SAIBO v. PERERA

019-NLR-NLR-V-24-SAIBO-v.-PERERA.pdf


( 65 )
Present: Schneider J.
SAXBO r. PEBEBA.
1922.
179—P. C. Kurunegala, 14,310.
Tdischief—Shooting fowls trespassing on garden planted with■ vegetables—Law as to destruction and injuring of brute- animals while committingtrespass—Penal Code, s. 409.
It is mischief to inflict 'wanton injury upon an animal, the propertyof another, merely because it is trespassing upon premises.
Whenever a charge of mischief is preferred, before a Court canconvict, it must be satisfied, not only that the injury had beeninflicted, but that the facts and circumstances justify the inferenceof the presence of criminal intention or knowledge. Such aninference would not be justified unless they negative a reasonableinference that the act could, be due to any other state of mind,such as accident^ carelessness, or negligence, or bona fide belief inone's rightIn every case the question has to be
considered whether the act was done in -the defence of some person'sproperty. The nature of the' damage which, has been done, thekind of animal which was doing it, and other circumstances mustneeds be considered …. In judging a man's state of mind
in killing or injuring an animal, the valuable nature of the animalcannot be lost sight of. A person could hardly justify the des-truction of an elephant, a horse, or a valuable, cow, on the groundthat he had done the act to protect a field under paddy, even if he hasmade an . effort to drive it away. But, on the other hand, it is notas easy to keep pigeons or fowls from a plantation as other animalssuch as cattle, and if an accused person pleads that he had killedpigeons or fowls because he could not prevent them from damaginghis crop of gram or other produce, it is obvious that he is notgnilty of mischief, for the intention of the act seems clear that itwas the protection of his property.
r^pHE facts appear from the judgment.
Coder, for accused, appellant.—The Magistrate has found onthe facts that the complainant’s fowls “ were making a nuisance ofthemselves ” by entering the accused’s garden and destroying theplantations. The accused had also put up a board giving warningthat fowls found trespassing in his garden would be shot. Theaccused shot down the fowls, not with any malicious motive, butin defence of his own property. The case of The King v. Mencho-hami,1 which the Police Magistrate has followed, applies to adifferent state of facts, viz., where the trespass was caused by avaluable animal which was going away from the land where the
*• (1906) 8 N. L. R. 309.
* ,86 )
injury Wasmflioted. Queen t>. Sultan 1 and the case reported ino-N. L.R. 23, P. C Panadure, 9,562, apply to similar facts. Thelocal case directly .in point is Lowe v. Waeilino,2 * * * in which it washeld that the only remedy open to a complainant whose cow wasshot dead whilst causing damage was a civil one. Mischief asdefined .by section 409 of the Penal Code corresponds to the “ mali-cious injuries to property ” as set out and defined, by the EnglishStatute, the Malicious Damages Act, 1861.® Cases under thisStatute bring out the principle applicable to the facts proved imthis case. Smith v. Williams * is directly in point. Counsel alsocited Daniel, v. Jones,® Miles v. Hutchings and Bryon v. Eaton*
June 13, 1922. Schneider J.—
The appellant was convicted of having committed mischief undersection 409 of the Penal Gbde by shooting and killing two fowlsbelonging to the complainant, and was fined Ks. 25.*.-He appeals.But he has no right of appeal, except upon a matter pilaw*. Severalstatements are certified to in. the petition of appeal as matters bilaw, but it would appear that the real matter of law involved in .the-appeal is the question whether upon the findings of fact arrivedat by: the Magistrate the offence of mischief is made out.. What,then, are these facts ?_r.‘
The .Magistrate holds that the accused is the owner of a gardenplanted with betel' andveget&bles, and that the complainant’s fowls'“ Were tnftlring a nuisance of'themselves by frequently entering tiieaccused’s garden.” He also accepts as proved- that' the accusedhad complained to the. Policfeand to the' ArSchchi that fowls wereconstantly trespassing on bis land. On the day preceding theshooting, he had actually put tip a board giving warning that hewould shoot fowls which entered his garden,. and that people shouldnot allow their fowls to trespass there. .
In answer to the charge against him . in this case, he admitted theshooting, of 'the fowls, and. said that ' he had shot them when theyhad entered his garden, and were. actually committing damage.
Upon these facts the Magistrate thought the accused was guilty- of mischief,' because) instead of shooting them, he might have driventhem away.’ The’ Magistrate was of opinion that the case of TheKing v. 'Menchohami * justified the conviction.
I am unable to agree with his views, and as. there appears to he■ some miaflppreliflpajon as to what constitutes mischief in the case ofthe destruction and injuring the brute animals while committing
1 (1896) 2 N. L. B. 162.* See Oour, Penal Law of India, vol.
(1890) 9 S. C. C. 109-//,, 2nd ed., pp. 1983-1984.
56 J. P. 840,1892 ; 9 I. L.R., 9. See, Metdapigeet,.vol. IV., p. 1435.
2 C. P. D. 351.7 (1875) 40 J.P. 213.
(1903) 2 K. B. 714.* (1906) 8 N. L. B. 309.
( V! )
trespass or damage, I think it would be useful to consider the questionsomewhat fully.
The matter for consideration divides. itself into two distinctquestions. First, the general one as to the right of a person todestroy or injure a brute animal, which is trespassing on his'land ;and secondly, in what circumstances such destruction or injuringconstitutes the offence of mischief…
* * •; r. N'.• •
The first .of these questions has been considered in four old deci-sions of this Court from . the standpbint of the liability to paydamages for the act of destruction or injury. Jn the earliest of
these cases (Oongb Naide v. Machlachdni1), decided in 1868 byCreasy C.J. an&Thomsoii J'‘, it was assumed without any dis-cussion that the; law was settled that an action lay to recoverdamages for having shot and, injured buffaloes when they weretrespassing upon a coffee estate:.. .
The next is .a*1 anonymous case reported at page 182. of Varider-Biraaten s Reports., which was decided in 1871. A cow in attemptingto enter a field under crop was .caught in a noose set in . the boundaryfence .of the field and killed. It was held that no claim for damageswas. sustainable. This judgment is of value, in that it states that asregards the general law on ifche subject the Supreme Court could, find,nothing either in the jKandyan (the cape was from the Court’ ofRequests1' of GalagtSdfira in the Kandyan Province) or in the Dutchlaw writers expressly deciding the point. It cites a passage from'Voet* as the only authority to be found, on the point, and asstating “that, if a person dig pits, or set nets to catch- bears or deerin pathways, and without giving, notice, he is liable to action, if anyother person’s animals shall fall into the pits or nets ; but not sdif in a place, where it was usual to set such traps. “-The judgmentindicates that in default of anything more express in the Kandyanand Dutch law resort may be had to the English law. It adoptsthe law as laid down by Gibbs C.J. in Deane v. Clayton,* whichwas an action for damages for injury done to plaintiff's dog whenpursuing a hate in defendant’s wood by a dog spear set* there bydefendant for*,the purpose of killing dogs in pursuit of game. Thedictum is this.:‘ I conceive that, as far, at least, as civil .rights are
concerned, every man may guard his own land by any means hepleases, provided he does ..not thereby invade or interfere with the. legal rights of -others. .One mode of guard is the setting up suchdefiances a§ . render it dangerous for the animals of others to passover our lands, and if after this they endeavour to pass without right,it is at the peril of their master’s, who do not keep them within theirown bounds. What the defendant- has done was on his own land,and could not molest any other man in the exercise of any legalright, I cannot think that he was bound to consider the degree ofmisphief which those guards so set upon his own. land might occasion
1 Ram. {63-68) 67… • Lib chapter 2.-« 7 Taunton 499.
1968.
SCHNBXDKR
J.
Saibo. v.Perw
( 68 )
1908.
SCHOTBIDEB
J.
Saibo v.Pertra
either to beasts or dogs that wrongfully encroached upon him.The wrong is when those dogs are permitted to wander into defend-ant's land, and if they suffer by such' means, as the defendant had.used for excluding or. stopping all suoh aggressors, the fault is theirown. " The judgment proceeds to point out that 'this dictium of theChief Justice was approved end followed by the whole Court ofExchequer in the subsequent case of Jardin v. Crump.1 *
The next local base was that of Wijeeinghe v. Templet and another *decided by Berwick J. in 1879. He- held that no claim for damageswas sustainable lor the destruction of a dog by poison laid out for thedestruction of stray, dogs ,by a person in his own premises, the dognot having been renticed to its destruction by such poisqn. Theleained Judge whd decided this case has- been regarded as'speciallylearned in the Roman-Dutch law. In . his’ judgment he followedthe principle enunciated in the English cases of Dean v. Clayton andJardin v. Crump (suprawhich I have already referred to regardingthem as cases expounding the law consonant with the principles
of the Roman-Dutch law which governed the question.
The next case is Carter v. Tothill 3 decided in 1886 by Burnside
J. It was an action to-recover damages for shooting a- dog. whiletrespassing. The defence that the shooting was justified in that ithad trespassed was held to be unsustainable in' law. The learnedChief Justice refers to the more important cases decided locallyup to that date and also to the English cases of Vere v. Lord Cawdor *besides the other two English cases already mentioned. Upon aconsideration of all those authorities, he deduces the principle to be, that no person has a right to destroy the property of another becausehe was receiving or was likely to receive injury from it ; that theright only exists when the one person is unable by means less in-jurious to the other to protect himself, " as in the case, gut by LordEllenborough, of. : a hare put in peril by a- dog running after itinducing the necessity of killing the dog to save the. hare." Hecites the following doctrine of Gibbs C.J. in Deane v. Clayton (supra)as marking the distinction between the two classes of cases into whichthe subject could be divided : "It has also been said that,becauseI could not justify killing or maiming dogs which were foundwandering over* my land without right, therefore I cannot justifythe setting up a defence which is likely to produce the same effect.But the. two cases are widely different. In the one, I make animmediate and direct attack upon the animals with no object inview, but their destruction, which I have no right to effect if theycan be removed from my land by less violent means. In the other,I merely set .up a guard against, all wrong-doers generally. Theprimary object'Of this guard was protection to my property, buthot mischief, to others.*"
1 8 M. dr W. 782.
* 8 S.C. 0.1.
*7 8. C. C. 151.«11 East 568.
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It would, accordingly appear that from 1863 the law as stated in *828.the judgment of Burnside C.J. was regarded as settled, and 1 will- Sohnexdbkaccept that to be the law.•■
I will now proceed to consider the second question, as to when itbecomes mischief to shoot or injure brute animals when trespassing.
There are three cases decided between 1890 and 1896, which mightl$e regarded as forming one group. They are Lowe t>. Wasilino,1Ranghamy v. Bodia,2 and Queen v. Sultan (supra).
I must confess that I am unable to follow the law laid down in thecases of Lowe v. WasiUno and Ranghamy v. Bodia (supra) to the effect,respectively, that it was not mischief to shoot and kill a cow whichhad committed trespass and could not -be noosed, or to cut a bullas it was escaping after committing trespass on a land. The law is notdiscussed, in either case, and the facts stated in the judgments do not,in my opinion, if I may say so with all respect, warrant the holdingthat no mischief had been committed.
In the other case Queen v. Sultan (supra), it was held that it was notmischief to cut a buffalo with a katty after an ineffectual attempt todrive it out of a field into which it had trespassed, and while it wasstill treading down and eating the tender plants in the field. Indeciding this case Withers J. refers to the definition of mischief inour Penal Code.
These three*cases are referred ,to by Bonser C.J. in his judgment,also in an. anonymous case decided by him in 1901, and reported atpage 23, vol. V., of the Netid. Lano Reports. He said of them :I
should be disposed, if .it were necessary, to decline to follow them.”
I must say that I fail to understand why he included Queen v. Sultan(supra) in this condemnation, -for it is quite distinguishable fromthe other two cases, and the decision is warranted by the facts andjustified by what he himself held as. constituting mischief, viz.,the infliction of injury wantonly. In the anonymous case, he heldthat the accused was guilty of' mischief, in that he had slaved with aknife and inflicted a cut on each of two cows which were trespassingbn his paddy without having first .made an attempt to secure them.
He held that the meaning of the definition of mischief in the Codeis that it is “a wrongful act to inflict wanton injury upon ananimal which is the property of another person, merely because it is.trespassing on your premises.” •
Next comes a case decided in 1899 by Ltawrie J., also anonymous,which is reported at page 63 of Koch's reports. He refers to theabove cases and others, but holds that it was misehief to kill ormaim buffaloes, merely because they were .trespassing and damaginga field without any attempt being made to drive them away. He says:
"It is, I think, a well-established lew that to kill or maim an animalwhen it is trespassing is not wrongful, if there be no other way of
1 (1890) 9 S. C. C. 109.
* (1893) 2 C. L. B. 176.
Saibo «.
Perera
( 70 )
preventing the destruction el, property, but that the mere fact thatSchneider & beast is trespassing does riot justify the killing of it. It must beJ- proved that it was doing harm, and that there was' no other way of
getting rid .of it. It-seems* to me that it would * be mischief toshoot a valuable harse whicjh had strayed into a pasture field, foreven though it might be difficult to catch and secure it, it was in factdoing no harm, or only a harm which could be assessed at a small
a fi > *:■
sum. – —
It. was following the judgment of BonserG.J.,that Wendt «T. in1905 decided The King v. Menehohdmi '(supra , which the Magistratein this case regarded &s an authorityJ for convicting the accused.The facts of that case were these. A bull had trespassed on accused'sgarden and had damaged some coconut plants. It was chasedby the accused and was going away, and would presumably have leftthe garden, when the accused hacked at it7 and cut it. He held thatthe accused was guilty- of mischief. The reason for the decision isput thus :“ The cut inflicted by the accused was, therefore, an
injury caused without a previous ineffectual attempt to save theland from further damage. ”
The result their of these'' cases is that it is mischief to inflictWanton injury upon an animal; the property of' another, merelybecause it is trespassing upon your premises.
It seems to ,me: that this' is too bald a statement of the .law, and.that it would be useful to look into the definition of mischief in ourPenal Code, with aview fco .the consideration of 'how it should beapplied to the^adts'-of any pacase. The definition is cleat!
that the mere!, doing of an "act resulting in injury to property isinsufficient/ to constitute the offence.. Such an act may render thedoer liable to an action for damages. To constitute the offence -it isrequired that the act should be done by the person with the intentionto cause, or with the knowledge that he is likely to cause, wrongfulloss or damage that is, loss or damage by unlawful.means (sections 21and 408, Penal Code).
Mischief in our law is, therefore, analogous to “malicious injuryto property'' in the English criminal law. Cases decided in theEnglish Courts would undoubtedly be of assistance to us in applyingthe law to a given set of facts. Counsel for the appellant citedthree cases under section 41 of 24 and 25, Viet. c. 97, which makesit a crime for any-person to “ unlawfully and maliciously kill, &c., ”any dog, bird, beast, or any other animal.
. The first of these was the case of Smith p. Williamsin whichaccording to Metv’s Digest {vol. 4, p. 1435)—the report not beingavailable to me-—it was held that it was not obnoxious for a personto kill fowls which were trespassing after he had given warning totheir owner; The reason ^giveu be'ng that the killing was notM unlawful. “/
1 {1892) 9 T. L. if. 9.
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The second case was that of Daniel v. James,1 * where it was heldthat a person was not guilty under that law who had killed a dog by' placing poisoned flesh in his garden for the j>urpose of destroyingthe dog which was in the habit of straying there. The ratio deci-dendi was that the act was done under an impression, whether rightor wrong, that the person was justified in protecting his premisesfrom a trespass by such means, especially after ’ he had given* notice.
The thi^d- case was Miles v. Hutchings,* where a game-keeper washeld not guilty upon a charge of having shot and killed a dog' whileit was near an aviary, in which pheasents, the property of hismaster, were confined for breeding purposes. The learned Judgeswere of opinion that the .test of the accused's liability was whetherhe acted under the bona fide belief that. what he was doing wasnecessary for the protection of his master’s property, and that itwas the natural, way in which property could be protected.
These cases are helpful as indicating that where malice is aningredient of a crime, a person is not guilty who does the act undera bona fide belief that he is justified in doing it-
Now the requirements of our law of the presence of intention orknowledge suggests the question; as Gour says3: “ Should it beactual intention ov knowledge or shch as may be presumed from thenature of the act.’’- “ Whenever criminality in the Code dependsupon the presence of intention or knowledge, ,it! requires proof ofthe actual or primary intention or knowledge, and not merely, of apresumed state of the mind which, though admissible in Englishlaw, is not consistent with the conception of crime in the Code,4But of course, while what the Court has to find is the primary in-tention, still the Court is well justified in inferring it from the natureof the act and the circumstances surrounding-it. But what it hasto find is the real and not a hypothetical intention or knowledge,though in most cases it is a matter of inference rather than of directproof, as such it is a question of fact and not of law. But beinga part of the definition of the offence, it must be established bythe prosecution, who must establish facts and circumstances, fromwhich the Jury or the Judge may justifiably infer the presence of theintention or knowledge- which makes the injurious act criminal.Such act must then negative a reasonable inference that it could bedue to any other state of the mind, such as accident, carelessness,or negligence, or bona fide belief in one’s right.’’
It would appear, therefore, that whenever a charge, of mischief ispreferred, before a Court can convict, it roust be satisfied not onlythat the injury had been inflicted, but that the facts and circum-stances justify the inference of the presence of criminal intentionor knowledge. Such an* inference -would not be justified, unless
1 C. df D. 351.* Penal Code of India, section 4889,
* (1903) L. R. 2 K. B. 714.p. 1897 (2nd ed.).
• 11966) 8 N. L. B. 309.
1982.
Bchmkiseb
J.
Sctibo'v.
Perero
( ^2 )
IMS. they negative a reasonable inference that the act could be due' toSomnuDBB any other state of mind, such as accident, carelessness, or negligence,j. or bona fide belief in one’s right. Illustrations of each of theseGaibo v. states of the mind will be found in Gour. I would give these. A.
Pereracarter who in his endeavour to get out of the way of a car drives his
cart'into it and damages the car is^.not guilty of mischief. His act. is due to stupidity. A person who neglects to taHe care of hiscattle so that they trespass into a field under crop and damagethe crop would not be guilty of mischief. His act is due to negli-gence. But if he had purposely driven the ‘cattle into the field, itwould be otherwise. ^
*
As regards bona fide belief, section 72 of the Penal Code must notbe lost sight of. It pnacts that "nothing is an offence which is doneby any person who, by reason of a mistake of fact, .and not by.reason of a mistake of law, in good faith belives himself to bejustified in law in doing it."
Gour cites the case of Kaikhusro as an illustration. Theprosecutor was a tenant of B’s employer. As the rent had falleninto arrear, B obtained a distress warrant, the execution of which wasentrusted to A. A and B forced open the prosecutor’s lock in theexecution of the warrant, which neither had the right to do. It washeld that they were not guilty, as not possessng the knowledge ofcausng wrongful loss.- There is such a thing as the right of privatedefence of property. Its recognition underlies the English casesmentioned under the head of malicious injury to property. Our1 Code contains express provision in section 96 for its exercise incertain cases. The definition of mischief is so worded as torecognize the existence of this right. Hence in every case thequestion has to be considered whether the act was done in thedefence of some person’s property. The nature of the damagewhich has been done, the kind of animal which was doing it, andother circumstances must needs be considered.
According to the definition of animal in the Code (section 47),domesticated birds, like pigeons and fowls, are included within theterm equally with such valuable animals as a horse, an elephant, ahead of cattle, or a well-bred dog.
In judging a man’s state of mind in killing or injuring an animal,the valuable nature of the animal cannot be lost sight of. A personcould hardly justify the destruction of an elephant, a horae^ or a-valuable cow, on the ground that he had done the act to protect a fieldunder paddy, even if he has made a effort to drive it away. But,on the other hand, it is not as easy to, keep pigeons or fowls from aplantation as other animals, such as cattle, and if an accused personpleads that he had killed pigeons or fowls, because he could notprevent them from damaging his crop of grain or other produce, it is
1 (1898) B. U. G. 949.
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obvious that he is not guilty of mischief, for the intention of the actseems clear that it was the protection of his property.
In this case it is held by the Magistrate 'that the accused hadsuffered by the trespass of the fowls belonging to the complainant'on many occasions, and that be haVl actually posted up a warning.He could do no more. The destruction of the fowls was done forthe protection of his property, and not with the intention or know-ledge of causing wrongful loss to the complainant.
1922.
SOHBSUMBB
J.
Saibo v,Pertra
I therefore set aside the conviction, and acquit the accused.
Set aside.