# GALLU SAR v. THE STATE OF BIHAR

- **Citation:** [1959] 1 S.C.R. 861
- **Court:** Supreme Court of India
- **Decided:** 1957-01-21
- **Case number:** ·Criminal Appeal No. 183 of 1957
- **Bench:** S. R. DAS c. J, Bhagwati, Venkatarama Aiyar, S. K. Das
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/gallu-sar-v-the-state-of-bihar-1560
- **Pages:** 7

## Headnote

Criminal Trial-Arson-Principal offender acquitted-Abettor,
conviction of-,-lndian Penal Code (XLV of z86o), ss. ID7, I@8, I09
and 436.
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.
Twenw-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. ro9 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. 109 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 withs. ro9 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.LR. 1920 Cal. 834 and Umadasi
Dasi v. Emperor, (1924) I.L.R. 52 Cal. II2, referred to.
CRIMINAL
APPELLATE
JURISDICTION: ·Criminal
Appeal No. 183 of 1957.
z958
•
862
SUPREME COURT REPORTS
[1959]
1958
Appeal by special leave from the judgment and
order dated January 21, 1957, of the Patna High
Gallu Sak
Court in Criminal Appeal No. 34 of 1956, arising out
The Stat:·of Biharofthe 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 J.
S. K. DAs J.-This appeal by special leave is
limited to a particular question only, namely, correctness of the conviction of the appellant Gallu 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 Darbhanga 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 dism

## Text

S.C.R.
SUPREME COURT REPORTS
861
GALLU SAR
v.
THE STATE OF BIHAR
(S. R. DAS c. J., BHAGWATI, VENKATARAMA AIYAR
and S. K. DAS JJ.)
Criminal Trial-Arson-Principal offender acquitted-Abettor,
conviction of-,-lndian Penal Code (XLV of z86o), ss. ID7, I@8, I09
and 436.
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.
Twenw-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. ro9 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. 109 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 withs. ro9 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.LR. 1920 Cal. 834 and Umadasi
Dasi v. Emperor, (1924) I.L.R. 52 Cal. II2, referred to.
CRIMINAL
APPELLATE
JURISDICTION: ·Criminal
Appeal No. 183 of 1957.
z958
•
862
SUPREME COURT REPORTS
[1959]
1958
Appeal by special leave from the judgment and
order dated January 21, 1957, of the Patna High
Gallu Sak
Court in Criminal Appeal No. 34 of 1956, arising out
The Stat:·of Biharofthe 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 J.
S. K. DAs J.-This appeal by special leave is
limited to a particular question only, namely, correctness of the conviction of the appellant Gallu 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 Darbhanga 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 lat hi on the left thigh. The chaukidar then
raised an alarm and several other persons came there
including Ramji, Nebi and Munga Lal. Thereafter, it
:.vas 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
S.C.R.
SUPREME COURT REPORTS
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.
Gal~ Sak
The learned Sessions. Judge found that all the The State. of Bihar
accused persons before him did form an unlawful
assembly and came to the hut of l\fat. Rasmani on th0
s. K. Das J.
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 bf
the unlawful assembly. On this finding, he atfirmed
the conviction and sentence of the appellant under
s. 436 read with s. 109, Indian Penal Code, the sentence
·being one of fo:u: years' rigorous imprisonment. Th.e
,conviction and sentence of· the ap.pellant. for the
offences under ss. ,147 and 323, Indian: Penal Code,
. .were· al130 affirmed, but the conviction and sent.ence
IIO
•
Sil4
SUPREME COURT REPORTS
(1959]
under s. 324 read with s. 149, Indian Penal Code, were
h
set aside.
We are, however, not concerned with those
Gal/it Sa
. t'
d
t
d
th"
d b
v.
convic ions an
sen ences an
no mg more nee
e
The state of Bihar said about them.
We now come to the particular question to which
s. J(. Das J.
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
tp the hut, ~ut 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,
•
S.0.R.
SUPREME COURT REPORTS
865
villagers that Budi had set fire to the hut. On these
I958
grounds the learned Judge did not accept the testiGallu Sah
mony of the aforesaid four witnesses so far as the
v.
allegation against Budi was concerned. The infirmity The State of Bihar
which was found in the evidence of the aforesaid four
witnesses with regard to Budi Sah was not, however,
s. K. Das J.
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 avpellant. 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) that 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 sec-
. tions 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,
whoFirst.-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
0 place in' •
pursuance of that· conspiracy, and i:n order to the
doing of that thfog ; ·or -
· · ·
866
SUPREME COURT REPORTS
[1959]
'958
Thirdly.-Intentionally aids, by any act or illegal
Gallu Sah
omission, the doing of that thing."
v.
Section · 108 is in two parts and explains who is an
The Stale of Biharabettor in two circumstances-(1) when the offence
abetted is committed and (2) when an act is committed
5· K. Das J.
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 conies
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.
Explana tion.-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 con.
sequence 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 instiga.
tion of the appellant.
It is necessary to refer to two decisions to which our
attention b,as bMn drawn by the learned Advocate.
..
..
S.C.R.
SUPREME COURT REPORTS
867
The decision in Raja Khan v. Emperor (1) related to a
r958
case where one Torap Ali was held to ?.e guilt~ of
Gallu Sak
cheating by personating one Sabdar FaraJl and usmg
v. ·
his name on a surety bond. The charge against Torap The State of Bi/tay
Ali 'was that he was the principal in the case and the
charge against Raja Khan and Cherak Ali Akon, the
s. K. Das J.
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 .\yaS
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 ~iead 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 hold 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 withs. 109,
Indian Penal Code, is not bad in law.~ As to the
sentence it does not appear to us that it' errs on 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. 14 7 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) (1924j I.L.R. 52 Cal. II2 •
•