Muthuveetil Chandran vs M.Santhakumari
2021 Latest Caselaw 1184 Ker

         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

..5..

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

..11..

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