Case Analysis: Gallu Sah vs The State of Bihar

Case Details

Case name: Gallu Sah vs The State of Bihar
Court: Supreme Court of India
Judges: S.K. Das, Natwarlal H. Bhagwati
Date of decision: 20 May 1958
Citation / citations: 1958 AIR 813, 1959 SCR 861
Case number / petition number: Criminal Appeal No. 183 of 1957; Criminal Appeal No. 34 of 1956; Sessions Trial No. 52 of 1955
Proceeding type: Criminal Appeal (by special leave)
Source court or forum: Supreme Court of India

Source Judgment: Read judgment

Factual and Procedural Background

On 16 May 1954 a mob of about forty to fifty persons assembled in the village of Dharhara, Darbhanga district. The assembly, which included the appellant Gallu Sah and twenty‑one other accused, formed an unlawful assembly with the common objects of dismantling the hut of Mst. Rasmani, setting it on fire and assaulting any person who resisted. At about 10 a.m. the village chaukidar, Tetar Mian, arrived, observed the mob dismantling the hut and protested. The appellant allegedly struck the chaukidar with a lathi on the left side of his head. The appellant was said to have ordered a fellow mob member, Budi, to set fire to the hut and also ordered an assault on two villagers, Ramji and Nebi. Budi set fire to the hut, which was consequently burnt, and the mob assaulted Ramji and Nebi.

The case was tried before the 2nd Assistant Sessions Judge, Darbhanga (Sessions Trial No. 52 of 1955). The learned Sessions Judge found that the accused had formed an unlawful assembly with the stated common objects and convicted the appellant under sections 147, 148, 323 and, in particular, under section 436 read with section 109 of the Indian Penal Code, sentencing him to four years’ rigorous imprisonment for the latter charge. The conviction under section 324 read with 149 was set aside.

The appellant appealed before the Patna High Court (Criminal Appeal No. 34 of 1956). The High Court, by its judgment dated 21 January 1957, affirmed the conviction and sentence under section 436 r. 109, holding that the evidence satisfactorily established that the appellant had ordered the arson and that the fire was committed in consequence of that order. The High Court also affirmed the convictions under sections 147 and 323 and set aside the conviction under section 324 r. 149.

The State of Bihar filed a special leave appeal before the Supreme Court of India (Criminal Appeal No. 183 of 1957). The appeal was expressly limited to the correctness of the conviction under section 436 r. 109 and the propriety of the sentence imposed thereunder.

Issues, Contentions and Controversy

The Court was required to determine two questions: (1) whether the conviction of the appellant under section 436 read with section 109 of the Indian Penal Code was legally correct; and (2) whether the sentence of four years’ rigorous imprisonment was proper.

The appellant, through counsel P. K. Chatterjee, contended that (a) the same witness testimony that had been rejected as unreliable for the principal offender Budi was the basis of his own conviction and therefore should also be rejected; and (b) even assuming that he had given the order, there was no proof that the arson was committed in consequence of that order, a requisite element of section 109.

The State, represented by counsel D. P. Singh, argued that the testimony of four witnesses – Tetar Mian, Ramji, Nebi and Munga Lal – was reliable as to the appellant’s conduct and that the trial judge had correctly found that the appellant had instigated the arson and that the fire was caused by a member of the unlawful assembly acting on his order. The State further submitted that the conviction under section 436 r. 109 was not “bad in law” and that the four‑year rigorous imprisonment was appropriate.

The controversy centred on whether a conviction for abetment could stand when the principal offender was acquitted, provided the prosecution proved that the act was a consequence of the abettor’s instigation.

Statutory Framework and Legal Principles

The Court considered the provisions of the Indian Penal Code relating to abetment. Section 107 defined the act of abetment, section 108 explained when a person was deemed an abettor, and section 109 prescribed the punishment where the act abetted was committed in consequence of the abetment. Section 436 dealt with abetment of an offence punishable with death or imprisonment for life; when read with section 109 it created the offence of abetment of arson.

Legal precedent established that an abettor could be convicted only if the act abetted was proved to have been committed as a result of the abetment. In Raja Khan v. Emperor the Court held that abetment could not be sustained where the principal offence was not proved. However, Umadasi Dasi v. Emperor recognised an exception: where the prosecution independently proved that the act was performed in consequence of the abetment, the abettor’s conviction could survive the acquittal of the principal offender.

Court’s Reasoning and Application of Law

The Supreme Court examined the material on record and held that the learned Assistant Sessions Judge had correctly distinguished the credibility of the four witnesses with respect to the two accused. The witnesses’ statements were infirm insofar as they failed to positively identify Budi as the arsonist, but the same statements were free from infirmity when they showed that the appellant had given the order to set fire. The Court found no violation of law or of prudence in accepting the testimony against the appellant while rejecting it against Budi.

Applying section 107, the Court concluded that the appellant had instigated the arson. Applying section 109, it found that the arson was indeed committed by a member of the unlawful assembly in consequence of the appellant’s order, thereby satisfying the essential ingredient of the offence. The Court rejected the appellant’s argument that the acquittal of Budi automatically necessitated his acquittal, relying on the principle articulated in Umadasi Dasi v. Emperor that an abettor may be convicted when the act is proved to be a consequence of the abetment.

Regarding the sentence, the Court observed that a term of four years’ rigorous imprisonment was not excessive in view of the nature of the offence and the surrounding circumstances.

Final Relief and Conclusion

The Supreme Court dismissed the appeal, thereby refusing the relief sought by the appellant. It upheld the conviction of Gallu Sah under section 436 read with section 109 of the Indian Penal Code and affirmed the sentence of four years’ rigorous imprisonment. The Court directed that the appellant surrender to serve the remainder of his term.