1937   Present: Abrahams C.J.

THE KING v. MENDIS et al.

43-44-D. C. (Crim.) Galle, 15,692.

Unlawful assembly-Conviction for rioting-Alteration to one of hurt-Not a minor offence-Nor alternative offence-Elements of offence-Number- of persons charged-Criminal Procedure Code, ss. 181 and 183.

In appeal a conviction for causing hurt cannot be substituted for one of rioting as hurt is a minor offence in relation to rioting within the meaning of section 183 of the Criminal Procedure Code, nor an alternative offence to rioting within the meaning of section 181 of the Criminal Procedure Code.

Quaere, whether on the trial of a number of persons for being members of an unlawful assembly so many of them are acquitted that the remainder of themselves cannot form an unlawful assembly, the latter must perforce be acquitted even if it can be proved that there were other persons who, though not charged, had the same common object and were sufficient in number to constitute an unlawful assembly.

Jayewardene v. Perera et al.' (1 Thambyah Rep. 15) doubted.

It is the duty of a trial Judge to record his finding on every charge.

 APPEAL from a conviction by the District Judge of Galle.

Colvin R. de Silva, for accused, appellants.

M. F. S. Pulle, C.C., for Crown, respondent

Cur. adv. vult.

September 14, 1937. ABRAHAMS C.J.-

The two appellants were charged with four others in the following terms : -

" (1) That on or about September 6, 1936, at Kataluwa, in the District of Galle, you were members of an unlawful assembly, the common object whereof was to use criminal force, to intimidate and cause hurt; and that you have thereby committed an offence punish-able under section 140 of the Ceylon Penal Code.

" (2) That at the time and place aforesaid, you being members of the unlawful assembly aforesaid did use force in prosecution of the said common object and that you have thereby committed an offence punishable under section 144 of the Ceylon Penal Code."

There was also a charge against the first appellant of having at the same time and place where the other offences were alleged to have been committed voluntarily caused hurt to one Rajakaruna, and another charge of having at the lame time and place voluntarily caused hurt to one Gunasena. The evidence for the prosecution tended to show that in view of the funeral of a certain Warnasuriya, who was a prominent member of a Bus Association whose vehicles plied between Galle and Matara, a considerable number of persons were found on the date of the funeral at various points on the road between these two towns, and it was alleged- and it seems to me that it was extremely probable-that certain persons belonging to the Association had resolved that as they were not going to run their buses on that day, as a mark of respect to the deceased, they intended to prevent any buses belonging to competing organizations plying for hire along that route.

It was led in evidence that at the village of Kataluwa a crowd which was estimated by the witnesses as varying from 7 or 8 to 40 or 50 had pushed a motor car into the road in such a way as to obstruct motor traffic. A bus running between Colombo and Matara was held up, and Gunasena, the manager of the bus, got down and asked why passage was obstructed. The first appellant struck him in the face and said that he would not allow his bus to proceed. The second appellant came up with a club and asked Gunasena to go back. Another bus which came along the road also found its way obstructed by the crowd and the car, and Raja-karuna, the ticket collector, was struck by the first appellant. A Sub-Inspector of Police who had received complaints that buses were being stopped on the road and people assaulted, proceeded to Kataluwa and found a car on the road and about 25 people in the car and round it. These people ran away, excepting three who were sitting in the car, and these were arrested a