Gallu Sah Vs. The State of Bihar
[1958] INSC 59 (20 May 1958)
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
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.
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 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 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) the
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 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.
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