A) ABSTRACT / HEADNOTE

The Supreme Court in Gallu Sah v. The State of Bihar ([1959] S.C.R. 861) examined the liability of an abettor under Section 436 read with Section 109 of the Indian Penal Code, 1860 (IPC) when the principal offender was acquitted. The core dispute revolved around whether Gallu Sah, who ordered one Budi to set fire to a hut, could be held guilty of abetment after Budi’s acquittal due to lack of credible evidence. The Court evaluated the principles governing abetment, especially the requirement that the act abetted must have been committed in consequence of the abetment. The Court upheld Gallu Sah’s conviction under Section 436 read with Section 109 IPC, finding that the arson was committed by some member of the unlawful assembly on Gallu Sah’s instigation. This judgment reaffirmed the nuanced application of abetment law in criminal jurisprudence, distinguishing it from rigid dependence on the conviction of the principal offender.

Keywords: Abetment, Indian Penal Code, Section 436, Section 109, Unlawful Assembly, Arson, Criminal Liability, Principal Offender, Supreme Court, Patna High Court.

B) CASE DETAILS

i) Judgement Cause Title:
Gallu Sah v. The State of Bihar

ii) Case Number:
Criminal Appeal No. 183 of 1957

iii) Judgement Date:
May 20, 1958

iv) Court:
Supreme Court of India

v) Quorum:
S. R. Das C.J., Bhagwati J., Venkatarama Aiyar J., and S. K. Das J.

vi) Author:
Justice S. K. Das

vii) Citation:
[1959] S.C.R. 861

viii) Legal Provisions Involved:
Sections 107, 108, 109, 147, 148, 323, 324, 149, and 436 of the Indian Penal Code, 1860

ix) Judgments overruled by the Case (if any):
None.

x) Case is Related to which Law Subjects:
Criminal Law, Law of Abetment, Indian Penal Code, Evidence Law.

C) INTRODUCTION AND BACKGROUND OF JUDGEMENT

The case originated from a criminal trial involving multiple accused in a violent incident. The prosecution accused Gallu Sah and others of forming an unlawful assembly with common objectives to dismantle a hut, commit assault, and engage in arson. Following conflicting trial outcomes, the matter reached the Supreme Court to determine the culpability of Gallu Sah under Section 436 read with Section 109 IPC, after the principal accused allegedly setting the fire was acquitted.

The background reveals how evidentiary inconsistencies concerning Budi’s role in arson led to his acquittal, while Gallu Sah’s instigation remained established. The Supreme Court examined the subtleties of abetment and its independence from the conviction of the principal offender. This judgment serves as a significant precedent for interpreting abetment when the principal act’s commission is undeniable but the specific perpetrator’s identity remains uncertain.

D) FACTS OF THE CASE

On May 16, 1954, in village Dharhara, district Darbhanga, Bihar, around 40-50 individuals, including Gallu Sah, assembled unlawfully. Their common objects included dismantling the hut of Mst. Rasmani, setting it ablaze, and assaulting any resistors.

When the village chaukidar Tetar Mian arrived at around 10 a.m. to register births and deaths, he witnessed the mob dismantling Rasmani’s hut. Upon protesting, Gallu Sah struck him with a lathi. Tetar raised an alarm, drawing several villagers including Ramji, Nebi, and Munga Lal to the scene.

Subsequently, Gallu Sah instructed Budi to ignite the hut and also commanded assaults on Ramji and Nebi. The hut was set ablaze, and some mob members assaulted the resisting villagers.

The Assistant Sessions Judge convicted multiple accused under Sections 147, 148, and 323 IPC. Budi was also convicted under Section 436 IPC, while Gallu Sah was convicted under Section 436 read with Section 109 IPC for abetment.

Upon appeal, the Patna High Court acquitted Budi due to insufficient evidence but sustained Gallu Sah’s conviction, asserting that some member of the unlawful assembly did set the fire as per Gallu Sah’s directive.

E) LEGAL ISSUES RAISED

i) Whether Gallu Sah could be convicted for abetment under Section 436 read with Section 109 IPC when Budi, the alleged principal offender, was acquitted.

ii) Whether sufficient evidence existed to establish that the arson occurred as a consequence of Gallu Sah’s instigation.

iii) Whether the High Court erred in distinguishing the evidentiary assessment of Budi’s and Gallu Sah’s involvement.

F) PETITIONER/ APPELLANT’S ARGUMENTS

i) The counsels for Petitioner / Appellant submitted that

The defense argued that the same witnesses whose testimony was rejected concerning Budi were relied upon for convicting Gallu Sah. They emphasized that if the court found their statements unreliable for Budi, it should equally disregard their evidence against Gallu Sah.

They further contended that no credible evidence demonstrated that the fire was set as a direct consequence of Gallu Sah’s order. They highlighted the legal principle that for abetment under Section 109 IPC, it must be proved that the act abetted was committed as a consequence of the instigation or conspiracy.

The appellant’s counsel relied on Raja Khan v. Emperor, A.I.R. 1920 Cal. 834, where the Calcutta High Court suggested that if the principal offence is not established, abetment cannot stand alone unless the act itself is proved to have occurred consequent to the abetment.

G) RESPONDENT’S ARGUMENTS

i) The counsels for Respondent submitted that

The prosecution maintained that the witnesses consistently stated that Gallu Sah ordered the burning of the hut. They argued that the High Court had valid reasons to disbelieve their testimony against Budi due to technical infirmities but accept their account against Gallu Sah since those infirmities did not pertain to Gallu Sah’s role.

They argued that the arson indeed occurred and was carried out by a member of the unlawful assembly following Gallu Sah’s instigation, satisfying the requirement under Section 109 IPC. The prosecution emphasized that abetment liability does not necessitate the conviction of a specific principal offender if the offence’s commission can otherwise be established.

They also cited Umadasi Dasi v. Emperor, (1924) I.L.R. 52 Cal. 112, which clarified that even if the principal offender is acquitted, an abettor may still be convicted if sufficient evidence shows that the act was committed following the abettor’s instigation.

H) RELATED LEGAL PROVISIONS

i) Indian Penal Code, 1860

• Section 107 IPC: Defines abetment as instigation, conspiracy, or intentional aid to commit an offence.

• Section 108 IPC: Explains who constitutes an abettor.

• Section 109 IPC: Provides punishment for abetment when no express provision is made, and the act is committed due to abetment.

• Section 436 IPC: Penalizes mischief by fire with intent to destroy a house.

• Sections 147, 148, 149, 323, 324 IPC: Define and punish offences relating to unlawful assembly, rioting, grievous hurt, and assault.

I) JUDGEMENT

a. RATIO DECIDENDI

i) The Supreme Court upheld that Gallu Sah’s conviction under Section 436 read with Section 109 IPC was valid.

The Court ruled that, even if Budi was acquitted, it remained proved that Gallu Sah ordered the fire. It was irrelevant that the exact person lighting the fire was unidentified, as long as the act followed Gallu Sah’s instigation.

The Court reasoned that a contrary finding would be “too unreal and completely divorced from the facts of the case.” Since Gallu Sah’s instigation directly led to the arson, his criminal liability for abetment stood established under Section 109 IPC.

The Supreme Court reiterated principles from Umadasi Dasi v. Emperor (1924) I.L.R. 52 Cal. 112, distinguishing it from Raja Khan v. Emperor, A.I.R. 1920 Cal. 834, and emphasized that abetment can stand independently if the crime occurred in consequence of the abetment.

b. OBITER DICTA 

i) The Court emphasized the importance of evaluating evidentiary infirmities distinctly for different accused.

It clarified that while the same witnesses’ statements may falter against one accused, they can remain credible against another if specific weaknesses don’t affect all accused equally.

c. GUIDELINES 

i) The judgment offered significant clarifications:

• Abetment liability survives even if the principal offender is acquitted, provided the offence occurred consequent to instigation.

• Distinct evaluation of evidence against different accused is permissible and appropriate.

• The essential ingredient of Section 109 IPC remains whether the act occurred as a consequence of abetment, not necessarily the identity or conviction of the principal actor.

J) CONCLUSION & COMMENTS

The Gallu Sah judgment refined the scope of criminal abetment, especially in group offences involving unlawful assemblies. The Supreme Court adopted a pragmatic approach, focusing on whether the instigation led to the commission of the offence rather than rigidly requiring the conviction of the person who physically committed the act. This ensures that abettors cannot escape liability merely due to technical acquittals of principal offenders based on evidentiary weaknesses.

The judgment also reinforces prosecutorial discretion to segregate evidentiary assessments based on specific roles played by different individuals in complex criminal scenarios. This approach aligns with the broader objective of criminal law — to hold all culpable actors accountable while recognizing the practical difficulties of identifying the precise executor in mob situations.

K) REFERENCES

a. Important Cases Referred

i) Raja Khan v. Emperor, A.I.R. 1920 Cal. 834

ii) Umadasi Dasi v. Emperor, (1924) I.L.R. 52 Cal. 112

b. Important Statutes Referred

i) Indian Penal Code, 1860: Sections 107, 108, 109, 147, 148, 149, 323, 324, 436