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Present : Lynll Grant .J.
THAMBYAH v. VANDERFUT.
675—P. C. Trincomalee, 2S119.
Mischief—Shooting cattle trespassing—Licence from Government Agent—Intent to cause wrongful loss—Cattle Trespass Ordinance, No. 9of 1876.
'L’be accused, who obtained a licence from the GovernmentAgent to shoot trespassing cattle when it is found impracticableto seize or identify them after reasonable exertion, was chargedwith mischief and convicted by tho Police Magistrate on the groundthat no steps were taken to seize or identify the cattle before theywere shot.
Held, that the fact that the accused acted in the bona fideexercise of a legal right negatived any intention to cause wrongfulloss or damage.
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PPEAL from a conviction by the Police Magistrate ofTrincomalee.
Soertsz, for appellant.
Subramantam, for respondent.
November 13, 1929. Lyall Grant J.—
The accused in this case was convicted of the ofience of mischiefby shooting an animal, viz., a cow, belonging to the complainant.The accused is the owner of an estate, and it appears that cattlewere in the habit of trespassing on the estate. The. accused accord-ingly obtained from the Government Agent an order to shootcattle issued under the Cattle Trespass Ordinance :of 1870. Theorder recited the fact that it had been shown to the GovernmentAgent's satisfaction that stray cattle were in the habit of trespassingupon Medway estate and doing damage thereunto, and that suchcattle could not be seized or identified so that, the owners thereofmay be ascertained and proceeded against. After this recital itdirected the accused to proceed to the estate and if, after reasonableexertion, he found it impracticable to seize or identify the saidcattle, then he was to cause the cattle aforesaid to be shot orotherwise destroyed in his presence.
The accused's watcher said that on the day in question there. were four cattle straying on the estate when this animal was shotand that he did not know to whom they belonged. He said heused to see this animal almost every day with other cattle on theestate; that he tried to chase it but that it used to- run into thejungle. He denied that.it was in calf as averred by the complainant.He said there were some braudmarks on it but that he did not knowwhat they were. On the day in question he said he chased theanimal out of the premises, that it ran away into the jungle, andthat it came back at about 8.30 the next morning. On this occasionhe did not chase the animal but went and informed the clerk thathe was unable to seize the animal as he got some thorns into his.foot. On the clerk's suggestion he informed the accused that thqpewas an animal trespassing and that he was unable to seize it.Thereupon the accused went with a gun and on seeing him the cowstarted to run; then the accused followed it and when the animalstood and looked at him he shot it.
The learned Magistrate in his judgment says that the question tobe decided by the Court is whether the accused was justified inthese circumstances in shooting the animal, and he comes to theconclusion that no reasonable exertion was made either-.by theaccused or his watcher to seize the animal before it was*-shot. Onthis ground, and also on the ground that he did not take sufficientsteps to identify the animal, the Magistrate conies to the conclusion
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that the accused was not justified in shooting it. He proceeds:
“ The accused thought that he had the right to shoot cattle whenhe was armed with an authority from the Government Agent, andthe destruction of the animal caused in .this case was wilful andintentional and it was done with a view to instil some terror andtheir authority into the mind of the villagers, ” and he says that thecircumstances of the case clearly show that the intention of theaccused was to cause wrongful loss to the owner of the animal.
It does not seem clearly proved to my mind that the accused hadthe intention to cause wrongful loss or damage to any person. Itis quite evident that he had suffered very considerably from tres-passing cattle, so much so that h& had succeeded in convincing theGovernment Agent, that stray cattle were damaging his propertyand that the oattle could not be seized or identified. In suchcircumstances the Ordinance permits an owner duly armed withthe Government Agent's licence or order to shoot stray cattle ifhe finds it impracticable to seize or identify them after reasonableexertion. If such reasonable exertion had been proved, the actof the accused in shooting the cattle was quite legal and the questionof wrongful loss or damage does not arise. The Magistrate, however,has held that in his opinion the exertion made by the accused wasnot reasonable, and that with a reasonable amount of exertion itwould have been practicable for him to seize or identify the cattle.I do not think, however, that this concludes the case against theaccused, as the point to be considered is whether the accused wasacting in the bona fide belief that he was exercising the powersconferred upon him by the order to shoot. If he had such a belief,he had no intent to cause wrongful loss or damage, nor did he knowthat he was likely to cause wrongful loss.
Gour, in his Commentary on the Penal Laws of India, in section4605 dealing with mischief, says : “ An illegal act done in the beliefthat it is legal is a good defence t.o a criminal prosecution for anoffence in which the criminality depends upon the presence ofknowledge or intention,* ” and in section 4606 he says, “ The principlein such cases appeal’s to be, was the act done out of malice or in the■ assertion of a bona fide claim of right. Of course, such a claimmay be legal or illegal. If legal, the question of bona fides does notarise, for if the act was legal the question of intention is immaterial.It is only when the act is indefensible on the ground of its legalitythat the question of a bona fide belief arises. That plea has a placeonly in the case of a doubtful right or a right which a person maystill believe in as his own.”
In the present case there seems to me to be a presumption infavour of the accused in all the circumstances that he was actingin the bona fide exercise of a right pud that accordingly he did notintend to cause wrongful loss or damage.
I cannot find any evidence to justify the ^Magistrate's findingthat the act was done with a view to instil terror and an idea of theaccused’s authority into the minds of the villagers. It seems tome to have been done with the primary pbject of preventing damageto his own property in a manner which lie believed to have beenauthorized by the Government Agent.
The appeal is allowed and the accused acquitted.
V cinder put