IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.BHAVADASAN WEDNESDAY, THE 1ST JUNE 2011 / 11TH JYAISHTA 1933 SA.No. 205 of 2000(G) --------------------- AS.123/1994 of ADDL.SUB COURT, KOTTAYAM OS.372/1992 OF MUNSIF COURT, KANJIRAPPALLY .................. APPELLANT / RESPONDENT / PLAINTIFF : ------------------------------------------------------------- C.J. LALICHAN, CHULLITHARAYIL HOUSE, MUNDAKAYAM. BY ADV. SRI. RAJEEV V. KURUP RESPONDENT / APPELLANT / DEFENDANT : --------------------------------------------------------------- 1. SUDHEESH, NOW WORKING AS SUB INSPECTOR, CENTRAL STATION, ERNAKULAM. 2. STATE OF KERALA, REPRESENTED BY THE DISTRICT COLLECTOR, KOTTAYAM. R1 BY ADV. SRI. FRANCIS J. VATTAKUZHI R2 BY GOVT. PLEADER SRI. V.D.K. MOHAN THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 01/06/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Mn P.BHAVADASAN, J. ---------------------------- S.A.No. 205 of 2000 --------------------------------- Dated this the 1st day of June, 2011 JUDGMENT The plaintiff, who was non-suited by the lower appellate court is the appellant. 2. The plaintiff is running a tailoring shop. According to the plaintiff, on 13.01.1991 he was called to the Mundakayam Police Station by the first defendant, on the basis of a complaint said to have been filed by the owner of a clinical laboratory because of the nuisance caused by playing a tape recorder in his shop. According to the plaintiff, he was cautioned not to do so till 3 P.M. every day. The plaintiff would alleged that there on 16.01.1991 at about 4.15 P.M. when the first defendant came to the suit property he found the plaintiff playing a tape recorder and infuriated by the conduct of the plaintiff, first defendant fisted in his lower abdomen. The plaintiff was taken to the nearby hospital and since there was severe pain, he underwent treatment in government hospital and thereafter in the medical college hospital. On the basis of these allegations, he laid a suit for damages claiming a sum of S.A.No. 205 of 2000 2 Rs.10,000/- as compensation. 3. The first defendant resisted the suit. It was pointed out by him that the suit is frivolous and vexatious and it is instituted with an intention to harass the defendant. The incident on 13.01.1991 is admitted. He denied that the incident had occurred on 16.01.1991. It is pointed out that a complaint was filed by the plaintiff before the Judicial First Class Magistrate, Kanjirappally and that finding resulted in acquittal of the first defendant. Pointing out that the allegations are false, he prayed for a dismissal of the suit. The second defendant had also seems to have filed a written statement denying liability. 4. Based on the above pleadings, necessary issues were raised by the trial court. The evidence consists of the testimony of PWs 1 and 2 and documents marked as Exts.A1 to A6 from the side of the plaintiff. The first defendant was examined as DW1. The lower court on an appreciation of the evidence found that allegations in the plaint are proved and accordingly decreed the suit and the plaintiff was allowed to realise an amount of Rs.7000/- with interest at the rate of 6% per annum and costs S.A.No. 205 of 2000 3 jointly and severally from the defendants and their assets. 5. The aggrieved first defendant preferred an appeal as A.S.No.123/1994 before the Additional Sub Judge, Kottayam. The lower appellate court took the view that as there was want of corroboration regarding the incident to the oral evidence of PW2, who is the plaintiff, the plaint allegations could not be accepted. It is therefore, reversed the judgment and decree of the trial court and dismissed the suit. 6. Notice is seen issued on the following substantial questions of law: 1. Has the appellate court misconstrued the evidence on record. 2. Is it necessary that in the absence of independent witnesses corroboration can be insisted. Can an interested witness be believed in such circumstances. 3. Is it sufficient to corroborate the interested oral evidence by documentary medical evidence. Is it legal to ignore the documentary evidence on the ground of non corroboration by oral evidence. 4. Can the court insist on independent evidence in all circumstance, especially when one of the opposite parties can dominate on the witnesses if any, due to his official status. In such a case even if there are independent witnesses is it legal for the court to insist on independent evidence. S.A.No. 205 of 2000 4 5. In the absence of independent evidence is the court bound to weigh the balance of probabilities. 6. Is it legal for the appellate court to brush aside the reasoning arrived at by a trial court which had the opportunity to appreciate the demnur of a witnesses, simply because there is no corroboration. While re- appreciating the evidence by the appellate court what are the matter to be considered. 7. The learned counsel appearing for the appellant pointed out that the lower appellate court was not justified in dismissing the suit and reversing the decree of the trial court. An attempt had been made by the plaintiff to examine the occurrence witness who was in the shop at the relevant time but was unsuccessful due to reasons beyond his control. Apart from the said fact the learned counsel would point out that there are other materials on record which would indicate that the incident as alleged by him is true and the lower appellate court has omitted to take note of those circumstances. The learned counsel went on to point out that the first defendant case was that he had not gone to the place of occurrence at all and he was engaged in other duties with the relevant records. That could have been S.A.No. 205 of 2000 5 easily established by him. But he did not do so. The learned counsel also drew attention of this court to the fact that a notice was issued to the first defendant which he had received but no reply had been sent by him. These vital aspects have been omitted to be noticed by the lower appellate court. That has resulted in miscarriage of justice. 8. On going through the records of case and on hearing the counsel on both sides there appears to be force in the contention advanced by the learned counsel appearing for the appellant. The trial court has considered the evidence in considerable detail and had come to the conclusion that the alleged incident was proved. The lower appellate court solely on the basis that there is no corroboration for the evidence from PW2, the plaintiff, chose to differ from the trial court. The lower appellate court seems to have placed considerable emphasis on the fact that in the criminal proceedings in the first defendant was acquitted and the plaintiff had stated that there were occurrence witness, who had turned hostile to him. The appellant court then went on to hold that, that means there S.A.No. 205 of 2000 6 were occurrence witness and the plaintiff ought to have examined any one of them. Further finding of the lower appellate court is that the plaint schedule property is situated in a busy area and there were other shops and persons in the vicinity, who could have seen the incident and any one of them could have been examined. 9. PW2 is the plaintiff who has given evidence about the incident. It is also seen from the records that there was several attempts by plaintiff to summon the occurrence witness, who according to the plaintiff in his shop at the relevant time, but due to the reasons beyond his control, he was unable to do so. Of course, there is a statement by the plaintiff one Raju had taken him to the hospital. True, Raju could have been examined but the question is whether the non-examination of that witness is fatal. 10. One has to refer to the evidence of PW1, who is the doctor who was examined PW2, soon after the alleged incident, when the plaintiff, was admitted in the hospital on the very same day. PW1's evidence has been discussed in detail by the S.A.No. 205 of 2000 7 trial court. It is seen unnecessary to reproduce the same. One cannot omit to notice that the entry in Ext.A1 document which is wound certificate prepared by PW1 wherein cause for the injury is clearly stated and it had come into existence a short while after assault. The lower appellate court was also not justified in discarding Exts.A1 to A3 which according to that court shows only that the plaintiff was suffering from some urinary complaints. Apart from the wrong approval the court has not carefully looked at the evidence. Vital aspects have been omitted to be noticed by the lower appellate court. 11. It is difficult to believe that the plaintiff would cook up a cock and bull story against the sub inspector of police. The incident on 13.1.1991 is admitted. There is no explanation offered by the first defendant as to why the plaintiff would cook up an incident on 16.01.1991. The stand of the first defendant is that he had not gone to the site at all and that he was engaged in official duties elsewhere. That could have been established by producing the relevant document from the police station. No attempt was made in that regard. No explanation is also offered S.A.No. 205 of 2000 8 for the non production of those document. 12. Significantly, the plaintiff has produced documents to show that notice was issued to the first defendant and he had received the same. Though it is claimed that a reply has been given there is no evidence regarding the said fact. It was the above facts which had persuaded the trial court to take a view that the alleged incident had occurred. 13. As rightly pointed out by the trial court corroboration is not a matter of rule but one of prudence. The available evidence has to be evaluated and ascertained whether the facts alleged have been established. Exts.A1 and A2 taken along with other documents of oral evidence of PWs 1 and 2 probabilise the version given by the plaintiff. The view taken by the lower appellate court that there were several other shops nearby and that it is a building where independent witnesses would have been available and their non-examination is fatal. The lower appellate court is not practical in its approach. One can very well assume the reluctance on the part of people to defend against a police officer. The available evidence has to be S.A.No. 205 of 2000 9 scrutinized to ascertain whether the alleged incident is proved. Materials produced and evidence adduced are sufficient to prove the alleged incident. 14. However, one fact it is considered. It is not possible to understand how the trial court has quantified the amount at Rs.7,000/- as damages. It is Rs.1000/- towards medical and transport expenses, Rs.1500/- was granted loss of earning and pain and suffering. That adds up to only Rs.4,000/-. The learned counsel for the appellant was unable to substantiate sum of Rs.7000/- awarded as damages. In the case on hand, the allegation is personally against the first defendant and the State cannot made by is liable. The decree against State cannot stand. The judgment and decree of the lower appellate court are set aside as far as first defendant is concerned and modified decree is passed as follows: The plaintiff is entitled to realise a sum of Rs.4000/- from the first defendant with 6% interest from the date of suit till realisation personally for him and from the assets of the first defendant. S.A.No. 205 of 2000 10 2. The suit against the second defendant stands dismissed. 3. Plaintiff is entitled to his costs throughout. P.BHAVADASAN, JUDGE. ln