CHAMU Vs. VALAYANAT THARAYIL CHIRUTHA

JUDGEMENT

(1.) Although the law relating to the tort of malicious prosecution is well settled, peripheral questions baffling easy solution sometimes vex the court and the present case has spawned some such problems. The defendant who gave information about an offence alleged to have been committed on his person by the plaintiff was sued in damages for malicious prosecution after the criminal case, charge sheeted by the police as C. C. 45 of 1960 on the file of the Sub Magistrate's Court, Tirur, ended in an acquittal (Ext. A1). The Trial Court dismissed the suit holding that the essential ingredients had not been made out, but the appellate court differed and decreed damages in a sum of Rs. 300/-. The defendant has carried the litigation to this court in the present second appeal and has turned the focus on points of law which deserve investigation.

(2.) The facts are few and may be stated right now. The plaintiff, a woman who lived alone, her husband being employed away in Calicut, is alleged to have chopped the defendant at about 8 p.m. on 27-12-1959 as he was returning home from the railway station along with 2 other friends one of whom is D. W. 2 and strangely enough none of them prevented the cut or seized the female assailant. The defendants' house, though but a little distance away from the plaintiff's was accessible by a shorter route than the one along which he is stated to have walked that night back home. The accused cut D.W. 1 (the defendant) on the head causing an incised wound and some other injury on the fingers stated to have been caused while warding off the cut. Water was poured on the wound, the defendant was carried to the I hospital and at his instance information was conveyed by one of his companions to the village munsif who, in turn, duty bound, informed the police. The police, duly visited the scene, questioned witnesses, completed the investigation and charge sheeted the case against the plaintiff. It is also in evidence that the defendant, who was an inpatient in the hospital for a week, had, during this period, come out to the place of occurrence with the police presumbly to point out the spot where he was attacked. There is no admissible evidence in this case as to whether the police found the place wet, and the reliance by the courts below on Ext. A6, the scene mahazar, is not permissible because a mahazar by itself is not substantive evidence and may be used only to corroborate the testimony of the police officer who prepared it. The investigating officer has not been examined in the suit, an omission which should ordinarily be avoided in such actions. I may mention here another circumstance also which will become relevant as the discussion proceeds. The victim had worn a shirt when he was cut the bloodstained clothing was produced neither before the police nor before the criminal court. The motive alleged by the defendant for this savage attack is that he D.W. 2 and others had signed a mass petition complaining about the harlotry of the plaintiff and the consequent menace to public morals in the locality. Although the petition itself had not been produced before the criminal court, it has been exhibited in the suit as Ex.B1,and what is more, the cross examination of the D.Ws. also proceeds on the assumption that such a petition had been filed. The plaintiff's case is and that was her defence in the criminal court that she is a married woman although her husband has been frequently away on account of his job elsewhere. Taking advantage of his absence, the defendant, she alleges, was making advances to her which she resisted. On the alleged day of occurrence as she was taking her bath from near the well the randy defendant made towards her, the outraged plaintiff resisted the overture and then ensued an encounter between man and woman and the woman overpowered the man who fell down hitting his head on an old vessel kept there, injuring his head. The plaintiff also sustained some minor injury. The medical certificate issued for the defendant's injuries is Ext. A5 and for the plaintiff's, Ext. A2, the medical officer who examined both being P.W. 2. The doctor has sworn that he found on the person of the defendant a vertical injury which was unlikely to have been caused by a fall on a drum (apparently the case of the accused was that the wound was caused by a fall on a drum or other like vessel). He also swears to the injury being an incised one as distinguished from an incised looking one. According to him, the head injury is likely to have been caused by a sharp weapon and those on the finger of D.W. 1 could have been caused by "accidental contact of the hand while warding off a weapon". The same doctor had examined the plaintiff and in the witness box had sworn to the "injuries as recorded in Ext. A2" I may mention here that it is the obligation of the court to elicit from the medical officer and record the particulars of the injuries he noticed on the person of the victim. It might be convenient to avoid this tedious process and merely state that the injuries have been correctly stated in the wound certificate. It is elementary that the wound certificate as such is not substantive evidence and. as a contemporaneous record, may only corroborate what the medical officer may depose to in the witness box. S.157 of the Evidence Act should not be lost sight of by courts, merely to avoid the trouble of writing down the details of the wounds noticed by the doctor. Taking a technical view, one might go to the extent of saying that there is no evidence regarding the nature of the injuries on the person of the plaintiff, but taking a practical view one may recognise the likelihood of the plaintiff having sustained some injury.

(3.) The criminal court framed charges against the accused and after consideration of the entire evidence acquitted her. The relevance of the criminal court judgment in a suit for malicious prosecution is restricted although precedents have been brought to my notice which have taken liberties with these limitations. I will advert to these rulings a little later.