Decided on June 28,1963


Cited Judgements :-



- (1.)THE four accused in C. C. No. 56 of 1961 have been convicted under S. 379, 447, 427 and 34, IPC. and sentenced to pay a fine of Rs. 50/-each by the Second Class Magistrate, Adoor. An appeal to the local Sub divisional Magistrate was unsuccessful. Hence they have moved this court in revision to set aside their conviction and sentence.
(2.)THE prosecution case is that the two brothers accused 1 and 2 owners of Kodandayathu Purayidom with two servants accused 3 and 4 trespassed into the above-mentioned purayidom on 1-8-1960 at about 6 A. M. and harvested the entire crops and removed the tapioca, yam etc. and also destroyed a few newly planted tapioca stems, plantains and pepper-vines. pw. 1 alleges that he was in possession of the property as the lessee for over eight years and the accused who failed in their efforts to evict him by peaceful means trespassed into the property and did the above acts. It seems that pw. 1 came to know of the occurrence only on 2 81960 when he returned from Trivandrum where be had gone to meet the Inspector general of Police with one of his lawyer friends, pw. 7, to complain about the threatened forcible dispossession.
The accused's plea is one of total denial. Accused 1, 2 and 4 raised a plea of alibi and Dws. 1 and 2 were examined in support of it. The first accused contended that as per a mediation pw. 1 surrendered the property after removing the crops he had raised and thereafter he ploughed the land and sowed paddy.

The point that was strenuously urged by the learned counsel for the revision petitioner is that the appellate Magistrate has not taken the trouble to apply his mind to the evidence in the case in the light of the accused's plea and to appreciate the evidence independently of the trial court. He had just mechanically copied the statement of facts as set out by the trial court, casually referred to the witnesses and their evidence as a whole and believed them without attempting to assess the worth of their evidence in the light of the criticisms urged by the defence and brought out in cross-examination. Such a disposal of the appeal has according to him resulted in failure of justice. I am constrained to observe that there is considerable force in this criticism. Paras land 2 of the judgment which deal with the statement of facts and the plea of the accused are just a wholesale reproduction of paras 1 and 2 of the trial court judgment. Similarly the points enumerated for decision in the appellate judgment are a faithful reproduction word for word of the points raised by the trial Magistrate. The learned appellate Magistrate perhaps found it too taxing to state the relevant facts afresh or to restate the points for determination in the nature of the grounds taken in the appeal memo or urged at the time of arguments. This is just one circumstance which would indicate that the appellate Magistrate was not for giving as much time and thought to the appeal as it deserved. According to learned counsel this method of approach especially the failure to consider what the definite plea of the accused was in respect of the incident has resulted in the accused's prejudice. As mentioned earlier, the accused had a definite case that the property was surrendered after the crops of tapioca, yam etc. raised by the complainant were harvested and thereafter he ploughed the land and sowed paddy, it is seen form the mahazar that the property was ploughed and sowed with paddy. The complainant when confronted with the observations not only denied that he had either ploughed or sowed paddy but to get over the difficulty added that the observation in the mahazar is not correct. This is an intriguing situation which assumes significance in the nature of the defence plea. This is a circumstance which has to be explained. The learned Magistrate has completely lost sight of this aspect and that justifies the complaint that even the meagre assessment of the evidence in the case has not been done from the proper perspective.

(3.)ANOTHER equally well merited objection is that there is no independent appreciation of the evidence of the witnesses but just a mere mechanical narration of it. The only references to the evidence of witnesses made in the judgment are (1) pws. 2 to 4 and 6 are independent witnesses who swear in terms of the prosecution case and (2) it has neither been brought out in the evidence nor at least suggested that pws. 2, 3, 5 and 6 are either interested in the prosecution or prejudiced against the accused. These sweeping statements indicate that the learned Magistrate has not taken care to go through their evidence. pw. 3 the wife of pw. 1 is practically another complainant. pws. 4 and 5 are the co-accused with the complainant in the criminal case filed by the accused about the self-same incident. pw. 5 is also the nephew of pw. 7 the lawyer friend of pw. 1 and another co-accused. pw. 4 is also a relation of the complainant. I am not commenting upon the evidence of these witnesses, but these facts are mentioned just to indicate that the facts are not correctly appreciated. In view of the disposal I propose to make, I purposely refrain from making any embarrassing comments on the evidence of witnesses or the merits of the case.
This court has time and again emphasised the necessity of courts both trial and appellate, conforming to the provisions of S. 367 criminal Procedure Code in writing judgments. The judgment should show that the evidence has been dealt with fairly and properly; what the material witnesses said has to be briefly stated and their evidence appreciated in the light of the criticisms urged against them in such a way that the superior court should feel convinced that all the relevant factors are considered satisfactorily. It is well-settled that the appellant judgment must be quite independent and stand by itself without being merely supplementary to the judgment of the trial court much less a mechanical replica of portions of it as in the present case. The appellate court which is the final court as far as questions of fact are concerned should take pains to see that its findings are backed by a proper discussion of evidence. The fact that there is a curative section in the criminal Procedure Code is no reason to violate the salutary provisions of s. 367. The learned State Prosecutor would contend that the High Court is not invariably bound to interfere in revision because there is some defect in the form of judgment unless there is some reason to believe that there has been a failure of justice. I have no quarrel with that proposition but in the sketchy nature of the judgment in this case, before I take a decision as to whether there has been a failure of justice I must convert myself into an appellate court and appreciate the evidence afresh a task which I am not prepared to do. In this case I have briefly indicated the circumstances which make me feel that the appellate court has not taken care to assess the evidence, keeping in mind the defence contention and in the light of the objections urged against the witnesses i am of the view that it is a fit case to be sent back for writing a proper judgment. . So I set aside the judgment of the appellate court and order a fresh hearing and disposal of the appeal in accordance with law and in the light of the observations made above. Allowed.


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