V CRUZ Vs. FR ANTONY JOHN

JUDGEMENT

(1.) This is an appeal by special leave preferred by the complainant from the judgment of the District Magistrate of Quilon acquitting the accused in C. C. No. 15 of 1956 on his file.

(2.) The case against the accused is that he preached a sermon on 2-3-1958 in the church in which he was the Vicar and that in the course of the sermon he defamed the complainant by characterising a speech made by him as diabolical and describing the complainant as a devil. The accused is also alleged to have said on the same occasion that the complainant was a curse on the country and that it would have been better if he had not been born. The complainant examined six witnesses besides himself. The learned Magistrate held that there was discrepancy between the versions of the complainant in the complaint, in his sworn statement and his deposition. It was also held that there was inconsistency in the evidence given by the witnesses regarding the objectionable passages in the sermon. On this ground he acquitted the accused.

(3.) Learned counsel for the appellant urged that this was not a case in which it was necessary that the witnesses should repeat the identical words that the accused is alleged to have uttered or in the same sequences and that if the main objectionable passage was spoken to by them, that was sufficient to enter a conviction. He relied upon the decisions in K. S. Namjundaiah v. S. C. Thippanna (AIR 1952 Mysore 123) and Mohanlal v. Ramacharan ( AIR 1958 MP 83 ) and the judgment of King, J., reported in Bholanath v. Emperor AIR 1929 Allahabad 1. It has been held in these decisions that it is not necessary in all cases that identical words used by the accused should be reproduced by the witnesses. So far as this case is concerned it is seen that all the witnesses have stated that the accused characterised the speech of the complainant as diabolical and described him as a devil and a curse on the country. If the witnesses are to be believed and the words held to be defamatory, the fact that there is slight variation between the version given by the witnesses may not be material. However, I do not propose to enter a finding on this question or decide the case here in view of the thoroughly unsatisfactory nature of the judgment. The most important point in this case is whether the witnesses examined for the Prosecution should be believed. Learned counsel for the respondent pointed out that five of the witnesses are persons who have sent petitions to the Bishop praying for transferring the accused from that station. Such petitions have been sent not once but several times. The only other witness is a person who accompanied the others while they went on deputation to the Bishop to represent this matter. It was also pointed out that these witnesses were in some way or other connected with the association known as K. Y. M. A. which is not approved by the Church. It was therefore argued that these witnesses should be disbelieved and the acquittal confirmed. I do not think that it is proper to do so as the learned District Magistrate has not expressed any opinion on the question whether these witnesses should be believed or not. Similarly the defence evidence also does not appear to have received proper consideration. It may be that the learned Magistrate dealt with the defence evidence in a scrappy manner in view of his conclusion on what he considered as the main question. Another point on which the learned Magistrate failed to express his opinion is whether the words attributed to the accused are defamatory. In these circumstances, the decision of the learned Magistrate must be quashed and the case remanded for fresh decision on the evidence on record. I may make it clear that no observation in this judgment is intended to fetter the discretion of the District Magistrate in coming to an independent conclusion. In the result, the judgment of the court below is set aside and the case is sent back to the District Magistrate, Quilion, for fresh disposal after hearing the parties. The appeal is allowed as indicated above. Send down the records immediately.