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PETITIONER: MATHURI AND ORS.

       Vs.

RESPONDENT: STATE OF PUNJAB

DATE OF JUDGMENT: 11/12/1963

BENCH: GUPTA, K.C. DAS BENCH: GUPTA, K.C. DAS GAJENDRAGADKAR, P.B.

CITATION:  1964 AIR  986            1964 SCR  (5) 916  CITATOR INFO :  APL        1970 SC  20  (2)

ACT: 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 unlawful assembly,

HEADNOTE: The  appellants (in the main appeal) along with some  others were tried for offences under ss. 148, 302 and 307 read with s. 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.  A 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  a 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 II read with s. 149 and under  s.  326/149  s. 324/149   and  532/149  and  sentenced  them   to   rigorous imprisonment for 917 seven years and acquitted all the others.  The appellants as well  as  the  State  appealed to  the  High  Court  without success.   Both  the parties, thereafter filed  the  present appeals. On behalf of the appellants (accused) it was contended  that since  the  date of the execution warrants had  expired  the attempt  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 object to  commit  the offences alleged. Held, (i) The words in sub-r. 3 of r. 24 of the Order 21  of

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the  Code of Civil Procedure clearly show the  intention  of the legislature that the execution must be completed by  the date  specified  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, I.L.R. 10 Cal.  (1884)  18, Chelli Latchanna v. The Emperor, A.I.R. 1942 Pat. 480,  Nand Lai  v.  Emperor,  A.I.R. 1924 Nag. 68 and  Kishori  Lal  v. Emperor, A.I.R. 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 annoyance,  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 circumstances 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  Bom.  558,   Sellamuthu Servaigaran  v. Pallumuthu Karuppan, I.L.R. 35 Mad. 186  and Kesar   Singh  v.  Prem  Ballabh,  A.I.R.  1950  All.   157, disapproved. Bhagwant  v.  Kedari, 25 Bom. 202, Emperor  v.  D’Cunha,  37 B.L.R.  880, Nizamuddin v. Jinnat Hussain, A.I.R. 1948  Cal. 130, Satish Chandra Modak v. The King, A.I.R. 1949 Cal. 107, 918 Bata Krishna Ghosh v. State, A.I.R. 1957 Cal. 385, State  v. Abdul   Sakur,  A.I.R  1960  Cal.  189,  Queen  Empress   v. Rayapadaayachi,  19  Mad. 240 and Vullappa  v.  Bheema  Rao, I.L.R. 41 Mad. 156, approved. (iii) The appellants were not mere onlookers but joined the unlawful  assembly  with  the common  object  of  committing offences for which they were convicted and sentenced by  the courts  below.  The contention of the State (in its  appeal) that offences under s. 302 were committed is rejected.  Even though  ordinarily  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.

JUDGMENT: CRIMINAL  APPELLATE JURISDICTION  Criminal Appeals  Nos,  93 and 142 of 1962. Appeal  by special leave from the judgment and  order  dated

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December  15,  1961  of the Punjab High  Court  in  Criminal Appeals Nos. 417 and 552 of 1961. R.L. Kohli, for the appellants (in 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.-On June 7, 1960 a tragic occurrence took  place at   a  village  called  Mohangarh  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 members 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 offences under s. 148, s. 302/149 and s. 307/149 of  the Indian Penal Code. The  prosecution  case  was that  though  the  warrants  for delivery of possession in execution 919 of  several decrees in favour of the several decree  holders had been issued as early as April 5, 1960, repeated attempts by   Revenue   Officers   to  execute   the   decrees   were unsuccessful.  It was when further attempt was being made on June  7, 1960 to execute those warrants that  the  villagers including  the tenants who were to be dispossessed of  their lands  and  their  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  a short  distance  into  the  field  when  a  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  a  loud speaker that he declared the mob  an  unlawful assembly and called upon it to disperse.  A 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  a 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,, then, ordered the police to fire.  A 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 ’lay injured on the field. Rattan  Singh  and Dharam Singh died  ’of  their:  injuries. Some of the policemen also received 920 injuries.   All  the ten appellants are said  to  have  been found  lying injured in the field.  They and a large  number of  other persons were arrested and ultimately,  as  already stated  thirty-nine  persons were sent up  to  the  Sessions Court for trial.

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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 nothing 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 a large number of men had died from police firing  and many more had received injuries  that  villagers were arrested indiscriminately and falsely implicated. On  a  consideration of the evidence, the  learned  Sessions Judge  found the prosecution case substantially  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  prosecution of this common object two offences under  s. 304  Part 11 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 10  appellants  that they  were  members of that assembly and  committed  rioting having been armed with dangerous weapons.  Accordingly,.  he convicted  all  of them of the offence under s. 148  of  the Indian Penal Code and also two offences under s. 304 Part 11 read with s. 149, and under 921 s.  326/149  s.  324/149 and s. 323/149.  For  each  of  the offences under s. 304 Part 11 read with s. 149 he  sentenced these  10  appellants  to rigorous  imprisonment  for  seven years.   Lesser  sentences  were  passed  under  the   other offences  and  all  the  sentences  were  directed  to   run concurrently. These  10 accused persons appealed against their  conviction and  sentence  to the High Court of Punjab.   The  State  of Punjab also filed an appeal against them on the ground  that they  should have been convicted 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 with s. 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 reasonable  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.  In contending that  the

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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 delivery of possession 922 was  some  time in April 1960 so that on June 7,  1960  they were not executable in law. Though  the Sessions Court accepted the contention that  the warrants had ceased to be executable before June 7, 1960 and the  High  Court  agreed with it Mr.  Khanna,  who  appeared before  us on behalf of the State of Punjab, has  challenged the correctness 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 a long line of decisions of all the High Courts in India. (Vide Anand Lal Bera v. The Empress(1).Chelli  Latchanna and others v. Emperor(2);  Nand Lal v. Emperor (3); Kishori Lal and another v. Emperor.(4) An  examination of the provisions of rr. 24 and 25 of S.  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  a  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.  If r. 25 be read as a 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  returning the process whether  after  or  without execution  and not to any delay in execution.  The words  on sub-r. 3 of r. 24 as quoted above clearly show the (1)  I.L.R.  10 Cal. [1884] p. 18. (2) A.I.R. 1912 Patna  p. 480. (3)  A.I.R. 1924 Nagpur p. 68. (4) A.I.R. 1934 Allahabad  p. 1016. 923 intention  of  the legislature that the  execution  must  be completed  by  the date specified 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".   It does not stand to reason that after providing in r. 24  that the process must be executed on or before the date specified on  it  for 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 a 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 committing the offence of  criminal trespass.  The answer to this question depends on whether in

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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  inevitable consequence  of  their  action  was  that  the  persons   in possession   would  be  annoyed.   It  necessarily   follows therefore according to the learned counsel that they had the intention to annoy those persons. 924 The  proposition  that  every  person  intends  the  natural consequences  of  his  act, on  which  the  learned  counsel relies, is often a convenient and helpful rule to  ascertain the intention of persons when doing a particular act.  It is wrong  however to accept this proposition as a binding  rule which   must   prevail   on  all  occasions   and   in   all circumstances.   The  ultimate question for  decision  being whether an act was done with a 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 a decision  of the  Bombay  High Court in 1900 in Bhagwant v.  Kedari  (1). Examining the definition of the word "fraudulently" in s. 25 of  the Indian Penal Code, viz., "a person is said to  do  a 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 thus connotes  not  a casual or merely  possible  result-foreseen perhaps  as a 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  observations of  the  learned  Judge  as regards  the  meaning  of the word  "intent"  indicates  the correct approach (1) I.L.R. 25 Bombay 202. 925 to adopt in deciding whether the necessary ingredient of the offence of criminal trespass that the entry was "with intent to commit an offence or to intimidate, insult or annoy"  any person  in possession of the property has been  established. It  follows  from this that the mere fact that  the  natural consequence  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".  That fact as to what the natural consequence would be and the presumption of this

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being  known  to the person so entering would  be  only  one circumstance to be taken into consideration along with other circumstances for the purpose of deciding the question  with what  intent  the entry was made.  Surprisingly  enough  the Bombay High Court held only a few years later in Emperor  v. Laxaman  Raghunath(1) which was a 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 consequence would be  annoyance to the complainant.  Fulton J. who delivered the judgment of the Court said that the result of the authorities seem to be that "although there is no presumption that a person intends what  is merely a possible result of his action or a  result which  though reasonably certain is not known to him. to  be so,  still it must be presumed that when a  man  voluntarily does an act, knowing at the time that in the natural  course of events a certain result will follow, he intends to  bring that result".  It is fair to notice that Fulton J.had been a party to the earlier decision in Bhagwant v. Kedari     (2), 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(" has not been  followed  by the  Bombay  High Court in recent years.  In Emperor  v.  D’ Cunha  (3)  it  was explained that  while  the  question  of knowledge (1)  I.L.R. 26 Bombay 558. (2) I.L.R. 25 Bombay  202. (3) 37 B.L.R. 880. 926 as  to what would be the natural consequence of the act  can be taken into consideration in deciding the intention of the party that is only one of the circumstances that have to  be considered. The view that annoyance is a natural consequence 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  Nizamuddin  v.  Jinnat Hussain(1);  Satish  Chandra  Modak v. The  King(2)  ;  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.  Rayapadaayachi(5).   As  a different view was taken by that   High  Court  in  1912  in Sellamuthu Servaigaran v.     Pallumuthu   Karuppan(6)   the matter was examined by   a  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(5)  (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 a 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 a consequence  would follow  or a 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 a similar view of this  matter in Emperor v. Motilal(8). Mr. Kohli (1)  A.I.R. 1948 Cal. 130.    (2) A.I.R. 1949 Cal. 107. (3)  A.I.R. 1957 Cal. 385.    (4) A.I.R. 1960 Cal. 189.

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(5)  9 Mad. 240.               (6) I.L.R. 35 Mad. 186. (7)  I.L.R. 41 Mad. 156.       (8) I.L.R. 47 All. 855. 927 has  relied  on a decision of the Allahabad  High  Court  in Kesar  Singh v. Prem Ballabh (1) in which the learned  Judge (Desai  J.) held that where the probable consequence of  the act of the accused was to cause annoyance to the complainant it  will be presumed that they committed the  trespass  with that  intention and as that intention was not  rebutted  the accused was rightly convicted under s. 447. We  think, with respect, that this statement of law as  also the similar statements in Laxaman Raghunath’s Case(2) and in Sellamuthu  Servaigaran’s  Case (3) is not  quite  accurate. The  correct position 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  such 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  annoyance,  intimidation or insult, the Court  has  to consider  all  the  relevant  circumstances  including   the presence of knowledge that its natural consequences would be such  annoyance, intimidation or insult and  including  also the  probability of something else than the causing of  such intimidation,  insult  or  annoyance,  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 annoyance  would  result.   Armed  as  they  were  with  the warrants of execution it is reasonable to think however that the intention which prompted and dominated their action  was to execute the warrants.  We think (1) A.I.R. 1950 All. 157. (2) I.L.R.26 Bombay 558. (3) I.I.R. 35 Mad. 186. 928 also  that  the courts below were right in their  view  that Rattan Singh and others could not be reasonably expected  to know  that the warrants had ceased to be executable in  law. Taking all the circumstances into consideration we have come to the conclusion that the courts below were right in  their view that criminal 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  a  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 correctness 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

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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  lqbal Singh, a 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  however  been pointed out by  Mr.  Kohli  that  the evidence  of these witnesses does not really  establish  the recovery 929 of any weapons from the possession of these appellants.  All that  the  evidence shows is that such  weapons  were  found lying  in the field near the injured persons and were  taken into  possession.  The statements that these were  recovered from their possession were it is true, made in the memoranda of  seizure  of  weapons  that  were  prepared  and  similar statements  were  made by some of these witnesses  in  their examinationin-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  however  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 beard  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 accepted or not.  We have  come to  the  conclusion that this evidence should  be  accepted. One,  circumstance  that cannot be overlooked is  that,  the place  where  these  appellants  were  found  lying  injured were  well away from the inhabited portion of  the  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  a  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/64-59 930 That offence under s. 304 Part 11 and sections 326, 324  and 323 I.P.C. were committed by some members, out of these  who had  assembled in pursuance of the common object of  all  is clearly shown by the evidence 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

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under  s.  304  Part 11 read with s.  149,  s.  326/149,  s. 324/149 and s. 323/149 of the Indian Penal Code. 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 circumstances of the case that they did not take  a 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 more than two years and nine months  of the sentence imposed on them and had 931 been  in  custody  for about 10 months before  that.   On  a consideration of all the circumstances of the case we reduce the sentence on these women-appellants under s. 304 Part  11 read  with  s. 149, s 326 149 and s. 148 to  the  period  of imprisonment already undergone. 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 also reduced to the  period  of  imprison- undergone.   We  reduce their sentences  Let  these  accused persons be set at required in connection with some other  We see no reason to interfere with the sentences passed on  the other two male appellants. The  appeal by the accused persons is thus dismissed  except as  regards the modification in sentences of eight of  them. The appeal preferred by the State of Punjab is dismissed. Appeals dismissed.