22PULLE J.—.Jayamm «&' Saraph
1954Present: Pulle J.
H. JAYARAM kt al., Appellants, and SARAPH (P. S. 1958),
S. C. 928-929—M. G. Nuwara Eliya, 8,404.
Unlawful unsetnbit/—–Conviction of less Ilian Jive persons—Tn wltal cirrajjislnurespermissible—Urval Code. s. JiO.
Whoro. arconliug it* Mio rlutrgo and tlio coro for tho prosecution. not morotlwMi six persons in all worn members of an unlawful assembly, anci four of thornare acquittocl, tho conviction of the two roraaining urcusod undor section 140of tho Penal Code cannot bo sustained even if tho court finds that fourpersons other than those acquit ted constituted an unlawful r*ssomhly alongwith those convicted.
/^.PPKAIj from a judgment of the Magistrate’s Court, Nuwara Eliya.
B. Perera, with J. G. Thurairatnam, for tho 1st and 2nd accusedappellants.
A. Mahendrarajah, Crown Counsel, for the Attorney-General.
Cur. adv. vult.
July 19, 1954. Pui.i.e 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 assombly ”,The remaining counts charged them with rioting, causing hurt and usingcriminal forco as “ members of the unlawful assembly as aforesaid ”.In respect of causing hurt and using criminal force tho sections of thePenal Code referred to were 314 and 343 read with section 146 in eachcase. The learned Magistrate convicted the 1st and 2nd accused on allthe charges but acquitted the 3rd to 6th accused on the ground thatwhile the 1st accused, the 2nd accused and four others were members ofan unlawful assembly lie was not satisfied that the four other personswere identified as tho 3rd to 6th accused. On behalf of tho 1st and 2ndaccused it is submitted that the acquittal of the 3rd to 6th destroyedthe basis of the convictions of the 1st and 2nd accused who could notby themselves form an unlawful assembly. It was not part of the casefor the prosocution that besides the six persons charged there were otherswho were members of the assembly.
A large number of authorities were cited on behalf of the appellantsbut it is not necessary to refer to more than two. The rest could bedistinguished on the ground that the findings either in the trial courtor in appeal were that there was no proof that those who wore convictedwere so associated with others not charged as to constitute an unlawfulassembly.
PULLE J.—Jayaram v. Saraph
In Jayawardene v. Perera and two others 1 six persons were chargedwith committing criminal trespass and rioting. At the trial the 2nd,5th and 6th accused were acquitted but the remaining three were convictedof rioting. This conviction was set aside and in the course of his judgmentLawrie A.C.J. said,.
“ Now if five men together commit criminal trespass it becomes anunlawful 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 andhad used force or violence, but in the course of the trial the Magistrateacquitted three of the six. Those who were convicted were not ofsufficient number to make an unlawful assembly, and, if they committedacts of force or violence, they were not guilty of rioting. ”
Referring to this case Abrahams C.J. said in King v. Metidis 2,
" I am by no means certain that the learned Judge in that casemeant to lay down as an absolute proposition that if on a trial of anumber of persons for being members of an unlawful assembly, so manyare acquitted that the remainder of themselves cannot form an unlawfulassembly, they must perforce be acquitted even if it can be provedthat there are other persons who, though not charged, had the samecommon object as the persons convicted and were sufficient in numberto constitute with those persons an unlawful assembly ”.
The learned Chief Justice also referred to Rex v. Dias et al. 3 in whichSoertsz J. refused to state a case at the end of a trial which resulted inthe conviction of four out of five persons who were charged with beingmembers of an unlawful assembly, there being evidence of persons,other than the five charged, being also members of the unlawful assembly.Jayawardene v. Perera and two others 1 was cited to him but the reportwas not then available to him. He thought that the charge was that sixpersons had a common unlawful object and that “ the six men chargedformed the unlawful assembly ”. He went on to add, “ In the presentcase it is quite different. The charge is definite^ that these five accusedwere members of an unlawful assembly, not that they only constitutedthe unlawful assembly and the evidence from the very outset was thatthey were acting in concert with others
It will be seen, therefore, that the opinion of Soertsz J. appears to bethat if a number of persons arc charged as having " formed ” the unlawfulassembly, a conviction of at least five is necessary to sustain thatconviction. Whereas, if the charge against them was that they weremembers of an unlawful assembly a conviction of less than five of thosecharged could be supported, if there was evidence that others besidesthose acquitted constituted an unlawful assembly along with those whowere convicted. The decision in Rain Rup and another v. Emperor 4entirely supports the contention of the appellants in the present appeal. 1
1 (1899) 1 Tambayah'a Reports 16.* (1935) 17 Ceylon Law Recorder 16.
» (1937) 39 N. L. R. 182. at p. 184.* A. 1. R. 1945 Allahalad 31.
PXJLLE J.—Jayaram v. Saraph
The lvoadnote reads,
“ Where not more than eight persons in all have taken part in theoccurrence in question and five of them acquitted, conviction of theremaining accused under section 147 or section 14!) cannot hesustained. ”
Among the cases cited by the Crown reliance was placed mostjy onKing v. Snriya Aralchige Fernando et al. r. In my opinion this casecan bo distinguished. The allegation in the charge against the fourappellants and one Daniel Fernando who was acquitted was that theywere members of an unlawful assembly. I have verified this by referringto the indictment. In the course of his judgment Wijeyewardene J.(President) stated that it was not the case for the Crown that the fiveaccused who were indicted were the only members of the unlawfulassembly. I have no reason to think, that the decision in thatcase would have been the same had the indictment alleged and theevidence sought to prove that the five accused persons and they aloneconstituted the unlawful assembly.
I would also distinguish Ramaaray Ahir and others v. Emperore.Although nine accused were charged and five of them acquitted therewere some twenty persons who were proved to have made a concertedattack on a constable. There are dicta in Feroze Din and- others v.Emperor3 which support the Crown. The circumstances of this casewere of a most unusual character. The six appellants who were convictedas mombers of an unlawful assembly of the offenco of wrongful confine-ment appealed to the Sessions Judge and the latter intended to affirmthe convictions of all, but, owing to a mistake, the names of three of thepersons who were acquitted by the Magistrate were placed among thoseconvicted and three of those whose convictions were intended to heaffirmed were acquitted. I am not surprised that the Court refused toset aside the convictions of the remaining three.
In the present case the cliarges clearly informed the six accused personsthat they formed the unlawful assembly. The evidence was also to thesame effect, namely, that only six persons took part in the assault antithat these persons were the accused. The finding of fact that the 3rdto 6th accused were not members of any unlawful assembly should haveresulted in the verdict that the charges against the 1st and 2nd accusedwere not proved.
I come to the conclusion, though regretfully, that the appeals succeed.The convictions and sentences are set aside.
> (1947) 48 N. L. It. ZOO..* A. 1. R. 1928 Patna 454.
* A. I.R. 1929 Lahore 89.
H. JAYARAM et al , Appellants, and SARAPH (P. S. 1958), Respondent
22PULLE J.—.Jayamm «&' Saraph