The court ruled that the prosecution failed to prove the appellant's membership in the unlawful assembly, leading to the benefit of doubt being given and the conviction being set aside.

JUDGMENT :

(Gautam Kumar Choudhary, J.)

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 appel