IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.RAMKUMAR THURSDAY, THE 11TH JUNE 2009 / 21ST JYAISHTA 1931 AS.No. 112 of 1997(E) --------------------- OS.111/1995 of SUB COURT, VADAKARA .................... APPELLANT(S): ------------------------ 1. MRS.VASUMATHY, AGED 55 YEARS, D/O.LATE KUMARAN VAYIDIAR, KOZHITHAREMMAL THAMASIKKUM PUTHAN PURAYIL AROOR AMSOM, DESOM, VATAKARA TALUK, KOZHIKODE DISTRICT, P.O.AROOR. 2. EDAKKATTU PRADEEPAN, S/O.KRISHNAN VYDIAR, DO-DO. BY ADV. SRI.V.K.BALACHANDRAN SRI.P.P.RAJEEV LAXMAN RESPONDENT(S): ------------------------------- 1. CHEELUPARAMBATH SURESH, S/O.KRISHNAN (LATE), AROOR AMSOM, DESOM, VATAKARA TALUK, P.O.AROOR. 2. KOYILOTHUM POYIL BABU, S/O.KANARAN, AROOR AMSOM, DESOM, VATAKARA TALUK, P.O.AROOR. 3. PARAMBATH MEETHAL KOODANTAVIDU NANU, S/O.SANKARAN, AROOR AMSOM, DESOM, VATAKARA TALUK, KOZHIKODE DISTRICT, A.S.No.112/97 2 4. KOYILOTHU KRISHNAN, S/O.SANKARAN, AGE NOT KNOWN, AROOR AMSOM, DESOM, VATAKARA TALUK, KOZHIKODE DISTRICT, P.O.AROOR. 5. MALAYANTA PARAMBATH BABU, AGE NOT KNOWN, S/O.KANNAN, AROOR AMSOM, DESOM, VATAKARA TALUK, KOZHIKODE DISTRICT, P.O.AROOR. 6. VELUTHAPARAMBATH KRISHNAN, AGE NOT KNOWN, S/O.KANARAN, AROOR AMSOM, DESOM, VATAKARA TALUK, KOZHIKODE DISTRICT, P.O.AROOR. 7. KARIKKERIYIL CHERIYA NANU, AGE NOT KNOWN, S/O.KANNAN, AROOR AMSOM, DESOM, VATAKARA TALUK, KOZHIKODE DISTRICT, P.O.AROOR. 8. THUNDIYIL BALAKRISHNAN, AGE NOT KNOWN, S/O.KUNHI RAMAN, AROOR AMSOM, DESOM, VATAKARA TALUK, KOZHIKODE DISTRICT, P.O.AROOR. 9. PILAVULLATHIL PARAMBIL RAJEEVAN, AGE NOT KNOWN, S/O.KANNAN, AROOR AMSOM, DESOM, VATAKARA TALUK, KOZHIKODE DISTRICT, P.O.AROOR. A.S.No.112/97 3 10. PARAKUTHAZHA KUMARAN, AGE NOT KNOWN, S/O.KANNAN(LATE), AROOR AMSOM, DESOM, VATAKARA TALUK, KOZHIKODE DISTRICT, P.O.AROOR. 11. KUNIYIL SURENDRAN, AGE NOT KNOWN, S/O.KADUNGON, AROOR AMSOM, DESOM, VATAKARA TALUK, KOZHIKODE DISTRICT, P.O.AROOR. 12. MALAYIL SURENDRAN, AGE NOT KNOWN, S/O.LATE CHATHU, AROOR AMSOM, DESOM, VATAKARA TALUK, KOZHIKODE DISTRICT, P.O.AROOR. 13. PARAKKUTHAZHA BABU, AGE NOT KNOWN, S/O.LATE POCKEN, AROOR AMSOM, DESOM, VATAKARA TALUK, KOZHIKODE DISTRICT, P.O.AROOR. 14. PALOLLA PARAMBATH KUMARAN, AGE NOT KNOWN, S/O.LATE KANNAN, AROOR AMSOM, DESOM, VATAKARA TALUK, KOZHIKODE DISTRICT, P.O.AROOR. 15. CHETHEIL PRAMOD, AGE NOT KNOWN, S/O.KUNJIKANNAN, VADAKKEKOROTH HOUSE, AROOR AMSOM, DESOM, VATAKARA TALUK, KOZHIKODE DISTRICT, P.O.AROOR. A.S.No.112/97 4 16. MANCHANKATTIL MANOJAN, AGE NOT KNOWN, S/O.KUMARAN, AROOR AMSOM, DESOM, VATAKARA TALUK, KOZHIKODE DISTRICT, P.O.AROOR. 17. THOLARY RAJAN, AGE NOT KNOWN, S/O.CHATHU, AROOR AMSOM, DESOM, VATAKARA TALUK, KOZHIKODE DISTRICT, P.O.AROOR. 18. KANNAMVALIYATH SUJITH, AGE NOT KNOWN, S/O.CHANDRAN, AROOR AMSOM, DESOM, VATAKARA TALUK, KOZHIKODE DISTRICT, P.O.AROOR. 19. MALAYIL THAMASIKKUM VAZHAYIL BALAN, AGE NOT KNOWN, S/O.KANARAN, KUMMANKODE AMSOM, VATAKARA TALUK, KOZHIKODE DISTRICT, P.O.KALLACHI. 20. KOYITHARAMMAL BALAN, AGE NOT KNOWN, S/O/LATE KORU, AROOR AMSOM, DESOM, VATAKARA TALUK, KOZHIKODE DISTRICT, P.O.AROOR. 21. RAMTHPOYIL VELAM C.RAGHAVAN, AGE NOT KNOWN, S/O.GOPALAN NAMBIAR, AROOR AMSOM, DESOM, VATAKARA TALUK, KOZHIKODE DISTRICT, P.O.AROOR. A.S.No.112/97 5 22. VELUTHAPARAMBATHU CHATHU, AGE NOT KNOWN, S/O.KANARAN, AROOR AMSOM, DESOM, VATAKARA TALUK, KOZHIKODE DISTRICT, P.O.AROOR. ADV. SRI.P.V.KUNHIKRISHNAN THIS APPEAL SUITS HAVING BEEN FINALLY HEARD ON 11/06/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: V. RAMKUMAR, J. = = = = = = = = = = = = = A.S.No.112 of 1997 = = = = = = = = = = = = = = Dated this the 11th day of June, 2009 JUDGMENT The plaintiffs in O.S.No.111 of 1995 on the file of the Sub court, Vadakara are the appellants in this appeal. The said suit was for recovery of a sum of Rs.25,000/- with future interest by way of damages. 2. The case of the plaintiffs who are mother and son can be summarised as follows:- The plaintiffs are residing in the house described in the margin to the plaint namely Kozitharemmal in Aroor Amsom and Desom of Vadakara Taluk. On 25.11.94, at about 11.30 A.M, all the defendants along with certain unidentified persons armed with weapons like chopper, iron rod, sword etc. trespassed into the compound of the plaintiffs. The intruders pelted stones at the plaintiffs' house and destroyed window panes etc. On seeing this, the plaintiffs out of fear, got inside the house and closed the doors from inside. But the A.S..No.112 of 1997 2 defendants and others broke open the front door and one of the rear doors of the house and trespassed into the house and destroyed tables, chairs and other house hold articles. When the 1st plaintiff, who is the mother of the 2nd plaintiff protested, defendant No.22(Raghavan) threatened her with a chopper and asked her to keep quiet. The 10th defendant (Rajeevan) took away Rs.50,000/- and 10 sovereigns of gold ornaments from the drawer of a table kept inside the house. The said amount was kept for completing the renovation of the house. The defendants then jointly destroyed about 50 coconut seedlings and plantains in the compound. They put some of the coconut seedlings and chairs and other things in the well thereby polluting and contaminating the water in the well which was used for house hold purposes. The well was subsequently cleaned by removing the articles. The 2nd plaintiff is a BJP worker and the defendants are CPI(Marxist) workers. The entire operation was motivated by political enmity towards the 2nd plaintiff. At the time of above A.S..No.112 of 1997 3 occurrence the 2nd plaintiff had concealed himself under a cot and the defendants were therefore unable to see him. If he had not so concealed himself under the cot his life would have been in danger. The defendants had come there asking for the 2nd plaintiff with a view to kill him. The plaintiffs suffered material loss, mental agony and anguish due to the vandalism committed by the defendants. The aforementioned acts were committed by the defendants acting in concert in prosecution of their common intention to cause damage to the plaintiffs. All the defendants are jointly and severally liable for the acts of vandalism. As a result of the aforesaid illegal acts committed by the defendants and others the plaintiffs have suffered a loss to the tune of Rs.1,25,000/-. Over and above, the said loss, the plaintiffs have sustained loss of Rs.25,000/- towards mental shock, pain and anguish. But the plaintiffs are limiting their claim to Rs.25,000/- due to pecuniary reasons. Eventhough the plaintiffs had issued a lawyer notice to the defendants individually demanding payment, they have A.S..No.112 of 1997 4 never cared to send a reply or pay compensation, despite the due receipt of the lawyer notices sent to them individually. Hence the suit. 3. The name of the 7th defendant was struck off from the party array as there was duplication. The suit was resisted by defendants 1 to 6 and 8 to 23 who filed a joint written statement contending, inter alia, as follows:- The suit is not maintainable either on facts or on law. These defendants deny all the plaint averments except to the extent specifically admitted hereunder. These defendants are not aware of the facts narrated in paragraphs 3 and 4 of the plaint. The further plaint averment that on 25.11.94 at about 11.30 am these defendants along with others armed with deadly weapons trespassed into the compound of the plaintiffs and caused destruction as alleged is absolutely false and incorrect. The plaint allegation in paragraph 6 that the 10th defendant took away Rs.50,000/- and 10 sovereigns of gold ornaments from the drawer of a table kept inside the house is A.S..No.112 of 1997 5 also false and is denied. The allegation that defendants 10 and 22 threatened the 1st plaintiff is also false and hence denied. The plaint averment that the defendants jointly destroyed about 50 coconut seedlings and plantains in the compound of the plaintiffs' house and had put some of the coconut seedlings, chairs and other articles in the well are also absolutely false and hence denied. The plaint allegation that the plaintiffs and defendants belong to rival political parties and the act of violence and destruction were committed on account of political rivalry is also is not correct and is denied. On 25.11.94 between 10 A.M and 11 AM, the 2nd plaintiff Pradeepan and other BJP workers had jointly assaulted one Bhaskaran inflicting stab injuries on him. Infuriated by the act of violence of the 2nd plaintiff and others, certain persons of the locality had chased those persons and had pelted stones at the house of the plaintiffs and had destroyed the house-hold articles of the plaintiffs. But none of these defendants had participated in the attack against the A.S..No.112 of 1997 6 plaintiffs or in the act of mischief caused in the property of the plaintiffs. The alleged loss of Rs.1,25,000/- is also false. It is true that these defendants had received the lawyer notice sent on behalf of the plaintiffs. The 2nd defendant had entrusted the 22nd defendant to send a joint reply to the said notice. But since the 22nd defendant was laid up with illness, he was unable to send a reply. The omission to send reply to the lawyer notice was not intentional. The plaintiffs are not entitled to claim any amounts by way of damages from these defendants. The suit is liable to be dismissed with costs of these defendants. 4. The court below framed two issues for trial. On the side of the plaintiffs 5 witnesses were examined as PWs.1 to 5 of whom PW1 is the 2nd plaintiff, PW2 is a neighbour, PW3 is the photographer who had allegedly taken Ext.A6 series of photographs of the house belonging to the plaintiffs, PW4 was the Advocate Commission who submitted Ext.C1 Commission Report and Account and PW5 is an attestor to Ext.A5 Scene A.S..No.112 of 1997 7 Mahazar prepared by the Police in the criminal case arising out of Exts.B6 FIR registered by the Kuttiadi Police. Exts.A1 to A11 were got marked. On the side of the defendants three witnesses were examined as DWs.1 to 3 of whom DW1 is the 10th defendant, DW2 is the 22nd defendant and DW3 was the Police Officer who conducted the investigation of Crime No.256 of 1994 of Kuttiyadi Police Station. 5. The learned Sub Judge, after trial, as per judgment and decree dated 28.9.96 dismissed the suit. It is aggrieved by the said dismissal that the plaintiffs have come up in appeal. 6. I heard the learned counsel appearing on either sides. 7. The only point arising for consideration in this appeal is as to whether the plaintiffs have substantiated the plaint allegations and whether the judgment and decree passed by the court below are liable to be interfered with. A.S..No.112 of 1997 8 THE POINT:- 8. The learned counsel for the appellants/plaintiffs made the following submissions before me in support of the appeal:- The court below was not justified in holding that the 2nd plaintiff examined as PW1 could not have seen the complete occurrence or identified the assailants. He was aged 26 years at the time of occurrence. His case was that he was initially standing outside the building and seeing the assailants he along with his mother got inside their house and bolted the doors. Thus PW1 had every opportunity to see the assailants even from outside the house. All the defendants are of the same locality and very well known to PW1. It is true that PW1 had deposed that he was hiding beneath a cot in the second room in such a way that none of the assailants could detect him. That does not mean that PW1 could not see any of the assailants and identify them. PW1 has categorically deposed that he was able to see all the assailants who entered the room. There are only minor discrepancies in the A.S..No.112 of 1997 9 testimony of PW1. One such descripency is that Ext.B1 statement of PW1 under Section 161 Cr.P.C mentions about the name of one Sasi who had participated in the occurrence. PW1 denied having mentioned the name of Sasi to the Police. Likewise, in Ext.B1 161 statement, PW1 had told the Police that he did not see defendants 17 and 18 committing any overt act. But during cross examination before the court below PW1 would say that D17 was among those who destroyed the poultry shed and D18, although did not enter the house, had caused destruction from outside the house. His further statement before court that he did not see D17 and D18 causing any destruction is fully in accord with Ext.B1 statement recorded under Section 161 Cr.P.C. PW1 has attributed specific overt acts to specified defendants. He has categorically stated that defendants 1,2 and 20 had broke open one of the doors. With regard to the destruction of articles in the kitchen, specific overt acts have been attributed by PW1 to defendants 6,8,13,15,16 and 23. PW2 is a A.S..No.112 of 1997 10 neighbour who had witnessed the occurrence. He has also attributed specific overtacts against defendants 1,2,5,8,10,20 and 22 in the act of breaking open the door. Likewise, PW2 has deposed about the role of defendants 3 and 5 in destroying the poultry shed. When the assailants were more than 75 persons, it is natural that descripencies and minor contradictions are bound to be there in the testimony of the eye witnesses. This is hardly a reason to descredit those witnesses. Plaintiffs have specifically pleaded in the plaint that individual lawyer notices had been sent to each of the defendants. The testimony of PW1 is also to that effect. But none of them had cared to send a reply to Ext.A7 lawyer notice sent separately to each of the defendants. The explanation put forward was that they had entrusted the matter with D22 for the purpose of sending separate replies. This explanation itself shows that all the defendants were very close. The reason for not sending a reply to Ext.A7 lawyer notice is that D22 had fallen ill. D22 who was examined as A.S..No.112 of 1997 11 DW2 would say that he was not well and that is the reason why no reply was sent to Ext.A5 lawyer notice. DW2 has not disclosed the illness which he was suffering from. He would depose that he was treated by a Doctor. But no medical certificate has been produced. This is a case in which the occurrence in which destruction caused to the plaintiff's house is admitted. Even the defendants had put forward a motive for the occurrence. According to them PW1 and others had attacked a CPI(M) activist by name Bhaskaran and who was stabbed and this according to the defendants had provocked the local people to retaliate in a fit of fury. The non-examination of the mother (1st plaintiff) of PW1 has been properly explained. Exts.A10 and A11 are the prescriptions showing that the 1st plaintiff was having Blood Pressure etc. It may be true that she had gone to a bank in connection with a loan transaction along with PW1. But going to a bank for availing a loan is different from going to court and mounting the witness box and subjecting herself to a searching A.S..No.112 of 1997 12 incessive and grilling cross-examination for which she should have had great nerve besides good health. The court below was wrong in discrediting PW1 using the case diary contradiction of PW2 and vice versa. Ext.A6 series photographs taken by PW3 coupled with Ext.A6 (m) negatives give an indication of the extensive damage caused to the house of the plaintiffs. The court below was not justified in taking a technical view of the matter and dismissing the suit for the vandalism committed by the defendants. Even if the Criminal Court has acquitted them, that is no reason why the civil court also should let them free for the destruction spree which they indulged in. At any rate, the court below ought to have granted a decree against D1,2,5,6,8,13,15,16,20,22 and 23 whose overt acts were credibly spoken to by PW1 or PW2. The plaintiffs were, in any view of the matter, entitled to a decree for Rs.9390/- which is the extent of damage assessed by the Advocate Commissioner who was examined as PW1. 9. I am afraid that I cannot agree with the above A.S..No.112 of 1997 13 submissions . The case of the plaintiffs in the plaint as well as in the evidence of PW1 is that, on 25.11.94, at about 11.30 A.M, all the 24 defendants along with certain other unidentified persons totalling to about 75 armed with deadly weapons like chopper, sword, iron rods etc. mounted an attack against the house of the plaintiffs. The 22 named defendants subsequently became 21, since there was duplication of the names of the defendants 7 and 8. The plaintiffs, therefore added the name of the 23rd defendant for equalisation of the total number at 22. It is pertinent to remember that a criminal case at the instance of the 1st plaintiff had preceded the present civil suit. 10. According to the plaintiffs the assailants pelted stones at the house of the plaintiffs and destroyed the window panes etc. Thereafter, they broke open the front door as well as one of the rear doors of the house and barged into the house and were thereafter on a destruction spree. The plaintiffs would have it that tables, chairs and house hold A.S..No.112 of 1997 14 articles inside the house were fearlessly destroyed and a sum of Rs.50,000/- and 10 sovereigns of gold ornaments were taken away from the drawer of a table kept inside the house. The case of the plaintiffs is that the 2nd plaintiff belongs to the BJP and all the assailants numbering to 75 belong to the Marxist Communist Party. Even according to the plaint averments ,the 1st plaintiff who is the mother of PW1, was the person who lodged the First Information Statement before the Police resulting in the Kuttiadi Police registering Crime No. 256 of 1994 for offences punishable under Sections 427 & 395 IPC against the defendants and others. Ext.B6 is the First Information Report along with the First Information Statement in the said case. The 1st plaintiff who was the first informant was aged 60 years on the date of occurrence. Besides PW1, she was the only other inmate in the house. It is only because she alone had first hand information about the complete occurrence that she figured as the 1st informant in the criminal prosecution launched against the defendants and A.S..No.112 of 1997 15 others. However, for reasons best known to the plaintiffs, the 1st plaintiff Vasumathi was kept out of the witness box. The reasons stated for her non examination was that she was not well as was evidenced by Exts. A10 to A11 prescriptions dated 11.12.95 and 17.6.96. PW1 would say that he had not accompanied his mother to the Police Station for giving the F.I. Statement. This will also indicate that the mother was the only person competent to give a complete account of the occurrence which took place in her house. PW1, at page 7 of his deposition , admitted that there was no difficulty for his mother to come to court in a vehicle. He further confessed that five days prior to his examination before court himself and his mother had gone from Vadakara to Calicut for availing of a loan from the District Co-operative Bank, Kozhikode. I see little difference between a woman travelling all the way to Kozhikode from Vadakara for availing of a loan from a bank and going to the nearby court at Vadakara for giving evidence with regard to an occurrence of which she was the eye A.S..No.112 of 1997 16 witness and who considered herself to be competent to go to the Kuttiayadi Police Station and give First Information Statement about the occurrence. It was evidently to avoid the discomfiture facing inconvenient questions during cross- examination that the 1st plaintiff avoided the witness box. The reason put forward for not examining her was not convincing to the court below and I find no reason to disagree with the opinion expressed by the learned Subordinate Judge in this behalf in the impugned judgment. Thus, the best evidence to prove the alleged occurrence has been deliberately with held. 11. I now proceed to consider the testimony of PWs.1 and 2 who are allegedly the eye witnesses to the occurrence. PW1 in his chief examination stated that on 25.11.94, at about 11.30 A.M, about 75 Marxist Party workers including all the defendants armed with deadly weapons like chopper, iron rod etc. trespassed into his compound and pelted stone at his house and destroyed the window panes and thereafter all of them entered the house by breaking open the front and back A.S..No.112 of 1997 17 doors and destroyed the tables and chairs and other house hold utensils and took away Rs.50,000/- in cash and gold ornaments worth 10 sovereigns from the drawer of a table kept inside the house. This version of PW1 was nothing, but a reiteration of what is pleaded in the plaint. The plaint averments regarding the occurrence are also pleaded in such a way as though both the plaintiffs witnessed the occurrence taking place in the sequence of events narrated there. PW1, however, had to confess that all the defendants had not entered the house. PW1 further admitted that on seeing the angry mob coming towards his house himself and his mother got inside the house and bolted the doors from inside. Thereafter the version of PW1 is that he witnessed the entire incident from underneath the cot in the side room where he had taken refuge. According to PW1, he hid himself under the cot in such a way that the assailants were not able to see him but he could see all the persons who entered the house from the place where he was hiding. The plaint is conspicuously A.S..No.112 of 1997 18 silent about such advantageous positioning by the 2nd plaintiff (PW1). The contradictions relied on by the court below by pressing into service Ext.B1 161 Statement of PW1 are not minor contradictions which could be brushed aside as natural. His specific case in Ext.P1 161 statement was that he had not seen defendants 17 and 18 entering the house for participating in the occurrence. But PW1 when examined before court would attribute overt acts to defendants 17 and 18 as well. According to PW1 defendants 21,19,11,14,22,10,12,20 and 1 were the persons whom his mother the 1st plaintiff were having previous acquaintance. Whether his mother had previous acquaintance with those defendants is a matter which the mother alone could depose before court and PW1 was not entitled to say that. Likewise, PW1 would say that mother had no previous acquaintance with the rest of the defendants. That again is a matter for the mother to say before court. The room in which PW1 had concealed himself under the cot is not the front room but the A.S..No.112 of 1997 19 next room as he had admitted in his deposition. If he was so positioned that it was not possible for any of the intruders to see him, then it was certainly not possible for him to see the entire occurrence much less identify all the assailants who participated in the occurrence. 14. It is pertinent to note that the 1st plaintiff during investigation had clarifed as per Ext.B5 161 statement that the cash amount of Rs.50,000/- and gold ornaments worth 10 sovereigns were subsequently recovered from the house itself. If so, the plaintiffs could not have had a case thereafter that the assailants had taken away cash worth Rs.50,000/- and gold ornaments of 10 sovereigns. But, both in the plaint as well as in the chief examination of PW1 such a case was reiterated. However, PW1 had to confess during his cross- examination that his mother had admitted during the investigation of the criminal case that the cash amount as well as the gold ornaments were found in the house itself. This shows the extent to which the plaintiffs were prepared to go A.S..No.112 of 1997 20 to falsely implicate the defendants. 13. According to PW1 when the police came to the place of occurrence he was not at home and the Police did not ask him with regard to the occurrence, nor was his statement recorded. If, according to PW1, he was an eye witness to the entire occurrence, one fails to understand as to why PW1 did not even volunteer to give a statement to the