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THE KING v MENCHOHAMI.D. C. (Criminal) Negombo, 2,380.
Injury to trespassinganimal—Ineffectual attempts to drive atoay the
animal—Mischief—Civil remedy—Penal Code, ss. 4G9 and 412.
A person who injures a. trespassing animal, without making areasonable attempt to drive it away by less violent means, commitsthe offence of mischief.
rp HE facts appear sufficiently from the judgment.
Appeal by the Attorney-General from an acquittal by. theDistrict Judge.
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1005. Van Langenberg, A. S.-G., for the Attorney-General.
•Decem^r No appearance for respondent.
6th December, 1905. Wendt, J.—
In this case the Attorney-General appeals against the acquittalof the accused on an indictment charging her with havingcommitted, mischief by maiming a bull, an offence punishableunder section 412 (Penal Code). The facts as found by lEe DistrictJudge are that the bull had passed on accused's garden, which had a.young coconut plantation. It had previously trespassed thereand been driven out, and on the occasion in question Had damagedsome cocoanut plants. Accused chased' it, and in driving it aw^tyhacked at it and cut" it on the hind leg. TKe District Judge holdsthat the owner of ah animal has only his civil remedy against aperson who injures or kills it fii the attempt to rid himself of it whenit has become a nuisance, and as authority for this propositionhe cites two cases reported in 2 N. L. B. 162 and Koch, 63. Themore recent case, P. C. Panadure, 9,526, reported in 5 N. L. B. 23was not cited to the District Judge, or he would,-I-have no doubt,have taken a different view of the* accused’s liability upon the factsfound. The case in 2 N. L. B. 162, as pointed out by Bonser, C.J.,in 5 JV. L. B. 25, proceeded upon the footing that reasonable andineffectual efforts had been made to drive the beast from the land,without doing it harm, jbefore the injury in question was inflicted.The decision of Lawrie, J., referred to by the District Judge is dis-tinctly to the same effect. In the present- case the evidence showsthat the animal, when chased by the accused, was going away fromthe land and would presumably have left it. The cut inflicted bythe accused was therefore an injury caused without a previousineffectual attempt to save the land from further damage. Theaccused therefore was guilty of causing mischief. It is howeverdoubtful whether the animal was in the legal sense “ maimed7” bythe cut. I therefore convict the accused (who has had notice of thepresent appeal and has not appeared to –.rswer it) of having at thetime and place named in the indictment committed mischief by cut-ting a bull belonging to Hendrick Anpu, an offence punishable undersection 409. I sentence accusf 1 to pay a fine of Rs. 40, or indefault to undergo bne month’s rigorous imprisonment.
THE KING v. MENCHOHAMI