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 aforesaid ". In respect of causing hurt and using criminal force the sections of the Penal Code referred to were 314 and 343 read with section 146 in each case. The learned Magistrate convicted the 1st and 2nd accused on all the charges but acquitted the 3rd to 6th accused on the ground that while the 1st accused, the 2nd accused and four others were members of an unlawful assembly he was not satisfied that the four other persons were identified as the 3rd to 6th accused. On behalf of the 1st and 2nd accused it is submitted that the acquittal of the 3rd to 6th destroyed the basis of the convictions of the 1st and 2nd accused who could not by themselves form an unlawful assembly. It was not part of the case for the prosecution that besides the six persons charged there were others who were members of the assembly.

A large number of authorities were cited on behalf of the appellants but it is not necessary to refer to more than two. The rest could be distinguished on the ground that the findings either in the trial court or in appeal were that there was no proof that those who were convicted were so associated with others not charged as to constitute an unlawful assembly.

In Jayawardene v. Perera and two others [1 (1899) 1 Tambayah's Reports 15.] six persona were charged with committing criminal trespass and rioting. At the trial the 2nd, 5th and 6th accused were acquitted but the remaining three were convicted of rioting. This conviction was set aside and in the course of his judgment Lawrie A.C.J. said,

" Now if five men together commit criminal trespass it becomes an unlawful assembly, and if force or violence is used, it becomes a riot. The evidence is that a large number of persons assembled ; the charge was that of that large number six had a common unlawful object and had used force or violence, but in the course of the trial the Magistrate acquitted three of the six. Those who were convicted were not of sufficient number to make an unlawful assembly, and, if they committed acts of force or violence, they were not guilty of rioting. "

Referring to this case Abrahams C. J. said in King v. Mendis [ 2 (1937) 39 N. L. R. 182. at p. 184. ]

" I am by no means certain that the learned Judge in that case meant to lay down as an absolute proposition that if on a trial of a number of persons for being members of an unlawful assembly, so many are acquitted that the remainder of themselves cannot form an unlawful assembly, they must perforce be acquitted even if it can be proved that there are other persons who, though not charged, had the same common object as the persons convicted and were sufficient in number to constitute with those persons an unlawful assembly ".

The learned Chief Justice also referred to Rex v. Dias