IN THE HIGH COURT OF KERALA AT ERNAKULAM
AS.No. 79 of 1997()
1. V.K.ABDUL ASEES
... Petitioner
Vs
1. STATE OF KERALA
... Respondent
For Petitioner :SRI.V.V.SURENDRAN
For Respondent :GOVERNMENT PLEADER
The Hon'ble MR. Justice THOTTATHIL B.RADHAKRISHNAN
The Hon'ble MR. Justice P.BHAVADASAN
Dated :31/08/2010
O R D E R
“C.R.”
THOTTATHIL.B.RADHAKRISHNAN & P.BHAVADASAN, JJ.
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AS No.79 of 1997-E
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Dated 31st August 2010
Judgment
Thottathil.B.Radhakrishnan, J.
The plaintiff in a suit for compensation is the
appellant. Alleging that he was brutally beaten up by the
police at about 10 am on 09.01.1985 inside the campus of
the High School, where the plaintiff was then studying in
the 10th standard, the suit for compensation was laid on
the ground that the plaintiff suffered serious injuries and
was hospitalised for nearly a month and thereafter,
continued further treatment. He had also undergone a
surgery for the injury to a portion of his head.
2. While the plaintiff alleged that the police had
entered the campus of the school and lathi charged the
students, the defence version, as contained in the written
statement filed by the State of Kerala and the
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Commissioner of Police is that the incident did not take
place as alleged and but that, pursuant to a First
Information Statement recorded from the plaintiff’s uncle,
an investigation was held in Crime No.6/85 of Chevayur
Police Station, in which it was revealed that at about 11.30
am on 09.01.1985, about 300 students of the plaintiff’s
school caused obstruction on the road and deflated the
tyres of vehicles and the Police tried to scare them away
and the students dispersed for the time being, though, they
later stopped a bus KRD 2471 and tried to deflate its tyres,
which led the Sub Inspector of Police and other Policemen
to run upto the bus, following which the plaintiff and other
students ran away from that scene of occurrence and the
plaintiff fell on the road and rolled down and in that
process, sustained injuries. The written statement stands to
refute that the injuries were caused due to any force used
by the Police.
3. The plaintiff gave evidence as PW1. PW2 is
one, who was a student of the said school, at the relevant
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point of time. He stated of having seen the plaintiff, being
assaulted by the police, by poking a lathi into his belly and
on his back, in the school compound and that the plaintiff
was hit on his head, when he fell down. The said witness
said that he and others ran away and the teachers took the
plaintiff to hospital. He said that there were 8 to 10
policemen, who were involved in the assault, though he
would not be able to identify anyone, as he could not see
their faces properly. He refuted the defence suggestion in
cross examination that he was tendering evidence
supporting the plaintiff’s case, owing to personal affinity
towards him.
4. PW3, who, at that point of time was a tutor in
the school and had left that institution about one year
before he tendered evidence, spoke about the police
action. The testimony of PW3 corroborates the version of
PW2 regarding the material particulars including the
manner in which the plaintiff suffered the assault. Nothing
is brought out in the cross examination of PW3 to suggest
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either that he was not available or that he had any
animosity towards the Police officials. While he tendered
evidence, he was a teacher and when he gave evidence,
he was the Headmaster of another school.
5. PW4 is the doctor, who treated the plaintiff
and who recorded Ext.A1 Accident Register-cum Wound
Certificate. Ext.A2 is a reference card issued from the
Medical College Hospital, Kozhikode. Ext.A11 is a
certificate issued by PW4. The medical records produced
as Exts.A1 to A11 would show that the plaintiff was an
inpatient in the Medical College Hospital from 10.01.1985
to 07.02.1985. Ext.A1 Accident Register-cum Wound
Certificate records that the incident had occurred at 11 am.
and that the plaintiff, who was the injured, attributed the
incident to police assault. Those statements have been
recorded and reflected in Ext.A1, prepared by PW4 Doctor.
Those entries have been made by PW4 in the common
course of his official conduct as a doctor in the hospital.
We find no contra-evidence and thus, such materials
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corroborate the version that the incident occurred before 11
a.m. on the crucial day.
6. As already noticed, the plaintiff was an
inpatient of the Medical College Hospital, Kozhikode from
10.01.1985 to 07.02.1985. The documentary and oral
evidence including that of PW4 Doctor, would show that the
injury was a grievous one. The injured had a contusion
over right-temporal region and the patient was unconscious
and in a serious condition. The second contusion was 3×2
cm middle of front of upper arm and there was another
contusion of 3×2 cm over both scapula region. The Doctor
has categorically stated that the plaintiff had sustained
intra-dural laemcitoema and emergency temporal burr hole
right side was done on 10.01.1985 and was then referred
to Neuro Surgery Department for further treatment. The
operation was in the skull.
7. Now, we would refer to Ext.A2 reference card
of the Medical College Hospital. It evidences the date of
admission of the patient, date of discharge etc. The
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diagnosis is Extradural Haemorrhage and the operation
conducted was temporal burr hole right. The said reference
card records the history of the case as follows :
“Alleged to have been assaulted at 11 am on
09.01.1985. He was unconscious and vomitting and was
subjected to emergency burr hole and was put on antibiotics
and various other medicines and was provided IV fluid
support. He had an unevenful post operative period and was
referred to the Neurology OP.”
8. We deem it to be appropriate to notice that
even on 10.04.1985, the doctors had noted on review, that
vague symptoms still persisted and he continued thereafter
also to be under treatment.
9. Exts.A3, A4 and A5 are the subsequent OP
tickets, which would show that the plaintiff continued to be
under treatment. Ext.A11 certificate issued by PW4 is to
the effect that the plaintiff was treated in Ward No.9 of the
Medical College Hospital, Kozhikode, following the alleged
assault by the Police by lathi in the compound of
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Vellimadukunnu JDC Islam School. The date of admission
to the hospital was 10.01.1985 and the date of discharge
was 07.02.1985. It was also stated therein that he had
sustained extradural haemorrhage and emergency burr
hole right was done on 10.01.1985 with IP No.1189 and
that he was then referred to the Neurology Department for
further treatment and was still continuing treatment from
Neurology Department. That certificate was issued on
16.10.1987.
10. The cash bills produced as Exts.A12 to A55
would show that during 1985-86, 1988 upto August 1991,
the plaintiff continued to be under treatment though he was
not an inpatient.
11. With the aforesaid materials on record, the court below
held that the incident as pleaded by the plaintiff has not
been proved and that the suit is barred in having been filed
beyond the period of limitation prescribed under S.64(3) of
the Kerala Police Act, 1960.
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12. The learned counsel for the appellant argued
that the materials on record categorically showed that the
plaintiff suffered injuries as a result of the assault by the
police and no justification, whatsoever, is shown by the
police for such an action. He, therefore, argued that the
incident itself showed the negligent and deliberate
contradiction of the statutory duties. He accordingly says
that the finding that no negligence is proved is
unsustainable. It is further argued that since it is not, and it
cannot be shown that the action of the police as alleged is
part of the official duties, the period of limitation under S.64
(3) of the Police Act, would not apply. In support of this
contention, the learned counsel cited the Bench decision of
this Court in Pathumma v. State of Kerala (2000(2) KLT
827).
13. Per contra, the learned Government Pleader
appearing for the State, argued that as against the denial
of the defendants in the written statement in that regard,
there is no legal evidence of any incident having occurred
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inside the school and that no Police Officer has been
impleaded in his personal capacity. He also specifically
pointed out that the investigation conducted in the crime
registered by the police led to a refer report and that has
not been impeached. The learned Government Pleader
further argued that the legal evidence on record does not
prove any damage having been caused, calling for award
of compensation. He also argued that there is material
contradiction between the oral evidence of PWs 1 to 3 and
therefore, the incident as alleged, has not been proved.
14. The fact that an incident occurred on
09.01.1985 and that the plaintiff was injured, is not in
dispute. The plaintiff’s version is that he was assaulted
inside the school compound and the police had
unauthorisedly got into the school compound and
assaulted him. The defence version is that the students
had gathered in a group and were involved in unlawful
activities of deflating the tyres of vehicles and the police
had dispersed them, following which the plaintiff and some
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others again crowded near a bus and attempted to deflate
its tyres. It is the specific case of the defence that the Sub
Inspector of Police and two Police Constables ran towards
the bus and seeing them, the plaintiff and other students
ran away and in that process, the plaintiff fell, rolled down
and thereby sustained injuries. On this specific version
being placed by the defendants, it was essentially the
burden of the defendants to show that a transaction as
pleaded by the police authorities and the State, had
actually occurred. The police power of the State, which
includes power to prevent the occurrence of unlawful
incidents, bestow on the State officials, a duty to explain an
incident, which admittedly, had happened. In the case in
hand, there is no shred of evidence in this regard. No
witness has been examined by the defendants. No
documentary evidence was placed by the defendants. The
so-called refer report was not placed before the Court by
the defendants. The argument on behalf of the defendants
that there is nothing on record to show that the police
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entered the campus without the permission of the
Headmaster or without being called by the Headmaster,
does not stand, for the simple reason that any movement
of the police in that regard and any request of the school
authorities were matters that would be reflected in the
General Diary prepared in the Police Station. No material
has been placed on record to prove that their version is
true. Equally, there is no reason, why this Court should
eschew the first among the statements, in the official
documents of the Government Hospital, in which the
reason for the injuries is attributed to assault by the police.
15. The version of PW2, who is a student of the
school, cannot be brushed aside. It may be true that upon
seeing the incident alleged, he ran away. This only reflects
the common course of human conduct. No student will
remain in a scene of police action which may cause injuries
to persons. Under such circumstances, the testimony of
PW2 student and PW3 teacher, give credence to the
plaintiff’s version that the teachers of the school had
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removed the plaintiff to the hospital. We, on the totality of
the materials on record, hold that on a preponderance of
probability, the plaintiff has established that the injuries
sustained by him were attributable to the actions of police
Officials.
16. The court below took the view that the
plaintiff had not been able to establish negligence on the
part of the defendants. With the materials on record, we
are satisfied that the plaintiff has proved that the incident
occurred and that he was injured in the assault by police.
As already noticed, the police had a definite version
regarding the incident. When police action happens in a
place, it cannot, but, be assumed that the police was in
control and the police would be the best authority, to give a
reasonably dependable version, unless of course, such a
version turns to be unbelievable. Here, there was no
evidence tendered by the police as none was examined.
The situation would be similar to one, where the principle of
res ipsa loquitur could be applied to cases of accidents
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where the incident itself bespeaks negligence in the
common course of police action as permissible in law. We
do not expect any boy in the 10th standard, being hit on his
head by a lathi. The contra-version of the police that the
plaintiff ran on seeing the Sub Inspector of Police and the
police constables and fell on the road and rolled down, is
not proved even by a preponderance of probability. There
is no shred of evidence in support of that plea of the
defendants. Therefore, we disagree with the findings of the
court below on the ground of negligence.
17. Insofar as the plea of limitation is concerned,
we are in complete agreement with the law laid down in
Pathumma (supra). The actions which have been proved
on a preponderance of probability to the satisfaction of this
Court, are not those which could be treated as part of the
duly authorised official acts of police. Hence the ratio of
Pathumma (supra) applies to the case in hand and hence
it has to be held that the suit is not barred by limitation.
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18. With that, we reverse the findings of the
court below to the contrary and hold that the defendants
are liable to compensate, if any damage is shown to have
been caused.
19. The plaintiff was a student of the 10th
standard. The medical evidence on record shows that he
suffered grievous injuries. He was hospitalised for nearly a
month. On the date of incident, he had to undergo an
emergency surgery. The surgery was to rectify the
extradural heamorrhage suffered by him. He had to
undergo emergency temporal burr hole on the right side of
the skull. The continued treatment in the Neurology
Department and other attendant continued medication as
evidenced by the cash bills show that the plaintiff had
suffered financial loss, physical pain and mental agony and
to some extent, loss of continued potentialities. It is his
version as PW1 that his mother had to borrow funds from
different persons and provide for his treatment. The cash
bills produced would reflect only a sum of below Rs.1,000/-.
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That was in 1985. The case sheet and other documents on
record show that the plaintiff underwent surgery and was
on heavy medication. Fortunately, he got the facilities of a
Medical College Hospital, where the charges and cost of
medicines may be minimal.
20. Having regard to the totality of the facts and
circumstances of the case and taking into consideration the
different heads of counts under which the plaintiff would be
eligible for compensation, we are of the view that the
plaintiff will be entitled to a total sum of Rs.80,000/-
(Rupees Eighty Thousand only) towards damages as
compensation on all counts, after setting off an amount of
Rs.3,500/- which is stated to have been paid by the State
Government through the District Collector, immediately
following the incident.
In the result, we set aside the impugned decree
and judgment and pass a decree, allowing the plaintiff to
recover an amount of Rs.80,000/- with interest @ 6% per
annum from the date of the suit i.e., from 07.01.1988 till the
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date of realisation with proportionate costs before the court
below and in this appeal. As regards the court fee, having
given our anxious consideration, we direct under Order
XXXIII Rule 10 CPC that no amount shall be recoverable
by the State Government from the plaintiff as court fee
either in relation to this appeal or in relation to the suit and
such court fee shall be suffered by the State Government.
THOTTATHIL.B.RADHAKRISHNAN,
JUDGE
P.BHAVADASAN, JUDGE
sta
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