FAINUL KHAN versus STATE OF JHARKHAND AND ANOTHER

[2019] 13 S.C.R. 924

[2019] 13 S.C.R.

FAINUL KHAN

STATE OF JHARKHAND AND ANOTHER

(Criminal Appeal No(s). 937 of 2011)

BOCTOBER 04, 2019

[NAVIN SINHA AND B. R. GAVAI, JJ.]

Penal Code, 1860: ss.302/149 and ss.323/149 and s.147 –Conviction under – Plea of appellant that charge was framed underss.302/149 and ss.323/149 against six persons but charge underCs.147 was against four persons only and therefore was defectivewithout aid of s.141 and s.146 – Held: Originally there were sixaccused – Two of them have since been deceased – Appellants werewell aware that six of them were charged together for commonassault under ss.302/149 and 323/149 because of their sharing aDcommon object – Appellants were also aware that two of the accusedwere carrying deadly weapon, spears, and which were used forassault – Therefore, omission by the court in framing charge unders.147 alone against four persons only was mere inadvertentomission – Moreover, objection about defective charge, withoutany evidence of the prejudice caused, was raised for the first timeEin the instant appeal and for that reason also did not meritconsideration.

Code of Criminal Procedure, 1973: s.313 – Plea of appellantthat they were seriously prejudiced in their defence because properopportunity to defend was denied under s.313 as the incriminatingFquestions put to them were extremely casual and perfunctory – Held:s.313 incorporates the principle of audi alteram partem – It providesan opportunity to the accused for his defence by making him awarefully of the prosecution allegations against him and to answer thesame in support of his innocence – But equally there cannot be aGgeneralised presumption of prejudice to an accused merely by reasonof any omission or inadequate questions put to him – Ultimately itwill be question to be considered in the facts and circumstancesof each case including the nature of other evidence available, thekind of questions put to an accused, considered with anythingfurther that the accused may state in his defence – In the facts ofH

the instant case, considering the nature of ocular evidence availableof the injured witnesses P.Ws. 7 and 8 who were also cross-examinedby the appellants, no prejudice was caused to the appellants – Aspecific question was put to the appellants that they participated inan unlawful assembly with the common object of murdering thedeceased – Further, it was also put to them that they had causedinjuries to P.W. 7 and 8 – Merely because no questions were put tothe appellants with regard to the individual assault made by eachof them, it cannot be said in the facts of the case that any prejudicewas caused to them – Appellants did not offer any explanation ordesire to lead evidence except for stating that they were falselyimplicated.Criminal Law: Absence of injury report of injured eye witnesses– Effect on prosecution case – Prosecution case was that P.W. 8and deceased were going together when they were surrounded andassaulted by the accused persons – There was no lacunae in theevidence or cross-examination of the witness to doubt his presenceand the injuries suffered by him in the same occurrence – P.W. 7, aresident of the locality and an independent witness also sufferedinjuries during the same occurrence – P.W. 8 during the course ofhis deposition also showed the scars caused to him by his injuries,noticed by the trial judge – The statement of the two witnesses alsostated to have been recorded at the hospital – The fact that therewas no injury report, can at best be classified as defectiveinvestigation but cannot raise doubts about the credibility of theirbeing injured witnesses in the same occurrence – The officer-in-charge of the police station where the deceased and injured weretaken, specifically deposed that he submitted request for the injuryreport of the witnesses and pursuant to which their injury reportswere made available to him – Only thereafter the charge sheet wassubmitted by him – There was no material in his cross-examinationto discredit his statements – Investigation, defect in.

Penal Code, 1860: ss.302/149 and ss.323/149 – Convictionunder – Appellants were undoubtedly the members of an unlawfulassembly some of whom were also armed with spears and assaultedthe deceased – All the accused surrounded the deceased obviouslyto prevent his escape – The initial assault was made on the head ofthe deceased with the lathi by appellant-S – The deceased fell down

Aand when he was trying to stand up, he was assaulted by two personswith spears – P.W. 7 was assaulted on the head by appellant-F – Inthe fracas the fact that the assault by appellant-M landed on thethigh of the witness was not of much relevance – Likewise, P.W. 8was assaulted by appellant-S on the face and head – The fact thatthe co-accused may have assaulted on the head again cannot beBconsidered very relevant to eschew the absence of common object– No reason to interfere with the order of conviction.

Dismissing the appeals, the Court

HELD: 1. Originally there were six accused. Two of themChave since been deceased and the fate of one is not known. Theappellants were well aware that six of them were charged togetherfor common assault under Sections 302/149 and 323/149 becauseof their sharing common object. The appellants were also awarethat two of the accused were carrying deadly weapon, spears,and which were used for assault. Therefore, no prejudice wasDcaused to the appellants and the omission by the court in framingcharge under Section 147 alone against four persons only was amere inadvertent omission. The objection about defectivecharge, without any evidence of the prejudice caused, has beenraised for the first time in the instant appeal and for that reasonEalso merits no consideration. [Para 9][931-D, F-H]

2. P.W. 8 and the deceased were going together when theywere surrounded and assaulted by the accused persons. Therewas no lacunae in the evidence or cross-examination of the witnessto doubt his presence and the injuries suffered by him in theFsame occurrence. P.W. 7, resident of the locality and anindependent witness also suffered injuries during the sameoccurrence. However, P.W. 6 does not appear to be eye witness.The witness was at home and reached the place of occurrenceafter hearing the commotion by which time the deceased waslying on the ground. P.W.7 deposed that P.W.6 reached after him.GP.W. 7 deposed of assault by appellant-S upon P.W. 8 with lathiand also upon the witness himself by appellants-F and M causinginjuries on his head and right hand. Appellant-M is also stated tohave assaulted the witness on his thigh with lathi. P.W.8 deposedthat the accused surrounded him and the deceased. Appellant-S

assaulted the deceased on the head. The witness was assaultedon his face, head and hand with the lathi. Both the witnessesdeposed that they were then taken to the hospital along with thedeceased where their injuries were examined. P.W. 8 during thecourse of his deposition also showed the scars caused to him byhis injuries, noticed by the trial judge. The statement of the twowitnesses is also stated to have been recorded at the hospital.The fact that there was no injury report, can at best be classifiedas defective investigation but cannot raise doubts about thecredibility of their being injured witnesses in the same occurrence.P.W. 11, the officer-in-charge of the police station where thedeceased and injured were taken, has specifically deposed thathe submitted request for the injury report of the witnesses andpursuant to which their injury reports were made available tohim. Only thereafter was the charge sheet was submitted by him.There was no material in his cross-examination to discredit hisstatements. [Para 10][932-A-F]

3. Section 313, Cr.P.C. incorporates the principle of audialteram partem. It provides an opportunity to the accused for hisdefence by making him aware fully of the prosecution allegationsagainst him and to answer the same in support of his innocence.But equally there cannot be generalised presumption ofprejudice to an accused merely by reason of any omission orinadequate questions put to an accused thereunder. Ultimately itwill be question to be considered in the facts and circumstancesof each case including the nature of other evidence available, thekind of questions put to an accused, considered with anythingfurther that the accused may state in his defence. In the facts ofthe instant case, considering the nature of ocular evidenceavailable of the injured witnesses P.Ws. 7 and 8 who were alsocross-examined by the appellants, and the evidence of P.W. 11,no prejudice was caused to the appellants. specific questionwas put to the appellants that they participated in an unlawfulassembly with the common object of murdering the deceased.Further, it was also put to them that they had caused injuries toP.W. 7 and 8. Merely because no questions were put to theappellants with regard to the individual assault made by each of

[2019] 13 S.C.R.

Athem, it cannot be said in the facts of the case that any prejudicehas been caused to them. [Paras 11- 13][932-G; 933-F-G;934-A-C]

Suresh Chandra Bahri v. State of Bihar 1995 Suppl (1)SCC 80 : [1994] 1 Suppl. SCR 483 - relied on.B

4. The appellants were undoubtedly the members of anunlawful assembly some of whom were also armed with spearsand assaulted the deceased. All the accused surrounded thedeceased obviously to prevent his escape. The initial assault wasmade on the head of the deceased with the lathi by appellant-S.CThe deceased fell down and when he was trying to stand up, hewas assaulted by two persons with spears. P.W. 7 was assaultedon the head by appellant-F. In the fracas the fact that the assaultby appellant-M landed on the thigh of the witness is not of muchrelevance. Likewise, P.W. 8 was assaulted by appellant-S on theface and head. The fact that the co-accused may have assaultedDon the head again cannot be considered very relevant to eschewthe absence of common object. [Para 17][936-F-H]

Shobhit Chamar v. State of Bihar, (1998) 3 SCC 455 :[1998] 2 SCR 117; Fahim Khan v. State of Bihar (2011)13 SCC 142 : [2011] 5 SCR 577; Sukha v. State ofERajasthan [1956] SCR 288 – relied on.

Masalti v. State of U.P., AIR 1965 SC 202 : [1964] SCR133; Ranvir Yadav v. State of Bihar, (2009) 6 SCC 595:[2009] 7 SCR 653; Samsul Haque v. State of Assam,(2019) (11) SCALE 458; Najabhai Desurbhai Wagh v.FValerabhai Deganbhai Vagh and Ors., (2017) 3 SCC261 – referred to.

Case Law Reference

[1956] SCR 288relied onPara 16A[1964] SCR 133referred toPara 17

CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No.937 of 2011.

From the Judgment and Order dated 28.05.2009 of the High Courtof Jharkhand at Ranchi in Criminal Appeal (DB) No. 211 of 2000.

With

Criminal Appeal Nos. 939, 938 of 2011.

Sidharth Luthra, Sr. Adv., Sudarshan Rajan, Dr. K. B. SounderRajan, Mahesh Kumar, Vijay Kumar Sharma, Ms. Mehaak Jaggi,Ms. Ankita Tiwari, P. Narasimhan, Advs. for the Appellant.

Anil K. Jha, Jayesh Gaurav, Ms. Diksha Ojha, Ms. Priyanka Tyagi,Kuldeep Rai, T. Mahipal, Advs. for the Respondents.

The Judgment of the Court was delivered by

NAVIN SINHA, J.

1. The appellants are aggrieved by their conviction under Section302/149 of the Indian Penal Code (IPC) sentencing them to rigorousimprisonment for life, along with conviction under Sections 323/149 and147 IPC, sentencing them to varied terms of imprisonment under thesame. The sentences have been directed to run concurrently.

2. The occurrence is said to have taken place on 01.11.1983atabout 06.30 PM. The accused were variously armed with spears andlathis. P.W. 7 and 8 are stated to be injured eye witnesses. P.W 6 alsoclaimed to be an eye witness. The police report was lodged by P.W. 8 atthe hospital.

3. Learned Senior Counsel Shri Sidharth Luthra making the leadarguments on behalf of the appellants submitted that charge was framedunder Sections 302/149 and 323/149 IPC against six persons. But thecharge framed under Section 147 was defective being against fourpersons only and without the aid of Sections 141 and 146. It was nextsubmitted that the appellants have been seriously prejudiced in theirdefence because proper opportunity to defend was denied under Section313 of the Code of Criminal Procedure,1973 (Cr.P.C.) as the incriminating

Aquestions put to them were extremely casual and perfunctory in barelytwo pages. All relevant questions with regard to the accusations werenot put to the appellants, denying them the opportunity to present theirdefence. It cannot be considered as mere irregularity, to hold that noprejudice has been caused to the appellants. Emphasising the inconsistencyin the prosecution evidence it was submitted that P.W. 7 claims lathiBinjury on his thigh and leg, but P.Ws. 6 and 8 are silent on the role ofappellant Fainul Khan, and appellant Mir Shaukat is stated to haveassaulted on the thigh of P.Ws. 6 and 7 when according to the F.I.R. hehit on the head of P.W. 8. Reliance in support of the submissions wasplaced on Masalti vs. State of U.P., AIR 1965 SC 202, Ranvir YadavCvs. State of Bihar, (2009) 6 SCC 595 and Samsul Haque vs. State ofAssam, (2019) SCC Online 1093; 2019 (11) SCALE 458.

4. It was next submitted that P.W. 6 was not an eye witness to theassault. He had arrived upon hearing the commotion after the appellantshad left and the deceased was lying on the ground. P.W. 6 also does alsoDrefer to the presence of P.W. 7 at the place of occurrence.

5. The evidence of P.Ws. 6 and 8 was sought to be discredited onaccount of their being related to the deceased. The claim of P.Ws. 7 and8 to be injured eye witnesses was also challenged in absence of anyinjury report with regard to them. False implication of the appellantsEcould not be ruled out in view of previous enmity having been admittedby the prosecution witnesses. P.W. 8 deposed that the deceased wasassaulted on his head from behind and fell on his face, but no facialinjury has been found on the deceased.6. The deceased was assaulted with spear by accused SiddiqFand Zabbar. The allegations of assault by the appellants on the deceasedwith lathi are omnibus, since only one bruise has been found on theupper arm. There existed no common object because in that event nothingprevented the appellants from individual assaults each on sensitivepart of the body of the deceased, such as the head. Alternatively, thethree appellants at best may be liable for lesser offence relying onGNajabhai Desurbhai Wagh vs. Valerabhai Deganbhai Vagh and Ors.,(2017) 3 SCC 261.

7. Learned counsel for the State submitted that there was nolacunae in the examination of the accused under Section 313 Cr.P.C. Inany event the appellants have not been able to demonstrate any prejudice.H

Moreover this objection cannot be raised at the present belated stagewhen it had not been raised at any earlier stage. Reliance was placed onShobhit Chamar vs. State of Bihar, (1998) 3 SCC 455 and FahimKhan vs. State of Bihar, (2011) 13 SCC 142.

8. The absence of any injury report with regard to P.Ws. 7 and 8may at best be case of defective investigation. It cannot discredit themas injured eye witnesses in view of the nature of their oral evidence andthat of P.W. 11, the officer-in-charge of the Kisko police station wherethe deceased and the injured were taken for treatment. There areconcurrent findings with regard to the presence of the appellants. Thereis ample evidence of the appellants sharing common object with theco-accused.

9. We have considered the submissions on behalf of the parties asalso perused the materials on record. Originally there were six accused.Two of them have since been deceased and the fate of one is not known.Section 464, Cr.P.C provides as follows:-

“464. Effect of omission to frame, or absence of, or error, incharge.—(1) No finding, sentence or order by Court ofcompetent jurisdiction shall be invalid merely on the ground thatno charge was framed or on the ground of any error, omission orirregularity in the charge including any misjoinder of charges,unless, in the opinion of the Court of appeal, confirmation orrevision, failure of justice has in fact been occasioned thereby.

xxx”

The appellants were well aware that six of them were chargedtogether for common assault under Sections 302/149 and 323/149because of their sharing common object. The appellants were alsoaware that two of the accused were carrying deadly weapon, spears,and which were used for assault. We are therefore of the consideredopinion that no prejudice has been caused to the appellants and theomission by the court in framing charge under Section 147 alone againstfour persons only was mere inadvertent omission. The presence ofone bruise injury on the deceased is also not considered relevant in thefacts of the case. The objection about defective charge, without anyevidence of the prejudice caused, has been raised for the first time in thepresent appeal and for that reason also merits no consideration.

A10. P.W. 8 and the deceased were going together when they weresurrounded and assaulted by the accused persons. We do not find anylacunae in the evidence or cross-examination of the witness to doubt hispresence and the injuries suffered by him in the same occurrence. P.W.7, resident of the locality and an independent witness also sufferedinjuries during the same occurrence. However, we are not satisfied thatBP.W. 6 is an eye witness. The witness was at home and reached theplace of occurrence after hearing the commotion by which time thedeceased was lying on the ground. P.W.7 deposed that P.W.6 reachedafter him. P.W. 7 deposed of assault by appellant Sainul upon P.W. 8with lathi and also upon the witness himself by appellants Fainul and MirCShaukat causing injuries on his head and right hand. Appellant MirShaukat is also stated to have assaulted the witness on his thigh withlathi. P.W.8 deposed that the accused surrounded him and the deceased.Appellant Sainul assaulted the deceased on the head. The witness wasassaulted on his face, head and hand with the lathi. Both the witnessesdeposed that they were then taken to the hospital along with the deceasedDwhere their injuries were examined. P.W. 8 during the course of hisdeposition also showed the scars caused to him by his injuries, noticedby the trial judge. The statement of the two witnesses is also stated tohave been recorded at the hospital. The fact that there is no injury report,in our opinion, can at best be classified as defective investigation butEcannot raise doubts about the credibility of their being injured witnessesin the same occurrence. The fact that P.W.8 may be related to thedeceased or previous enmity existed, are irrelevant in the facts of thecase. P.W. 11, the officer-in-charge of the Kisko police station wherethe deceased and injured were taken, has specifically deposed that hesubmitted request for the injury report of the witnesses and pursuantFto which their injury reports were made available to him. Only thereafterwas the charge sheet was submitted by him. We do not find any materialin his cross-examination to discredit his statements.

11. Section 313, Cr.P.C. incorporates the principle of audi alteram

partem. It provides an opportunity to the accused for his defence byGmaking him aware fully of the prosecution allegations against him and toanswer the same in support of his innocence. The importance of theprovision for fair trial brooks no debate.

“313.Power to examine the accused.—(1) In every inquiry ortrial, for the purpose of enabling the accused personally to explainH

any circumstances appearing in the evidence against him, theCourt—

(a) may at any stage, without previously warning the accused,put such questions to him as the Court considers necessary;

(b) shall, after the witnesses for the prosecution have beenexamined and before he is called on for his defence, question himgenerally on the case:

Provided that in summons-case, where the Court has dispensedwith the personal attendance of the accused, it may also dispensewith his examination under clause (b).

(2) No oath shall be administered to the accused when he isexamined under sub-section (1).

(3) The accused shall not render himself liable to punishment byrefusing to answer such questions, or by giving false answers tothem.

(4) The answers given by the accused may be taken intoconsideration in such inquiry or trial, and put in evidence for oragainst him in any other inquiry into, or trial for, any other offencewhich such answers may tend to show he has committed.

(5) The court may take help of Prosecutor and Defence Counselin preparing relevant questions which are to be put to the accusedand the Court may permit filing of written statement by the accusedas sufficient compliance of this section.”

12. But equally there cannot be generalised presumption ofprejudice to an accused merely by reason of any omission or inadequatequestions put to an accused thereunder. Ultimately it will be questionto be considered in the facts and circumstances of each case includingthe nature of other evidence available, the kind of questions put to anaccused, considered with anything further that the accused may state inhis defence. In other words, there will have to be cumulative balancingof several factors. While the rights of an accused to fair trial areundoubtedly important, the rights of the victim and the society at largefor correction of deviant behaviour cannot be made subservient to therights of an accused by placing the latter at pedestal higher thannecessary for fair trial.

A13. In the facts of the present case, considering the nature ofocular evidence available of the injured witnesses P.Ws. 7 and 8 whohave also been cross-examined by the appellants, and the evidence ofP.W. 11, we are of the considered opinion that no prejudice has beencaused to the appellants. specific question was put to the appellantsthat they participated in an unlawful assembly with the common objectBof murdering the deceased. Further, it was also put to them that they hadcaused injuries to P.W. 7 and 8. Merely because no questions were putto the appellants with regard to the individual assault made by each ofthem, it cannot be said in the facts of the case that any prejudice hasbeen caused to them. The questions asked being similar we consider itCproper to extract it with regard to one of the appellants. The appellantsdid not offer any explanation or desire to lead evidence except for statingthat they had been falsely implicated. Questions asked to Fainul Khanare extracted hereunder:

“Question: As has been stated by the prosecution witnesses, onD1st November, 1983 you along with other accused participated inan unlawful assembly and took part in fighting. It that true?

Answer: No. It is wrong.

Question: It has also been said that you participated in the commonobject of the unlawful assembly of murdering Rabbani Khan. IsEthat true?

Answer: It is wrong.

Question: It has also been said the during the said incident, youhad also caused injuries upon Nabiul hasan Khan, Eshanul Khan,Mir Tarabul and Mir Sanif. Is this true?F

Answer: No. It is wrong.

Question: Do you want to say anything in your defence?

Answer: We have been falsely implicated.”

G14. In Suresh Chandra Bahri vs. State of Bihar, 1995 Suppl (1)SCC 80, itwas observed as follows :

“26…..It is no doubt true that the underlying object behind Section313 CrPC is to enable the accused to explain any circumstanceappearing against him in the evidence and this object is based onHthe maxim audi alteram partem which is one of the principles of

natural justice. It has always been regarded unfair to rely uponany incriminating circumstance without affording the accused anopportunity of explaining the said incriminating circumstance. Theprovisions in Section 313, therefore, make it obligatory on the courtto question the accused on the evidence and circumstanceappearing against him so as to apprise him the exact case whichhe is required to meet. But it would not be enough for the accusedto show that he has not been questioned or examined on aparticular circumstance but he must also show that such non-examination has actually and materially prejudiced him and hasresulted in failure of justice. In other words in the event of anyinadvertent omission on the part of the court to question theaccused on any incriminating circumstance appearing against himthe same cannot ipso facto vitiate the trial unless it is shown thatsome prejudice was caused to him. In Bejoy Chand Patra v.State of W.B., AIR 1952 SC 105, this Court took the view that it isnot sufficient for the accused merely to show that he has notbeen fully examined as required by Section 342 of the CriminalProcedure Code (now Section 313 in the new Code) but he mustalso show that such examination has materially prejudiced him.The same view was again reiterated by this Court in RamaShankarSingh v. State of W.B.,1962 Suppl(1)SCR 49…..”

15. In Shobhit Chamar (supra),considering the nature of ocularevidence notwithstanding the infirmities at the stage of Section 313,Cr.P.C., it was observed as follows:

“18. ….In the case before us, the prosecution case mainly restedupon the ocular evidence of eyewitnesses. On conclusion of theprosecution evidence, the trial court did put the necessary questionsrelating to the evidence of eyewitnesses to both the appellantsand thereafter recorded the answers given by them.

xxxx

24. We have perused all these reported decisions relied upon bythe learned advocates for the parties and we see no hesitation inconcluding that the challenge to the conviction based on non-compliance of Section 313 CrPC first time in this appeal cannotbe entertained unless the appellants demonstrate that the prejudicehas been caused to them. In the present case as indicated earlier,

Athe prosecution strongly relied upon the ocular evidence of theeyewitnesses and relevant questions with reference to thisevidence were put to the appellants. If the evidence of thesewitnesses is found acceptable, the conviction can be sustainedunless it is shown by the appellants that prejudice has beencaused to them. No such prejudice was demonstrated before usBand, therefore, we are unable to accept the contention raised onbehalf of the appellants.”

16. Notwithstanding our conclusions as aforesaid that there hasin fact been no irregularity in procedure under Section 313 Cr.P.C. muchless any prejudice caused to the appellants we shall now deal with theCissue whether the appellants could at this stage raise objections withregard to the same. In Sukha vs. State of Rajasthan,1956 SCR 288,itwas observed as follows :-

“35. …..We have recently decided that we will be slow to entertainquestion of prejudice when details are not furnished; also the factDthat the objection is not taken at an early stage will be taken intoaccount. There is not hint of prejudice in the petition filed by theappellants here in the High Court for leave to appeal to this Court;nor was this considered ground for complaint in the very lengthyand argumentative petition for special leave filed in this Court.The only complaint about prejudice was on the score that thereEwas no proper examination under Section 342 of the CriminalProcedure Code. We decline to allow this matter to be raised.”

17. Masalti (supra) concerned case of death sentence and itdoes not appear that attention was invited to Sukha (supra). In view ofthe above discussion we regret our inability to consider the alternativeFsubmission of Shri Luthra. The appellants were undoubtedly the membersof an unlawful assembly some of whom were also armed with spearsand assaulted the deceased. All the accused surrounded the deceasedobviously to prevent his escape. The initial assault was made on thehead of the deceased with the lathi by appellant Sainul. The deceasedfell down and when he was trying to stand up, he was assaulted by twoGpersons with spears. P.W. 7 was assaulted on the head by appellantFainul. In the fracas the fact that the assault by appellant Mir Shaukatlanded on the thigh of the witness is not of much relevance. Likewise,P.W. 8 was assaulted by appellant Sainul on the face and head. The factthat the co-accused may have assaulted on the head again cannot beHconsidered very relevant to eschew the absence of common object.

18. We, therefore, find no reason to interfere with the convictionof the appellants. The appeals are dismissed. The appellants are statedto be on bail. Their bail bonds are cancelled and they are directed tosurrender forthwith to serve out remaining period of sentence.

Devika Gujral

Appeals dismissed.