Owners can be held liable under section 289 of the Indian Penal Code if they are aware of their animal's dangerous disposition and fail to take precautions to guard against probable danger to human life or grievous hurt.

Hemeon, J—The non-applicant Moti was convicted and sentenced to pay a fine of Rs. 200 under section 289 of the Indian Penal Code by the First Class Magistrate, Seoni; and the Additional Sessions Judge, Seoni, has reported the case under section 438 of the Code of Criminal Procedure with a recommendation that the conviction and sentence be set aside as erroneous.

2. On the 25th February 1951, the non-applicant's she-buffalo attacked Jhanaklal (P. W. 2) in the jungle and with her horn inflicted an incised wound 3" x 1/2" x 1" on his left thigh. The non-applicant admitted the occurrence and, when questioned concerning the animal's disposition to attack persons, replied: She attacks. She is a beast.

3. Chabbilal (P. W. 4) averred that her owner sold her after she had attacked his younger brother and rushed at her owner; and Jhanaklal, the victim, declared that she used to attack men. She was, according to the kotwar Kodulal (P. W. 6), notorious for attacking people; and his evidence thereto was corroborated by his first information report Exhibit P-1 in which he stated: She always rushes to attack men. She is very dangerous." Babulal (P. W. 8) testified to an occasion when the animal had rushed at him "to strike".

4. In Shamlay v. Emperor,1906 3 NLR 90) the owner o a buffalo was adjudged liable under section 289 of the Indian Penal Code as the animal was known to be a dangerous animal which had attacked several persons and as no special precautions were taken regarding it. Here the prosecution evidence showed that the she-buffalo had attacked people; and the non-applicant himself admitted that she used to do so. Lord Esher in his judgment in Filburn v. People s Palace and Aquarium Company,1890 25 QB 258) said that the law recognised two distinct classes of animals, animals which were dangerous by nature and animals which were generally not dangerous; but where animals of the latter class were dangerous to the owner's knowledge, he put them into the same class as animals which were dangerous by nature. The she-buffalo in the case before me belonged to the second class of animals, as she-buffaloes are generally not dangerous; but as she was dangerous to the owner's knowledge, she must be regarded as belonging to the first class.

5. She was, as shown, of a savage and vicious disposition vis-a-vis human beings and the non-applicant was clearly aware of this. He knowingly or negligently omitted to take such order with the she-buffalo as was sufficient to guard against probable danger to human life or any probable danger of grievous hurt. He was, therefore, rightly adjudged liable under section 289 of the Indian Penal Code.

6. The reference is not accepted.

Final Result : Dismissed