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Present: Wood Renton J.June y-191i
SALGADO v. RODRIGO.
335—P. C. Panadure, 35,806.
Penal Code s, 282—Injury by dog—Owner not liable unless he had expressknowledge of its savage disposition.
A dog is a domestic animal; a person cannot be convicted undersection 282 of the Penal Code for having knowingly or negligentlyomitted to take such care with a dog as is sufficient to guard againstany probable danger from it, unless the prosecution proves that theaccused had express knowledge of the savage disposition of the dog,or that he had been guilty of negligence in regard to its custody.
fJlHE facts are set out in the judgment.
H. A. Jayewardene9 for the appellant.—The complainant has notproved that the accused was aware of the savage disposition of thedog, or that he was negligent with respect to the custody of it. Theanimal was securely fastened. Dogs are domestic animals. Counselcited Gour's Penal Code, p. 1043 ; Mayne’s Criminal Law (s. 411),p. 630.
Goonetileke9 for the respondent.—The question whether the dogwas fierce, and whether the accused was aware of the fierce nature ofthe dog, is a jury question. The Judge had come to the conclusionthat the animal was kept tied by the accused because he knew theanimal to be fierce by nature. It has been held that a single
1 (1898) l. L. R, 23 Cal. 335.
23.T. K, A 93343 01/40)
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June 7, 1911 iflsi&nce of ferocity was sufficient notice to the owner. RatanlaVsSalgado v. Law of Crimes fp. 368 (s. 289).
Rodrigo The accused in this case must be presumed to have actednegligently. Counsel cited 2 Walter Pereira 701, 706, and 708, ;Moyne; pt 632.
June 7,1911. Wood Renton J.—
The appellant was charged in the Police Court of Panadure.tinker section 282 of the Penal Code, with having knowingly ornegligently omitted to take such order with a dog belonging to him,as was sufficient to guard against any probable danger of grievoushurt from such animal. The Police Magistrate convicted him, andsentenced him to pay a fine of Rs. 30, and further directed thepolice to destroy the dog. It is stated that the dog is now in policecustody, pending the decision of the present appeal. I may say atonce tfyat I do not see that the Police Magistrate had any powerUnder section 282 of the Penal Code to order the destruction ofthe dog. He may, of course, have independent statutory powersapart from that section, and if he has such powers nothing that I amsaying in this judgment will prevent him from exercising them. Ipropose to say nothing further on that part of the order underappeal. Section 282 of our Penal Code presents no difficulty inconstruction so far as the law is concerned. The only difficulty is inapplying the law to the facts. It is practically identical with section289 of the Indian Penal Code, and I have no doubt that its meaningis correctly stated in the following passage from Mayne's Treatise onthe Criminal Law of India, s. 411. “ The principal point to be con-sidered under this section will be the knowledge that the defendantHad. pf the dangerous properties of the animal. Where the verynature of the animal gives him warning, his knowledge will beassumed ; as, for instance, if a person were to make a pet of a tiger,or a bear. Otherwise, express knowledge will have to be shown, in, order to involve the necessity of unusual caution. Where injury isdone by a horse, a pony, a bull, or a dog, and it is not shown that theanimal was peculiarly vicious, or that his vice was known to hismaster, no indictment could be maintained, unless he had neglectedthe ordinary precautions employed by everyone who uses suchanimals. But if the animal had shown a savage disposition to the'knowledge of the owner, it would not be necessary to show that hehad actually injured any one.”
I proceed then to the facts of this case. It must be taken that, the dog is a domestic animal. There have been judicial dicta fromtime to time to the effect that so much mischief has been caused bydogs that it would be well if they were considered as ferae naturae.That might be very good legislation. But as things stand at presentit is not law. .
We are dealing, therefore, with a domestic animal. . There is.-evidence in this case on which 1 should be prepared to hold
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that this dog is one of a savage disposition. As the learned PoliceMagistrate says, the first thing that it does when it succeeds ingetting loose is to attack a small boy of ten years of age, who is notshown to have given it any provocation, and to bite him severely.In addition to that, there is the boy’s evidence, which was untouchedin cross-examination, and which is said by the learned PoliceMagistrate to have been given upon this point “ vehemently ”, thatthe dog had bitten his father. If, therefore, it could be showneither that the appellant had knowledge of the disposition of thisdog, or that he had been guilty of negligence in regard to its custody,all the elements that section 282 requires would be'present, and theconviction would be right. It is not alleged by the complainanthimself, or by any witness for the prosecution, that the appellanthad any knowledge that this dog was a dangerous dog, and therehave not been proved against it such repeated exhibitions of badtemper as to show that it must have had a notorious reputation.It is not stated that the complainant’s father brought to theknowledge of the appellant what had happened to him, and thepolice vidane who was examined as a witness said that no previouscomplaint against the dog had been brought to his notice, and thatso far as his knowledge went it had never bitten anybody. Theonly fact from Which knowledge of the character of this dog on thepart of the appellant can be deduced is the clearly proved circum-stance that it was always tied up. I can quite well conceive that thatcircumstance might, in certain cases, have pointed to knowledge.On the other hand, the appellant gave evidence on his own behalf,and stated that the reason why the dog was constantly tied up wasthat it had a habit of straying and that he was afraid of its gettinginto contact with mad dogs. There was no cross-examination of theappellant on that point, and the learned Police Magistrate in hisjudgment does not allude at all to the question whether eitherknowledge or negligence had been brought'home to the appellant,or express his distrust of the explanation given by the appellanthimself of the tying up of this dog. Under these circumstances Ihold that the element of knowledge has not been brought home tothe appellant. Is there any proof then that he has been guilty ofnegligence ? When we consider that element we must rememberthat the dog in his custody is one of whose savage disposition he hasnot had any knowledge, and also that its being kept tied up is notbecause it is vicious, but to prevent it from straying. The evidenceshows here that the appellant kept this dog constantly tied up. Hewas in the habit, therefore, of taking the utmost care of it. All thatcan be urged against him is that on this particular occasion the dog'managed to get loose and abused its liberty. There is not a Scrapof evidence on the record to show that he was in any way respon-sible for its getting loose. I do not think that that is sufficient toestablish negligence against him. It is impossible to hear an appeal
June 7, 1911
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June 7, ion 0f this kind without strong sympathy with the. complainant-Wood respondent, who has been the subject of a severe and unprovokedRenton j. attack by a bad dog. At the same time, one has to see, before aSaigado v. man is convicted, that all the legal elements necessary to constituteRodrigo the offence charged have been made out against him. I needscarcely point out that the appellant will stand in a very differentposition if any further mischief should be caused by this dogassuming that on the present occasion it escapes destruction undersome statutory provision other than section 282 of the Penal Code.I set aside the conviction and sentence and acquit the appellant.
SALGADO v. RODRIGO