1954 Present: Pulle J.

H. JAYARAM et al., Appellants, and SARAPH (P. S. 1958),
Respondent

S. C. 928-929-M. C. Nuwara Eliya, 8,404.

Unlawful assembly-Conviction of less than five persons-In what circumstances permissible-Penal Code, s. 140.

Where, according to the charge and the case for the prosecution, not more than six persons in all were members of an unlawful assembly, and four of them are acquitted, the conviction of the two remaining accused under section 140 of the Penal Code cannot be sustained even if the court finds that four persons other than those acquitted constituted an unlawful assembly along with those convicted.

APPEAL from, a judgment of the Magistrate's Court, Nuwara Eliya.

A. B. Perera, with J. C. Thurairatnam, for the 1st and 2nd accused appellants.

A. Mahendrarajah, Crown Counsel, for the Attorney-General.

Cur. adv. vult.

 July 19, 1954. PULLE J.-

In this case six accused persons were charged on four counts, the first of which alleged that they did " form members of an unlawful assembly ". The remaining counts charged them with rioting, causing hurt and using criminal force as " members of the unlawful assembly as