Judgment

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 Section 436 read with S. 109, Indian Penal Code, and the property 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 Darbhanage 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, it resisted. One Tetar Mian, who was the chaukidar of village Dharhara, had come to village at about 10 a.m. to ascertain birth 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 thigh. 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 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.

2. 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 abatement. 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.

3. 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 of 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 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.

4. We now come to the particular question to which this appeal i