Kerala High Court
Muthuveetil Chandran vs M.Santhakumari on 13 January, 2021
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE N.ANIL KUMAR
WEDNESDAY, THE 13TH DAY OF JANUARY 2021/23TH POUSHA, 1942
Crl.Rev.Pet.No.1408 OF 2008
AGAINST THE JUDGMENT IN Crl.Appeal No.198/2006 OF
ADDITIONAL SESSIONS COURT (ADHOC)-I, MANJERI
DTD.25.3.2008
CC 27/2005 OF JUDICIAL FIRST CLASS MAGISTRATE COURT-I,
MANJERI, DATED 07-04-2006
REVISION PETITIONERS/APPELLANTS/ACCUSED Nos.1&2:
1 MUTHUVEETIL CHANDRAN,
S/O.KARAPPAN,
MUTHUVEETTIL HOUSE, MALAPPURAM AMSOM,
MUNDUPARAMBU DESOM, MUNDUPARAMBU.P.O.
2 MUTHUVEETTIL MOHANDAS,
S/O.KARAPAN,
MUTHUVEETTIL HOUSE, MALAPPURAM AMSOM,
MUNDUPARAMBU DESOM, MUNDUPARAMBU.P.O.
BY ADVS.
SRI.P.VIJAYA BHANU (SR.)
SRI.P.M.RAFIQ
RESPONDENTS/RESPONDENTS/COMPLAINANT & STATE:
1 M.SANTHAKUMARI,
S/O.VELUKUTTY,
KARTHIKA NIVAS,
NEAR M.S.P. HIGH SCHOOL, MALAPPURAM.
2 STATE OF KERALA,
REPRESENTED BY PUBLIC PROSECUTOR,
HIGH COURT OF KERALA, ERNAKULAM.
R1 BY ADV. SRI.BINDU SREEKUMAR
R2 BY SR.PUBLIC PROSECUTOR SRI.M.S.BREEZ
THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY
HEARD ON 21-12-2020, THE COURT ON 13-01-2021 PASSED THE
FOLLOWING:
Crl.R.P.No.1408 of 2008
..2..
[CR]
ORDER
The revision petitioners are the accused 1 and 2 in C.C.No.27/2005 on the file of the Judicial First Class Magistrate Court-I, Manjeri and the appellants in Crl.Appeal No.198/2006 on the file of the Additional Sessions Court, (Ad hoc)-I, Manjeri. The case arose out of a private complaint filed by the complainant against the accused 1 and 2 alleging commission of offence punishable under Section 500 read with Section 34 of the Indian Penal Code (hereinafter referred to as 'the IPC').
2. The prosecution case can be summarized as hereunder:-
The accused are the brothers of the complainant. Their father Karuppan had filed
O.S.No.9/2001 before the Sub Court, Manjeri against the accused and others in which the accused filed a written Crl.R.P.No.1408 of 2008 ..3..
statement on 27.7.2001 alleging that the father has been staying along with the elder daughter and they have been living like husband and wife. It was further alleged that, when the mother saw an illicit relationship between the father and the daughter, she objected to the relationship and then the accused 1 and 2 supported the mother and did not acknowledge the illicit relationship. The complainant is the elder daughter of Karuppan and the accused 1 and 2 are his sons. The complainant and her husband are living happily for about last 25 years and they have been leading a good family life. Their children are well placed and their daughter was married away in the year 2001. The accused 1 and 2 made reckless allegations against the complainant with an intention to lower the reputation of the complainant among the right thinking members of the society. According to the complainant, the allegations raised against the Crl.R.P.No.1408 of 2008 ..4..
complainant are baseless and per se defamatory.
3. Originally, the case was taken on file by the Chief Judicial Magistrate Court, Manjeri as C.C.No.190/2001. On the appearance of the accused, copies of the relevant records were furnished to them. Particulars of the offence were read over to the accused to which they pleaded not guilty. Subsequently, the case was made over to the Judicial First Class Magistrate Court-I, Manjeri wherein it was numbered as C.C.No.27/2005.
4. During the trial, on the side of the complainant, PWs.1 to 3 were examined and marked Exts.P1 to P3. On closing the evidence of the prosecution, the accused were questioned under Section 313(1)(b) of the Cr.P.C. They denied the entire circumstances that were put to them. Exts.D1 series and D2 were marked on the side of the accused.
Crl.R.P.No.1408 of 2008
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5. After hearing both sides, the learned Magistrate found the accused 1 and 2 guilty and convicted and pronounced sentence to undergo simple imprisonment for two years each and to pay a fine of Rs.5,000/- each, in default of payment of fine to undergo simple imprisonment for six months each under Section 500 read with Section 34 of the IPC. In case of realisation of fine amount, an amount of Rs.7,000/-was directed to be given to PW1 as compensation under Section 357(1)(b) of the Cr.P.C. The accused 1 and 2 preferred Crl.Appeal No.198/2006 before the Additional Sessions Court (Ad hoc)-I, Manjeri. The learned Additional Sessions Judge dismissed the appeal confirming the conviction and sentence imposed by the trial court.
6. Heard Sri.P.Vijayabhanu, the learned Senior Counsel for the revision petitioners, Smt.Bindu Sreekumar, the learned counsel for the 1st respondent Crl.R.P.No.1408 of 2008 ..6..
and Sri.M.S.Breez, the learned Senior Public Prosecutor for the 2nd respondent-State.
7. The learned Senior Counsel for the revision petitioners contended that the accused are entitled to protection of the 9th exception to Explanation 4 of Section 499 of the IPC. It is further contended that in Ext.P1 plaint, it is the admitted case of the deceased Karuppan, that there was an issue on account of which he was in animosity with his wife. Thus, it is alleged that the alleged imputation in Ext.P2 can only be a certification of the averment in Ext.P1 plaint. It is further contended that PW3 was an Advocate for the accused in the civil case between the parties and his evidence against the interest of his client is inadmissible under Section 126 of the Evidence Act. In substance accused 1 and 2 alleged that the allegations made by them in their written statements were true and they had stated so in the interest of the Crl.R.P.No.1408 of 2008 ..7..
public in good faith. The accused 1 and 2 reiterated that they had genuinely shared the bonafide belief of their mother touching the moral character of the complainant in the written statement filed by them before the civil court.
8. After considering the oral and documentary evidence produced by the complainant, the trial court came to the conclusion that the words used by the accused 1 and 2 in their written statement were per se defamatory and held that the accused 1 and 2 had failed to make out a case either under the 1 st exception or under the 9th exception. Accordingly, the accused 1 and 2 were convicted for the offence punishable under Section 500 read with Section 34 of the IPC. Although the accused 1 and 2 preferred an appeal before the appellate court challenging the correctness and propriety of the order of conviction and sentence passed against them by the trial court, the appellate court came to the conclusion that the Crl.R.P.No.1408 of 2008 ..8..
accused 1 and 2 had failed to prove their claim that the impugned statement fell within the ambit of 9 th exception to Explanation 4 of Section 499 of the IPC. The appellate court took the view that the accused 1 and 2 totally failed to substantiate the plea of good faith.
9. Karuppan, the father of the complainant and the accused, filed O.S.No.9/2001 against the accused before the Sub Court, Manjeri. The accused along with others filed Ext.P2 written statement in the above case. Admittedly, the accused 1 and 2 made reckless allegations against the complainant stating that she had some illicit sexual relationship with her father which was witnessed by her mother in April, 2000. Paragraph 6 of Ext.P2 is self- explanatory in this regard. PW1 stated that the scandalous allegations made against her has lowered her reputation among the right thinking members of the society. She would say that the imputations contained in Crl.R.P.No.1408 of 2008 ..9..
Ext.P2 were read by several persons including her husband. She would say that her mother is living along with the accused and their intention is to spoil her life somehow or other.
10. PW2 is the husband of PW1. He supported the version of PW1. According to him, the imputation contained in Ext.P2 written statement has lowered his status among his friends and relatives. He further added that after reading the imputations, his father-in-law was sad during the fag end of his life. He died due to a sudden heart attack.
11. PW3 is an Advocate for the accused in O.S.No.9/01 pending before the Sub Court, Manjeri. He stated that Ext.P2 written statement was filed by him under the signature of the accused as instructed by them. The learned counsel for the revision petitioners contended that the evidence of PW3 is not admissible in the light of Crl.R.P.No.1408 of 2008 ..10..
the decisions in Sankaran v. Dr.Ambulakshan Nair [1989 (2) KLT 570], Reshma Majeed v. Shameer Babu [2019 (1) KLT 300]. According to the learned counsel for the revision petitioners, PW3 was an Advocate engaged by the accused and an Advocate cannot be compelled to give evidence on behalf of the opposite party. Elaborating on the submission, the learned counsel for the revision petitioners submitted that even if the Advocate gives evidence against the interest of his client, that evidence cannot be acted on by the court for entering a finding against the client. It is true that PW3 was engaged by the accused. His evidence is not admissible under Section 126 of the Evidence Act.
12. The allegation is that the accused made certain defamatory statements against PW1 in Ext.P2 written statement filed before the Sub Court, Manjeri. Admittedly, it was signed by the accused and filed before the court. Crl.R.P.No.1408 of 2008
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One of the pleas raised by the accused is that they signed the written statement without knowing its contents. It is settled principle of law that the averments made in the written statement filed in court are publication of imputation [see M.K.Prabhakaran & Others v. T.E.Gangadharan & others [2006 (1) ILR 825]. Going by the contents in Ext.P2, it is clear that the imputation is per se defamatory. Hence, the evidence of PW3 is not necessary to prove Ext.P2 written statement. The essence of the offence of defamation consists in its tendency to cause that description of pain, which is felt by a person who knows himself to be the object of the unfavourable sentiments of his fellow-human beings and those inconveniences to which a person who is the object of such unfavourable sentiments is exposed. The wrong of defamation is of two kinds, namely, libel and slander. In libel, the defamatory statement is made in some Crl.R.P.No.1408 of 2008 ..12..
permanent and visible form, such as writing, printing, pictures or effigies. In slander, it is made in spoken words or in some other transitory form, whether visible or audible, such as gestures or inarticulate but significant sounds. In the case on hand, the defamatory statement was made by the accused in writing as per Ext.P2. Hence, making or publishing imputation concerning PW1 is prima facie proved. The allegation itself is per se defamatory. Now the question is whether the imputation was made with an intention to harm or with knowledge or having reason to believe that it would harm the reputation of PW1. In this connection, the evidence adduced by DW1, who is none other than the mother of the complainant and accused, is relevant. According to DW1, her husband was a retired Subaidar Major from the Indian Army. After his retirement, she had resided with her husband until 1999. Subsequently, her husband shifted his residence and Crl.R.P.No.1408 of 2008 ..13..
stayed with PW1 till his death. She raised an allegation that she had an occasion to see an illicit relationship between her daughter and her husband. However, she admitted that she filed a case before the Family Court, Manjeri restraining her husband from disposing of the property owned by him. She also admitted that her husband filed O.S.No.9/2001 before the Sub Court, Manjeri against the accused and others. DW2, the wife of the 2nd accused, supported the version of DW1. DW3 an autorickshaw driver was examined to prove Ext.D2 letter allegedly written by their father. According to him, he handed over Ext.D2 letter allegedly written by the father to the accused.
13. Ext.P1 suit filed by the father is for the declaration of his right over the property assigned to the accused on the basis of the settlement deed No.367/98 of the Sub Registry Office, Malappuram allegedly executed Crl.R.P.No.1408 of 2008 ..14..
by him. His case was that the accused and his wife were instrumental in shunning his presence in the house during his old age and he was compelled to take shelter at the residence of PW1. It is his case that since he had no other source of income for maintenance, he filed a case against the sons claiming maintenance. It has come out in evidence that the parties were at loggerheads in connection with the property dispute and several litigations have been pending between the parties. DW1 was not on good terms with her husband at the fag end of his life. He was staying with PW1. PW1 and PW2 were looking after his affairs till his death. PWs.1 and 2 were leading a happy life. They had looked after the father at the fag end of his life when he was suffering from various diseases.
14. According to the learned Senior Counsel for the appellants, the allegations and averments contained in Crl.R.P.No.1408 of 2008 ..15..
Ext.P2 were made with a view to bring the facts before the court. Thus, before a person can be held entitled to the privilege of having made a statement in good faith for the protection of his interests, he should establish that every words he has written is literally true. If, having regard to facts and circumstances within his knowledge, he might, as an ordinarily reasonable and prudent man, have drawn the conclusions which has expressed in defamatory language for the protection of his own interests, he may fairly be held to have made out his good faith as contemplated under 9th exception to Explanation 4 of Section 499 of the IPC. Needless to say that if the accused 1 and 2 want to invoke the protection in good faith, the accused 1 and 2 must show due care and attention and the accused 1 and 2 must show they had made the enquiry in a reasonable manner with all circumspection. The accused 1 and 2 must also show that Crl.R.P.No.1408 of 2008 ..16..
they received the information from proper source and they had reasonable grounds to believe the truth of the statements contained in Ext.P2. Once the accused admits or it is proved that they are responsible for the defamatory statement, the burden of proving the case under exception lies on the accused. The onus may be discharged by the accused by preponderance of probability. The 9th exception deals with good faith. But good faith is no defence if the imputation is per se defamatory. The allegation that father has been living in adultery with the daughter is per se defamatory. It has come out in evidence that the parties have been litigating in connection with the property of the father before the civil court. The evidence tendered by the mother is not admissible to prove that the accused 1 and 2 incorporated the imputation contained in Ext.P2 bonafide in the written statement. Thus, the accused 1 and 2 are not entitled to Crl.R.P.No.1408 of 2008 ..17..
the protection of 9th exception to Explanation 4 of Section 499 of the IPC.
15. It is a well settled law that when concurrent findings of facts rendered by the trial court and the appellate court are sought to be set aside in revision, the High Court does not, in the absence of perversity, upset factual findings arrived at by the two courts below. It is not open for the revisional court to re-analyse and reinterpret the evidence on record in a case, where the two courts below have come to a probable conclusion. In the absence of manifest error of law or procedural defect, it is not open for the revisional court to interfere with the concurrent findings of conviction. Hence, no interference in revision is warranted.
16. In view of the discussion made hereinabove, it is clear that the intention to cause harm is the most essential sine qua non for an offence as defined under Crl.R.P.No.1408 of 2008 ..18..
Section 499 of the IPC and is punishable under Section 500 of the IPC. As per Section 500 of the IPC, whoever defames another shall be punished with simple imprisonment for a term which may extend to 2 years or with fine or with both. The learned Senior Counsel for the revision petitioners submitted that the 1st accused is now 74 years old and the 2nd accused is 55 years old. According to the learned Senior Counsel for the revision petitioners, the accused 1 and 2 are at present suffering from age related complications. According to the learned Senior Counsel, the parties have been at loggerheads in connection with property dispute owned by the deceased father. It was further submitted that in connection with the pending civil case, the accused 1 and 2 filed Ext.P2 written statement raising all the contentions. On the other hand, the learned counsel for the 1st respondent submitted that the accused 1 and 2 appropriated the Crl.R.P.No.1408 of 2008 ..19..
entire property belonging to the father to her detriment. It was further submitted that the accused 1 and 2 are not entitled to get the benefit of the reduced sentence.
17. Admittedly, the occurrence in this case was on 27.7.2001. The accused 1 and 2 filed Ext.P2 written statement in O.S.No.9/2001 on 27.7.2001. The complaint was filed before the trial court on 30.10.2001. The learned Magistrate took cognizance of the offence under Section 500 read with Section 34 of the IPC and numbered the case as C.C.No.27/2005. The accused 1 and 2 have been defending this case for the last 16 years. The 1 st accused is aged 74 years old. The parties are closely related. They have undergone the agony of a criminal proceeding. In the light of the above circumstances, it is just and proper to reduce the sentence of imprisonment by awarding appropriate compensation to PW1. The sentencing policy reflects the measure of judgment and the rationale, the Crl.R.P.No.1408 of 2008 ..20..
society has for a certain crime. Hence, instead of sentencing the accused 1 and 2 for a jail term, it is just and proper to reduce the sentence to undergo imprisonment till the rising of the court and also to pay a compensation of Rs.1,00,000/- each to PW1.
In the result, the criminal revision petition is allowed in part. By maintaining the conviction under Section 500 read with Section 34 of the IPC, the sentence imposed against the accused for the offence punishable under Section 500 read with Section 34 of the IPC is modified to undergo imprisonment till the rising of the court and also to pay a compensation of Rs.1,00,000/- each to PW1 in accordance with the law. In the event of failure to pay the compensation, the revision petitioners/accused 1 and 2 shall undergo simple imprisonment for a period of six months each. The revision petitioners/accused 1 and 2 are directed to appear before the trial court on 16.2.2021 Crl.R.P.No.1408 of 2008 ..21..
with proof regarding payment of compensation and in case of failure, the trial court shall take appropriate steps to execute the sentence in accordance with law. The compensation, if any, deposited shall be released to PW1 in accordance with law. Pending applications, if any, stand disposed of.
Sd/-
N.ANIL KUMAR, JUDGE skj