Research › Search › Judgment

Jharkhand High Court · body

2022 DIGILAW 1072 (JHR)

Tumba Oraon v. State of Jharkhand

2022-08-29

DEEPAK ROSHAN

body2022
JUDGMENT : DEEPAK ROSHAN, J. 1. Heard learned counsel for the parties. 2. As per the service report received, petitioner No. 3-Bandhanu Oraon has died, as such, the instant application is dismissed as abated against petitioner No. 3. 3. The instant criminal revision application is directed against the judgment dated 07.06.2004, passed by learned 1st Additional Sessions Judge, Gumla, whereby the Cr. Appeal No. 18 of 1999, preferred by the petitioners has been dismissed and the judgment of conviction and order of sentence dated 17.02.1999, in C.I. Case No. 63 of 1993, corresponding to T.R. No. 138 of 1999, passed by the learned Sub-Divisional Judicial Magistrate, Gumla, whereby the petitioners were found guilty for the offence punishable under Section 51 of the Wildlife Protection Act, 1972 and were sentenced to undergo rigorous imprisonment for one year with fine of Rs. 5,000/- each and in default of payment of fine, they were directed to undergo further rigorous imprisonment for six months, has been affirmed. 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. 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 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 now been found very rare, as such killing of Leopard is very heinous crime and petitioners should not be acquitted. 7. She further contended that leopard being animal which is 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 judgment: “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 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. 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 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, 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. The Gauhati High Court has dealt the similar issue in the case of Tilok Bahadur Rai vs. State of Arunachal Pradesh, 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 vs. State of Punjab and Another, (2010) 2 SCC 333 after referring 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 vs. Rabindranath Dalai, 1973 Cri. L.J. 1686 (Ori) summarised the legal position with respect to the defence of person and property thus: (Cri. L.J. 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 provided by the State but if immediately such aid is not available, he has the right of private defence.” 42. In Laxman Sahu vs. State of Orissa, 1986 Supp. 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 provided by the State but if immediately such aid is not available, he has the right of private defence.” 42. In Laxman Sahu vs. 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 vs. 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.” 44. In Jagtar Singh vs. State of Punjab, (2009) 16 SCC 772 : AIR 1993 SC 970 , this Court held that: “the accused has taken a specific plea of right of self-defence and it is not necessary that he should prove it beyond all reasonable doubt. But if the circumstances warrant that he had a reasonable apprehension that death or grievous hurt was likely to be caused to him by the deceased or their companions, then if he had acted in the right of self-defence, he would be doing so lawfully.” 45. In Puran Singh vs. State of Punjab, (1975) 4 SCC 518 : 1975 SCC (Cri) 608, this Court observed that in the following circumstances the right of private defence can be exercised: (i) There is no sufficient time for recourse to the public authorities. (ii) There must be a reasonable apprehension of death or grievous hurt to the person or danger to the property concerned. (iii) More harm than necessary should not have been caused. 46. In Bhagwan Swaroop vs. State of M.P. (1992) 2 SCC 406 : 1992 SCC (Cri) 422, this Court had held as under: (SCC p. 409, Para 9) “9.......It is established on the record that Ram Swaroop was being given lathi-blows by the complainant party and it was at that time that gunshot was fired by Bhagwan Swaroop to save his father from further blows. A lathi is capable of causing a simple as well as a fatal injury. A lathi is capable of causing a simple as well as a fatal injury. Whether in fact the injuries actually caused were simple or grievous is of no consequence. It is the scenario of a father being given lathi-blows which has to be kept in mind and we are of the view that in such a situation a son could reasonably apprehend danger to the life of his father and his firing a gunshot at that point of time in defence of his father is justified.” The facts of this case are akin to the facts of the instant case. 47. In Kashmiri Lal vs. State of Punjab, (1996) 10 SCC 471 : 1996 SCC (Cri) 1345, this Court held that: (SCC p. 478, Para 17) “17......A person who is unlawfully attacked has every right to counteract and attack upon his assailant and cause such injury as may be necessary to ward off the apprehended danger or threat.” 48. In James Martin vs. State of Kerala, (2004) 2 SCC 203 : 2004 SCC (Cri) 487, this Court again reiterated the principle that: (SCC p. 213, Para 13) “13...........The accused need not prove the existence of the right of private defence beyond reasonable doubt. It is enough for him to show as in a civil case that the preponderance of probabilities is in favour of his plea.” 49. In Gottipulla Venkatasiva Subbrayanam vs. State of A.P. (1970) 1 SCC 235 : 1970 SCC (Cri) 114, this Court held that: (SCC p. 245, Para 17) “17.......The right [to] private defence [is a very valuable right and it has been] recognised in all.........civilised [and] democratic societies within certain reasonable limits.” 50. In Mahabir Choudhary vs. State of Bihar, (1996) 5 SCC 107 : 1996 SCC (Cri) 883, this Court held that: “39........the High Court erred in holding that the appellants had no right to private defence at any stage. In Mahabir Choudhary vs. State of Bihar, (1996) 5 SCC 107 : 1996 SCC (Cri) 883, this Court held that: “39........the High Court erred in holding that the appellants had no right to private defence at any stage. However, this Court upheld the judgment of the Sessions Court holding that since the appellants had right to private defence to protect their property, but in the circumstances of the case, the appellants had exceeded their right to private defence.....The Court observed that the right to private defence cannot be used to kill the wrongdoer unless the person concerned has a reasonable cause to fear that otherwise death or grievous hurt might ensue in which case that person would have full measure of right to private defence including killing.” [Ed. As observed in Kashi Ram vs. State of Rajasthan, (2008) 3 SCC 55 : (2008) 1 SCC (Cri) 608, SCC at pp. 65-66, Para 39] 51. In Munshi Ram vs. Delhi Administration, AIR 1968 SC 702 : 1968 Cri. L.J. 806 : (1968) 2 SCR 455 , this Court observed that: (AIR p. 703, Para 5) “5.........It is well settled that even if the accused does not plead self-defence, it is open to consider such a plea if the same arises from the material on record.........The burden of establishing that plea is on the accused and that burden can be discharged by showing preponderance of probabilities in favour of that plea on the basis of [materials available] on record.” 52. In State of M.P. vs. Ramesh, (2005) 9 SCC 705 : 2005 SCC (Cri) 1443, this Court observed that every person has a right to defend his own body and the body of another person against any offence, affecting the human body. The right of self-defence commences as soon as reasonable apprehension arises and it is coterminous with the duration of such apprehension. Again, it is defensive and not retributive right and can be exercised only in those cases where there is no time to have recourse to the protection of the public authorities.” 13. The findings of the trial court as well as of the appellate court that the petitioners should have raised the ground of private defense at the first instance when they got opportunity under Section 313 Cr. The findings of the trial court as well as of the appellate court that the petitioners should have raised the ground of private defense at the first instance when they got opportunity under Section 313 Cr. P.C. seems to be perverse in nature, inasmuch as, the petitioners denied their guilt completely in their statement u/s 313 of Cr.P.C. and the Trial Court became hyper technical in holding that the petitioners have not taken the ground of private defense at the 1st instance, but failed to go through the facts of prosecution case itself. Even before the trial court as well as the appellate court, this question of law was raised and the learned trial court had ignored the basic fact of the prosecution case that initially the petitioners along with other co-villagers were trying to oust the animal but when Leopard injured one person, they killed the dangerous animal. This part has been clearly overlooked both by the learned trial court as well as by appellate court making the order perverse in nature. 14. In view of the aforesaid discussion, the instant application is allowed. The judgment dated 07.06.2004, passed by the learned appellate court and the judgment dated 17.02.1999, passed by the learned trial court are hereby quashed and set aside. 15. The petitioners shall be discharged from the liability of their bail bonds. 16. Let the copy of this order be communicated to the courts below. 17. Let the lower court record be sent back to the court concerned forthwith.