20 May 1958
Supreme Court
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GALLU SAH Vs THE STATE OF BIHAR

Case number: Appeal (crl.) 183 of 1957


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PETITIONER: GALLU SAH

       Vs.

RESPONDENT: THE STATE OF BIHAR

DATE OF JUDGMENT: 20/05/1958

BENCH: DAS, S.K. BENCH: DAS, S.K. DAS, SUDHI RANJAN (CJ) BHAGWATI, NATWARLAL H. AIYYAR, T.L. VENKATARAMA

CITATION:  1958 AIR  813            1959 SCR  861

ACT: Criminal  Trial-Arson-Principal offender  acquitted-Abettor, conviction of-lndian Penal Code (XLV of 1860), ss. 107, 108, 109 and 436.

HEADNOTE: The  prosecution  case  was  that a  mob  Of  40-50  persons including  the appellant, formed an unlawful  assembly  with the  common objects of dismantling the hut of R, of  setting fire  to  it  and  committing  assault,  if  resisted;  they assaulted  some persons, and the appellant ordered one  Budi to  set  fire to the hut and Budi set fire to  it  with  the result that it was burnt down, Twenty-two persons  including the  appellant  and  Budi,  were sent  up  for  trial.   The Sessions  judge  found that all of them formed  an  unlawful assembly with the common objects of dismantling the hut  and committing  assault on remonstrance, but that there  was  no common  object  to  set  fire to the  hut  and  the  act  of incendiarism  was  an isolated act of some  members  of  the unlawful  assembly.  He found that the appellant  had  given the  order to Budi to set fire to the hut and Budi  had  set fire  to  it in consequence of the abetment.   The  Sessions judge convicted the accused persons under ss.  147, 148  and 323  of the Indian Penal Code.  Budi was  further  convicted under S. 436 and the appellant under S. 436 read with s. 109 of  the  Indian Penal Code.  On appeal the  High  Court  set aside  the  conviction of Budi under S. 436 holding  it  not proved  that  he had set fire to the hut.   The  High  Court upheld  the  conviction of the appellant under S.  436  read with s. :cog holding that he had given the order to set fire to  the hut and that it was actually set on fire by  one  of the  members  of  the  unlawful  assembly.   The   appellant challenged  his conviction under S. 436 read with s. 109  on the  ground that it was not established that the person  who set fire to the hut had done so in consequence of the  order of the appellant Held, that the appellant was rightly convicted under S.  436 read with s. 109 of the Indian Penal Code.  On the  findings given  in the case it must be held that the person  who  set fire  to  the  hut was one of the members  of  the  unlawful

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assembly  and that he did so in consequence of the order  of the appellant. Raja Khan v. Emperor, A.I.R. 1920 Cal. 834 and Umadasi  Dasi v. Emperor (1924) I.L.R. 52 Cal. 112, referred to.

JUDGMENT: CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 183  of 1957. 862 Appeal  by special leave from the judgment and  order  dated January 21, 1957, of the Patna High Court in Criminal Appeal No. 34 of 1956, arising out of the judgment and order  dated January 23, 1956, of the Court of the 2nd Assistant Sessions Judge at Darbhanga in Sessions Trial No. 52 of 1955. P.   K. Chatterjee, for the appellant. D.   P. Singh, for the respondent. 1958.  May 20.  The Judgment of the Court was delivered by S.  K. DAS T.-This appeal by special leave is limited  to  a particular   question  only,  namely,  correctness  of   the conviction  of the appellant Galfu Sah for an offence  under s.  436  read  with  s. 109,  Indian  Penal  Code,  and  the propriety  of  the sentence passed  thereunder.   The  short facts  are  these.   Some 22 accused persons,  of  whom  the appellant  was  one,  were tried by  the  learned  Assistant Sessions  Judge of Darbhanga for various offences under  the Indian  Penal Code alleged to have been committed  by  them. The  prosecution case was that on May 16, 1954,  in  village Dharhara in the district of Darbbanga a, mob of about  40-50 persons,  including the accused persons, formed an  unlawful assembly, the common objects of which were (1) to  dismantle the hut of one Mst.  Rasmani, (2) to set fire to it and  (3) to commit assault, if resisted.  One Tetar Mian, who was the chaukidar  of village Dharhara, had come to the  village  at about 10 a.m. to ascertain births and deaths for the purpose of  supplying the said information to the officer  in-charge of the police station for registration.  When this chaukidar reached near the hut of Mst.  Rasmani, who was the widow  of one Ganpat, he found the mob engaged in dismantling the hut. The  chaukidar  protested.   On this, it  was  alleged,  the appellant  hit  him  with a lathi on  the  left  high.   The chaukidar  then  raised an alarm and several  other  persons came there including Ramji, Nebi and Munga Lal.  Thereafter, it was alleged, the appellant ordered another member of  the unlawful assembly named Budi to set fire to the hut of  Mst. Rasmani and he further ordered an assault 863 on  Ramji and Nebi.  Budi, it was alleged, set fire  to  the hut  and the hut was burnt.  Some members of the mob  chased Ramji and Nebi and assaulted them. The  learned  Sessions  Judge found  that  all  the  accused persons before him did form an unlawful assembly and came to the  hut  of  Mst.   Rasmani on the date  and  at  the  time alleged,  armed  with  weapons, with the  common  object  of dismantling  the  hut  and  of  committing  an  assault   on remonstrance.  He held that in prosecution of the  aforesaid common  objects the offences of rioting and hurt etc.,  were committed.  So far as the charge of arson was concerned,  he held  that  the act of incendiarism was an isolated  act  of some members of the unlawful assembly, there being no common object  of the entire unlawful assembly to set fire  to  the hut of Mst.  Rasmani.  He accepted the evidence given before him  to the effect that the present appellant had given  the order  to Budi to set fire to the hut and that Budi had  set

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fire to it in consequence of the abetment.  Accordingly,  he convicted the accused persons of various offences under  ss. 147,  148 and 323 etc. of the Indian Penal Code.   Budi  was further  convicted under s. 436, Indian Penal Code, and  the present  appellant  under s. 436 read with  s.  109,  Indian Penal Code. There was then an appeal to the High Court of Patna and  the learned  Judge who heard it found that the evidence  against Budi  in respect of the allegation that he had set  fire  to the  hut of Mst.  Rasmani was not very satisfactory  and  he acquitted  Budi  of the charge under s.  436,  Indian  Penal Code.   So far as the appellant Gallu Sah was concerned,  he held that the evidence satisfactorily established that Gallu Sah  had given the order to set fire to the hut and the  hut was  actually  set on fire by one member or another  of  the unlawful  assembly.   On  this  finding,  he  affirmed   the conviction  and sentence of the appellant under s. 436  read with  s. 109, Indian Penal Code, the sentence being  one  of four  years’  rigorous  imprisonment.   The  conviction  and sentence of the appellant for the offences under ss. 147 and 323,  Indian  Penal  Code,  were  also  affirmed,  but   the conviction and sentence 110 864 under  s. 324 read with s. 149, Indian Penal Code, were  set aside.    We   are,  however,  not  concerned   with   those convictions and sentences and nothing more need be said about them. We now come to the particular question to which this  appeal is limited, namely, propriety of the conviction and sentence passed  on the appellant for the offence under s.  436  read with  s. 149, Indian Penal Code.  Mr. P. K.  Chatterjee  has appeared  on behalf of the appellant and has  contested  the correctness  of the conviction on two grounds:  firstly,  he has submitted that the evidence on which the conviction  was based is the same evidence which was given against Budi Sah, and  if  that evidence was disbelieved with regard  to  Budi Sah, it should not have been believed against the appellant; secondly,  he has submitted that though he does not wish  to contend that in every case where the principal offender  has been acquitted of the offence, a person said to have abetted the commission of the offence must also be acquitted,  there is no evidence in this particular case that whoever set fire to  the  hut of Mst.  Rasmani did so in consequence  of  the order of the appellant, assuming that the appellant gave  an order to set fire to the hut, and therefore, the  conviction of the appellant for abetment is bad in law. As to the first point, the learned Judge has in his judgment given  good reasons why the evidence of the  witnesses  with regard to Budi Sah was not accepted and why the testimony of the   same  witnesses  was  accepted  with  regard  to   the appellant.   The witnesses on this point were four  persons, namely,  Tetar,  Ramji,  Nebi  and  Munga  Lal.   Tetar,  it appears, did not mention in his first information that  Budi had  set  fire  to  the hut, but he  did  mention  that  the appellant  had  given  the order to set fire to  the  hut  A similar  infirmity  was found in the evidence of  Ramji  who also  failed to tell the sub-inspector of police  that  Budi had  set  fire to the hut.  Nebi, it appears, could  not  be cross-examined  as  he died before the trial  began  in  the Court of Session.  So far as Munga Lal was concerned, it was elicited  in cross-examination that he did not speak at  the spot, or subsequently, to any of his co. 865 villagers  that  Budi  had set fire to the  hut.   On  these grounds  the learned Judge did not accept the  testimony  of

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the  aforesaid  four  witnesses so  far  as  the  allegation against  Budi was concerned.  The infirmity which was  found in the evidence of the aforesaid four witnesses with  regard to  Budi  Sah  was  not, however,  present  so  far  as  the allegation against the present appellant was concerned,  and the  learned Judge expressly said that the evidence  of  the aforesaid   four  witnesses  was  consistent   against   the appellant.  We see no violation of any rule of law nor  even of prudence in the learned Judge accepting the testimony  of some  of the witnesses against the appellant, though he  did not accept that testimony against Budi Sah. We  now  turn  to the second point urged on  behalf  of  the appellant.   It  must be emphasised here  that  the  learned Judge was satisfied that (1) the appellant gave the order to set  fire  to the hut and (2) tha the hut was  actually  set fire  to by one member or another of the unlawful  assembly, even  though the unlawful assembly as a whole did  not  have any  common  object  of  setting fire to  the  hut  of  Mst. Rasmani.   The  point  taken  by  learned  counsel  for  the appellant is that when the learned Judge did not accept  the evidence  of  the witnesses that Budi set fire to  the  hut, there was really no evidence to show that the person who set fire  to the hut of Mst.  Rasmani did so in  consequence  of the  order given by Gallu Sah.  The learned Advocate  points out that one of the essential ingredients of the offence  is that the act abetted must be committed in consequence of the abetment. It  is necessary to read at this stage some of the  sections of  the  Indian  Penal Code with regard to  the  offence  of abetment.  Section 107 defines what abetment is.  It says- " S. 107.  A person abets the doing of a thing, who- First.-Instigates any person to do that thing; or Secondly.- Engages  with  one or more other person or  persons  in  any conspiracy for the doing of that thing, if an act or illegal omission takes place in pursuance of that conspiracy, and in order to the doing of that thing; or 866 Thirdly.-Intentionally aids, by any act or illegal omission, the doing of that thing." Section  108 is in two parts and explains who is an  abettor in  two  circumstances-(1)  when  the  offence  abetted   is committed and   (2) when an act is committed which would  be an  offence  if  committed by a person  capable  by  law  of committing  an offence with the same intention or  knowledge as  that  of  the abettor.  We are not  concerned  with  the second  circumstance in the present case.  We are  concerned with a person who abets the commission of an offence.   Then comes s.   109 which is in these terms: "  S.  109.   Whoever abets any offence shall,  if  the  act abetted is committed in consequence of the abetment, and  no express provision is made by this Code for the punishment of such abetment, be punished with the punishment provided  for the offence. Explanation.-An  act or offence is said to be  committed  in consequence of abetment, when it is committed in consequence of  the instigation, or in pursuance of the  conspiracy,  or with the aid which constitutes the abetment." It seems to us, on the findings given in the case, that  the person who set fire to the hut of Mst.  Rasmani must be  one of the persons who were members of the unlawful assembly and he  must  have done so in consequence of the  order  of  the present appellant.  It is, we think, too unreal to hold that the  person who set fire to the hut of Mst.  Rasmani did  so irrespective,  or independently, of the order given  by  the

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present appellant.  Such a finding, in our opinion, would be unreal  and completely divorced from the facts of  the  case and  it is necessary to add that no such finding  was  given either by the learned Assistant Sessions Judge who tried the appellant  or  the learned Judge of the High Court.   As  we read the findings of the learned Judge, it seems clear to us that  he  found that the person who set fire to the  hut  of Mst.  Rasmani did so in consequence of the abetment, namely, the instigation of the appellant. It  is  necessary  to refer to two decisions  to  which  our attention has been drawn by the learned Advocate. 867 The  decision in Raja Khan v. Emperor (1) related to a  case where  one  Torap Ali was held to be guilty of  cheating  by personating one Sabdar Faraji and using his name on a surety bond.   The  charge against Torap Ali was that  he  was  the principal  in the case and the charge against Raja Khan  and Cherak  Ali Akon, the two appellants in that case, was  that they  abetted by being present at the personation which  was alleged to have been committed by Torap Ali.  Torap Ali  was acquitted  by the jury.  The learned Judge who  presided  at the jury trial did not, however, tell the jury what would be the  effect of the acquittal of Torap Ali on the  charge  of abetment  against Raja Khan and Cherak Ali.  It was  because of this omission that the conviction of Raja Khan and Cherak Ali  was set aside.  The head note of the  report,  however, said  in general terms that where a person is  charged  with having  committed  an offence and another  is  charged  with having  abetted  him  in the  commission  thereof,  and  the prosecution  fails  to substantiate the  commission  of  the principal offence, there can be no conviction for  abetment. This general statement was considered in a later decision in Umadasi Dasi v. Emperor (2), and it was pointed out that  in the majority of cases the aforesaid general statement  might bold  good;  but there are exceptions to the  general  rule, particularly  when  there is evidence  which  satisfactorily establishes  that  the offence abetted is committed  and  is committed in consequence of the abetment. We accordingly hold that the conviction of the appellant for the  offence  under s. 436 read with s.  109,  Indian  Penal Code,  is  not bad in law.  As to the sentence it  does  not appear to us that it errs oil the side of severity.  It  has been  stated  that  the appellant was released  on  bail  on serving out the sentence passed against him for the offences under  ss. 147 and 323, Indian Penal Code.  In our  opinion, the  appeal  has  no  merit  and  must  be  dismissed.   The appellant  must  now  surrender himself  to  serve  out  the remainder of his sentence. (1)A.I.R. 1920 Cal. 834. Appeal dismissed. (2)(1924) I.L.R. 52 Cal. 112. 868