Edirisinghe v. Nanay akkara
D. Y. EDIRISINGHE, Appellant, and P. S. NANAYAKKARA,
S. C. 476—M. C. Galle, 3,467
Mischief—Trespassing cow—Right to destroy it.
Accused shot a cow after he had made several unsuccessful attempts to driveit away and as a last means of saving his field from further damage.
Held, that there was no offence of mischief.
SWAJST J.—Edirisinghe v. Nanayakkara
A.PPEAX, from a judgment of the Magistrate’s Court, Galle.
G. E. Chitty, with E. B. Vannita/mby, for the accused appellant.W. Mendis, for the complainant respondent.
Ananda Pereira, Crown Counsel, for the Attorney-General.
Cur. adv. vult.
November 4, 1952. Swan J.—
The appellant was charged with mischief by killing a cow belonging to-the complainant. His defence was that he fired at the animal while it was-trespassing on and causing damage to his paddy field. The learned Magis-trate accepted the appellant’s version of the facts but found him guiltybecause the cow was of greater value than the damage caused. X shallquote that passage from the judgment:—
“ in the circumstances of this case I find that I cannot lose sight ofthe fact that this cow is a valuable cow. It yields no less than threebottles of milk per day and there can be no doubt that by the destruc-tion of this cow, the complainant had been put to very great damage.Now, was this destruction of the cow in the circumstances of the casein proportion to the damage caused to the crop? It is my view that ifit is out of proportion to the damage caused or likely to be caused thedestruction cannot be described as anything but criminal. ”
I do not think that the relative values of the cow and the damage donehad any bearing on the matter in issue, namely, whether the accused hadkilled the cow with intent to cause or knowing that he was likely to causewrongful loss or damage to the complainant. I express this view despitethe fact that Schneider J. in Saibo v. Perera 1 said :—
“ In judging a man’s state of mind in killing or injuring an animal the-valuable nature of that animal cannot be lost sight of. A person couldhardly justify the destruction of an elephant, a horse or a valuable cowon the ground that he had done the act to protect a field under paddyeven if he has made an effort to drive it away. ”
In that case, however, Schneider J., having reviewed all the authorities-up to that time and considering the facts in the light of those authorities,set aside the conviction on the ground that the destruction of the fowlswas done for thp protection of property, and not with the intention orknowledge of causing wrongful loss to the complainant.
Mr. Chitty has referred me to Russel on Crimes (1950 Ed.) Vol. 2, pages-1650 et seq. and has also cited the very recent case of Goodway v. Becher 2.I do not think it necessary or prudent to look to the English authorities;
1 24 N. L. It. 65 at page 72.2
(1951) A. E. B. 349.
Arumugam i>. Seethevi
for help or guidance. There the matter is governed by sections 40 and 41of the Malicious Damage Act 1861 (as amended by subsequent legislation).We have sufficient local authority and the Penal Code to guide and directus.
In an attempt to support the conviction learned Crown Counsel drewmy attention to the anonymous case reported in 5 N. L. R. at page 23as well as the case of King v. Menchohami 1 I do not think that the viewI take of the facts of this case conflicts with the view of Bonser C. J. in theformer of the cases referred to above. The learned Chief Justice held thatit was a wrongful act to inflict wanton injury upon an animal belonging toanother merely because it was trespassing on your ground. Nor is myview in conflict with that expressed by Wendt J. in King v. Menchohami IIn that case the animal had been cut while it was going away from the• land. Wendt J. said :—.
“ In the present case the evidence shows that the animal when chasedby the accused was going away from the land and would presumhlyhave left it. The cut inflicted by the accused was therefore an injurycaused without previous ineffectual attempt to save the land fromfurther damage. ”
Here the evidence reveals that the accused fired at the cow after he hadmade several unsuccessful attempts to drive it away, and that he firedat it as a last means of saving his field from further damage.
Each case will depend on its merits. The wounding or destruction of ananimal would be prima facie evidence of that intention or knowledgewhich is an essential ingredient of the offence of mischief. If the evidenceas a whole negatives that intention or knowledge the accused is entitled toan acquittal.
I set aside the conviction and acquit the accused.