009-NLR-NLR-V-05-P.C.-,-PANADURE-,9,526.pdf
( 23 )
P. C.,. Panadure, 9,526.
Mischief-Penal Code, ss. 409, 41L—Meaning of maiming.
It is "a wrongful act to inflict wanton injury upon an animal belongingto another person merely because it is trespassing on your ground. Forsuch an act damages can be recovered.
A, finding two cows trespassing on his land whereupon paddy wasgrowing, lost his temper and slashed them with a knife, withoutattempting to secure them.' The animals were not killed, maimed, orrendered useless.
Held, per Bonsbb, C.J., that these circumstances justify a convictionunder section 409 for mischief, and not under section 411.
To constitute maiming it is essential that .permanent injury should beinflicted bn the animal.
Bonsbb, C.J.—I should, be disposed, if necessary, to decline to followLane v. Waselino (9 S. C. C. 109), Ranhami t>. Bodiya (9 C. L. R. 176),and Queen t>. Sultan (2 N. L. R. 162).
T
HIS was an appeal by the accused against a conviction formischief, under section 4il of the Penal Code.The facts
of the case appear, fully in the judgment of his Lordship the ChiefJustice.
E. Jayawardena appeared for appellant.
•Bonser, C.J.—
This is a case in which the appellant has been convicted undersection 411 of the Penal Code and sentenced to pay a fine ofRs. 75, in default to three months’ rigorous imprisonment. Section411 provides, that “ whoever commits mischief by killing, poison-" ing, maiming, or rendering useless any animal or animals of the“ value of Rs. 10 or upwards, shall be punished with imprisonment“ of either description for a term which may extend to two years“ or with fine, or with both.”
Now, the facts proved in this case are these: the appellant is acultivator, and he found two cows trespassing oh his paddy.Thereupon, without any attempt to secure them, he seems to havelost his temper on seeing his paddy injured, though the injury issaid to be very, trifling, and slashed them with a knife, inflicting6-
1901.March 2,
1961/March t.
Bonshr.C.J.
( 24 )
'8 cut on each. The result, in the case of one is that, she was withcalf, and that she miscarried two days after,'and thiat the complain-,ant lost the calf in consequence. But no permanent injury was doneto this animal or to either of them. It 'SCeixis to me thereforethat the conviction was wrongly had under section .411. The ani-mals were not killed, or poisoned, or maimed, or rendered useless.The only word under which this injury could possibly be broughtwould be maiming, but it has been held in an English casethat to constitute maiming of an animal it is essential thatpermanent injury should be inflicted on the animal. That wasdecided‘in the case of Regina v. Jeans (1 Grand K. 589), and- ithas also been so decided in Andris v. Sarneld (l C. L. R. 48).
But although the case does not fall under section 411, Isee no reason why it should not fall under section 409, simplemischief. It is said that the fact that the animal was trespassingon the complainant’s premises renders it impossible for theoffence of mischief to be committed.
Now, what is mischief? It is defined thus:“ Whoever, with
“intent to cause, or knowing that he is likely to cause, wrongful“ loss or damage to any person, causes the destruction of any“ property or destroys or diminishes its value or utility, or affects it“ injuriously, commits mischief.” It seems to me quite.clear that inlaw it is a wrongful act to inflict wanton injury upon an animalwhich is the property of another person, merely because it is tres-passing on your premises. No doubt that is a wrongful act forwhich damages can be recovered in a Civil Court, but it seems tome that such an act fulfils all the conditions of the offence ofmischief. On what principle could it be that the mere fact of theanimal trespassing should render the unlawful act lawful? Threecases have been cited as authorities for that proposition. Thefirst decided in 1890 by Mr. Justice Clarence. In that case thedefendant- had been convicted of shooting a. cow which had beentrespassing on his land at the time it was shot. Mr. JusticeClarence set aside the conviction, and said that it was. clearly inevidence that the cow was shot by the defendant – while trespass-ing on defendant’s plantation, and, according to the complainant’sevidence, the defendant shot the cow after unsuccessfully attempt-ing to noose her. He says, “I do not consider the defendant in“ shooting the cow is amenable to the Criminal' Law; he may be“ civilly liable, but that is another .question.’' No reason whateveris given for this decision. The only ground I can suggest isthat the judge thought that the defendant had' done all ' hecould to try and capture the tcow, and that the shooting in "hisopinion was absolutely necessary to prevent the cow from doing
( 25 )
further harm. However, if that be the true reason, it does not 1901.apply to the present case. No attempt was made in tins case by March 2.the appellant to secure the cow; he seems to have at once lost bis bonshb,C.Jtemper and slashed at' the cow.
The next case was decided by Mr. Justice Withers in 1892(Banhami v. Bodiya, 2 C.L.R. 176). In that case Mr. JusticeWithers on the facts held that the accused was not guilty, but he is :careful to say, “ I do not of course mean to say that in no cireum-“ stances could a man be not found guilty of committing mischiet“ to a trespassing animal.” So that that case is'no authority forthe proposition that the mere fact that. the animal was tres-passing is an answer to such a charge.
The next case was also decided by Mr. Justice Withers (TheQueen v. Sultan, 2 N. L. R. 162). In. that case it was found as afact that a buffalo trespassed in a paddy field of the defendant’swhich was under young plants. The accused tried to drive it*away from the field, and being unable to do so he made a slash atit with a katty, and he says: ” Was it causing wrongful damage to” the owner of the animal, in a criminal sense, to hack at the“ animal, whatever the result, in order to drive it out of the field” where it was trespassing and doing damage, or to stop its doing” any more damage, after reasonable and ineffectual efforts had” been made to drive the beast from the field without doing it'* harm? I do not think it was.” And he goes on to refer to thecase of Lane v. Wasilino, reported in 9 8. C. C. 109, to which I havereferred, decided by Mr. Justice Clarence. BuFlt will be observedthat the facts in that case are different from the facts in thepresent case. In that case the judge was of opinion . that theaccused had made reasonable efforts' to drive away the beastfrom the field without doing it any harm; so that that case is noauthority for the proposition which is sought to be laid down mthe present case, that you could not commit mischief on a tres-passing animal.
must say that I cannot follow the reasoning of these threecases; and I should be disposed, if it were necessary, to declineto follow thm. But it is unnecessary to say any more of thosecases, as they do not cover this case.
The only question on which I have any doubt is as to theamount of the fine. The Mudaliyar who examined the animals,with the consent of both the parties, stated that if the animalswere in good condition they would be worth Rs. 90 or Rs. 100, butin the condition in which he saw them fhey were worth onlyRs. 50 or Rs. 60. It does not appear clearly what is the meaningof that statement. There is no definite statement that' injuries ■
( 26 )
1901.March 2.
Bonbeb, C.J.
inflicted upon, the animals by the cuts had deteriorated theirvalue to the extent of Rs. 40.' It may be that they were insuffi-ciently fed or out of condition. There is no doubt that thecomplainant suffered some loss by the loss of the calf, but thereis no evidence what that loss wa&. I think that in the circum-stances a fine of Rs. 30 would be sufficient, the whole of thatamount to be paid to the complainant as compensation; in default,three months’ rigorous imprisonment.