Jharkhand High Court
Rabi Murmu Son Of Shib Lal Murmu Resident ... vs State Of Jharkhand on 25 November, 2024
Author: Gautam Kumar Choudhary
Bench: Gautam Kumar Choudhary
Criminal Appeal (D.B.) No. 783 of 2002
[Arising out of judgment of conviction and order of sentence both
dated 01.11.2002 passed by learned IVth Additional Sessions Judge,
Dumka in Sessions Case No. 75 of 1990]
Rabi Murmu son of Shib Lal Murmu resident of Village Khatinga, P.S.
Jama, District Dumka .... .... .... Appellant
--Versus--
State of Jharkhand .... .... .... Respondent
For the Appellant: Mr. Asutosh Choubey, Advocate
Mr. Prabhat Singh, Amicus Curiae
For the State : Ms. Vandana Bharti, A.P.P.
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PRESENT: SRI ANANDA SEN, J.
SRI GAUTAM KUMAR CHOUDHARY, J.
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JUDGMENT
Reserved on: 19.11.2024 Pronounced On: 25.11.2024
Per Gautam Kumar Choudhary, Originally the appeal was filed by 12 accused
persons who were convicted and sentenced under Sections
302/325/148/149 of the IPC. Out of 12 appellants, only Rabi Murmu
(appellant no.8) is surviving and the appeal has abated against rest on
their death.
2. Prosecution case relates back to 24.06.1985 when land dispute
claimed two lives.
3. Informant of the case is Sashti Charan Indar (P.W. 2). As per his
fardbeyan, Subal Chandar Goarin (deceased) was sitting on ridge of his
land with his aunt Uma Rani Gorain (since dead) and younger brother
Dulal Chandar Gorain was ploughing the field. The incidence took
place when Ram Soi Soren objected to the land being tilled by them.
When the informant party did not relent, Ram Soi Soren went to his
house and brought with him 15-20 Santhals armed including this
appellant with traditional weapon. Ram Soi Murmu assaulted Dulal
Chandar Gorai with lathi, as a result he got injured and fell down.
When Subal Chandar Gorain (deceased) went to his rescue, he was also
assaulted with lathi and tangi resulting in his death. It is further case of
the prosecution that when Uma Rani Gorain started fleeing from the
place of occurrence, she was also assaulted.
4. On the basis of the fardbeyan, Jama P.S. Case No.36/85 was
registered against altogether 17 accused persons including this
appellant. Police on investigation, found the case true and submitted
charge sheet against all the 16 accused persons. Twelve of the accused
persons were put on trial and some of them died during the pendency
of appeal.
5. It is argued by the learned counsel on behalf of the appellant that
no overt act has been attributed against this appellant and he has been
constructively held liable with the aid of Section 149 of the IPC, which
will not apply in the present case as the prosecution has not
established the common object of the said assembly. Appellant was not
involved in the land dispute and in the absence of any evidence of his
participation or sharing common object of the assembly, he can only be
said to be an onlooker. Furthermore, as per the FIR, Uma Rani Murmu
was also present at the place of occurrence whose statement was
recorded by the police on 24.06.1985 at 15 hours at Dumka Sadar
Hospital. In this statement, she has not even named this appellant to be
member of the unlawful assembly. In the absence of membership of an
unlawful assembly, charge under Section 149 of the IPC fails.
6. Learned A.P.P. has defended the judgment of conviction and
sentence. It is submitted that it is a case of double murder, appellant is
named in the FIR to have arrived at the place of occurrence armed with
weapon. The common object of the unlawful assembly was to oust and
dispossess the informant party from the land in question and in
prosecution of the said object, unlawful assembly attacked the
informant party resulting in death of two and injury to Uma Rani
Murmu.
7. Intention, knowledge and object are mental elements for which
there cannot be any direct evidence, and has to be logically inferred
from the acts of the parties and overall facts and circumstance of a
particular case. In the same way, object of an assembly is to be derived
from conduct of the members of the assembly, the purpose for which
the assembly had gathered and the final acts committed by the said
assembly.
8. I find force in the argument advanced on behalf of the State that
when a large body of persons gathered together armed with deadly
weapons and launched attack on the informant party for dispossessing
them, the natural and logical conclusion will be that members of the
assembly were cognizant about the crime that was to be committed in
prosecution of that common object. It is therefore, difficult to be
persuaded by the argument advanced on behalf of the appellant that
the prosecution has failed to prove the common object of the unlawful
assembly.
9. There is however strong reason to suspect the very membership
of this appellant in the said assembly. From perusal of the record of the
case, I find that statement of Uma Rani which was also recorded by the
police on the next day of incidence. As per the FIR, she was very much
present at the place of occurrence and was even injured in the
incidence. The Medical Officer (P.W. 5) who examined her, has found
as many as three lacerated wounds on her person out of which injury
nos.I and II were simple in nature and injury no.III was grievous in
nature. Her injuries along with the testimony of P.W. 2 (informant)
assures her presence at the place of occurrence. She later died and,
therefore, her evidence could not be recorded. Her statement is on
record and the signatures over it of witnesses have been proved as
Exhibit 5 and 5/1, but the fardbeyan has not been formally proved by
prosecution. This is a document of the prosecution and for not getting
it proved an adverse inference is liable to be drawn under Section 114
(g) of the Evidence Act. Despite the fact that it has not been proved,
this Court is not precluded from considering it for the reason that it
will come within the meaning of 'matter' under Section 3 of the
Evidence Act. It is interesting to note that in the definition of 'proved'
and 'disproved' in Section 3, expression 'matters' has been used and
not evidence, which gives wider amplitude to the Court while
adjudicating a case. It has been held in,
Rajesh Yadav Vs State of U.P. 2022 SCC On Line 150
"12. Section 3 of the Evidence Act defines "evidence",
broadly divided into oral and documentary. "Evidence"
under the Act is the means, factor or material, lending a
degree of probability through a logical inference to the
existence of a fact. It is an "Adjective Law" highlighting and
aiding substantive law. Thus, it is neither wholly procedural
nor substantive, though trappings of both could be felt.
13. The definition of the word "proved" though gives an
impression of a mere interpretation, in effect, is the heart and
soul of the entire Act. This clause, consciously speaks of
proving a fact by considering the "matters before it". The
importance is to the degree of probability in proving a fact
through the consideration of the matters before the court.
What is required for a court to decipher is the existence of a
fact and its proof by a degree of probability, through a logical
influence.
14. Matters are necessary, concomitant material factors to
prove a fact. All evidence would be "matters" but not vice
versa. In other words, matters could be termed as a genus of
which evidence would be a species. Matters also add strength
to the evidence giving adequate ammunition in the Court's
sojourn in deciphering the truth. Thus, the definition of
"matters" is exhaustive, and therefore, much wider than that
of "evidence". However, there is a caveat, as the court is not
supposed to consider a matter which acquires the form of an
evidence when it is barred in law. Matters are required for a
court to believe in the existence of a fact.
15. Matters do give more discretion and flexibility to the court
in deciding the existence of a fact. They also include all the
classification of evidence such as circumstantial evidence,
corroborative evidence, derivative evidence, direct evidence,
documentary evidence, hearsay evidence, indirect evidence,
oral evidence, original evidence, presumptive evidence,
primary evidence, real evidence, secondary evidence,
substantive evidence, testimonial evidence, etc.
16. In addition, they supplement the evidence in proving the
existence of a fact by enhancing the degree of probability. As
an exhaustive interpretation has to be given to the word
"matter", and for that purpose, the definition of the
expression of the words "means and includes", meant to be
applied for evidence, has to be imported to that of a "matter"
as well. Thus, a matter might include such of those which do
not fall within the definition of Section 3, in the absence of
any express bar." (Emphasis Supplied)
10. From the perusal of the statement of Uma Rani made on the very
same day of incidence, I find that name of this appellant is conspicuous
by its absence. This raises serious doubt on the very presence of the
appellant at the place of occurrence. Law is settled that when two
views are possible, that which is in favour of the accused, should be
preferred. Appellant is given the benefit of doubt and the judgment of
conviction and sentence is set aside.
Criminal Appeal is allowed.
Appellant is on bail. Sureties are discharged from the liabilities of
their bail bonds.
Pending Interlocutory Application, if any, is disposed of.
Considering the assistance given by learned Amicus Curiae, we
hereby direct the Member Secretary, JHALSA, Ranchi to pay
remuneration of Rs.7500/- to him at the earliest.
Let the Trial Court Records be transmitted to the Court
concerned along with a copy of this judgment.
(Gautam Kumar Choudhary, J.)
Ananda Sen, J. I agree.
(Ananda Sen, J.)
High Court of Jharkhand, Ranchi
Dated, 25th November, 2024
AFR/Anit
