FAINUL KHAN versus STATE OF JHARKHAND AND ANOTHER

Citation: [2019] 13 S.C.R. 924 · Decided: 04-10-2019 · Supreme Court of India · Bench: NAVIN SINHA · Disposal: Dismissed

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Judgment (excerpt)

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SUPREME COURT REPORTS
[2019] 13 S.C.R.
FAINUL KHAN
v.
STATE OF JHARKHAND AND ANOTHER
(Criminal Appeal No(s). 937 of 2011)
OCTOBER 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 under
ss.302/149 and ss.323/149 against six persons but charge under
s.147 was against four persons only and therefore was defective
without aid of s.141 and s.146 – Held: Originally there were six
accused – Two of them have since been deceased – Appellants were
well aware that six of them were charged together for a common
assault under ss.302/149 and 323/149 because of their sharing a
common object – Appellants were also aware that two of the accused
were carrying a deadly weapon, spears, and which were used for
assault – Therefore, omission by the court in framing charge under
s.147 alone against four persons only was a mere inadvertent
omission – Moreover, objection about a defective charge, without
any evidence of the prejudice caused, was raised for the first time
in the instant appeal and for that reason also did not merit
consideration.
Code of Criminal Procedure, 1973: s.313 – Plea of appellant
that they were seriously prejudiced in their defence because proper
opportunity to defend was denied under s.313 as the incriminating
questions put to them were extremely casual and perfunctory – Held:
s.313 incorporates the principle of audi alteram partem – It provides
an opportunity to the accused for his defence by making him aware
fully of the prosecution allegations against him and to answer the
same in support of his innocence – But equally there cannot be a
generalised presumption of prejudice to an accused merely by reason
of any omission or inadequate questions put to him – Ultimately it
will be a question to be considered in the facts and circumstances
of each case including the nature of other evidence available, the
kind of questions put to an accused, considered with anything
further that the accused may state in his defence – In the facts of
 [2019] 13 S.C.R. 924
924
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the instant case, considering the nature of ocular evidence available
of the injured witnesses P.Ws. 7 and 8 who were also cross-examined
by the appellants,  no prejudice was caused to the appellants – A
specific question was put to the appellants that they participated in
an unlawful assembly with the common object of murdering the
deceased – Further, it was also put to them that they had caused
injuries to P.W. 7 and 8 – Merely because no questions were put to
the appellants with regard to the individual assault made by each
of them, it cannot be said in the facts of the case that any prejudice
was caused to them – Appellants did not offer any explanation or
desire to lead evidence except for stating that they were falsely
implicated.
Criminal Law: Absence of injury report of injured eye witnesses
– Effect on prosecution case – Prosecution case was that P.W. 8
and deceased were going together when they were surrounded and
assaulted by the accused persons – There was no lacunae in the
evidence or cross-examination of the witness to doubt his presence
and the injuries suffered by him in the same occurrence – P.W. 7, a
resident of the locality and an independent witness also suffered
injuries during the same occurrence – P.W. 8 during the course of
his deposition also showed the scars caused to him by his injuries,
noticed by the trial judge – The statement of the two witnesses also
stated to have been recorded at the hospital – The fact that there
was no injury report, can at best be classified as a defective
investigation but cannot raise doubts about the credibility of their
being injured witnesses in the same occurrence – The officer-in-
charge of the police station where the deceased and injured were
taken, specifically deposed that he submitted a request for the injury
report of the witnesses and pursuant to which their injury reports
were made available to him – Only thereafter the charge sheet was
submitted by him – There was no material in his cross-examination
to discredit his statements – Investigation, defect in.
Penal Code, 1860: ss.302/149 and ss.323/149 – Conviction
under – Appellants were undoubtedly the members of an unlawful
assembly some of whom were also armed with spears and assaulted
the deceased – All the accused surrounded the deceased obviously
to prevent his escape – The initial assault was m

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