047-NLR-NLR-V-39-THE-KING-v.-SAYANERIS-et-al.pdf
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HE ARNE J.—The King v. Sayaneris.
1937Present: Hearae J.
THE KING v. SAYANERIS et al.
55-59—D. C. (Crim.), Galle, 15,691.
Unlawful assembly—Conviction of rioting and causing hurt and grievous hurt—Alteration of conviction by Supreme Court—Penal Code, ss. 32, 146,315, and 317.
Where an accused person is convicted of rioting and causing hurt andcausing grievous hurt under sections 315 and 317 of the Penal Code readwith section 146, the conviction may be altered by the Supreme Court inappeal to a conviction of causing hurt and grievous hurt under thesections 315 and 317 read with section 32 of the Penal Code.
^^PPEAL from a conviction by the District Judge of Galle.
Rajapakse, for accused, appellants.
Pulle, C.C., for Crown, respondent.
September 6,1937. Hearne J.—
The appellants, five in number, were convicted of rioting and of causinggrievous hurt and simple hurt. The latter convictions were undersections 317 and 315 of the Ceylon Penal Code read with section 146.
The appellant Bettagoda Radage James alias Jamia put forward thedefence of an aZibi, gave evidence in support of this defence and calleda witness. But their evidence was not examined by the trial Judge.
» 3C.-L.-W.61.
HEARNE J.—The King v. Sayaneris.
149
It was not inherently improbable, there were no contradictions, and i£the Judge rejected the evidence he should have recorded his- reasons forso doing. Apart from this the evidence of the prosecution againstBettagoda Rad age James was not nearly so strong as it was against hisco-accused. I allow his appeal, and acquit him.
The logical sequence of this acquittal is that the remaining four appel-lants cannot be said to have been guilty of being members of an unlawfulassembly or of riot and their convictions in respect of these offences-are therefore quashed.
It remains to be considered whether the convictions of causing grievoushurt and of simple hurt under sections 317 and 315 read with section 146can be altered to convictions under these sections read with section 32.Counsel for the appellants has submitted that this is legally possible.,and I agree with him.
A contrary view was taken, in India prior to the decision of theirl^ordships of the Privy Council in Barendra Kumar Ghosh v. Emperor*.Since that case, however, while it is still the law that on a charge of riotonly, the accused, if acquitted of riot, cannot be convicted of causinghurt—for causing hurt is not a necessary ingredient of riot—it has beenheld that “ if a person has been charged with an offence under section326 I. P. C. (section 317 Ceylon) read with section 149 (section 146Ceylon) but has been convicted under section 326 read with section 3-4(section 32 Ceylon), the conviction is not necessarily bad by reason of theabsence of a specific charge under the latter section”. (A. I. R. (1934)Sind 89 ; A. I. R. (1934) Madras 565 ; 36 Cr. L. J. 113.)
The questions to which an Appellate Court should apply its mind insuch cases are “ Had the- accused to meet the same set of facts or not,and has he been prejudiced by the failure to specify the charge ” underwhich he was convicted ? “ If not the conviction is good ”. In thepresent case both the questions must be answered against the appellants.
I do not see that the 'appellants could be -said to be prejudiced by a sub-stitution of the convictions under sections 317 and 315 read with section146 for convictions under sections 317 and 315 read with section 32, forit was plainly set out in the indictment that they were associated together;with a common intention and in pursuance of that intention causedgrievous hurt and hurt.
I alter the convictions accordingly. I have given the question ofsentence every consideration and do not think that interference with thesentence of 9 months passed in respect of the convictions under section 317would be justified. Although the complainant had behaved dishonestlytowards a person whose agents the appellants were it is clear that ingoing armed with clubs extreme violence was contemplated. As thesentence for riot was concurrent with the major sentence of 9 months forcausing grievous hurt the appellants’ partial success on appeal is sterile.
Varied.
A. I. B. (1925) p. c. i.