Kerala High Court
Sukumaran vs Santha on 27 June, 2012
Author: Thomas P.Joseph
Bench: Thomas P.Joseph
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE THOMAS P.JOSEPH
WEDNESDAY, THE 27TH DAY OF JUNE 2012/6TH ASHADHA 1934
RSA.NO. 462 OF 2012 ()
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AS.162/2006 OF ADDITIONAL DISTRICT COURT, IRINJALAKUDA
O.S. NO.553 OF 2001, PRINCIPAL SUB JUDGE, IRINJALAKUDA
APPELLANTS/DEFENDANTS/APPELLANTS:
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1. SUKUMARAN,
S/O.KALLIKKATTU KRUSHNAN
(PRESIDENT)EDAVILANGU EZHAVA SEVA SANGAM,EDAVILANGU
KODUNGALLUR.
2. SREENIVASAN,
S/O.THEKKUT GOVINDAKUTTY (MEMBER)
EAVILANGU EZHAVASEVA SANGAM,EDAVILANGU,KODUNGALLUR.
3. YATHEENDRADAS,
S/O.BAHULEYAN,PUTHENVEETTIL HOUSE
SREENARAYANAPURAMVILLAGE,KODUNGALLUR.
4. KARTHIKEYAN,
S/O.KALLIKKATT APPUKUTTAN,EDAVILANGU,KODUNGALLUR.
5. ANILKUMAR,
S/O.PANANGAT SADANANDAN,EDAVILANGU,KODUNGALLUR.
6. SURESH,
S/O.SUBRAHMANIYAN,KATTUPARAMBIL,EDAVILANGU
KODUNGALLUR.
7. ASHOKAN,
S/O.PANANGATTU IKKORAKUTTY,EDAVILANGU,KODUNGALLUR.
8. ADARSH,
S/O.ARAKKATAL PURUSHAN,EDAVILANGU,KODUNGALLUR.
R.S.A. No.462 of 2012
9. SAJEEVAN,
S/O.PANANGAT IKKORAKUTTY,EDAVILANGU,KODUNGALLUR.
10. LALITHA,
W/O.GOPALAKRISHNAN,EDAVILANGU,KODUNGALLUR.
11. RAJESH,
S/O.GOPALAKRISHNAN,EDAVILANGU,KODUNGALLUR.
12. RAJI,
D/O.GOPALAKRISHNAN,EDAVILANGU,KODUNGALLUR.
BY ADVS.SRI.K.S.RAJESH
SRI.M.SHAJU PURUSHOTHAMAN
RESPONDENTS/PLAINTIFFS/RESPONDENTS:
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1. SANTHA,
W/O.LATE SURENDRAN,RAMANKULATH VEEDU
EDAVILANGUVILLAGE AND DESOM,KODUNGALLUR TALUK
THRISSUR DISTRICT,PIN-680671.
2. ANILKUMAR,
S/O.SURENDRAN,RAMANKULATH VEEDU
EDAVILANGU VILLAGE AND DESOM,KODUNGALLUR TALUK
THRISSUR DISTRICT,PIN-680671.
3. AJITH,
S/O.SURENDRAN,RAMANKULATH VEEDU
EDAVILANGU VILLAGEAND DESOM,KODUNGALLUR TALUK
THRISSUR DISTRICT,PIN-680671.
4. ALLI,
D/O.SURENDRAN,RAMANKULATH VEEDU
EDAVILANGU VILLAGEAND DESOM,KODUNGALLUR TALUK
THRISSUR DISTRICT,PIN-680671.
BY ADV. SRI.P.K.SAJEEV
THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION
ON 27-06-2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
THOMAS P.JOSEPH, J.
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R.S.A. No.462 of 2012
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Dated this the 27th day of June, 2012
J U D G M E N T
Defendants in O.S. No.353 of 2001 of the court of learned Principal Sub Judge, Irinjalakuda is aggrieved by the judgment and decree as confirmed by the Additional District Judge, Irinjalakuda in A.S. No.162 of 2006.
2. Respondents sued the appellants for a decree for recovery of damages. They claimed that plaint A schedule belonged to Surendran, husband of first respondent and father of second respondent as per document No.1382/1971. On the death of Surendran on 06.06.1996, plaint A schedule devolved on the respondents and other legal heirs of the said Surendran. While so, it is alleged that appellants trespassed into the plaint A schedule on the night of 14.07.2001 and caused damage to the household articles, crops and the car belonging to the first respondent. They claimed damages for the damage caused to the said articles and compensation for their mental agony. Appellants denied the allegations and contended that they had no role in the alleged commission of mischief.
R.S.A. No. 462 of 2012 -: 2 :-
3. Trial court found on evidence that appellants trespassed into plaint A schedule, committed mischief and caused damage as pleaded by the respondents. A decree for recovery of Rs.1,13,460/- was passed. First appellate court confirmed the judgment and decree of the trial court. Hence this Second Appeal.
4. Learned counsel for appellants contended that there is no sufficient evidence to show that appellants committed mischief as pleaded by the respondents. It is contended by learned counsel that the trial and first appellate courts have placed heavy reliance on the documents prepared by the Investigating Officer in connection with the connected criminal case, those documents were merely proved through P.W2 and mere proof of documents is not sufficient as P.W.2 has not deposed to the contents of the documents. Reliance is placed on the decision reported in Mohanan v. State of Kerala (2011[4] KLT 59).
5. That there was extensive damage caused to the property of respondents is in evidence apart from the documents relating to the criminal case, proved through P.W.7, the Advocate Commissioner and Ext.C1, report. In Ext.C1, report it is stated that house was damaged and crops, TV, CD system and electrical bulbs installed in the house were all damaged. Apart from that R.S.A. No. 462 of 2012 -: 3 :- the car belonging to the first respondent which was parked in the car porch was also damaged. These aspects are reported by the Commissioner in Ext.C1 and testified by P.W.7. Apart from that, there is Ext.A9 series, photographs and Ext.A10, its negative proved through P.W.4, photographer.
6. Another item of evidence adduced by the respondents to prove the extensive damage caused to their property is records of the criminal case concerning the incident. Exhibit A7 is the copy of mahazar prepared within 12 hours of the incident. That mahazar was proved through P.W.8, the Head Constable who prepared it. Argument is that apart from proving the document, P.W.8 was not made to swear as to what he had seen in Ext.A7. It is in this connection that learned counsel has placed reliance on the decision cited supra.
7. In the said decision (though concerning the criminal trial) it is stated that contents of scene mahazar cannot be treated as evidence and mere production of the scene mahazar and marking it through the police officer will not prove the facts stated therein.
8. Though referring to an inquest report, the Division Bench of this Court in Pookunju v. State of Kerala (1993 R.S.A. No. 462 of 2012 -: 4 :- [1] KLT 876) and the Supreme Court in George and Others v. State of Kerala (AIR 1998 SC 1376) have held that the statements in the inquest report as to what the Investigating Officer has seen at the spot is evidence when the document is duly proved even though the Investigating officer was not made to depose to the said facts.
9. Assuming that Ext.A7 cannot be taken into account for the reason learned counsel has argued, there is other evidence to prove the damage caused to the property of respondents.
10. Next question is whether involvement of appellants is proved? P.Ws.1 and 2 gave evidence that it was the appellants who committed the mischief. Though some discrepancy was brought out in the evidence of P.Ws.1 and 2 concerning the incident, trial court has observed that P.Ws.1 and 2 were subjected to lengthy cross-examination and that their deposition ran into about 100 pages and hence some contradiction in the evidence is quite possible. P.W.5, is an independent witness and supported the case of respondents. I must also remember that the incident occurred on the night of 14.07.2001. Household members are the appropriate witnesses to prove the incident. That the police on investigation found the involvement of R.S.A. No. 462 of 2012 -: 5 :- appellants in the incident is also revealed by the documents proved through P.W.8. Though result of investigation by itself is not evidence, that also will give credence to the evidence given by P.Ws.1, 2 and 5.
11. As regards the quantum of damages, respondents have produced records including bills for purchase of the articles. P.W.3 is a workshop owner and has assessed the loss caused to the respondents.
12. Trial court in paragraphs 28, 29 and 33 of its judgment has referred to the damages suffered by respondents 1 and 2 and fixed the quantum of damages. Along with that compensation was allowed to the respondents for mental agony they suffered on account of the mischief committed by the appellants.
13. Thus finding of the courts below that appellants committed mischief and thereby the respondents suffered loss is one of fact based on evidence on record.
14. On hearing the learned counsel and going through the judgments under challenge I do not find any substantial question of law involved in this appeal requiring decision by this Court.
R.S.A. No. 462 of 2012 -: 6 :-
Second Appeal is dismissed.
All pending Interlocutory Applications will stand dismissed.
THOMAS P. JOSEPH, JUDGE.
vsv