Tumba Oraon v. For the Opp.Party-State

months, has been affirmed. 2

#4. The prosecution case in brief is that on secret information, Forest Range Officer had reported that on

17.08.1993 afternoon, one astray Leopard entered in village at Atakora, P.S. Bharno, Gumla. As a matter of fact, this Leopard entered into the land (Bari) of Chandan Oraon and climbed upon Machan. It has been further alleged that several villagers assembled with lathi garasa, baluwa etc. and tried to oust the Leopard by throwing bricks but in the meantime the Leopard jumped from Machan and attacked Chirho Oraon and injured him. Thus, all the villagers attacked the Leopard as result of which Leopard died. The size of killed Leopard was 6’ 6’’ in length and 2’ 4” in height. When the case was filed, petitioners pleaded not guilty and claimed to be tried. After trial, the petitioners were found guilty for the offences and they were convicted and their appeal was also rejected by the learned appellate court.

#5. Mr. A.K. Verma, learned counsel for the petitioners assailed the impugned judgments on the ground that the learned trial court as well as learned appellate court have not considered Section 11 (2) of the Wild Life Protection Act, 1972. Learned counsel further contended that though both the trial court as well as appellate court have considered this submission of the petitioners about right to private defense but erroneously held that the burden lies on the persons who plead it and since an 3 opportunity was given to the petitioners under Section 313 Cr. P.C. but they have denied the allegation simply but not raised this ground. This finding of the trial court as well as appellate court is perverse in nature, inasmuch as, the main prosecution case itself transpires that the Leopard entered in the Bari (field) of Chandan Oraon and all the villagers assembled there and tried to oust the Leopard by throwing bricks but in the meantime the Leopard jumped from machan and attacked Chirho Oraon and injured him. This particular fact in the prosecution case itself shows that the petitioners have used as private defence by killing the Leopard. He further submits that the size of the killed leopard was six feet and six inches in length and two feet and four inches in height, being a very dangerous animal therefore, merely holding that the petitioners did not plead the right of private defense is not correct. Even the confessional statement of Birsa Oraon wherein it has been stated that Birsa Oraon along with surviving petitioners killed the Leopard but on the other hand every part of the story has not been considered by the learned trial court as such the conviction of the petitioners may be set aside.

#6. Learned APP for the State opposed the prayer of acquittal and submits that petitioners would have informed the Authorities or they should have encircled the Leopard by any means but killing of Leopard is not justified as per the provision of law. She further contended that leopard being animal which is 4 now been found very rare, as such killing of Leopard is very heinous crime and petitioners should not be acquitted.

#7. Having heard learned counsel for the parties and after going through the judgments available on record including the LCR it appears that the Leopard entered into the village where the petitioners were residents and climbed on the machan of one co- villager; then the entire villagers assembled near the Leopard with lathi and other arms and initially villagers tried to oust by throwing bricks but in the meantime when the Leopard jumped from machan and attacked one Chirho Oraon and injured him; the petitioners killed the Leopard.

#8. The contention of the petitioners that they killed the Leopard but it was under private defense because the Leopard attacked one of the co-villagers appears to be genuine. From the impugned judgment it transpires that both the courts had held with this ground in their respective judgments.

#9. For brevity, para 10 of the appellate court’s judgment and para 8 of the trial court judgment are quoted herein below: Para 10 of the appellate court’s judgement: “So far the plea taken by Sri Nag defence counsel that appellants in right of private defence if for argument sake prosecution case is found to be true then committed this crime. Who submit that if the Leopard was not killed by the villagers then several villagers were seriously injured by the leopard. On this point I would like to mention that right of private defence is required to be pleaded and proved section 11 (2) (3) of the Wild Life (Protection) Act, 1972 read with 57 of the aforesaid act shows that burden is on the appellants to prove the defence case. The best opportunity before the appellants was statement U/s 313 of code taken by the learned court below on the closing of the prosecution 5 witnesses. On perusal of statement U/s 313 of code shows that on 7.11.98 all the appellants examined u/s 313 of code and all of them replied in negative. No defence case as argued by Sri Nag put forth by the appellants. Meaning thereby that the earliest opportunity given by the legislature by incorporating section 313 of code not availed by the appellants. So argument of Sri Nag defence counsel is not tenable on this score alone.” Para 8 of the learned trial court’s judgment: “8. Right of private defence is required to be pleaded and proved. Section 11 (2) (3) of the Wild Life (Protection) Act, 1972 cannot be read in isolation. Section 57 of the said act gives the burden on the accused to prove the contrary. In the present case even no suggestion of right of private defence of person has been given nor such a defence has been taken.”

#10. The findings given by both the courts are the same and similar that Section 11 (2) (3) of Wild Life (Protection) Act, 1972 cannot be read in isolation and Section 57 of the said Act gives the burden on the accused to prove the contrary and in the present case no suggestion of right to private defense has been given nor the petitioners who got an opportunity under Section 313 of Cr. P.C., they simply denied the allegation. This part of the finding is perverse in nature, inasmuch as, the prosecution case itself shows that initially all the villagers including these petitioners encircled the Leopard and when the Leopard attacked one of the co-villagers, the petitioners attacked and killed the Leopard.

#11. To decide, whether the petitioners acted in their defense or not, the nature and ferocity of the animal will be relevant. A tiger by nature is of dangerous ferocity as distinguished from mensurate nature like dog or a horse. In the case of attack by a danger animal the victim cannot be expected 6 to weight and watch for attack. The Gauhati High Court has dealt the similar issue in the case of Tilok Bahadur Rai vs. State of Arunachal Pradesh reported in 1979 SCC online Gau 27 has held at para 8 as under: “8. To decide whether in shooting to kill the accused acted in self-defence or not, the nature and ferocity of the animal will be relevant. A tiger is, what the Romans called, a ‘ferae naturae’ by nature of dangerous ferocity, as distinguished from a ‘mansuatae naturae’, e.g., a dog or a horse, which have in individual cases given indication of a vicious or dangerous disposition. In the case of attack by a ‘ferae naturae’ the victim cannot be expected to weigh the chances in golden scale and consequently, the inference that he was acting in defence of his own life will be more easily drawn than in case of an attack by a ‘mansuatae naturae’, while no such inference may be drawn at all in cases of harmless wild life like birds.” As a matter of fact, there is a duty cast on every person faced with apprehension of imminent danger of his person or property to seek the aid of the machinery provided by the State but if immediately such aid is not available, he has the right of private defense.

#12. The Hon’ble Apex Court in the case of Darshan Singh versus State of Punjab & Another reported in (2010) 2 SCC 333 after refering several cases decided by the Hon’ble Apex Court earlier, has reiterated the law as under. Para 41 to 52 are quoted herein below: “41. A Full Bench of the Orissa High Court in State of Orissa v. Rabindranath Dalai [1973 Cri LJ 1686 (Ori)] summarised the legal position with respect to the defence of person and property thus: (Cri LJ p. 1695, para 15) “(1) In a civilised society the defence of person and property of every member thereof is the responsibility of the State. Consequently there is a duty cast on every person faced with apprehension of imminent danger of his person or property to seek the aid of the machinery 7 provided by the State but if immediately such aid is not available, he has the right of private defence.”

#42. In Laxman Sahu v. State of Orissa [1986 Supp SCC 555 : 1987 SCC (Cri) 173] this Court observed that: (SCC p. 556, para 2) “2. … It is needless to point out in this connection that the right of private defence is available only to one who is suddenly confronted with immediate necessity of averting an impending danger not of his creation.”

#43. In Raghavan Achari v. State of Kerala [1993 Supp (1) SCC 719 : 1993 SCC (Cri) 409] this Court observed that: (SCC p. 721, para 8) “8. … No court expects the citizens not to defend themselves [especially] when they have already suffered grievous injuries.”