What did the court decide?

The appeal was dismissed. The impugned judgment and order of acquittal were upheld.

Smt.Ratnaprabha Vithal Tople Vs Sabestain D'Conha and 5 Ors. — Domestic Violence | Bombay HC (2007)

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MSS

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY

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APPELLATE SIDE

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 CRIMINAL APPEAL NO. 155 OF 1996

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 SMT. RATNAPRABHA VITHAL TOPLE )

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 residing at Tople Niwas, 1st )

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 floor, Vijay Colony, Barfiwala )

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 Marg,Andheri (W),Bombay 400 058) .. APPELLANT

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 VERSUS

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 1. MRS. SABESTIAN D’CONHA )

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 2. ANTONY D’CONHA )

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 3. AUSTIN D’CONHA )

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 All residing at Flat No. 1 )

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 ground floor, Tople Niwas, )

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 Barfiwala Marg, Andheri (W) )

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 Bombay 400 058. )(Org.Accs.d 2,3&4)

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 4. THE STATE OF MAHARASHTRA ) RESPONDENTS

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 Mr. Ashish Sawant h/f M. S. Mohite for appellant

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 Mr. N. K. Singh i/b M. P. Vashi & Associates
 for respondents 1 to 3

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 Smt. V. R. Bhosale, APP

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CORAM:SMT. RANJANA DESAI, J.

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DATE: SEPTEMBER 18, 2007.

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 ORAL JUDGMENT:

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 . Respondents 1 to 5 were tried in the court of
 Metropolitan Magistrate, 44th Court, Andheri in
 Case No. 53 of 1992 for offences punishable under
 Sections 498(A), 323,504,506(ii), 509 read with 114
 of the Indian Penal Code. Respondents are original
 accused 1 to 5 respectively and for convenience
 they are referred to in this judgment as per their
 status and description in the trial court.

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 2. It may be stated here that accused 1 is dead
 and appeal as against him has abated. Name of
 accused 5 has been deleted vide this court’s order
 dated 27/1/97. Appeal, therefore, survives only as
 against accused 2,3 & 4.

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 3. By the impugned judgment and order the learned
 Magistrate acquitted the accused and hence original
 complainant has filed the present appeal.

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 4. Admittedly the relations between the
 complainant and the accused were strained. A suit
 was pending between the complainant and the accused
 in the Small Causes Court at Bombay. Similarly a

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 criminal case being Case No. 321/S/1966 was
 pending in the Andheri Magistrate’s court between

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 the parties. It appears that subsequently the
 parties settled the said pending matters.

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 5. Admittedly the accused are the tenants of the
 complainant. It is the case of the complainant
 that on 27/10/88 at about 9.00 a.m. when she was
 going out for marketing, accused 3 and 4 rushed on
 her near the gate of her building, Accused 4 abused
 her, He used filthy and insulting language.
 Accused 1, 2 and 5 surrounded her. They used
 filthy language and threatened her that they would
 cut her legs. They further threatened her that
 they would throw acid and disfigure her. According
 to her she got annoyed and asked them to go away
 from the place. Accused 4 threw a stone on her
 left foot which caused injury to her left foot.

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 6. PW 2 Mr. N. R. Jagdale, who had come to the
 complainant for some personal work claims to have
 seen this incident. According to the complainant
 thereafter she went to the D.N. Nagar Police
 Station and reported the matter. She went to
 Cooper Hospital for treatment. At Cooper Hospital

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 she was treated. A medical certificate was issued
 to her which is on record at Exh.-P-6. At D. N.
 Nagar Police Station her N.C. was recorded being
 N.C No.8765/88. She thereafter filed a private
 complaint in the court.

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 7. The complainant examined herself and PW 2
 Narayan Ramchandra Jagdale. The complainant also
 examined PW 3 Dr. Sandip Bhalchandra Pargaonkar,
 who has proved medical certificate Exh.-P-6. The
 accused filed their written arguments. According
 to the accused the complainant has filed a false
 case. According to the accused the complaint is
 the result of previous enmity.

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 8. After perusing the evidence on record the
 learned Magistrate was of the view that the
 complainant had failed to prove her case against
 the accused. In the circumstances the learned
 Magistrate acquitted the accused. Hence this
 appeal.

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 9. I have heard at some length. Mr. Sawant,
 learned counsel appearing for the
 appellant/complainant and Mr. Singh, the learned
 counsel appearing for the accused.

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 10. The learned counsel for the appellant

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 contended that the impugned judgment and order is
 perverse. He submitted that the evidence of the
 complainant Mrs. Tople is consistent with her
 complaint and the evidence of PW 3 Dr. Sandip
 Pargaonkar. He submitted that PW 2 Narayan Jagdale
 also corroborates the complainant. He submitted
 that the learned Magistrate erred in observing that
 the evidence of Narayan Jagdale is not consistent
 with the evidence of the complainant. He submitted
 that the learned Magistrate ought to have
 appreciated that, if the evidence of Narayan
 Jagdale was identical to the evidence of the
 complainant, that would have in fact established
 that Narayan Jagdale was tutored.

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 11. The learned counsel submitted that in the

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 nature of things there is bound to be some
 difference in the testimonies of two witnesses.
 But that would in fact establish the genuineness of
 the complainant’s case. The learned counsel
 further submitted that Dr. Pargaonkar’s evidence
 and the medical certificate issued by him indicate
 that the complainant had received injury on the
 relevant day on her foot. The medical evidence,

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 therefore, completely bears out the case of the
 complainant. There is no reason for the
 complainant to falsely implicate the accused. He
 submitted that in the circumstances, the impugned
 judgment and order be set aside and the accused be
 convicted in accordance with law.

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 12. On the other hand the learned counsel
 appearing for the accused submitted that the
 impugned judgment and order is well reasoned.
 Inconsistencies in the evidence of PW 1 and PW 2
 indicate that the complainant’s version is not true
 and she has tried to involve the accused out of
 previous enmity. He submitted that the prosecution
 has not disclosed the true facts. He submitted
 that by no stretch of imagination the impugned
 judgment can be called perverse, warranting
 interference by this court and hence the appeal be
 dismissed.

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 13. Admittedly the relations between the

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 complainant and the accused were strained. A suit
 filed in the Small Causes Court was pending between
 the two sides. Similarly another criminal
 complaint was pending between the two sides.
 Subsequently both these matters came to be

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 compromised. According to the complainant after
 compromise again there was friction between the two
 sides. This history will have to be kept in mind
 while dealing with the present case. Possibility
 of false involvement or at any rate some
 exaggeration cannot be ruled out.

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 14. The complainant’s case rests only on her
 testimony and testimony of PW 2 Narayan Jagdale,
 who was working with her and was very well known to
 her. Admittedly no independent witness has been
 examined by the complainant. The complainant has
 given details of the alleged incident. PW 2
 Narayan Jagdale has failed to give any details of
 the incident. He has merely stated that the
 accused threw stone and hit the complainant on her
 left leg. It is true that Dr. Pargaonkar has
 deposed about the injury suffered by the
 complainant and the medical certificate is on
 record. However, in the absence of independent and
 cogent evidence corroborating the case of the
 complainant mere evidence of Dr. Pargaonkar
 stating that the complainant had received injury on
 the day of incident will not establish the guilt of
 the accused. There has to be conclusive evidence
 to establish that the accused caused the injury.

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 The learned Magistrate has on considering and
 comparing the evidence of PW 1 and PW 2 come to a
 conclusion that their evidence as regards the
 incident in question is not consistent. The view
 taken by the learned Magistrate is a reasonably
 possible view, considering the background of
 strained relationship of parties.

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 15. It is well settled that while dealing with an
 appeal against order of acquittal, the appellate
 court has to keep in mind that the presumption of
 innocence of the accused is strengthened by the
 order of acquittal and unless compelling reasons
 are present suggesting that the impugned order is
 perverse, the appellate court should not interfere
 with it. It is also well settled that merely
 because on the same set of facts some other view is
 possible the appellate court should not substitute
 the view taken by the trial court with that view,
 if the trial court’s view is a reasonably possible
 view.

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 16. In the light of the above well settled
 principles, I am of the view that since the view
 taken by the trial court is a reasonably possible
 view, no interference is called for with the

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 impugned judgment and order. The appeal is,

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 therefore, dismissed.

¶60

 JUDGE.

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY

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APPELLATE SIDE

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 CRIMINAL APPEAL NO. 155 OF 1996

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 SMT. RATNAPRABHA VITHAL TOPLE .. APPELLANT

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 VERSUS

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 SABESTAIN D’CONHA & ORS. .. RESPONDENTS

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 Mr. Ashish Sawant h/f M. S. Mohite for appellant

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 Mr. N. K. Singh i/b M. P. Vashi & Associates
 for respondents 2 to 4

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 Smt. V. R. Bhosale, APP

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CORAM: SMT. RANJANA DESAI,J.
DATE: SEPTEMBER 18, 2007.

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 OPERATIVE PART OF THE ORDER

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 . For the reasons stated in the oral judgment,

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 this court has dismissed the appeal.

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 JUDGE.

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY

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APPELLATE SIDE

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 CRIMINAL APPEAL NO. 155 OF 1996

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DATE OF DECISION:18/9/2007

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 Submitted for
 approval.

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THE HON’BLE (SMT.) JUSTICE RANJANA DESAI:

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THE HON’BLE SHRI JUSTICE :

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1. Whether Reporters of Local Papers ) be allowed to see the Judgment? )

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2. To be referred to the Reporters or ) not? )

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3. Whether Their Lordships wish to ) see the fair copy of the Judgment? )

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4. Whether this case involves a ) substantial question of law as to ) the interpretation of the ) Constitution of India, 1950 or any ) Order made thereunder? )

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5. Whether it is to be circulated to ) the Civil Judges? )

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 6. Whether the case involves an impor- )
 tant question of law and whether )
 a copy of the judgment should be )
 sent to Nagpur, Aurangabad and Goa )
 Offices? )

Smt.Ratnaprabha Vithal Tople v. Sabestain D'Conha and 5 Ors.

Case brief

What is this about?

What did the court decide?

Smt.Ratnaprabha Vithal Tople v. Sabestain D'Conha and 5 Ors.

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

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