( 802 )
Present : De Sampayo A.J.
MADAWELA v. BAWTHER
185—P. C. Puttalamy 6,919.
Cruelty to' animals—Keeping a dugong alive for sale without, feeding it—
A dugong is an " animal " w/^hin the meaning of the Preventionof Cruelty to Animals Ordinance, 1907.
A fishmonger who kept a iV gong alive till sale without' fcedtugit was held not to have beeb guilty of cruelty under section 4 (c)of the Ordinance.
fjpHE facts are set out in the Ordinance^
A. St. V. Jayewardcnefor accused, appellant.
W. S. de. Sararnf C.C., for complainant-, respondent.
Cur. adv. vult.
March 6, 1914. De Sampayo A.J.—
This is a prosecution under the Prevention of Cruelty, to AnimalsOrdinance, 1907, wherein the accused was charged (1) under section4 (c) with having exposed and had in his possession for sale a livedugong, which was suffering pain by reason of mutilation andstarvation; and (2) under section 5 with having killed the dugongin an unnecessarily cruel manner. Th,e cruel manner of killingreferred to is by driving pegs into the nostrils and cutting the neck.It appears, however, that this was the usual and the only knownmethod of killing a dugong, and the application of it in this instancewas not accompanied by the infliction of any unnecessary pain, andI think the Magistrate is right' in acquitting the accused on thecharge under section 5. The accused was, however, convicted on
( 303 )
the charge under section 4 (c), and he has appealed. For the. 1914,purposes 0f the Ordinance “animal" means "any domestic or^s^mpayocaptured animal," and it was suggested- for the appellant that a a.J.dugong was not an animal in this sense. The main English statute %fadaw<d<*on the subject of cruelty to animals, viz., 12 and 18 Viet., c. 92, RawtKerapplied to “ domestic animals," which were enumerated, and the-amending statute, 17 and 18 Viet., c. 60, extended the expressionto any domestic animal of whatever kind or species and whether aquadruped or not, and the later statute, 63 and 64 Viet., c. 33,made provision in respect of wild animals in captivity. I thinkthat when our Ordinance of 1907 defined animals tas “ domestic orcaptured animals " it meant to include animals of all descriptions,and I hold that the Ordinance applies to a dugong. Now, adugong is an aquatic sirenian mammal, commonly called thesea cow, but the natives of Ceylon, with a more accurate eye tonature, call it the sea hog. Its flesh, for those who know how toprepare it, is a delicacy, and is likewise considered a specific forcertain ailments. It appears that when a dugong is brought to themarket sufficient time is allowed to elapse before it is killed, so thatthe news may spread and as many people as possible may takeadvantage of the rare chance. In this way the accused, who is afishmonger at Puttalam, bought the animal pne day and kept ittill the next day before killing it. In the meantime the Mudaliyarof Puttalam noticed the thing and reported the matter to the PoliceMagistrate, and hence this prosecution. The question is whetherthe animal was, during the intervening day, suffering pain by reasonof mutilation and starvation as alleged. It goes without saying thatit, like all animals captured and kept under physical restraint,suffered pain, but the question is whether the specific causes of painmentioned are proved in this case. I may say at once that there isno evidence whatever of mutilation. I have already alluded to thefact of the accused having been acquitted in respect of the mannerof killing the animal. The accused is not shown to have doneanything to the animal previous to killing it. It was vaguely saidthat the animal was bleeding, but from where and how it. wasbleeding is not explained. Certainly no injuries are spoken to at all.
For aught that appears, ^ie animal may have bled from the effectof the process of capture itself, as fishes often do, but that is notmutilation. As regards starvation, it seems to me that the accusedcannot be said*to have starved the animal, unless it was within hispower to feed it. How was he to feed a dugong? The dugong isno doubt herbivorous, but even if the accused were able to procurefrom the sea the particular succulent, would the dugong eat it ohland? And was this dugong, as a matter of fact', starving for wantof food? That depends oh how soon a dugong get ‘ hungry, ofwhich, as a matter of natural history, however, there is no evidence.
It was suggested at the argument that the accused should have
( .304 )'
killed the animal as soon as he bought it. I do not know that theaccused ought to be expected to change the ordinary methods o£business. If the dugong should be killed without reference to thetime of sale, it would be a hard matter both for the seller and thepurchaser. The merit in all * animal food is its freshness: Incertain cases, such as the oyster and the crab, the animal is, andsurely ought to be, kept alive within a measureable period of timebefore service at table, except at the risk of disastrous results. Is itcruelty to keep it alive in such circumstances for a day or twowithout food? The truth appears to me to be that these thingsshould be looked at with a certain degree of practical common sense;and judged in this way the conviction in this case cannot, in myopinion, be sustained. I set, aside the conviction and acquit theaccused.
I wish to draw the attention of the Police Magistrate to the factthat in the formal conviction he does not, as he should, state theOrdinance and the section of it under which he purports to convictthe accused.
MADAWELA v. RAWTHER