High Court of KeralaSingle Judge2012-06-27Second Appeal is dismissed.

Sukumaran and Others v. Santha and Others

Case / Petition Number:RSA No. 462 of 2012

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: Thomas P. Joseph
Judgment Date: 2012-06-27
Court Decision / Holding: Second Appeal is dismissed. All pending Interlocutory Applications will stand dismissed.
Final Disposition: Second Appeal is dismissed.

Parties to the Case

Appellants / Petitioners

SUKUMARAN
SREENIVASAN
YATHEENDRADAS
KARTHIKEYAN
ANILKUMAR
SURESH
ASHOKAN
ADARSH
SAJEEVAN
LALITHA
RAJESH
RAJI

Respondents

SANTHA
ANILKUMAR
AJITH
ALLI

Legal Representation & Advocates

Counsels for Petitioners

• Sri.K.S.RAJESH
• Sri.M.SHAJU PURUSHOTHAMAN

Counsels for Respondents

• Sri.P.K.SAJEEV

Case Synopsis & Summary

This Regular Second Appeal arises from a suit for recovery of damages for alleged trespass and mischief on plaint A schedule, which the respondents claim belonged to Surendran, husband of the first respondent and father of the second, and devolved to them after Surendran’s death. The respondents alleged that on the night of 14.07.2001 the appellants trespassed into the plaint A schedule premises, resulting in extensive damage to household articles, crops and a car, and that they caused mental agony. The trial court found the appellants liable for mischief and damages of Rs.1,13,460/-, a finding confirmed by the first appellate court. The appellants challenge the judgment on the grounds that there was no cogent evidence linking them to the mischief and that heavy reliance was placed on documents prepared by the Investigating Officer in a connected criminal case, including the mahazar Ext.A7, which were proved only through PW2 without the deponent explaining contents. They cite Mohanan v. State of Kerala to argue that contents of scene mahazar cannot alone constitute evidence. The respondents defend the verdicts by pointing to Ext.C1 (Commissioner’s report), Ext.A9/A10 photographs, Ext.A7 mahazar and testimony of witnesses (PWs 1, 2, 5 and 8), asserting substantial proof of damages and involvement. The High Court eventually held there was no substantial question of law and dismissed the Second Appeal, upholding the lower courts’ finding of mischief and damages.

Submissions & Arguments

Contentions of Appellants / Petitioners

Appellants contended that there was no cogent evidence proving their involvement in the alleged mischief and challenged the reliance on documents prepared by the Investigating Officer in the connected criminal case. They argued that the documents were proved only through PW2, who did not depose to their contents, and relied on Mohanan v. State of Kerala to assert that contents of scene mahazar cannot stand as evidence. They further submitted that the trial and first appellate courts relied heavily on Ext.A7 and related materials, and that some contradictions existed in the testimony of PW1 and PW2. They urged that Ext.A7 cannot be treated as substantive proof and that other evidence must be considered. They also questioned the quantum of damages and the award of mental agony, seeking reconsideration or setting aside of the decrees on evidentiary grounds.

Contentions of Respondents

Respondents argued that there was extensive damage to plaint A schedule property, evidenced by Ext.C1 (Commissioner’s report), photographs Ext.A9/Ext.A10, and testimony of witnesses; the courts below properly found mischief and fixed damages. They contended that the involvement of appellants is established by the material on record, including police documents and the inquest-related material, and that the inquest statements are admissible when the document is duly proved, as supported by Pookunju v. State of Kerala and George v. State of Kerala. They maintained that Ext.A7 and other documents, along with PW testimony, corroborate the damage and liability, and that there is no substantial question of law warranting interference with the decrees.

Cited Precedents (3)

Case Name	Citation	Treatment	Explanation
Mohanan v. State of Kerala	2011[4] KLT 59	Mentioned Only	Cited as a reference for the proposition that contents of scene mahazar may not constitute standalone evidence; the court did not adopt its rule as controlling, using it only to critique Ext.A7.
Pookunju v. State of Kerala	1993 KLT 876	Positive	Cited to support that statements in an inquest report can be evidence when the document is duly proved, even if the Investigating Officer did not depose to those facts.
George and Others v. State of Kerala	AIR 1998 SC 1376	Positive	Cited to reinforce the principle that inquest statements can be evidence when properly proved, as affirmed by the Supreme Court.

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Extracted Judgment Text

Exact text extracted from official judgment records.

## **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 ()** **--------------------------------AS.162/2006 OF ADDITIONAL DISTRICT COURT, IRINJALAKUDA O.S. NO.353 OF 2001, PRINCIPAL SUB COURT, IRINJALAKUDA** ## **APPELLANTS/DEFENDANTS/APPELLANTS:** **--------------------------------------------------------------** ## **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:** **-----------------------------------------------------------------** ## **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.** **==================================== R.S.A. No.462 of 2012 ==================================== Dated this the 27[th] 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