# MATHURI AND ORS v. STATE OF PUNJAB

- **Citation:** [1964] 5 S.C.R. 916
- **Court:** Supreme Court of India
- **Decided:** 1964
- **Case number:** Criminal Appeals Nos. 93 and 142 of 1962
- **Bench:** P.B. Gajendragadkar, K.C. Das Gupta
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/mathuri-and-ors-v-state-of-punjab-3055
- **Pages:** 16

## Headnote

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 25Decree for possession-Period of execution warrants expiredAttempt by landlords to take possession-If criminal trespass-
"Intention to annoy", meaning of-Resistance by tenants-If unlawful 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.
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 retired, 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
]
-
5 S.C.R.
SUPREME COURT REPORTS
917
seven years and acquitted all the others. The appellants as well as
1963
the State appealed to the High Court without success. Bodi
the parties, thereafter filed the present appeals.
Mathuri and ors.
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 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 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 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, Sellamuth

## Text

916
SUPREME COURT REPORTS
[1964]
J963
We have therefore come to the conclusion that
. -
even if the Trial Court was right in thinking that
V.R. Sadagopa Padmavathi was a Brahmin girl and not a Shudra,
Naidu
the position in law was, as found by the courts below,
v;
viz., it was a valid Hindu marriage and BhakthavathaBakthavatsalam salam a legitimate son of Sadagopa with all the rights
& Anr.
of a coparcener in regard to the joint family properDas Gupta J.
1963
December 11
ties and other matters.
No other point was urged in appeal. The appeal
is accordingly dismissed with costs.
Appeal dismissed.
MATHUR! AND ORS.
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 25Decree for possession-Period of execution warrants expiredAttempt by landlords to take possession-If criminal trespass-
"Intention to annoy", meaning of-Resistance by tenants-If unlawful 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.
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 retired, 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
]
-
5 S.C.R.
SUPREME COURT REPORTS
917
seven years and acquitted all the others. The appellants as well as
1963
the State appealed to the High Court without success. Bodi
the parties, thereafter filed the present appeals.
Mathuri and ors.
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 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 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 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
918
SUPREME COURT REPORTS
[1964]
"~
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 offences for which they were convicted and sentenced by the courts
below. The contention of the State (in its appeal) that offences under s. 3C2 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.
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).
l
December 11, 1963. The Judgment of the Court
1.-
was delivered by
Das Gupta J.
DAS GUPTA J.-On June 7, 1960 a tragic occurrence. took place at a 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 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 ands. 307/149 of the Indian
Penal Code.
The prosecution case
was
that though the
...,,
warrants for delivery of possession in execution
~ .
I
•
l
5 S.C.R .
SUPREME COURT REPORTS
919
. 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 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 tl}en·.
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 Jay
injured on the field.
Rattan Singh and Dharam Singh died of their'.
injuries. Some of the policemen also
received;.
920
SUPREME COURT REPORTS
[1964]
J.963
injuries. All the ten appellants are said to have been
found lying injured in the field. They and a 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.
Das Gupta J.
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 assembled 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 a large number of men had died from police
firing and many more had received mjuries 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 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.
Accordingly, 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
•
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'
r
5 S.C.R.
SUPREME COURT REPORTS
921
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 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 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 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. 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
922
SUPREME COURT REPORTS
[1964]
1~63
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 contens 1
~ P
. b tion that the warrants had ceased to be executable
ta e
0
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 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 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
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.
ff 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
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.
5 S.C.R.
SUPREME COURT REPORTS
923
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 permitting 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 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
SUPREME COURT REPORTS
[1964]
1963
The proposition that every person intends the,natural
consequences of his act, on which the learned counsel
Mathuriandors, relies, is often a convenient and helpful rule to ascer-
'"
tain the intention of persons when doing a particular
State of Punjab act. It is wrong however to accept this proposition
as a 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 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 OJ.
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 th us connotes not a casual
or merely possible result-foreseen perhaps as
a not improbable incident, but not desiredbut 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
(l) LL.R. 25 Bombay 202.
-
-.f'
'
'
5 S.C.R.
SUPREME COURT REPORTS
925
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 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 (I) 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 cons1!quence 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. 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.
926
SUPREME COURT REPORTS
(1964]
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
Das Gupta J.
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 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. Rayapadaayachi\SJ.
As a different view was
taken by .
that High Court in 1912 in Sellarnuthu Servaigaran
v. Pallwnuthu 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(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 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. 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.
-
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'
;
'
5 S.C.R.
SUPREME COURT REPORTS
927
has relied on a 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 Raghunath' s Casel2) and in
Sellamuthu
Servaigaran's
Case <3l 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
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 annoyance, 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 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 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.
928
SUPREME COURT REPORTS
[ 1964]
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 crimiDas 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 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
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,
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
l
..
'
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5 S.C.R.
SUPREME COURT REPORTS
929
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
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 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 accepted 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 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
Das GupJa
J.
930
SUPREME COURT REPORTS
[1964]
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 clearly shown by the evidence
State of Punjab and is not disputed before us.
Das Gupta J.
-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.
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 niore than two years and nine
months of the sentence imposed on them and had
i
•...
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-
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5 S.C.R.
SUPREME COURT REPORTS
931
been in custody for about 10 months before that.
1963
On a 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 imprisonment 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 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.
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 Constitution.
The General Court Martial sentenced the petitioner, a sepoy,
to death under s. 69 of the Army Act read with s. 302 of the Indian
1965
Duember Jl