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Nellikka Achuthan Vs. the Deshabhimani Printing and Publishing House Ltd., Kazikode and anr. - Court Judgment

LegalCrystal Citation
CourtKerala High Court
Decided On
Case NumberS.A. No. 1211 of 1979
Reported inAIR1986Ker41
ActsWild Life (Protection) Act, 1972 - Sections 2(36), 9(2), 9(5), 11, 39 and 57
AppellantNellikka Achuthan
RespondentThe Deshabhimani Printing and Publishing House Ltd., Kazikode and anr.
Appellant Advocate P.N.K. Achan,; K. Vijayan,; N.N. Sugunapalan and;
Respondent Advocate L.G. Poti,; Jolly T. Kuriakose,; K. Balachandran and
DispositionSecond appeal dismissed
Cases ReferredMathew v. Balan
.....for the enactment states among other things: (2) the killing or wounding in good faith of any wild animal in defence of oneself or of any other person shall not be an offence ? provided that nothing in this sub-section shall exonerate any person who, when such defence becomes necessary, was committing any act in contravention of any provision of this act or any rule or order made thereunder. the antegonism between the plaintiff and the defendants on the political front is also clearly established by evidence including the earlier publication of news items against the plaintiff of the periods 1968-69. his anxiety to protect his reputation is therefore indeed commendable. the total absence of evidence on the defence side on their claim of good faith has also been correctly noted by..........29-11-1974 with manantoddy as the reporting station. it reads:'an incident where the tusks of a wild elephant had been taken away after shootingdown the elephant near chandanathodureserve forest, situate 24 kms. away frommanantoddy is reported. it is stated that ani.n.a. man by name achuthan is stated to bethe person who had committed this theft ofelephant's tusks. it appears that after removingthe tusks, the elephant was burned, pouringpetrol over it.' the second report ext. a2 is dated 4-12-1974. it reads:'the elephant's tusks which had been taken custody by the kuthuparamba police from the home at kuthuparamba of nellikka achuthan, i.n.a. leader has been produced before the sub-magistrate court, manantoddy today.'5. it is noteworthy that 'desabhimahi' was the first to report about.....

K. Sukumaran, J.

1. The plaintiff in a suit for recovery of damages from the defendants for having printed and published a defamatory news item is the appellant. Defendant 1 was the Company printing the newspaper 'Desabhimani' and defendant 2, Sri E. K. Nayanar is the publisher of the paper. The publication complained of was on 1-12-1974 and the caption : 'Theft of elephant tusks.' This was followed by a further news item on 5-12-1974, with the caption : 'The elephant tusks taken into custody have been produced in Court.' The defence was one of justification by truth. The trial Court did not accept that defence. The suit was accordingly decreed. The defence was, however, found acceptable by the appellate Court. It therefore allowed the appeaX set aside the decree of the trial Court, and dismissed the suit. The second appeal challenges the decision of the tower appellate Court.

2. The relevant facts may briefly be referred to. The plaintiff had formerly served in the Indian National Army. He had the high rank of a captain. One way of rewarding and recognising services of the patriots was to allot forest area. The plaintiff also got his share. The estate developed by him is known as Vattapoyil estate. Elephants in the reserve forest close to the estate would stray around the area. It is an indisputed fact that on 28-11-1974, an elephant was shot dead by the plaintiff. There is controversy regarding the circumstances relating to the shooting incident and those which have followed thereafter. According to the plaintiff, he had taken to his house the tusks of the dead elephant so as to prevent pilferage of the same by others. Later he had produced the same before the Court. According to him, there was therefore no evil intent to commit a theft of the tusks.

3. As noted earlier, the publications in the paper are admitted. The defendants have taken the stand that the statements contained in the two articles are correct and true.

4. It is desirable at the outset to advert to the exact text of the news items, to evaluate the contentions of the appellant. Ext. A1 is a report bearing the date 29-11-1974 with Manantoddy as the reporting station. It reads:

'An incident where the tusks of a wild elephant had been taken away after shootingdown the elephant near ChandanathoduReserve Forest, situate 24 kms. away fromManantoddy is reported. It is stated that anI.N.A. man by name Achuthan is stated to bethe person who had committed this theft ofelephant's tusks. It appears that after removingthe tusks, the elephant was burned, pouringpetrol over it.'

The second report Ext. A2 is dated 4-12-1974. It reads:

'The elephant's tusks which had been taken custody by the Kuthuparamba Police from the home at Kuthuparamba of Nellikka Achuthan, I.N.A. leader has been produced before the Sub-Magistrate Court, Manantoddy today.'

5. It is noteworthy that 'Desabhimahi' was the first to report about the news about the 'theft' of the tusks of the elephant, after shooting it down and destroying the carcass. It appears that till then, nobody had brought to the notice of the authorities any complaint about any trouble from wild elephants. Even if it is a case of shooting for self protection, the authorities should have been promptly informed about the incident. The plaintiff had set fire to and destroyed the carcass after shooting down the elephant and had removed to his residence the tusks of the estimated value of about Rs. 15,000A. The Sub-Inspector of Police, Manantoddy, Sri. Abubacker, after investigation into the matter, had registered a case under the Forest Act. It was in pursuance thereto that the police had taken to custody the elephant's tusks from the house of the plaintiff.

6. The plaintiff produced 12 documents on his side and examined himself and one Raghavan as witnesses. He also caused to be produced a letter written by him and addressed to the Deputy Superintendent of Police, Tellicherry, dated 29-11-1974 marked as Ext. XI. Besides Ext. X1 referred to above, other documents include Exts. A6 to A8 which are publications on 17-12-1968, 18-12-1968 and 11-1-1969 in the Desabhimani (apparently intended to indicate the enmity of the defendants towards the plaintiff); Ext. A9 publication of a news item of 3-12-1974 Mathrubhumi daily (to make out the correct facts in relation to the shooting incident as published in that paper), the notice and reply sent by the plaintiff and defendant 1. Ext. A10 and Ext. A12 and the refused letter (Ext. All) sent by the plaintiff to defendant 2. Ext. A3 copy of letter sent by the plaintiff to the Dy. Superintendent of Police on 29-11-1974 (the original is Ext. X1), is intended to establish that the plaintiff had intimated the police authorities about the shooting incident. The plaintiff claims to have also tried to telephone the Deputy Superintendent of Police and the Collector. This is attempted to be established by the telephone bill, Ext. A4. The final report in crime No. 228/74 registered in connection with the incident is Ext. A5. The scene mahazar prepared on 4-12-1974 in C.C. No. 177/75 concerning the crime is Ext. B1 and the first information report is Ext. B2. The copy of Cr. M. P. No. 1040 of 1974 filed before the Munsiff-Magistrate on 9-12-1974 is Ext. B3. On behalf of the defendants, D.W. 1, K. V. Mohanan gave evidence.

7. The trial Court found that the elephant was shot dead while it was in the estate of the plaintiff. According to it, the removal of the tusks in that situation will not constitute removal of property from the possession of another without his consent. The plaintiff had filed before the Court Ext. B3 petition claiming the tusks as his own and seeking for returning them to him on that ground. The trial Court felt that this letter could not be relied on to gather the intention of the plaintiff at the time of the removal of the tusks. The plaintiff had another story : that the Deputy Superintendent of Police who had been informed about the incident had directed him to keep the tusks in his custody. The trial Court discounted the defence theory that Ext. XI had its origin out of the intimacy between the plaintiff and the Deputy Superintendent of Police. The defence suggestion about an intention to appropriate the tusks on the part of P.W. 1 was also rejected by that Court Thus the existence of a dishonest intention, which is an essential element in proving theft, was found to be lacking. The plea of justification by truth thus failed, according to the trial Court. The publications were found to be defamatory and the defendants found liable for the publication of the articles. The decree was thus passed against them.

8. The appellate Court discarded the story of the plaintiff regarding the circumstances leading to the shooting incident It stressed the fact that the plaintiff had not either informed, or obtained the previous permission of, the authorities before the elephant was shot dead. The plaintiff had not intimated the police about any danger caused by the wild elephant. The attack on the animal, according to that Court, was not a sudden or spontaneous one. The background of the shooting incident, according to that Court, shed much light on his real intention. The appellate Court found that the wild animal was the property of the Government and consequently there was a removal of property by the plaintiff from another's possession. The circumstances, according to that Court, established dishonest intention on the part of the plaintiff. There was no acceptable evidence to show that a letter had been written to the Deputy Superintendent of Police or that there was any attempt to contact the Collector. The plaintiffs conduct in claiming the tusks from the Court indicated the existence of a dishonest intention on his part. The tusks had been admittedly seized by the police from the house of the plaintiff and produced before the Court A case had been registered against him. It was even before the case had been charge-sheeted that the plaintiff sought, by Ext. B3 petition, the return of the tusks to him, on the basis that the tusks belonged to him. The facts and circumstances thus made out a dishonest intention on the part of the plaintiff, according to the appellate Court,

9. It is unnecessary for the purposes of the present case to examine other subsidiary contentions, for, the argument centered round only on the availability for the defendants of the plea of justification by truth.

10. It cannot be said that the Court below did not have in mind the correct legal principles to be applied in the case. Nor can it be said that the relevant evidence had not been properly evaluated by that Court. The view taken by the appellate Court, according to me, is a possible one to be taken on the basis of the materials and evidence available in the case. In that view of the matter, interference in second appeal with the judgment of the Court below has to be ruled out, having regard to the very limited jurisdiction of this Court, while dealing with a second appeal.

11. In order to find out whether there was a theft of tusks -- the grave allegation contained in the paper reports -- it would be necessary to advert to the provisions of the I Penal Code, particularly the definition of 'theft' as contained in Section 378, Penal Code.

Considerable arguments were advanced on the question whether a wild elephant, when shot down while in the plaintiffs estate, would be property belonging to the Government. A consideration of the provisions of the Wild Life (Protection) Act 1972 would be necessary for settling that issue.

12. Even on the plaintiffs own showing, the elephant was shot down when there was a sudden and unexpected confrontation with that animal. The contiguous reserve forest could justifiably be the domain of these animals. May be they have been moving in herds in the proximity of the plaintiffs estate. (It is not really a case where these wild animals 'trespassed' into the habitat of man. It was a case where the habitat of the animal was invaded by Man with the sanction of the State. It will then be cruel to say that the wild animals violated the laws:) Even when the plaintiff is fully believed, the following facts are clinchingly established :

The plaintiff had known about the movements of elephants about two days prior to the shooting incident. When he got this information, he started from his residence at Thekkilangadi, 23 miles away from the estate, and visited the estate. He was then convinced about the movement of the elephants around. He even attempted a blank shot. It missed the aim. Later, he again received complaints about the troubles caused by the elephant. He then immediately proceeded to the estate, taking care to can with him the gun. According to him, while he was so proceeding along the estate, he suddenly saw the elephant at a distant of 20 yards. It was then that he shot the elephant

13. This version will certainly blast a case of shooting the elephant in self-defence. The version as given in Ext A3 is not consistent with his evidence given as P.W. 1, In that letter he refers to his proceeding to the estate on his obtaining information about the tusker damaging his property. According to him :

'I went to the spot and found the elephant standing in an aggressive mood. When it saw me it charged me and I fired 2 shots simultaneously from my double barrel rifle to save my life and the elephant collapsed on the spot.'

He had proceeded from his house well! protected and well prepared to shoot the' elephant It is not as though all of a sudden he was confronted with an attacking rogue elephant. There are other developed estates nearby with good number of workmen employed there. If the elephant was roving round, he should not have dashed towards it. If he had suffered loss to his crops by the attack of the elephant, it was his bounden duty to inform the authorities about the same and to seek remedies available under law. He cannot justifiably take law into his hands. There is absolutely no excuse whatever for him to shoot down the elephant. The story about his being confronted with a sudden attack by the rogue elephant is artificial and unbelievable. As observed by the Court below, he should have been careful in his movements when he is around an area where a rogue elephant was moving around, when he had previous information about its movements.

14, In a sense, even if he had shot down the elephant under justifiable circumstances, that will not basically alter the nature of his subsequent action in the removal of the tusks. I Whether elephants, when caught or shot in a private property, would belong to the person who owns the property need not now be discussed with reference to the principles of abstract Property Law. Nor is it necessary to refer to the concern for the elephants expressed by legislatures from very early times. Chronicled legislation include the Madras Wild Elephants Act 1873 and the Elephants Preservation Act 1879 among others. Property rights over the elephants have been discussed in Makath v. Kandapunni, ILR 4 Mad 268 and Ramakrishna v. Unni Check, ILR 16 Mad 280. Massive changes took place when the Wild Life (Protection) Act, 1972, was passed. It is worth remembering that the Act itself was the projection of the Parliamentary will for the protection of the wild life, in the background of the well-known Stockholm Declaration of 1970 wherein the then Prime Minister of India was a principal participant, The Statement of Objects and Reasons for the enactment states among other things:

The rapid decline of India's wild animals and birds, one of the richest and most varied in the world, has been a cause of grave concern. Some wild animals and birds have already become extinct in this country and others are in the danger oE being so. Areas which were Once teeming with wild life have become devoid of it and even in sanctuaries and National Parks the protection afforded to wild life needs to be improved....... The existing

State laws are not only out-dated but provide punishments which are not commensurate with the offence and the financial benefits which accrue from poaching and trade in wild life produce.'

It also made reference to the urgent need for introducing a comprehensive legislation, which would provide for the protection of wild animals and birds and for all matters concerned therewith.

15. The 'wild animal' is defined in Section 2(36) as 'any animal found wild in nature and includes any animal specified in Schedule I, Schedule II, Schedule III, Schedule IV, or Schedule V wherever found.' The Indian elephant (Elephas maxisus) is included in Schedule II of the Act. The elephant is therefore a wild animal as defined under the Act Under Section 9(1) there is a prohibition against hunting a wild animal specified in Schedule I. There is prohibition against hunting a wild animal specified in Schedule II under Section 9(2). However, there is an 'exception clause' to that prohibition. Hunting is permitted in accordance with the licence issued under Section 9(5). It is agreed that no licence had been obtained by the plaintiff under that Sub-section. Under Section 39 every wild animal hunted in contravention of the sections referred to therein, or kept or bred in captivity in contravention of the Act or any rule or order made thereunder, or found dead, or killed without a licence or by mistake shall be the property of the State Government. Under Section 39(2) a person who obtains the possession of such Government property is under a statutory duty to make a report about it to the nearest police station or such authorised officer within fortyeight hours of his obtaining such possession. Section 57 provides for, in the circumstances referred to therein, a statutory presumption that a person in possession of a captive animal, animal article, etc., to be in unlawful possession, custody or control of the same. The tusks of the wild elephant in the present case therefore do not belong to the) plaintiff. It is the property of the State Government.

16. Counsel for the appellant attempted to rely on the provisions of Section 11 to contend that his action was excusable in the circumstances. He relied, in particular, on Section 11(2) which reads:

'(2) The killing or wounding in good faith of any wild animal in defence of oneself or of any other person shall not be an offence ?

Provided that nothing in this Sub-section shall exonerate any person who, when such defence becomes necessary, was committing any act in contravention of any provision of this Act or any rule or order made thereunder.'

However, even on the assumption that he may have a valid defence under Section 11(2) (an assumption not justified in the present case as would be indicated later) that does not detract; from the fact that the elephant killed and its tusks would nevertheless be the property of the Government. This is so in view of the categoric provision under Section 11(3) which reads:

'Any wild animal killed or wounded in defence of any person shall be Government property.'

17. Section 11(2) cannot justifiably be invoked by the plaintiff. That section has to be given a restricted and limited interpretation. A shikari on his own, going into the wild forest, 'cannot get exonerated from the offence, by stating that he had shot the animal in self defence. The man has now no right to invade with impunity the habitat of a wild animal The restricted interpretation given to the section is inferable from the only one reported decision explaining the ambit of that section. Vide Tilok Bahadur v. State of Arunachal Pradesh, 1979 Cri LJ 1404 (Gauhati). In that case, the accused had not chased the wild animal. The attack was from a tiger and was sudden. The person attacked was a watcher. He had taken steps to avoid the extreme step of shooting the animal. Only when the furious animal was to get at his neck, did the man use his gun. The Gauhati High Court confirmed the acquittal of the accused in the above circumstances, and with respect, correctly, (vide 1979 Cri LJ 1404 (Gauhati), supra). The facts of the present case are, as noted earlier, entirely different. It is, however, unnecessary to pursue the question whether the plaintiff was guilty of the offence or/not. Even on the basis that he was not so guilty of a violation of the Wild Life (Protection) Act, the nature of the property in the tusks and the effect of the removal of the tusks by the plaintiff to his house, would have to be considered. The incident is, however, incompatible -with an innocent intention.'

18. The plaintiff has feigned innocence in the removal of the tusks. The story put forward is that he wanted to prevent theft of the same by strangers. I have no hesitation to discard the story as a false one. The shooting incident was preceded, and followed, by understandable commotion. The estate of the plaintiff has an extent of 150 acres. Ten permanent workers and others are in the estate. About 200 workers are in the neighbouring estate on the south, belonging to P. K. Ali. There are workers in the estate belonging to Ravi on the west. If his version that nobody was prepared even to guard the carcass of the elephant for fear that the other elephants in the herd might attack the watcher, it is impossible to conceive that at such a time, certain others would come and commit theft of the tusk from the carcass of the elephant lying in the plaintiffs estate.

19. His omission to inform the forest authorities or the police authorities earlier about the danger posed by the wandering wild elephants is justifiably taken as a relevant factor to decide upon his intention in the removal of the tusks. He had admitted that the shooting had been done within the jurisdiction of the Manantoddy police Station. There was a police station as also an office of the Forest Department in Manantoddy. Perapur Police Station is four miles away from the spot. Kuthuparamba Police Station was only one mile away from Thokkilangadi, the plaintiffs permanent residence. No report had been submitted to any of these places.

20. On the basis of Ext. A3, a case of the plaintiff s preparedness to hand over the tusk to the authorities is put forward. As correctly noted by the appellate Court, neither the Deputy Superintendent of Police nor the Collector is examined to corroborate the version about the plaintiffs contemporaneous report to those authorities about the incident.

Ext. X1 does not contain the office seal of the Dy. S. P. This is a strange circumstance. It is sufficient to note that in the above circumstances no reliance could be placed on Ext. X1. The attitude indicated in Ext X1 is totally inconsistent with the one evidenced by Ext. B3 petition before the Magistrate court. He stated therein :

'The petitioner is entitled to the tusks of the elephant. For the purposes of enquiring alone, he had handed over the tusks to the police as a proof of his shooting the elephant. Now it is known that the tusks are produced before this honourable Court, pending enquiry of the matter, it is requested that the tusks may be entrusted to the petitioner.'

There cannot be any doubt that his intention was to appropriate to himself the tusks of the elephant Having regard to the circumstances, the inference that a dishonest intention motivated his action cannot therefore be found to be erroneous.

21. In the light of the above discussion, the finding of the Court below that the defence plea of justification by truth has been established has to be uphold. This will entail a dismissal of the second appeal.

22. The plaintiff-appellant, no doubt, occupies prominent position in very many social and cultural organisations. He did play a daring and admirable role in movements aimed at the achievement of the freedom for the country. The antegonism between the plaintiff and the defendants on the political front is also clearly established by evidence including the earlier publication of news items against the plaintiff of the periods 1968-69. His anxiety to protect his reputation is therefore indeed commendable. The defence attempt has been perfunctory. Even the lower appellate Court which decided the case in favour of the defendants, rightly observed that 'the written statement has not been drafted in the manner it ought to be.......' The trial Court was also justified in adversely commenting on the evidence of D.W. 1, about his evidence not being in tune with the defence put forward in the written statement and about the report having been made without adequate enquiry. The total absence of evidence on the defence side on their claim of good faith has also been correctly noted by that Court Despite all these deficiencies of defence, the plea of justification has been upheld by the Court below mainly on the basis of the documents produced by the plaintiff himself. Of course, Ext. B3 gave 'further justification for the inference so drawn by the Court below. The defendants have narrowly escaped liability in respect of the claim of damages.

23. The trial Court took the view that the reports of the nature of Exts, A1 and A2 could not be treated as on matters of public interest. This is a narrow and unjustified view. Attack on the forest wealth and on the wildlife are matters of great public importance. Protection of the forest and of the wildlife have been given prime importance by the constitutional provisions. Under Article 48A, Directive Principles of State Policy, the State has to endeavour to safeguard the forest and wildlife of the country. And it is a fundamental duty under Article 51A, of the Constitution to protect and improve the environment including forest and wildlife. Absolute accuracy in relation to the events in interior forests may not be possible. However, reports about such loot and plunder would be helpful to the State and other authorities to sternly suppress, such diabolical acts and tendencies. Reporting on such matters would, therefore, undoubtedly be matters of public interest.

24. Having regard to the status and position which the plaintiff had in the society, it is understandable that he chose to protect his reputation by resort to court proceedings. The unthinking cruelty of modern publicity' (as Churchill would put it) is very much there. May be, some persons (like Lord Canning, a former Viceroy of India), 'may not care two straws for the abuse of the papers.' The courts of law would anxiously consider the grievance of a citizen who approaches the Court for the protection of his reputation. That anxiety has, however, to be balanced with the equally (or perhaps more) important consideration like the freedom of the press. A balancing of these considerations has to be attempted by the Court. I have adverted to that aspect in Mathew v. Balan, 1984 Ker LT 893 : (198$ Cri LJ 1039). In deciding the case in favour of the 'press',' I observed (at p. 1043 of Cri LJ) :

'In coming to the above conclusion, a concern to ensure to the press the liberty it needs in the discharge of a great public duty, has largely weighed with me. Freedom of expression is the very life-blood of a healthy society. In a way it is the palm, the prize and the crown of democracy.'

The same sentiments have largely weighed with me in the present case also, in coming to a conclusion in favour of the press, and the publisher of the newspaper.

25. Before parting with the case, it is necessary to refer to the totally unsatisfactory manner in which the Wild Life (Protection) Act of 1972 is sought to be implemented, as is discernible from the facts of the present case itself. As observed in one of the papers presented at the seminar on Wildlife Management (held at Thekkady on February 12 to 14, 1985, in connection with the Periyar Sanctuary Golden Jubilee Celebrations), the enforcement of the Act is in a very unsatisfactory situation. The facts of the present case demonstrate it beyond doubt. The connected papers in the criminal case against the appellant were called for by me. A scrutiny of the papers would prima facie indicate that those who were in charge of the prosecution were ignorant of many of the salutary statutory provisions. An effective organisation with , officers of proved integrity and well-tested dedication and devotion is indispensable, if the greater objectives underlying the Act are to be achieved, at least in a limited measure. Perhaps the establishment of a special court in relation to offences relating to ferest laws and wildlife laws could be thought of; and a special section manned by able officers with specialised skill and guided by an expert head like the Director of Public Prosecutions may be a satisfactory arrangement. This is perhaps a matter which could rightly engage the serious attention of the Forest Department. If the facts of the present case are to be taken as an indication of the general pattern of action, even a high officer like a Dy. S. P. would not give any importance or urgency to a report about the incident of shooting down, not a small animal but an elephant itself. And when a prosecution is attempted, it is conducted by officers who had no familiarity with the important provisions of the Wild Life (Protection) Act. In an era where importance is rightly assigned to the protection of the forest and of the wildlife, the Government should consider this aspect with all the seriousness and urgency which the matter demands. A copy of the judgment would be forwarded to the Chief Secretary to Government for considering the above aspects.

26. In the result, the second appeal is dismissed, but having regard to the facts already referred to above, I do not make any order as to costs.

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