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Present : Pereira J.
THE KING v. CARUPIAH et al86-96—D. C. (Grim.) Ratnapura, 1,074.
Unlawful assembly—Common■ oBJect—" Other offence "—Causing hurt—Penal Code, *. 138.
The expression " other offence ” in section 138, sab-section (3),of the Ceylon Penal Code means an offence ejusdem generis withthose expressly mentioned in the snb-sectiOn; and therefore, whenthe common object of an assembly was to commit an offence otherthan one in the nature of mischief or criminal trespass, the assemblycould not be said to be an “ unlawful assembly, *’ unless, of course,it would be such an assembly under the other sub-sections ofsection 138.
rjl HE facts are set out in the judgment.
A. St. V. Jayewardene, for appellants.—The offence of “ causinghurt ” cannot constitute the common object of the members of anunlawful assembly. The offence must be one ejusdem generis withthose mentioned previously, viz., mischief and criminal trespass.“ Causing hurt ” does not come under the category. (SeeMunhneera v. Danta. 1
Cooray$ C.G., for respondent.—“ Offence ’* is defined as anythingmade punishable under the Penal Code (see section 88) (also Gour.,p. 568t vol. I.)
Cur. adv. vvlt.
» 6 Tam. 78.
1914. May 27, 1914. Pereira J.—
The King v. In this case the accused have been convicted of being memberBCgntpvah i8J1 UIjftWfq]> assembly, of rioting, and of voluntarily causinggrievous hurt in the prosecution of the common object of an unlawfulassembly. It is quite clear that none of those convictions canstand. Charges 1, 2, and 3 of the indictment presuppose that theaccused were members of an unlawful assembly. Now, there couldhave been no imlawful assembly unless the accused had in viewsuch a common object as is mentioned in section 138 of the PenalCode. Had they such a common object? The common objectrelied on by the District Judge is causing hurt to one Mr. Eaton,and it has been argued that the commission of any offence is anobject mentioned in sub-section (3) of section 138 of the Penal Code.In my view that sub-section does not make the commission of anyoffence a common object sufficient, the other elements being present,to constitute an unlawful assembly. The words of the sub-sectionare, To commit any mischief or criminal trespass or other offence.”It is manifest that the words ” other offence ” mean an offenceejitsdem generis with the offence mentioned immediately beforebecause, otherwise, there was no necessity for the mention of thoseoffences at all. It would have been sufficient simply to say “ Tocommit any offence.” It is clear that an assembly of five or morepersons to commit theft or forgery or criminal misappropriation ofproperty cannot be said to be such an unlawful assembly as iscontemplated by section 138. The commentary and cases cited atpage 247 of Mr. Tambyah’s work on the Penal Code support thisview, and the case reported at page 78 of volume VI. of Tambyah'sReports is authority, if authority were needed, that causing hurt isnot an offence ejusdem generis with mischief and criminal trespass.The present conviction cannot be supported. But it is clear thatthe accused voluntarily caused grievous hurt to Mr. Eaton, and thatthey were acting more or less in concert. Each is therefore liablefor the acts of the other. At the 6ame time Mr. Eaton beat thefirst accused with a stick, and the acts of the accused were more orless retaliatory. The injuries on Mr. Eaton were not very seriousin themselves, but they amounted technically to grievous hurt,inasmuch as he was not able to follow his ordinary pursuitsfor twenty days.
I set aside the conviction on the 1st, 2nd, and 3rd counts of theindictment, and convict the accused under the 4th count of volun-tarily causing grievous hurt, and sentence the first accused to three.months' rigorous imprisonment; the second, third, fourth, and fifthaccused to two months' rigorous imprisonment each; and the seventh,eighth, ninth, tenth, and eleventh accused to pay a fine of Rs. 10each (in default two weeks' simple imprisonment).
THE KING v. CARUPIAH et al