The burden of proof in a suit for malicious prosecution lies upon the plaintiff, who must demonstrate lack of reasonable and probable cause and malice on the part of the defendants.

The first defendant in 4 suit for malicious prosecution is the appellant. Both the Courts found that the two defendants were liable in damages to the plaintiff for maliciously prosecuting him. The second defendant died during pendency of the appeal in the lower appellate Court. Her legal representatives were impleaded as appellants 3 to 7, but they have not challenged the decree of the lower appellate Court.

2. The case of the plaintiff is that the first defendant and his mother, the second defendant, filed a private complaint against the plaintiff stating that he along with two others had set fire to the hut in which the second defendant lived, as a result of which the second defendant was seriously injured. The second defendant was alone in the hut at the time of the incident. The criminal case ended in acquittal of the plaintiff. The prosecution, according to the plaintiff, was maliciously launched and the prosecutors were, therefore, liable in damages. Both the courts found that the defendants failed to prove that the occurrence alleged against the plaintiff occurred in the manner stated by them. On that ground the defendants were held liable to pay the plaintiff damages.

3. The alleged incident occurred on 30-8-1974 at about 11 a.m. The second defendant, the mother, was of advanced age and her eye sight was poor. She was closely related to the plaintiff. The complaint on her behalf was made by her son the first defendant to the police who registered Crime No. 90 of 1974, but subsequently referred the case as false. The defendants then filed a private complaint before the Judicial Second Class Magistrate, Hosdrug, and the Magistrate committed the case to the Court of Session. The case was tried by the Assistant Sessions Judge under Ss. 448, 324, 427 and 436 with S.34, I.P.C. The trial ended in the acquittal of the plaintiff and the other two accused.

4. The reason for the acquittal was that it was not safe to convict the accused on the sole testimony of the mother, the second defendant, who could not have properly seen the assailants to identify them, for she had poor eye-sight and she had fallen unconscious owing to the injury sustained by her in the flame. A person with poor eye-sight in a burning hut, full of smoke, could hardly identify the offenders, so the criminal court thought.

5. That the hut was burnt down and that the victim was injured and the clear possibility of it being an arson were not in doubt. The burden being on the prosecution in a criminal case, and the accused being deemed to be innocent until their guilt is proved beyond reasonable doubt, they escaped conviction and punishment, thanks to the poor-eye sight of the eye-witness.

6. The question is whether by reason of the acquittal in such circumstances, there is presumption against the defendants so as to make them liable in damages for malicious prosecution. The four essential elements to found a cause of action for malicious prosecution are :

"1. Institution of criminal proceedings by the defendant.

2. Termination of proceedings in favour of the plaintiff, if from their nature they were capable of so terminating.

3. Absence of reasonable and probable cause.

4. Malice, or a primary purpose other than that of carrying the law into effect."

(Fleming on the Low of Torts, 6th Edn. p. 576).

7. That criminal proceedings had been initiated by the defendants against the plaintiff and two others is not in dispute. Nor is it disputed that the prosecution ended in the acquittal of the accused. Then the two other questions are whether the defendants had reasonable and probable cause in launching prosecution against the

plaintiff and in doing so whether they were motivated by malice or their primary purpose was something other

than to bring the law into effect. The meaning of the expression "reasonable and probable cause" as expounded in the following words by

Hawkins, J. in Hicks v. Faulkner, (1881) 8 QBD 167, 171 was adopted by the House of Lords in Herniman v.