Gallu Sah vs The State Of Bihar

Rewritten Version Notice: This is a rewritten version of the original judgment.

Court: Supreme Court of India

Case Number: Criminal Appeal No. 183 of 1957

Decision Date: 20 May, 1958

Coram: S. K. Das, Natwarlal H. Bhagwati, Sudhi Ranjan

In this case, the Supreme Court of India considered the appeal of Gallu Sah against a conviction under section 436 read with section 109 of the Indian Penal Code. The appeal, recorded as Criminal Appeal No. 183 of 1957, arose after a special leave was granted by the Court of the State of Bihar. The factual backdrop involved a mob of forty to fifty persons that assembled unlawfully with the common purpose of dismantling a hut belonging to a person identified as R. The mob also intended to set fire to the hut and to assault anyone who resisted. According to the prosecution, the mob assaulted several individuals. The appellant, Gallu Sah, gave an order to a person named Budi to set fire to the hut, an act which Budi allegedly carried out resulting in the hut’s destruction. Twenty‑two persons, including the appellant and Budi, were tried before the learned Assistant Sessions Judge of Darbhanga. The Sessions Judge concluded that all the accused formed an unlawful assembly with the common objects of dismantling the hut and committing assault on resistance. However, he held that there was no common object to set fire to the hut and that the act of incendiarism was an isolated act of some members of the assembly. Nevertheless, the Judge found that the appellant had ordered Budi to set fire to the hut and that Budi had done so as a result of that abetment. Consequently, he convicted the accused under sections 147, 148 and 323 of the Indian Penal Code. Budi was additionally convicted under section 436, while the appellant was convicted under section 436 read with section 109. On appeal, the Patna High Court set aside Budi’s conviction under section 436, holding that it was not proved that Budi had set fire to the hut. However, it upheld the appellant’s conviction under section 436 read with section 109, finding that the appellant had indeed given the order and that the hut was set alight by a member of the unlawful assembly. The appellant challenged that conviction on the ground that the prosecution had not established that the person who set fire to the hut acted pursuant to his order. The Supreme Court held that the appellant was correctly convicted under section 436 read with section 109, because the evidence showed that the person who set fire to the hut was a member of the unlawful assembly. It further held that the person had acted in consequence of the appellant’s order. The Court referred to the authorities Raja Khan v. Emperor, A.I.R. 1920 Cal. 834, and Umadasi Dasi v. Emperor (1924) I.L.R. 52 Cal. 112, in support of its reasoning. The judgment was delivered by Justice S. K. Das, joined by Justices Natwarlal H. Bhagwati and Sudhi Ranjan, and the citation of the decision is recorded as 1958 AIR 813 and 1959 SCR 861.

Leave was granted from the judgment and order dated 21 January 1957 of the Patna High Court in Criminal Appeal No 34 of 1956, which arose out of the judgment and order dated 23 January 1956 of the Court of the Second Assistant Sessions Judge at Darbhanga in Sessions Trial No 52 of 1955. The appellant was represented by counsel, while the respondent was represented by another counsel. The judgment of the Supreme Court was delivered on 20 May 1958 by Justice S K Das.

This appeal, taken on special leave, was confined to a single issue: whether the conviction of the appellant, Gallu Sah, for an offence under section 436 read with section 109 of the Indian Penal Code, and the sentence imposed thereunder, were correct. The short factual background was that twenty‑two persons, including the appellant, were tried before the learned Assistant Sessions Judge of Darbhanga for several offences alleged to have been committed under the Indian Penal Code. According to the prosecution, on 16 May 1954 in the village of Dharhara, district of Darbhanga, a mob of about forty to fifty persons, comprising the accused, assembled unlawfully with the common objectives of (1) dismantling the hut of Ms Rasmani, (2) setting fire to that hut, and (3) assaulting anyone who resisted. At approximately ten a.m., a village watchman, identified as Tetar Mian, arrived to record births and deaths for reporting to the police station. When he approached Ms Rasmani’s hut, he observed the mob engaged in dismantling the structure. The watchman protested, and it was alleged that the appellant struck him on the left side of the head with a lathi. The watchman raised an alarm, and several others, namely Ramji, Nebi and Munga Lal, arrived at the scene. The prosecution further alleged that the appellant ordered a member of the unlawful assembly named Budi to set fire to Ms Rasmani’s hut and also ordered an assault on Ramji and Nebi. Budi is said to have ignited the hut, which consequently burned, and some members of the mob pursued and assaulted Ramji and Nebi. The learned Sessions Judge found that all the accused had indeed formed an unlawful assembly, had approached the hut at the stated date and time, were armed, and shared the common objective of dismantling the hut and assaulting any resistance. He concluded that the offences of rioting and hurt were committed in pursuit of those common objectives. Regarding the arson charge, the judge held that the act of setting fire to the hut was an isolated act carried out by certain members of the unlawful assembly and that there was no common object of the entire assembly to set the hut ablaze.

The Court recorded that the trial judge had accepted testimony indicating that the appellant had ordered Budi to set fire to Mst. Rasmani’s hut and that Budi had, in consequence of that order, ignited the hut. Accordingly, the trial court convicted all the accused of various offences under sections 147, 148 and 323 of the Indian Penal Code. It also convicted Budi under section 436 and convicted the appellant under section 436 read with section 109. The matter was then taken on appeal to the Patna High Court. The appellate judge held that the evidence presented against Budi concerning the allegation that he had set fire to the hut was not sufficiently reliable and therefore acquitted Budi of the charge under section 436. Regarding the appellant, Gallu Sah, the High Court found that the evidence satisfactorily proved that Gallu Sah had issued the order to set fire to the hut and that the hut was indeed set alight by a member of the unlawful assembly. On that basis, the appellate court affirmed the appellant’s conviction and sentence under section 436 read with section 109, imposing a term of four years’ rigorous imprisonment. The High Court also affirmed the appellant’s convictions under sections 147 and 323, but it set aside the conviction and sentence under section 324 read with section 149. The present judgment does not consider those latter convictions further. The appeal before this Court is confined to the propriety of the conviction and sentence imposed on the appellant for the offence under section 436 read with section 149. Counsel for the appellant, appearing on behalf of him, challenged the conviction on two grounds. First, he argued that the evidence relied upon to convict the appellant was the same evidence that had been rejected in the trial of Budi; therefore, if the evidence could not be believed against Budi, it should not have been accepted against the appellant. Second, he contended that, although he does not accept the proposition that every principal offender’s acquittal mandates the acquittal of an alleged abettor, there was no evidence in the present case showing that the person who set fire to Mst. Rasmani’s hut acted in response to the appellant’s alleged order. Consequently, the conviction for abetment, he submitted, was legally untenable. The learned appellate judge, in his judgment, explained the reasons for accepting the testimony of the witnesses against the appellant while rejecting the same testimony against Budi, thereby addressing the first ground raised by counsel.

The learned Judge explained why the evidence of the four witnesses was rejected in relation to Budi Sah but was accepted in relation to the appellant. The four persons who gave testimony before the court were identified as Tetar, Ramji, Nebi and Munga Lal. Tetar's initial statement did not mention that Budi had set fire to the hut, although he did state that the appellant had ordered the arson. Similarly, Ramji failed to inform the sub‑inspector that Budi had set fire to the hut, which created a comparable infirmity in his evidence. Nebi could not be cross‑examined because he died before the trial commenced in the Court of Session of Bihar. During cross‑examination, Munga Lal testified that he neither spoke at the scene nor later to any fellow villagers that Budi had set fire to the hut. On these grounds, the learned Judge declined to accept the testimony of the four witnesses concerning the allegations against Budi. However, the same infirmities were not present when the evidence was considered against the appellant, and the Judge found the witnesses' statements consistent with the appellant's alleged conduct. The Court saw no breach of law or lack of prudence in accepting the witnesses' testimony against the appellant while rejecting it in relation to Budi.

We now turn to the second argument raised on behalf of the appellant concerning the legal basis of his conviction for abetment. The learned Judge was satisfied that the appellant had indeed given the order to set fire to the hut of Mst. Rasmani. The Judge also concluded that the hut was actually burned by one or more members of the unlawful assembly, even though the assembly as a whole lacked a common object to commit the arson. Counsel for the appellant argued that because trial court rejected the witnesses' evidence that Budi set fire to the hut, no proof existed that the arson was carried out in consequence of the appellant's order. The learned Advocate emphasized that an essential element of the offence of abetment is that the prohibited act must be committed as a direct result of the alleged abetment. To illustrate this point, the Court referred to the relevant provisions of the Indian Penal Code governing abetment. Section 107 defines abetment, stating that a person abets the doing of a thing if he instigates another to do it, engages with one or more persons in a conspiracy for its commission. The provision further adds that a person also abets the act when he intentionally aids it by any illegal omission. Section 108, which was also cited, distinguishes two situations in which a person may be considered an abettor. The Court observed that only the first situation, concerning the commission of the offence, applied to the present case. Consequently, the Court concluded that the appellant's conviction for abetment could be sustained because the arson was committed as a consequence of his order.

Section 107 of the Indian Penal Code defines the term “abetting” and enumerates three modes by which a person may be said to abet the commission of an offence. The first mode is the act of instigating any person to do the prohibited act. The second mode covers participation in a conspiracy with one or more persons for the purpose of doing the prohibited act, where an illegal act or omission is carried out in pursuance of that conspiracy and in furtherance of the prohibited act. The third mode consists of intentionally aiding the prohibited act by any act or illegal omission that assists its commission.

Section 108 is divided into two parts and it explains who qualifies as an abettor in two distinct circumstances. The first circumstance arises when the offence that is abetted is actually committed. The second circumstance applies when an act is performed that would constitute an offence if it were carried out by a person who is legally capable of committing the offence, with the same intention or knowledge as that of the alleged abettor. The present case does not involve the second circumstance; the Court’s attention is confined to the situation where a person abets the commission of a completed offence.

Section 109 provides the punishment for an abettor. It states that whoever abets any offence shall, if the act abetted is committed as a consequence of the abetment and if the Code does not contain a specific provision for punishing such abetment, be punished with the same punishment that is prescribed for the offence itself. The accompanying explanation clarifies that an act or offence is said to be committed in consequence of abetment when it occurs as a result of the instigation, in pursuance of the conspiracy, or with the aid that constitutes the abetment.

Applying these statutory provisions to the facts found in the case, the Court observed that the individual who set fire to the hut of Mst. Rasmani must have been a member of the unlawful assembly and must have acted in consequence of the order issued by the appellant, Gallu Sah. The Court found it implausible to hold that the arsonist acted independently of the appellant’s direction. Such a conclusion would be contrary to the factual matrix and was not arrived at by either the learned Assistant Sessions Judge at the trial or the learned High Court Judge on appeal. The Court read the findings of the learned Judge as indicating that the arson was committed as a direct result of the appellant’s instigation, thereby satisfying the requirement of consequence of abetment under Section 109.

The Court then turned to two precedent decisions that had been highlighted by counsel. The first decision, Raja Khan v. Emperor, involved a case where a person named Torap Ali was convicted of cheating by impersonating Sabdar Faraji and using the latter’s name on a surety bond. In that case, the charge against Torap Ali was that he was the principal offender, while the charge against the appellants Raja Khan and Cherak Ali Akon was that they had abetted Torap Ali by being present at the alleged personation. The Court noted the factual and legal relevance of that decision to the present matter.

In the case that was tried before a jury, the jury returned a verdict of acquittal on the charge against Torap Ali. The judge who presided over that jury trial, however, failed to inform the jury about the legal consequence of that acquittal for the separate charge of abetment that had been brought against Raja Khan and Cherak Ali. Because the judge omitted that direction, the higher court set aside the convictions of Raja Khan and Cherak Ali. The headnote of the reported decision later summarized the principle that when a principal offender is acquitted because the prosecution does not prove the commission of the principal offence, a person charged with abetting that principal offence cannot be convicted. This principle was subsequently examined in the decision of Umadasi Dasi v. Emperor, where it was observed that although the general proposition is often correct, exceptions arise whenever the evidence establishes that the substantive offence was indeed committed and that it occurred as a result of the accused’s abetment. Applying that reasoning, the Court held that the conviction of the present appellant for the offence punishable under section 436 read with section 109 of the Indian Penal Code was legally valid and did not suffer any flaw. Regarding the punishment imposed, the Court found that the sentence was not unduly harsh or excessive. The Court also noted that the appellant had already been released on bail after completing the term of imprisonment that had been imposed for offences under sections 147 and 323 of the Indian Penal Code. On the basis of these considerations, the Court concluded that the appeal lacked merit and therefore dismissed it. Consequently, the appellant was ordered to surrender and to serve the balance of his remaining sentence. (1) A.I.R. 1920 Cal. 834. Appeal dismissed. (2) (1924) I.L.R. 52 Cal. 112.