MUTHUSWAMY Vs. SIDDHAN

JUDGEMENT

(1.) THE Second Appeal is directed against the judgment dated 15. 2. 1993 in A. S. No. 37 of 1992 decreeing the suit for damages granting a sum of Rs. 1,000/- out of Rs. 4,000/- claimed, by reversing the judgment dated 27. 1. 1992, passed by the learned District Munsif, Sankari dismissing the suit for damages in O. S. No. 1001 of 1988.

(2.) WHILE admitting the second appeal, the following question of law was framed:

(3.) THIS is a suit for malicious prosecution contending that defendant had prosecuted the complaintant maliciously. True it is, there was a complaint preferred by defendant under Ex. A. 3 informing that at 6. 00 p. m. on 28. 12. 1983, Thaila Goundar, the father of plaintiffs 1 to 3 and the husband of 4th plaintiff along with the 4th plaintiff waylaid the defendant, snatched his cycle and that thereupon the other plaintiffs 1 to 3 assaulted him. This complaint was registered as First Information Report under Ex. A. 2 by the concerned police. There was an investigation during which, the third plaintiff has given a confession under Ex. X. 1. Ex. B1 is the deposition of the complainant in that case as P. W. 1. He is none but this defendant. Through his evidence, he has supported the version of his F. I. R. and the charge sheet marked as Exs. A. 2 and A. 3 respectively. 3. The learned counsel for the respondents/plaintiffs drew my attention to the judgment of the District and Sessions Judge, Salem, wherein the complaint of the present defendant culminated into a sessions case in S. C. No. 162/84, and in paragraph 11 of the Judgment of which a mention was made as if Thaila Goundar, who was arrayed as first accused before that court was suffering from leprosy and that with great difficulty, he was brought to court. After seeing that there were no fingers in both of his hands, the court opined that he could not have assaulted as informed or reported by the present defendant in his earlier complaint. Similarly the confession statement of present third plaintiff was also not relied upon as the person who recorded it viz. , the Head Constable in his evidence contended that there was no light in the area where the confession was recorded. The Sessions Court opined and surprised as to how the Head Constable can record the confession in an area where there was no light at all. There were also other discrepancies in the evidence of P. W. 1, as if all the five had assaulted, which is inconsistent with the complaint which states that only three had assaulted. For all these reasons, the court preferred to acquit the accused.