K. Harilal, J.

Preface

'Neelakantan', an elephant by name, was shot dead by the Sub Inspector of Police, while he was in discharge of his official duty. According to him, the elephant was shot dead, to save life of several human beings; but, the owner of the elephant contended that the shooting, that culminated in death of the elephant, was unwarranted and unjustifiable. The legality and liability that arise out of the said fire shot and the order of preference to be borne in mind of a public servant, in a dangerous situation, where the right to life of the human beings is under the threat caused by a dangerous animal, have come up before us for determination in these appeals.

The sequence of events

2. 'Neelakantan' was a captive elephant owned and possessed by 'Thali Devaswom' and the plaintiffs are the trustees of the said Devaswom. According to the plaintiffs, 'Neelakantan' was a harmless elephant, loved and reared by the Hindus of that locality. On 06.01.1992, he was hired by a Mosque Committee for 'Nercha' festival. As a part of the festival, he was taken to each house in the locality for receiving offerings from the householders. While he was taking to the house of a lady by name Fathibi, somebody pelted stone at his vital part, while urinating. On receiving the hit at his sensitive part, Neelakantan became enraged and violent and the Mahouts failed to control him, though they were three in number. They also were shaken off and thrown off to a distance. He destroyed several coconut trees, arecanut trees, caused damage to other trees standing in the property and eventually he was confined to that house compound by closing the gate at 4.30 p.m. On receipt of information at 4.30 p.m. the 1st defendant, the Sub Inspector of Police, Tirur, with policemen reached there. The Chief Mahout informed the 1st defendant that he had informed the Veterinary Doctors at Trissur, who are capable to administer tranquilizer shot. Again, people gathered there and the elephant got afraid and ran out of the compound, after demolishing the gate. Then, the 1st defendant shot the elephant at his leg. Neelakantan entered into a small Mosque and thereafter tried to get out through a narrow passage and in that attempt, he demolished the urinal shed of the Mosque, charged one man, by name 'Mohammedkutty', who was inside the urinal shed, he sustained injuries and succumbed to the injuries. Then Neelakantan turned back, entered on the road and began to walk through the road to a distance of about 9 Kms, reached at the estuary of the River Ponnani, jumped into the river and began to swim towards opposite side. But, according to the plaintiffs, he bogged down in the slush and could not proceed further. In the meantime, the 1st defendant and his party got into a boat and chased Neelakantan. When came near him, they mercilessly shot and killed him at 11 p.m. The Veterinary Doctors from Thrissur reached there at 12 midnight, one hour after his death. This is the summary of the sequence of events averred in the plaint.

Pleadings

3. According to the plaintiffs, Neelakantan was not in rut and he got enraged due to the inexcusable misconduct on the part of the unruly mob gathered around him. He was shot dead unnecessarily and it was an act of sadism and cruelty towards an animal. Had the 1st defendant waited till the arrival of the Veterinary Doctors, so as to administer tranquilizer shot, death of Neelakantan could have been avoided. Thus, the shooting of Neelakantan was unjustified and unwarranted. Probably, the 1st defendant was anxious to claim the credit of being the one officer, who had shot an elephant. Thus, the act of shooting was not in discharge of his official duty. Hence, the defendants are liable to pay damages for the loss sustained by the plaintiffs. They have sustained a loss of Rs.8 lakhs, but limited their claim to Rs.5 lakhs only and prayed for granting a decree for the said amount.

4. In the written statement, the 1st defendant contended