057-NLR-NLR-V-39-THE-KING-v.-MENDIS-et-al.pdf
182
The King v. Mendis.
1937Present: Abrahams C.J.
~ THE KING v. MENDIS et al.
43-44—D. C. (Crim.) Galle, 15,692.
Unlawful assembly—Conviction for rioting—Alteration to one of hurt—Not aminor offence^—Nor alternative offence—Elements of offence—Number ofpersons charged—Criminal Procedure Code, ss. 181 and 183.
In appeal a conviction for causing hurt cannot be substituted for oneof rioting as hurt is a minor offence in relation to rioting within themeaning of section 183 of the Criminal Procedure Code, nor an alternativeoffence to rioting within the meaning of section 181 of the CriminalProcedure Code.
Quaere, whether on the trial of a number of persons for being membersof am unlawful assembly so many of them are acquitted that the remainderof themselves cannot form an unlawful assembly, the latter must perforcebe acquitted even if it cam be proved that there were other persons who,though not charged, had the saune common object and were sufficient innumber to constitute an unlawful assembly.
Jayewardene v. Perera et al. (I Thambyah Rep. 15) doubted.
It is the duty.of a trial Judge to-record his finding on eyery charge.
PPEAL from a conviction by the District Judge of Galle.
Colvin R. de Silva, for accused, appellants.
M, F. S. Pulle, C.C., for Crown, respondent.
• (1927) 29 N. L. R. 242.
Cur. adv. vult.‘ 1 S.C. R. 244.
183
ABRAHAMS CJ.—The King v. Mendis,
— ~ '“T "i*r
September 14, 1937. Abrahams C.J.—
The two appellants were charged with four others in the followingterms : —
“ (1) That on or about September 6, 1936, at Kataluwa, in theDistrict of Galle, you were members of an unlawful assembly, thecommon object whereof was to use criminal force, to intimidate andcause hurt; and that you have thereby committed an offence punish-able under section 140 of the Ceylon Penal Code.
“ (2) That at the time and place aforesaid, you being members of theunlawful assembly aforesaid did use force in prosecution of the saidcommon object and that you have thereby committed an offence punish-able under section 144 of the Ceylon Penal Code.”
There was also a charge against the first appellant of having at the sametime and place where the other offences were alleged to have been com-mitted voluntarily caused hurt to one Rajakaruna, and another chargeof having at the same time and place voluntarily caused hurt to oneGunasena. The evidence for the prosecution tended to show that, in viewof the funeral of a certain Warnasuriya, who was a prominent member ofa Bus Association whose vehicles plied between Galle and Matara, aconsiderable number of persons were found on the date of the funeral atvarious points on the road between these two towns, and it was alleged—and it seems to me that it was extremely probable—that certain personsbelonging to the Association had resolved that as they were not going torun their buses on that day, as a mark of respect to the deceased, theyintended to prevent any buses belonging to competing organizationsplying for hire along that route.
It was led in evidence that at the village of Kataluwa a crowd whichwas estimated by the witnesses as varying from 7 or 8 to 40 or 50 hadpushed a motor car into the road in such a way as to obstruct motortraffic. A bus running between Colombo and Matara was held up, andGunasena, the manager of the bus, got down and asked why passage wasobstructed. The first appellant struck him in the face and said that hewould not allow his bus to proceed. The second appellant came up witha club and asked Gunasena to go back. Another bus which came alongthe road also found its way obstructed by the crowd and the car, and Raja-karuna, the ticket collector, was struck by the first appellant. A Sub-Inspector of Police who hacf received complaints that buses were beingstopped on the road and people assaulted, proceeded to Kataluwa andfound a car on the road and about 25 people in the car and round it.These people ran away, excepting three who were sitting in the car, andthese were arrested and charged by the Police. The two appellants wereidentified and were also charged, and so was a sixth man, though on whatevidence I have been unable to ascertain. No other persons wereidentified. All these accused were members of the Galle-Matara BusAssociation. The only accused who gave evidence was the first appellant.He said that the road was hot obstructed but that as his .Bus Associationhad stopped its service out of respect for the deceased, who had been aperson of great importance and a public benefactor, he thought that allother services would be stopped. He said that he had struck Gunasenabecause Gunasena had spoken slightingly of the deceased, and that he39/17
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ABRAHAMS C.J.—The King v. Mendis.
had struck Rajakaruna for purely private reasons. No other evidencewas called for the defence. It should be observed that Rajakaruna wasnot present at the trial and the learned District Judge refused to allowhis deposition to be read.
The learned District Judge, after recapitulating the evidence, stated,
“ I am satisfied on all the evidence that there was an unlawful assemblywith the common object stated in the indictment, and that the fourthand fifth accused (the two appellants) were members of that association.Also that the fourth accused struck Gunasena because he was plying thebus for hire, and also that he struck Rajakaruna for the same reason.But I am not absolutely satisfied that the other accused were membersof the unlawful assembly with the common object He then found thefirst and second appellants guilty on the indictment and said that “ thefourth and fifth counts do not under the circumstances arise. Hethen acquitted the other accused. He sentenced each of the appellantsto six months’ rigorous imprisonment on the first count and seven monthson the second, the sentences to run concurrently.
It is argued by Counsel for the appellants that as the learned DistrictJudge has acquitted four accused out of the six, the remaining two, theappellants; are also entitled to acquittal because two persons by them-selves cannot constitute an unlawful assembly. He has cited the case ofJayewardene v. Perera and two others in which six men were charged withrioting, and three of these were acquitted, and Lawrie A.C.J. held thatthe remaining three could not be convicted. I am by no means certainthat the learned Judge in that case meant to lay down as an absoluteproposition that if on a trial of a number of persons for being members ofan unlawful assembly, so many are acquitted that the remainder ofthemselves cannot form an unlawful assembly, they must perforce beacquitted even if it can be proved that there are other persons who,though not charged, had the same common object as the persons convictedand were sufficient in number to constitute with those persons an unlawfulassembly. I am by no means sure that it was not the form of the charge,that is to say the charge of rioting simplidter, that was the basis of thedecision in that case. Akbar J. in an unreported case (S. C. No. 26-30—D. C., Ratnapura, No. 1,466/1,479) of March 9, 1934, appeared to thinkotherwise and agreed, though in somewhat brief language, with the viewthat he thought Lawrie A.C.J. held, but Soertsz J. (then A.J.) held inS. C. No. 33—P. C. Kalutara, No. 15,527, when refusing to state a caseon the point on December 17, 1935, in a very carefully considered judg-ment, that if Lawrie A.C.J., meant to lay down categorically that theremust be an acquittal iri such a case, that decision is not justified. Thispoint may, it is true, have to be decided some day, but I do not proposeto give any opinion on it myself because I think that the convictions inthe case before me must be quashed on other grounds. Four out of sixpersons charged with being members of an unlawful assembly havingbeen acquitted, the natural question is, if the two appellants were membersof an unlawful assembly who were the other persons, not less than three,who had with them the common object set out in the first charge so as tomake up the required number of five ? The learned District Judge hasnot said categorically that there were five persons who were members of
1 1 Thambyah Rep. IS.
ABRAHAMS C.J.—The King v. Mendis.
185
an unlawful assembly but he seems to have assumed that out of the wholeof the crowd, whose numbers have been variously estimated,- at leastthree persons other than the two appellants, had those common objectsset out in the charge. Now having found that four people in that crowddid not have the required common object, how can he say that any otherswho were not known and had not been identified had that object? Itmay very well be, in fact I should think'it was quite likely, that somepeople intended to obstruct and perhaps to intimidate or even to useviolence, but there must be a definite finding for the requirements of thelaw to be satisfied or else it must appear from the evidence that no otherfinding is reasonably possible. The first alternative has not been satisfied,and I certainly cannot say from the evidence as I read it that the secondalternative has been satisfied either. I therefore acquit the appellantson the first two charges.
There is a further question for decision, and that is whether the firstappellant is to escape conviction on the other charges preferred againsthim. The learned District Judge has said that in view of his finding himguilty on the first two charges the others do not under the circumstancesarise. I interpret that as meaning that he thinks that the offences ofhurt are merged in the offence of rioting. Crown Counsel asks me to alterthe conviction for rioting to a conviction for hurt. He does not contend,and I should not agree with him if he did, that hurt is a minor offence inrelation to rioting within the meaning of section 183, and it certainly isnot an alternative offence to rioting within the meaning of section 181 ofthe Criminal Procedure Code, so that I .am unable to see how I cansubstitute a conviction for hurt for one of rioting. I am, however, by nomeans sure that the learned District Judge having held that the evidenceof hurt having been caused was acceptable, did not by thinking that thehurt merged in the rioting in fact convict of hurt and merely omit torecord a formal conviction because he thought it superfluous. It isobvious that he intended to hold that the first appellant was guilty ofhurt, and whether he merely failed to record a formal conviction or failedto convict at all I am of the opinion that my revisionary powers enableme to correct the irregularity, whatever it is, in order that justice shouldnot be frustrated. I must observe that a trial Court should record itsfinding on every charge and convict or acquit as the case may be. Thefailure to perform that elementary duty has in this instance led to longand complicated argument.
I convict the first appellant of the offence of causing hurt to Gunasena,and as Rajakaruna did not come forward to give evidence and could notbe found for that purpose I do not take it upon myself to make any orderin respect of that charge.
As to the sentence, hurt is not in itself a very serious offence, and thereis nothing on the record to show that Gunasena received a violent blow,but the circumstances of the attack on him are very bad. The accusedacted in a ruffianly manner and it is desirable that law abiding peopleusing the roads should not be held up and assaulted^ There have beentoo many offences in this country in respect to the running of motor buses,and people who are engaged in that traffic must be shown that they arenot autocrats of the road. I sentence the first appellant to six weeks’rigorous imprisonment.Varied.