MATHURI AND ORS. versus STATE OF PUNJAB

J963 We have therefore come to the conclusion that . -even if the Trial Court was right in thinking that V.R. Sadagopa Padmavathi was Brahmin girl and not Shudra, Naidu the position in law was, as found by the courts below, v; viz., it was valid Hindu marriage and Bhakthavatha-Bakthavatsalam salam legitimate son of Sadagopa with all the rights & Anr. of coparcener in regard to the joint family proper-ties and other matters. Das Gupta J. No other point was urged in appeal. The appeal is accordingly dismissed with costs.

Appeal dismissed.

1963 MATHUR! AND ORS. December 11 v. STATE OF PUNJAB

(P.B. GAJENDRAGADKAR AND K.C. DAS GUPTA JJ.)

Indian Penal Code (Act XLV of 1860), ss.149 and 441 and Code of Civil Procedure (Act V of 1900) O.XXI, rr. 24 and 25-Decree for possession-Period of execution warrants expired-Attempt by landlords to take possession-If criminal trespass-"Intention to annoy", meaning of-Resistance by tenants-If un-lawful assembly.

The appellants (in the main appeal) along with some others were tried for offences under ss. 148, 302 and 307 read withs. 149 of the Indian Penal Code. The occurrence leading to their trial was as follows. Certain landlords got decrees for possession and armed with warrants for execution of the decrees and with the assistance of police they tried to execute the warrant and dispossess the tenants. The period of execution of the warrants had expired. large armed mob including the appellants resisted and on the order of the District Magistrate the police opened fire. Ten persons from the mob and two persons from the other side died and number of persons were injured. The appellants were found lying injured at the scene of occurrence after the mob re-tired, The Sessions Judge convicted all the appellants of the offences under s. 148 of the Indian Penal Code and under s. 304 part I~ read with s. 149 and under s. 326/149 s. 324/149 and 532/149 an? sentenced them to rigorous imprisonment for

seven years and acquitted all the others. The appellants as well as the State appealed to the High Court without success. Bodi the parties, thereafter filed the present appeals.

Mathuri and ors. v. · State of Punjab of Punjab Punjab · ·

On behalf of the appellants (accused) it was contended that v. since the date of the execution warrants had expired the attempt State of Punjab of Punjab Punjab of the land lords to take possession of land amounted to criminal · · trespass and the appellants were entitled in law to resist them and therefore they did not form an unlawful assembly and had no objecno commit the offences alleged.

Held, (i) The words in sub·r. 3 of r. 24 of the Order 21 of the Code of Civil Procedure clearly show the intention of the legislature that the execution must be completed by the date speci• tied on the process for this purpose. To hold otherwise would be to ignore the force of the words "on or before which it shall be executed''. The words "the reason of the delay" occuring in r. 25 can on an ordinary grammatical interpretation be referred to the delay in returning the process to the· court. The warrants in the present case by reason of the expiry of the date mentioned therein had ceased to be executable on the date of the occurrence:

Anand Lal Bera v. The Empress, l.L.R. 10 Cal. (1884) 18, Chelli Latchanna v. The Emperor, A.LR. 1942 Pat. 480, Nand Lal v. Emperor, A.LR. 1924 Nag. 68 and Kishori Lal v. Emperor, A.LR. 1934 All 1016, referred to. ·

(ii) The mere fact that the natural consequences of the entry was known to be annoyance to the person in possession .would not necessarily show that the entry was made "with intent to annoy" within the meaning of s. 441 of the Indian Penal Code. In order to establish that the entry on the property was with the intent to annoy, intimidate or insult, it is necessary for the Court. to be satisfied that causing such annoyance, intimidation or insult was the aim of the entry. The Court has to take into consideration all relevant circumstances including the presence of knowledge that the natural. consequences of the entry would be such annoy-ance, intimidation or insult and including also the probability of something else than the causing of such annoyance etc. being the dominant intention which prompted the entry. Taking all circum· stances of the present case the courts below were right in their view that criminal trespass was not committed or apprehended from the acts of the landlords and others who entered the property and rightly rejected the defence plea that the object of those who assembled was to defend the property against trespass.

Emperor v. Laxman Raghunath 26 Born. 558, Sellamuthu Servaigaran v. Pall•muthu K.aruppan, I.LR. 35 Mad. 186 and K.esar Singh v. Prem Ba//abh, A.LR. 1950 All. 157, disapproved.

Bhagwant v. K.edari, 25 I.lorn. 202, Emperor v. D'Cunh.a, 37 B.L.R. 880, NiZllmuddin v. Jinnat Hussain, A.LR. 1948 Cal. 130, Salish Chandra Modak v. The King, A.i.R. 1949 Cal. 1Q7;o

1963 Bala Krishna Ghosh v. State, A.I.R. 1957 Cal. 385, State v. Ahdul Sakur, A.I.R 1960 Cal. 189, Queen Empress v. Rayapadaayachi, Mathuri and ors. 19 Mad. 240 and Vul/appa v. Bheema Rao, I.L.R. 41 Mad. 156, v. approved.

St~le of Punjab (iU) The appellants were not mere onlookers but joined the unlawful assembly with the common object of committing offen-ces for which they were convicted and sentenced by the courts below. The contention of the State (in its appeal) that offen-ces under s. 3C2 were committed is rejected. Even though ordinari-ly this Court will not interfere with sentences passed by the Trial Court, due to the special facts and circumstances of the present case the sentences of the six women appellants and the two male appellants due to their extreme old age are reduced to the period already undergone. The State appeal is rejected.

CRIMINAL APPELLATE JURISDICTION : Criminal Appeals Nos. 93 and 142 of 1962.

Appeal by special leave from the judgment and order dated December 15, 1961 of the Punjab High Court h1 Criminal Appeals Nos. 417 and 552 of 1961.

R.L. Kohli, for the appellants lin Cr. A. No. 93/1962) and the respondents (in Cr. A. No. 142 of 1962).

H.R. Khanna and R.N. Sachthey, for the appellant

(in Cr. A. No. 142 of 1962) and the respondent (in

Cr. A. No. 93 of 1962).

December 11, 1963. The Judgment of the Court

was delivered by

Das Gupta J. DAS GUPTA J.-On June 7, 1960 tragic occur-rence. took place at village called Mohangarb over · the delivery of possession of certain lands in execution of decrees for ejectment obtained by landlords. Twelve persons lost their lives and several others received serious injuries. Among the injured were some mem-bers of the police force who had gone there to assist in the delivery of possession. Thirty-nine persons were sent up to the Sessions Court for trial for offen-ces under s. 148, s. 302/149 ands. 307/149 of the Indian Penal Code.

The prosecution case

was

that though the

warrants for delivery of possession in execution

5 S.C.R .

. of several decrees in favour of the several decree• 1963 holders had been issued as early as April· 5, 1960, -. repeated attempts by Revenue Officers to execute Mathuri and ors. the decrees were unsuccessful. It was when further v. attempt was being made on June 7, 1960 to execute State of Punjab those warrants that the villagers including the tenants who were to be dispossessed of their lands and their D.as Gupta J .. friends and sympathisers attacked the decree-holders men and the police party who had accompanied, them to the field. It is said that on behalf of the decree-holders, Rattan Singh and his four companions Dharam Singh, Abhey Ram, Bharat Singh and Nihal Singh entered the field of Prabhu, one of the judgment debtors with two ploughs yoked to two teams of bullocks. Hardly had they gone short distance into the field when mob, about 200 strong, consisting of men and women armed with lathis, jailis and gandasas came up shouting "Kill Rattan Singh and do not allow possession to be taken." The Sub-Divisional Magistrate, Sangrur, who was with the party then announced over loud speaker that he declared the mob an unlawful assembly and called upon it to disperse. large number out of the mob however managed to reach Rattan Singh and his party and though Nihal Singh was able to get away the other four were attacked by several persons· in the mob. On the order of the Sub-Divisional Magistrate, the . police made lathi charge on the mob but the mob counter attacked. In the course of the attack the Assistant Sub-Inspector Gurdial Singh received an injury and some of . the rioters tried to carry him away. In an attempt to save the situation Sub-Inspector Sitaram fired two shots from, his revolver. The Sub-Divisional Magistrate tl}en·. ordered the police to fire. party of four fired two volleys. It was when after this 14 policemen fired the volleys that the mob ran away, leaving ten of their members dead and some injured on their field. Rattan Singh and his three companions also Jay injured on the field.

Rattan Singh and Dharam Singh died of their'. injuries. Some of the policemen also received;.

injuries. All the ten appellants are said to have been

found lying injured in the field. They and large Mathuriandors. number of other persons were arrested and ultimately, v: as already stated thirty-nine persons were sent up State of Punjab to the Sessions Court for trial.

All the accused pleaded not guilty. Apart from the defence of several of them that they were not at the place of occurrence at all and had received their injuries elsewhere, it was common case of all the ·accused that there was no unlawful assembly at all. It was pleaded that the tenants in possession came to the field to defend their property against criminal trespass and the object of those who assem-bled was noth;ng more than to defend their property against such trespass. It was further stated that the police joined hands with the landlords' people to execute the warrants of possession after the date of execution had already expired; that it was the police who were guilty of excesses; but when it was found that large number of men had died from police firing and many more had received mjuries that villa-gers were arrested indiscriminately and falsely im-plicated.

Das Gupta J.

On consideration of the evidence, the learned Sessions Judge found the prosecution case substan-tially proved and rejected the plea of the accused of the right of private defence. He held that there was an unlawful assembly with the common object of murdering Rattan Singh and others; that in prose-cution of this common object two offences under s. 304 Part II read with s. 149 were committed by members of the assembly by causing the deaths of Rattan Singh and, Dharam Singh and that offences under ss. 326, 324 and 323 were also commited in prosecution of the common object. He further found it proved against these IO appellants that they were members of that assembly and committed rioting having been armed with dangerous weapons. Accord-ingly, he convicted all of them of the offence under s. 148 of tbe Indian Penal Code and also two offences under s. 304 Part II read with s. 149, and under

5 S.C.R.

s. 326/149 s. 324/149 ands. 323/149. For each of the 1963 offences under s. 304 Part II read with s. 149 he sentenced these 10 appellants to rigorous imprison- Mathuri and ors. ment for seven years. Lesser sentences were. passed v. under the other offences and all the sentences were State of Punjab directed to run concurrently.

Das Gupta J.

These 10 accused persons appealed against their conviction and ser1tence to the High Court of Punjab. The State of Punjab also filed an appeal against them on the ground that they should have been con-victed under s. 302 read with s. 149 and not merely under s. 304 Part II read with s. 149. ·

As regards the other twenty-nine accused the Sessions Judge held that their membership of the unlawful assembly had not been proved beyond doubt and accordingly acquitted them. The State of Punjab appealed to the High Court against this acquittal also.

The High Court agreed with the Sessions Judge's findings and dismissed the appeal of the accused and also the appeal of the State of Punjab.

The ten accused persons have presented this appeal (Cr. A. No. 93 of 1962) by special leave of this Court. The State of Punjab has also filed an appeal by special leave (Cr. Appeal No. 142 of 1962) against the decision of the High Court that offences under s. 302 read withs. 149 had not been proved.

The main contention raised before us in support of the appeal of the ten accused persons is that in law no unlawful assembly was formed inasmuch as Rattan Singh and others who went to the field were guilty of criminal trespass and it would be reason-able to hold that the villagers who had assembled there had only the object of defending their property against such trespass and no object to commit the offences as alleged. ln contending that the acts of Rattan Singh and others amounted to criminal trespass Mr. Kohli, learned counsel for the ten accused persons, has stressed the fact that the last date for execution of the warrants for deliver~ of possession

was some time in April 1960 so that on June 7, 1960 they were not executable in law.

Mathuri and ors. . , Though the Sess10ns Court accepted the conten-s ~ P . tion that the warrants had ceased to be executable 1 0 ta unJa before June 7, 1960 and the High Court agreed with Das Gupta J. it Mr. Khanna, who appeared before us on behalf of the State of Punjab, has challenged the correct-ness of the proposition. We have no doubt about the correctness of the view taken by the courts below which it may be mentioned is supported by long line of decisions of all the High Courts in Jndia. (Vide Anand Lal Bera v. The Empress (I). Chelli Latchanna and others v. Emperor (ZJ; Nand Lal v. Emperor (3); Kishori Lal and another v. EmperorJ4) An examination of the provisions of rr. 24 and 25 of 0. 21 of the Code of Civil Procedure makes the position clear. Rule 24 deals with the issue of process for the execution of decrees and provides in sub-r .. 3 that in every such process "a day shall be specified on or before which it shall be executed." Rule 25 then proceeds to say that the officer entrusted with the execution of the process shall endorse thereon the date on and the manner in which it was executed and further that if the latest day specified in the process for the return thereof has been exceeded the reason of the delay or if it was not executed the reason why it was not executed, and shall return the process with such endorsement to the Court. Mr. Khanna has contended that the words "reason of the delay" in rule 25 contemplates situation where the process has been executed after the date mentioned in it under r. 24. In our opinion, there is no substance in this contention. ff r. 25 be read as whole and in the light of the provision in sub-r. 3 of r. 24 it is quite clear that the "delay" mentioned in r. 25 refers to the delay in return-ing the process whether after or without execution and not to any delay in execution. The words in sub-r. 3 of r. 24 as quoted above clearly show the

(I) l.L.R. 10 Cal. [1884] p. 18. (2) A.LR. 1912 Patna p. 480.

(3) A.LR. 1924 Nagpur p. 68. (4) A.LR. 1934 Allahabad p. 1016.

intention of the legislature that the execution must 1963 be completed by the date specified on the process -~ for this purpose. To hold otherwise would be to Mathunandors. ignore the force of the words, "on or before which v: . it shall be executed". It does not stand to reason State of Pun;ab that after providing in r. 24 that the process must be executed on or before the date specified on it for Das Gupta J. that purpose, the legislature would proceed to undo the effect of these words "shall be executed" by per-mitting execution even after that date. There is no justification for reading such intention in the use . of the words "the reason of the delay". These words, as we have already stated can on an ordinary grammatical interpretation be referred to the delay in returning the process to the Court. We are thus clearly of the opinion that the warrants in the present case where date in April had been specified as the date on or before which they had to be executed ceased to be executable in law before June 7, 1960.The question then is whether when Rattan Singh and others went on the lands of which possession was to be taken under the warrants, they were commit-ting the offence of criminal trespass. The answer to this question depends on whether in entering upon the property these persons acted "with intent to commit an offence or to intimidate, insult or annoy" persons in possession of the property. It is not suggested that the entry was with intent to commit any offence or to intimidate or to insult the persons in possession of the property. It has been strenuously contended however by Mr. Kohli that in entering upon these properties for the purpose of dispossessing those in possession in the purported execution of warrants which had ceased to be executable Rattan Singh and others must be held to have acted "with intent to annoy" these in possession. These persons, it is argued, knew very well that the natural and in-evitable consequence of their action was that the persons in possession would be annoyed. It necessari-ly follows therefore according to the learned counsel that they had the intention to annoy those persons.

1963 The proposition that every person intends the,natural consequences of his act, on which the learned counsel Mathuriandors, relies, is often convenient and helpful rule to ascer-'" tain the intention of persons when doing particular State of Punjab act. It is wrong however to accept this proposition as binding rule which must prevail on all occasions Das Gupta J. and in all circumstances. The ultimate question for decision being whether an act was done with particular intention all the circumstances including the natural consequence of the action have to be taken into consideration. It is legitimate to think also that when s. 441 speaks of entering on property "with intent to commit an offence, or to intimidate, insult or annoy" any person in possession of the property it speaks of the main intention in the action and not any subsidiary intention that may also be present. One of the best expositions of the meaning of the word "intent" as used in the Indian Penal Code was given in decision of the Bombay High Court in 1900 in Bhagwant v. Kedari OJ. Examin-ing the definition of the word "fraudulently" in s. 25 of the Indian Penal Code, viz., "a person is said to do thing fraudulently if he does that thing with intent to defraud but not otherwise". Batty J. observed thus at page 226 of the Report:-

"The word 'intent' by its etymology, seems to have metaphorical allusion to archery, and implies "aim" and th us connotes not casual or merely possible result-foreseen perhaps as not improbable incident, but not desired-but rather connotes the one object for which the effort is made-and thus has reference to what has been called the dominant motive, without which the action would not have been taken."

The fact that these observations were made for the purpose of ascertaining what is meant by the word "fraudulently" does not diminish their general value and correctness. In our opinion, the observa-tions of the learned Judge as regards the meaning of the word "intent" indicates the correct approach (l) LL.R. 25 Bombay 202.

to adopt in deciding whether the necessary ingredient 1963 of the offence of criminal trespass that the entry --was "with intent to commit an offence or to intimi- Mathuri and ors. date, insult or annoy" any person in possession of v. the property has been established. It follows from State of Punjab this that the mere fact that the natural consequence of the entry was known to be annoyance to the person Das Gupta J. in possession would not necessarily show that the entry was made "with intent to annoy". That fact as to what the natural consequence would be and the presumption of this being known to the person so entering would be only one circumstance to be taken into consideration along with other circumstan-ces for the purpose of deciding the question with what intent the entry was made. Surprisingly enough the Bombay High Court held only few years later in Emperor v. Laxaman Raghunath (I) which was case under s. 448 of the Indian Penal Code that to prove the intention necessary for the purpose of the offence of criminal trespass it is sufficient to show that the man. did the act with the knowledge that the probable cons1!quence would be annoyance to the complainant. Fulton J. who delivered the judgment of the Court said that the result of the autho-rities seem to be that "although there is no presum-ption that person intends what is merely possible result of his action or result which though reason-ably certain is not known to him to be so, still it must be presumed that when man voluntarily does an act, knowing at the time that in the natural course of events certain result will follow, he intends to bring that result". It is fair to notice that Fulton J. had been party to the earlier decision in Bhagwant v. Kedafi(1), though no reference to what was said about the meaning of the word "intent" in that case appears to have been made in the latter case. It is to be noticed that this view of the law in Laxman Raghunath's case<[0 ]has not been followed by the Bombay High Court in recent years. Jn Emperor v. D' Cunha (J) it was explained that while the question of knowledge (!) I.L.R. 26 Bombay 5 58. (2) 1.L.R. 25 Bombay 202. (3) 37 B.L.R. 880.

1963 as to what would be the natural consequence -.-of the act can be taken into consideration in deciding Mathun and ors. the intention of the party that is only one of the v. circumstances that have to be considered. State of Punjab The view that annoyance is natural conse-Das Gupta J. quence of the act and it is known to the person who does the act that such is the natural consequence is not sufficient to prove that the entry was with intent to annoy has been consistently taken in the Calcutta High Court. See Nizarnuddin v. Jinnat HussainOJ; Satish Chandra Modak v. The King<2J; Bata Krishna Ghosh v. The State (3); The State v. Abdul Sakur (4).The same view was taken by the Madras High Court in 1896 in the case of Queen Empress v. Rayapa-daayachi\SJ. As different view was taken by . that High Court in 1912 in Sellarnuthu Servaigaran v. Pallwnuthu Karuppan (6) the matter was examined by Full Bench of the High Court in Vullappa v. Bheema Row(7) in 1917. The full Bench held that the correct view had been taken in Queen Empress v. Rayapadaayachi(S) (supra) and that the legislature did not intend in s. 441 that doing the act with the knowledge of its consequence should be punishable. Kumaraswami Sastriyar J. stressed the fact that wherever the Penal Code wanted to make man liable for knowledge of consequences it expressly said so as in ss. 118 to 120, 153, 154, 217, 293 etc. The learned Judge agreed with an observation of Sir William Mark by (Elements of Law, para 222) in that consequence would follow or knowledge "that it is likely to follow without any desire that it should follow is an attitude of mind which is distinct from intention .............. ". The Madras High Court has thereafter adhered to this view of the law. The Allahabad High Court took similar view of this matter in Emperor v. Motila/(8). Mr. Kohli (1) A.LR. 1948 Cal. 130. (2) A.LR. 1949 Cal. 107 .. (3) A.LR. 1957 Cal. 385. (4) A.LR. 1960 Cal. 189. (5) 9 Mad. 240. (6) l.L.R. 35 Mad. 186. (7) I.L.R. 41 Mad. 156. (8) LL.R. 47 All. 855.

taken by .

has relied on decision of the Allahabad High Court 1963 in Kesar Singh v. Prem Ballabh 0) in which the learned Judge (Desai J.) held that where the probable conse- Mathuri and ors. quence of the act of the accused was to cause annoyance v. to the complainant it will be presumed that they State of Punjab committed the trespass with that intention and as that intention was not rebutted the accused was Das Gupta J. rightly convicted under s. 447.

We think, with respect, that this statement of law as also the similar statements in Laxaman Raghu-nath' s Casel2) and in Sellamuthu Servaigaran's Case <[3]l is not quite accurate. The correct posi-tion in law may, in our opinion, be stated thus: In order to establish that the entry on the property was with the intent to annoy, intimidate or insult, it is necessary for the Court to be satisfied that causing s.uch annoyance, intimidation or insult was the aim of the entry; that it is not sufficient for that purpose to show merely that the natural consequence of the entry was likely to be annoyance, intimidation or insult, and that this likely consequence was known to the persons entering; that in deciding whether the aim of the entry was the causing of such annoy-ance, intimidation or insult, the Court has to consider all the relevant circumstance:; including the presence of knowledge that its natural consequences would be such annoyance, intimidation or insult and in-cluding also the probability of something else than the causing of such intimidation, insult or annoy-ance, being the dominant intention which prompted the entry.

Applying these principles to the facts of the . present case, we are satisfied that the courts below are right in holding that Rattan Singh and others have not been shown to have had the intention to annoy. It may be true that they knew that annoy-ance would result. Armed as they were with the warrants of execution it is reaionable to think however that the intention which prompted and dominated their action was to execute the warrants. We think (I) A.LR. 1950 All. 157. (2) 1.L.R. 26 Bombay 558. (3) I.LR. 35 Mad. 186.1963 also that the courts below were right in their view .-that Rattan Singh and others could .not be reasonably Mathuri and ors. expected to know that the warrants had ceased v. . to be executable in law. Taking all the circumstances State of Pun;ab into consideration we have come to the conclusion that the courts below were right in their view that crimi-Das Gupta J. nal trespass was not committed or apprehended from the acts of Rattan Singh and others who entered the property and rightly rejected the defence plea that the object of those who assembled was to defend the property against trespass.

There was therefore no difficulty in holding that the assembly of the villagers was an unlawful assembly with the common object of killing Rattan Singh and others who wanted to dispossess them.

This brings us to the question of participation

of the individual accused in the unlawful assembly. As it is clearly question of fact this court would ordinarily refuse to investigate the same. Mr. Kohli however complains that the High Court's findings on this question is vitiated by serious error in reading the evidence. Evidence has been given, the correct-ness of which can no longer be disputed, that these 10 accused persons were found lying injured at the place of occurrence when the rest of the mob finally dispersed. The defence suggestion was that even so it may well be that they had come to the place of occurrence only out of curiosity to see how the thing developed. One of the reasons given by the High Court for rejecting this argument was that it "was also proved from the statements of Iqbal Singh, non-official (P.W. 9), Munshi Singh, Head Constable (P.W. 22), Kaul Singh, Assistant Sub-Inspector (P.W. 24) and Ranjit Singh, Head Constable (P.W. 26) that jellis, gandasas, and lathis were recovered from their possession." If this had really been proved the High Court's remarks that there could be "little doubt about their being in the mob and participation in the assault" would be fully justified. It has how-ever been pointed out by Mr. Kohli that the evidence of these witnesses does not really establish the recovery

of any weapons from the possession of these appellants. 1963 All that the evidence shows is that such weapons -were found lying in the field near the injured persons Mathuriandpts. and were taken into possession. The statements v. that these were recovered from their possession were Sta,te of Punjab it is true, made in the memoranda of seizure of weapons Das GupJa that were prepared and similar statements were made J. by some of these witnesses in their examination-in-chief. In cross-examination however they all admitted that there was no recovery from the person of any of these appellants. It appears clear that when the mob dispersed after the police firing, leaving some of the persons in the mob dead and some injured some weapons were also left in the field. Some of these were stained with blood. It is not unlikely that these had belonged either to some out of the men who were lying dead or injured. What is clear how-ever is that the weapons had not been proved to have been recovered from the possession of any of these appellants. It is unfortunate that the learned Judges who heard the appeal in the High Court did not examine the evidence with the care it deserved.In view of the serious error made by the learned Judges we have found it necessary to examine the evidence for ourselves to decide whether or not the oral testimony as regards the participation of these appellants in the unlawful assembly should be accept-ed or not. We have come to the conclusion that this evidence should be accepted. OnP, circumstance that cannot be overlooked fa that th~ place where these appe)lants.were found lying i:-~:!fed were well away from the mhab1ted portion of HIO village. It is hardly likely that villagers who came out of their houses only out of curiosity would venture so far forth into the fields. It is also to be noticed that of these ten appellants some were the tenants judgment-debtors and the rest close relations of them.

We are satisfied, on consideration of all the circumstances, that these appellants were not mere onlookers but joined the unlawful assembly with the common object as alleged by the prosecution. 1/SCI/64-59

1963 That offence under s. 304 Part II and sections 326, -.-324 and 323 I.P.C. were committed by some members, Mathurzandors. out of these who had assembled in pursuance of the v. common object of all is is clearly shown by the evidence

v. common object of all is is State of Punjab and is not disputed before us.

-We are unable to agree with the contention raised on behalf of the State in the State's appeal that offences under s. 302 of the Indian Penal Code were committed by causing the death of Rattan Singh and Dharam Singh. Our conclusion therefore is that the appellants have been rightly convicted under s. 304 Part II read with s. 149, s. 326/149, s. 324/149 and s. 323/149 of the Indian Penal Code.

Das Gupta J.

The last submission made before us on behalf

of the 10 appellants is that in consideration of all the circumstances of the case the sentences passed on the appellants are too severe. The question of sentence is in the discretion of the Trial Court .and would not ordinarily be disturbed by the High Court in appeal if it has been exercised judicially. There is still less reason ordinarily for this Court to interfere with sentences passed by the Trial Court and confirmed

by the High Court.

It is difficult to say however that in the present

case the discretion on the question of sentence has been exercised judicially. It cannot be overlooked that of these ten appellants six are women and four men. No specific part has been allotted to these women. It is reasonable to think in all the circum-stances of the case that they did not take leading part in the occurrence but came into the field when their menfolk came out-partly to save their fields and partly to save their menfolk. Neither the Trial Court nor the High Court appears to have taken any notice of these circumstances .and passed . the same sentence on the men as well as the women. In the peculiar circumstances of this case we think that interference on the question of sentences passed against the women is called for. It appears that they have served out niore than two years and nine months of the sentence imposed on them and had

5 S.C.R. SUPREME COURT REPORTS

been in custody for about 10 months before that. 1963 On consideration of all the circumstances of the -.-case we reduce the sentenc1! on these women-appellants Mathurz andora. under s. 304 Part JI read with s. 149, s 326149 and v. s. 148 to the period of imprisonment already under- Statt of Punjab gone. Das Gupta I.

Of the four male appellants Surjan was aged 70 at the time of the trial and Gokul 66. Surjan is thus about 73 years old now and Gokul just less than 70. In consideration of their age we think that the interests of justice will be served if their sentences are also reduced to the period of imprison-ment already undergone. We reduce their sentences accordingly. Let these accused persons be set at liberty, if not required in connection with some other proceedings. We see no reason to interfere with the sentences passed on the other two male appel-lants.The appeal by the accused persons is thus dis-missed except as regards the modification in sentences of eight of them. The appeal preferred by the State of Punjab is dismissed.

Appeals dismissed.

RAM SARUP

v. THE UNION OF lNDIA AND ANOTHER (B.P. SINHA, C.J., K.N. \VANCHOO, RAGHUBAR DAYAL, N. _RAJAGOPALA AYYANGAR AND J.R. MUDHOLKAll, JJ.)

Army Act (XLVI of 1950), ss. 125, 126 and 164-Scope of--Constitution of India, 1950, Art. 33-Effect on fundamental rights-s. 125 of Army Act if violative of Art. 14 of the Constitu-tion.

The General Court Martial sentenced the petitioner, sepoy, to death under s. 69 of the Army Act read with s. 302 of the Indian

Duember Jl