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Present: Lyall Grant J.
GUNARATNE v. SOYSA el al.
709-709&—P. C. Kalutara, 26,814.
Unlawful assembly—Common object—Offence to be specified—PenalCode, s. 138.
In a charge of being members of an unlawful assembly, theoffence, which it was the common object of such unlawful assemblyto commit, must be specified.
^^PPEAL from a conviction by the Police Magistrate of Kalutara.
Raja-pakse (with Wendt), for appellant.
November 15, 1928. Lyall Grant J.—
The three accused-appellants were charged (1) with beingmembers of an unlawful assembly whose common object was tocommit an offence, (2) with voluntarily causing simple hurt to tenpersons with clubs and stones, and (3) with committing mischief bydamaging a bus.
20J. N. 94S?m/4fl)
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All the accused were convicted and sentenced on each count.
On appeal it was objected—(1) That the Magistrate should nothave tried this case as he had previously received a complaint from
Cuiiai Jtiu v onecomplainants against the accused, (2) that a charge of
' Soysa being a member of an unlawful assembly whose common object wasto commit an offence must specify the offence, (3) that there is noevidence against any of the accused of causing simple hurt to anyof the persons mentioned in the charge, and (4) that there is nocomplaint of mischief by the owner or driver of the bus.
I do not think there is any substance in the first, objection. Itwas not taken at the trial and appears to be a mere after-thoughton appeal. There is nothing to show that it ever occurred to theaccused that they were prejudiced by the complainants having madea previous complaint against them or that they were in fact soprejudiced.
The second objection is more serious. The offence of being a.member of an unlawful assembly, if proved, may have far-reachingresults. It may make the member responsible for acts which hedid not commit and did not intend to commit.
The law therefore requires strict proof that the assembly isunlawful. Jt is not sufficient to aver that the assembly is for thepurpose of committing an offence, without specifying the nature ofthe offence. In order to make a member of an assembly criminallyliable for joining.that assembly, it must be clearly shown in whatrespect the assembly was unlawful, and the nature of the unlawful-ness must be specified in the charge, otherwise the accused does notknow of what offence he is accused. Suppose he were accused ofjoining an assembly, the common object of which was to commit amurder, and the evidence showed that the common object was toconimit insult, he would be gravely prejudiced in making his defenceif he could be convicted without an alteration in the charge.
If, however, as here, the charge merely sets forth that the commonobject of the assembly was to commit an offence without specifyingwhat offence, it is impossible for the accused to know the chargewhich he is called upon to meet. Very often an assembly meetsquite lawfully, but in course of time it forms the intention to dosome unlawful act. That intention is imputed to each individualwho remained in the assembly after the general intention is held tohave been formed whether he personally had such intention or not.But the intention may change as time goes on. There may beformed an intention to commit trespass and later there may beadded an intention to commit arson and murder. Before the latterintention is formed the accused may have left the assembly.
The words of the sub-section are “ To commit any mischiefor criminal trespass or other offence,” not merely to “ commit an‘ offence.”
'' Ltaxx.Gbant J.
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The Indian Courts have insisted on the common object beingdistinctly described in the indictment. See Tafazzul Ahmed Chowd-rexj v. Queen Empress1 and also Sabir and another v. Queen■ Empress. *
In the latter case the conviction was quashed because it was notclear which of twq, common objects the jury held to be proved, andalso because if the jury held that the common object was to “ injureNidu ’’.that common object was never charged at all and the accusedperson bad no opportunity of meeting it. The Court goes on toobserve that “ the finding of the jury with regard to the commonobject may have very great effect upon the seriousness of the crime,and therefore the punishment.”
In Behari Marton v. Queen Empress 3, it was held that an accusedperson is entitled to know with certainty and accuracy the exactnature of the charge brought against him, and unless he has thisknowledge he must be seriously prejudiced in his defence. This istrue in all cases, but it is more especially true in cases where it issought to make him responsible for acts not committed by himselfbut by others with whom he was in company.
The charge here is merely that the accused were members of anunlawful assembly composed of five or more persons with thecommon object of committing an offence. The conviction agreeswith the charge.
No hint is given of the nature of the offence intended, and it isclear that a conviction on this count is bad.
It is true that in the judgment the Magistrate says the commonobject was that of abusing and harassing the Police Vidane and hissupporters, but there is nothing to show that the accused knewthat they were charged with this offence. Even here it is doubtfulwhat offence is disclosed.
The failure of this charge makes it necessary to examine closelythe evidence on the other charges against each of the accused.
The only specific act of hurt which the Magistrate has foundproved against any of the accused is a blow received by one Hara-manis. The Magistrate says that Haramanis stated that he receivedthis injury from the first accused. But Haramanis distinctly saysthat he received this injury from the second accused, and that thefirst accused did nothing. It is Pedrick who says the first accusedstruck Haramanis.
The Magistrate makes a passing reference to the injury to Pedrick,but Pedrick says he cannot say who gave him these injuries.
Of the ten persons alleged to have been assaulted, only one otherwas called as a witness, and though she says she was .hit by a stone,she does not say-who threw it.
1 26 Indian Law Rep. Cal. Series, p. 633.4 22 Cal. 276 (New Series).
* 11 Cal. 106.
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There is therefore no evidence on which any of the accused can beconvicted of hurt.
In regard to the charge of criminal mischief to the bus, no com-plaint has been made by the owner or driver or anyone responsiblefor it;
The only evidence against any of the accused on the charge is thatHaramanis says the first accused “ dug ” the bus with a closedclasp knife. He does not say where or with what result.
On the other hand Pedrick says the accused did not strike the bus.Here again the evidence is altogether inconclusive.
The evidence generally gives one the impression that the witnessesare either unable or unwilling to give definite testimony against anyof the accused.
No case has been made out against any of the accused. Theirappeals are allowed and they are acquitted.
GUNARATNE v. SOYSA et al