Krishnan and others vs Muthuswami Udayar

Somasundaram, J.—The Sub-Magistrate, Kallakurichi, in C.C. No. 3125 of 1969 on his file, has framed a charge against die petitioners for an offences under S. 427, I.P.C. This is in respect of mischief alleged to have been caused to the house of the respondent at Viragavoer on the 5th day of October, 1968. The petitioners, who are the accused in the case, have filed the present petition for quashing the said charge on the ground that in the previous trial in C.C. No. 346 of 1968 on the file of the Sub-Divisional Magistrate, Ulundurpet, they were acquitted on 6th March, 1969.

Briefly the facts are as below: On the 7th October, 1968, the respondent complained to the police at Varanjaram that the petitioners herein trespassed into his house, as members of an unlawful assembly, at 2 a.m. on 5th October, 1968, hurled stones and caused injuries to two persons, viz, Subramanian and Kuppuswami, besides causing damage to the tiles of his house. The police, after investigation, filed a charge-sheet against the petitioners for offences under Ss. 147 , 148 and 323, I.P. C. This case was tried by the Sub-Divisional Magistrate, Ulundurpet, in C.C. No. 346 of 1968, On 6th March 1969, he acquitted that petitioners mainly have three grounds,. viz., (1). Than could have been in identification of the persons alleged to have been in the unlawful assembly; (2) Ex. P-1 could not be the earliest report and (3) The photographs do not best out the case of extensive damage to the house as alleged. On 10th March, 1969, the respondent filed the present complaint for an offence under S. 427, I.P.C. This is in respect of the damage alleged to have been caused to the ties in his house. The petitioners objected to the trial on the ground that there was a finding in the previous case about the alleged mischief and that as such it was not open to the respondent to relitigate the matter. Their objection was overruled. Who corrections of this order is now canvassed in this revision.

The Sub-Divisional Magistrate, Ulundurpet, has acquitted the petitioners in C.C. No. 346 of 1968 on his file. This was on 6th March, 1969. This case was charged by the police on the report given by the respondent. The point which he framed for consideration was as to whether the prosecution had proved the occurrence beyond reasonable doubt. P. Ws. 1, 2, 3 and 5 were examined in that case as witnesses for the occurrences proper He has held that P.W. 1 could not have seen the persons who gathered in front of the house and that he had preferred the complaint after enquiring from P.W. 5. He has unbelieved P.W. 1''s version that he gave the report Ex.:P-1 on 5th October, 1968 morning. The stones were alleged to have been seized on 6th October, 1968. The stamp affixed on Ex. P-1 born the date 7th October, 1968. the finding of the learned Magistrate is that the very fact that Ex. P-1 born the date 7th October, 1968 would indicate that it is not the earliest report and as such there is considerable doubt about its origin. He has disbelieved the occurrence witnesses and said that in view of the faction in the village, they have chosen to implicate the petitioners as persons who participated in the occurrence. He has further held that there could have been no identification of the participants. Then, as regards the damages to the house, he has disbelieved the prosecution case and has held that there has been no damage to the tiles as alleged. His observations are as below:-

By the side of the house of P.W. 1, a new construction was being raised. For that purpose, some stones, etc., would have been gathered. It is natural and also probable that when a new construction is raised, in and around that place stones would be found strawn . That appears to have been taken advantage in this ease. If we see M.Os. 1 and 2, photos which are said to have been taken on 6th October, 1968, morning, we do not find much stones except a very few. Some stones are imbedded in front of the house of P.W. 1 and they are broken. A few stones being obviously part of those stones are seen. We do not find any damage as such to tiles of P.W. 1''s house except a very few dislocation here and there. The evidence is that a lot of damage has been caused to the house of P.W. 1, but Mos. 1 and 2 do not bear on the same.

Where an issue of fact has been tried by a competent court on a farmer occasion and a finding has been reached in favor of an accused, such a finding would constitute an estoppel or res judicata against the prosecution, not as a bar to the trial and conviction of the accused for a different distinct offence, but as precluding the reception of evidence to disturb that finding of fact when the accused is tried subsequently for a different offence which might be permitted by the terms of S. 403 (2), Crl. P.C. Vide Manipur Administration, Manipur v. Thokchom Beera Singh, (1965) M.L.J. Cri. 233, S.C. and also Lalita v. State of Utter Pradesh (1970) M.L.J Cri. 605 S.C.

The law which gives effect to issue estoppels is not concerned with the correctness or incorrectness of the finding which amounts to an estoppel, still less with the process of reasoning by which the finding was reached in fact. It is enough that an issue or issues have been distinctly raised or found. Once that is done, then, so long as the findings stand, if there be any subsequent litigation between the same parties, no allegations legally inconsistent with the finding may be made by one of them against the other". Vide Marz v. The Queen 96 C.L.R. 62 at 68 and 69.

There has been a definite finding in the previous case that there has been no damage to the tiles of the respondent''s house. The doctrine of issue estoppel applies and the present proceedings are barred. The proceedings in C.C. 3125 of 1969 now pending before the Sub Magistrate Kallakurichi, are quashed. The revision is allowed.