Khimji v. R. Crim. App. 59-D-71; 10/3/71; Biron J.

Khimji v. R. Crim. App. 59-D-71; 10/3/71; Biron J.

The appellant was convicted of a rash and negligent and causing harm c/ss 233 (d) and 234 of the Penal Code, the charge stated that he did not take care of one of his dogs which attacked and bit the complainant occasioning him to suffer actual bodily harm. In his judgment the trial magistrate stated that the accused “ought to have known and he did know that his dog was vicious. Thus he could not just release it in order to cause harm on other persons.” No evidence was led to show that the dog was vicious.

Held: (1) “As very rightly submitted by Mr. Tahir Ali, the first appearance of the word “vicious” is in the magistrate’s judgment. There is not in the evidence the slightest suggestion of any vicious propensity in any of the dogs.” (2) {Citing from LAW OF CRIMES by Ratanlal and Thakore 14^th ed. at p. 654 and HALBURY 3^RD ed Vol. I p. 663 paras. 1267 and 1268] “In the case of animals which are tame and mild in their general temper no mischievous disposition is presumed. It must be shown that the accused knew that the animal was accustomed to do mischief. Some evidence must be given of the existence of an abnormally vicious disposition. A single instance of ferocity, even a knowledge hat it has evinced a savage disposition is sufficient notice. Before the owner or keeper of the animal can be convicted under this section, it must be made out that the animal was known to be ferocious, and that it was negligently kept.” (3) “Learned State Attorney ……….. submitted that the fact that the appellant kept the dog on a chain was an indication that it was vicious. With respect, there are so May reasons why a dog is or should be kept on a chain that, to my mind, it is impossible to presume from such fact that the appellant knew that the dog was vicious. With respect, there are so many reasons why a dog is or should be kept on a chain that, to my mind, it is impossible to presume from such fact that the appellant knew that the dog was vicious.” In this case there was an explanation that the dogs were kept on a chain in order to prevent them from going out and rummaging in the refuse damp behind the appellant’s house. (3) Appeal allowed; Conviction quashed.