LexGALLU SAH versus THE STATE OF BIHAR
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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 unlaw- ful 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 con- sequence 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 appel- lant 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 convic- tion 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, correct- ness 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 there- under. 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 pro- secution 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, th
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