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THE QUEEN v. SULTAN.
D. C. (Criminal), Trincomalee, 2,382.
Mischief—Cutting trespassing animal—Duty of District Judge whendecisions of Supreme Court are cited to him in argument.
A buffalo trespassed on a paddy field of which accused was incharge as cultivator. The field was under young plants, whichwere trodden down and eaten by the animal. Accused tried todrive it out of the field, and being unable to do so he made a slashat it with a katty. The blow cut through the animal’s tail andhamstring—
Held, that accused was not guilty of mischief.
When judgments of the Supreme Court are cited to a DistrictJudge by a party to a case before him, he should deal with them.If the circumstances of the case before him were materially differ-ent from the -circumstances of the cases cited, he should point outthat difference, and show tH'at the decisions cited to him did notapply. If those decisions did apply to the circumstances of thecase before him, he should follow them, whatever his own opinion.
'J'HE facts of the case appear in the judgment.
Bawa, for accused, appellant.
Ramanathan, S.-G., for the Crown.
26th August, 1896. Withers, J.—
This conviction must be set aside and the accused acquittedand discharged.
The Solicitor-General, who appeared to support the judgment,admitted that the case on the facts found by the District Judgebrought it within the judgments of this Court which were citedin the Court, below.,,
The District Judge did not deal with the cases as he shouldhave done. If the circumstances of this case were materiallydifferent from the circumstances in the reported cases he shouldhave pointed that difference out and shown that the decisions citedto him in argument did not apply. If these decisions didapply to – the circumstances, he should have followed them,whatever his opinion.
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The'folio wing facts are partly found by the Judge and partlyappear from the evidence for the prosecution.
A buffalo trespassed in a paddy field of which the accused wasin charge as cultivator. The field was under young plants, whichwere trodden down and eaten by the animal. The accused triedto drive it out of the field, and being unable to do so he made aslash at it with a katty. The blow cut through the animal’s tailand hamstring. On these facts the District Judge found the manguilty of comnditting mischief by maiming an animal, an offencepunishable under section 412 of the Penal Code. For this offencehe sentenced the man to undergo nine months’ rigorous imprison-ment. The District Judge said it was no concern of his to tryand discover the man’s motive in injuring the buffalo. There,he is quite right, the law does not concern itself with a man’smotives but a man’s intentions.
In his judgment this observation occurs : “ The law says that“ if you maim a buffalo knowing that you are likely to cause“ damage to any person, you commit mischief.” But that is notthe law as laid down by the Code. What the law does say is,“Whoever with intent to cause wrongful loss or damage to the“ public or to any person causes the destruction of any property,”&c., “ commits mischief.”
Was it causing wrongful damage to the owner of the animal ina criminal sense to hack at the animal, whatever the result, inorder to drive it out of the field where it was trespassing- and doingdamage, or to stop its doing any more damage after reason-able and ineffectual efforts had been made to drive the beast fromthe field without doing it harm ?
I do not think it was. In Lowe v. Wasilino, reported in 9 S.C. C. 109, Mr. Justice Clarence held, shooting a cow dead undersimilar circumstances was not an act of mischief.
In any case the severity of the sentence was out of all propor-tion to the offence.
Set aside and acquitted.
August 2d.Withers. J.
THE QUEEN v. SULTAN