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SITTAPPU v. SINNAPPU.C. R., dalle, 5,305.
Shooting trespassing cow—Mistaking cattle for leopard—Liability fordamage done.
A person firing at and maiming a trespassing cow in a dark night,under the mistake and in fear that it was a leopard coming towardshim, is not liable in damages to the owner.
LAINTIFF sued the defendant for the value of a cow, in thatthe defendant unlawfully shot and maimed it. Defend-
ant denied the unlawful shooting and maiming, and averred thatwhen he was in his watch-hut overlooking a paddy field heheard what he thought to be the growl of a leopard, when he fireda gun in the direction of the growl, and that it was the shot firedunder such circumstances that injured the cow which wastrespassing.
The Commissioner held that the misapprehension of thedefendant did not relieve him of his responsibility for the damagedone, and gave judgment for plaintiff for Rs. 30, being the valueof the cow which had died since action brought.
Sampayo, for appellant.
Cur. adv. vuli.
2Sth July, 1899. Withers, J., set aside the decree of the Courtbelow and dismissed the plaintiff’s action by the followingjudgment:—
The question is whether the judgment is right. It all dependson the culpability of the defendant’s conduct. If it was notculpable, he ought not to be made to pay for the cow. In thenight in question the defendant went to his watch-hut to watchhis field which was planted with paddy. He took a gun loadedwith slugs. Natives have to protect their crops against wild beasts,and so there was nothing unlawful in his having a loaded gunwith him.
It was a very dark night. While the defendant was engagedin watching, he heard what he thought to be the growling of aleopard. It had been reported in the village that a leop»ard hadtaken up its quarters in the place. He declares as this soundcame nearer to him he fired in the direction of' it through fear.He saw id object; he fired only at the place where the soundappeared to be ; unfortunately he hit a tame cow instead of adangerous leopiard.
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I see no reason to doubt that the defendant was telling thetruth, although the Commissioner regards it as a fiction. How, asks. the Commissioner could a man mistake a black cow for a leopardfive or six fathoms off, and a cultivator, he thinks, must know acow when he hears one. But then a cow does not make a noise likea growl, and it is not easy to see a black cow on a dark night evenfive fathoms off. The Commissioner however, assuming that thedefendant thought he heard a leopard as it pounced near him,considers that the man should have kept his head and not firedthe gun, and that he was incautious and imprudent and rash.
But I venture to differ from the Commissioner, if he goes so faras to hold the defendant guilty of culpa under the aforesaidcircumstances.
It is admitted that the plaintiff and the defendant were goodfriends at tha> time, and it is not pretended that the defendantmaliciously shot his friend’s cow, nor is there room for suspicionthat he intentionally shot any man’s cow.
If any one, I think, was to blame, it was the plaintiff who allowedhis cow to trespass by night. Not that of course the defendantwould have been justified in shooting a cow simply because itwas trespassing.
Had the defendant known it was a neighbour’s cow, it is onlyfair to suppose that he would have got down from his hut anddriven the cow out of the field, or tried to secure it for indemnityif it had done any damage. I therefore reverse the judgment anddismiss the action.
SITTAPPU v. SINNAPPU