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Present: Schneider A.J.
AHAMATH v. APPUHAMY.417 and 418—P. 0. Kurunegala, 5,150
Gome Protection Ordinance, 1909, s. 12 (6) — Definition of ‘elk’’ and-“ game. ”
Killing an elk which is tame is not an offence punishable under'section 12 (5) of the Game Protection Ordinance, 1909.
“ £)lk ” does not come within the definition of “ game. ”
The word “ game " must be taken to mean the animais givenin the definition which are res nullius, that is, which have notbecome the property of some person by domestication.
rJ1 HE facts appear from the judgment.
Koch, for first accused, appellant.
Arulanandan, for third accused, appellant.
Hayley, for complainant, respondent.
June 20, 1919. Schneidek A.J.—
In this case three men. were charged with having killed an elkby striking it with a club, and of having committed an offencepunishable under section 12 (5) of the Game Protection Ordinance,1909. They were also charged with mischief. They were convictedof the charges under both counts, and sentenced to three months’rigorous imprisonment on each count, the sentences to run con-currently. The'evidence proves that the first accused, who is anArachchi, struck the animal with a fence stick three or four timesand killed it. Subsequently, he and the second and third accusedwere found near the animal, the feet of which were tied, evidentlyin preparation for its removal from where it was lying. Whenseen on the spot all the three accused ran away. The learned
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Police Magistrate has accepted the evidence for the prosecution, anddisbelieved the evidence called for the defence. I see no reason forinterfering with his findings on the facts, but it seems to me thatthe conviction under the Game Protection Ordinance cannot stand.The evidence in the case proves that the animal which was killedwas a tame one belonging to Colonel T. 7. Wright, and had escapedfrom its enclosure and made its way into the village, where it hadbeen killed. One of the witnesses says the animal was quite tame.The Game Protection Ordinance defines game as meaning andincluding a number of animals the names of which are given in thedefinition, such as sambur, spotted deer, &c. The word “ elk ”does not appear in that definition. I have no knowledge whetherelk will come under any one of the kinds of deer the names ofwhich are given in the definition. Therefore, one reason againstthe conviction under the Game Protection Ordinance would be thatelk does not come within the definition of game. There is a furtherobjection equally fatal against the conviction under that OrdinanceIn my opinion the word “ game ” must be taken to mean theanimals given in the definition which are res nulling, that is, whichhave not become the property of some person by domestication.It seems to me that, unless this limitation is placed upon the defini-tion, that a license to kill or capture game would mean to kill orcapture game, which is subject of. private property, so that a tamepeafowl or deer may be killed under such a licence. I wouldtherefore, set aside the conviction of all the accused under the GameOrdinance and acquit them of that charge. In regard to theconviction of the accused for mischief, there is no evidence that thesecond and third accused had any part in the killing of the animal.The only evidence against them is that they were seen near thespot where the animal had been killed. The first accused is a Gan-Arachchi, and it is quite possible the second and third accused hadbeen brought there by him after he had killed the animal to helphim to remove the carcase. I think, therefore, that there is noevidence to warrant a conviction of the second and third accused.The third accused has appealed, but the second has not. I would,therefore, in the exercise of my powers of revision, set aside theconviction of the. second accused and acquit him. The thirdaccused is entitled to an acquittal. I, therefore, acquit him. Inregard to the first accused, it appears to me that the conviction iswell founded on the evidence. He must have been aware that theanimal was a tame one, and that the killing of it would causewrongful loss or damage to some person. If he did not consider ita tame animal, he must have regarded it as a wild one. I see noreason, therefore, to interfere either with the conviction of the firstaccused or with his sentence. I would dismiss the appeal in regardto the conviction and sentence for mischief.
AHAMATH v. APPUHAMY