060-NLR-NLR-V-47-SEIMON-Appelant-and-VELAPPAN-S.-I.-POLICE–Respondent.pdf
HOWARD C.J—Seimon v. Velappan (S. I., Police)
185-
1846Present : Howard C.J.
SEIMON, Appellant, and VELAPPAN (8. I., POLICE),Respondent.
363—M. C. Galle, 46,272.
Atischief—Destruction of pig—Accused’s plea that the pig teas found strayingin his garden—Burden of proof—Cattle Trespass Ordinance {Cap. 331),s. 14, proviso 2.
Where the accused, who was charged with causing mischief bydestroying a pig which belonged to the complainant, pleaded the benefitof proviso 2 to section 14 of the Cattle Trespass Ordinance—
Meld, that before the accused could invoke the privilege conferredon him by the enactment the burden lay on him to prove that the pigwhich he destroyed was found straying in his garden.
PPEAL from a conviction by the Magistrate of Galle.
W. Jayetvardene, for the accused, appellant.
J.G. T. Weeraratne, C.G., for the Attorney-General.
February 6, 1846. Howard C.J.—
In this case the accused was convicted of causing mischief by destroyinga pig which belonged to the complainant. The pig no doubt was in thegarden of the appellant and the appellant maintains that proviso 2 tosection 14 of the Cattle Trespass Ordinance operates to his benefit.He maintains that by that proviso he was entitled to destroy the piginasmuch as it was found straying in his garden. The Magistrate hasfound that the appellant was not entitled to destroy the pig by clubbingit and if he did invoke the provisions of this proviso he was only entitledto shoot it. I am of opinion that if the pig was found straying in hisgarden the appellant was entitled not only to shoot it but to use othermeans for destroying it such as employing a club. I think, therefore, thatthat part of the Magistrate’s decision was wrong. On the other hand,before the appellant could invoke the privilege conferred on him by thisproviso the burden lay an him to prove that the pig which he destroyedwas found straying in his garden. I do not think, having regard to thefacts of this case, viz., that he was standing outside the oomplainant’sgate with a rice-pounder in his hand while the other people wereendeavouring to get hold of the pig, that he has discharged this onus.In other words, I do not think it is established conclusively that the pigwas found straying in the appellant’s garden. The appeal is thereforedismissed.
Appeal dismissed.