caselaws

Supreme Court of India
Fainul Khan vs State Of Jharkhand on 4 October, 2019Author: Navin Sinha

Bench: Navin Sinha, B.R. Gavai

REPORTABLE

IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO(s). 937 OF 2011
FAINUL KHAN …APPELLANT(S)
VERSUS
STATE OF JHARKHAND
AND ANOTHER …RESPONDENT(S)

WITH

CRIMINAL APPEAL NO(s). 938 OF 2011
SAINUL KHAN …APPELLANT(S)
VERSUS
STATE OF JHARKHAND
AND OTHERS …RESPONDENT(S)

CRIMINAL APPEAL NO(s). 939 OF 2011
MIR SHAUKAT …APPELLANT(S)
VERSUS
STATE OF JHARKHAND
AND ANOTHER …RESPONDENT(S)

JUDGMENT

NAVIN SINHA, J.
The appellants are aggrieved by their conviction under
Signature Not Verified

Digitally signed by

Section 302/149 of the Indian Penal Code (IPC) sentencing
SANJAY KUMAR
Date: 2019.10.04
12:18:40 IST
Reason:

them to rigorous imprisonment for life, along with conviction

1
under Sections 323/149 and 147 IPC, sentencing them to

varied terms of imprisonment under the same. The sentences

have been directed to run concurrently.

2. The occurrence is said to have taken place on 01.11.1983

at about 06.30 PM. The accused were variously armed with

spears and lathis. P.W. 7 and 8 are stated to be injured eye

witnesses. P.W 6 also claimed to be an eye witness. The police

report was lodged by P.W. 8 at the hospital.

3. Learned Senior Counsel Shri Sidharth Luthra making the

lead arguments on behalf of the appellants submitted that

charge was framed under Sections 302/149 and 323/149 IPC

against six persons. But the charge framed under Section 147

was defective being against four persons only and without the

aid of Sections 141 and 146. It was next submitted that the

appellants have been seriously prejudiced in their defence

because proper opportunity to defend was denied under

Section 313 of the Code of Criminal Procedure,1973 (Cr.P.C.) as

the incriminating questions put to them were extremely casual

and perfunctory in barely two pages. All relevant questions with

regard to the accusations were not put to the appellants,

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denying them the opportunity to present their defence. It

cannot be considered as a mere irregularity, to hold that no

prejudice has been caused to the appellants. Emphasising the

inconsistency in the prosecution evidence it was submitted that

P.W. 7 claims lathi injury on his thigh and leg, but P.Ws. 6 and

8 are silent on the role of appellant Fainul Khan, and appellant

Mir Shaukat is stated to have assaulted on the thigh of P.Ws. 6

and 7 when according to the F.I.R. he hit on the head of P.W. 8.

Reliance in support of the submissions was placed on Masalti

vs. State of U.P., AIR 1965 SC 202, Ranvir Yadav vs. State

of Bihar, (2009) 6 SCC 595 and Samsul Haque vs. State of

Assam, (2019) SCC Online 1093; 2019 (11) SCALE 458.

4. It was next submitted that P.W. 6 was not an eye witness

to the assault. He had arrived upon hearing the commotion

after the appellants had left and the deceased was lying on the

ground. P.W. 6 also does also refer 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 on account of their being related to the deceased.

The claim of P.Ws. 7 and 8 to be injured eye witnesses was also

3
challenged in absence of any injury report with regard to them.

False implication of the appellants could not be ruled out in

view of previous enmity having been admitted by the

prosecution witnesses. P.W. 8 deposed that the deceased was

assaulted on his head from behind and fell on his face, but no

facial injury has been found on the deceased.

6. The deceased was assaulted with a spear by accused

Siddiq and Zabbar. The allegations of assault by the appellants

on the deceased with a lathi are omnibus, since only one bruise

has been found on the upper arm. There existed no common

object because in that event nothing prevented the appellants

from individual assaults each on a sensitive part of the body of

the deceased, such as the head. Alternatively, the three

appellants at best may be liable for a lesser offence relying on

Najabhai Desurbhai Wagh vs. Valerabhai Deganbhai Vagh

and Ors., (2017) 3 SCC 261.

7. Learned counsel for the State submitted that there was no

lacunae in the examination of the accused under Section 313

Cr.P.C. In any event the appellants have not been able to

demonstrate any prejudice. Moreover this objection cannot be

4
raised at the present belated stage when it had not been raised

at any earlier stage. Reliance was placed on Shobhit Chamar

vs. State of Bihar, (1998) 3 SCC 455 and Fahim Khan vs.

State of Bihar, (2011) 13 SCC 142.

8. The absence of any injury report with regard to P.Ws. 7

and 8 may at best be a case of defective investigation. It cannot

discredit them as injured eye witnesses in view of the nature of

their oral evidence and that of P.W. 11, the officer­in­charge of

the Kisko police station where the deceased and the injured

were taken for treatment. There are concurrent findings with

regard to the presence of the appellants. There is ample

evidence of the appellants sharing a common object with the

co­accused.

9. We have considered the submissions on behalf of the

parties as also 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, in charge.­­(1) No finding, sentence or
order by a Court of competent jurisdiction shall

5
be invalid merely on the ground that no charge
was framed or on the ground of any error,
omission or irregularity in the charge including
any misjoinder of charges, unless, in the opinion
of the Court of appeal, confirmation or revision, a
failure of justice has in fact been occasioned
thereby.
xxx”

The appellants were well aware that six of them were charged

together for a common assault under Sections 302/149 and

323/149 because of their sharing a common object. The

appellants were also aware that two of the accused were

carrying a deadly weapon, spears, and which were used for

assault. We are therefore of the considered opinion that no

prejudice has been caused to the appellants and the omission

by the court in framing charge under Section 147 alone against

four persons only was a mere inadvertent omission. The

presence of one bruise injury on the deceased is also not

considered relevant in the facts of the case. The objection about

a defective charge, without any evidence of the prejudice

caused, has been raised for the first time in the present appeal

and for that reason also merits no consideration.

10. P.W. 8 and the deceased were going together when they

were surrounded and assaulted by the accused persons. We do

6
not find any lacunae in the evidence or cross­examination 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. However, we are not satisfied that P.W. 6 is

an eye witness. The witness was at home and reached the place

of occurrence after hearing the commotion by which time the

deceased was lying on the ground. P.W.7 deposed that P.W.6

reached after him. P.W. 7 deposed of assault by appellant

Sainul upon P.W. 8 with lathi and also upon the witness

himself by appellants Fainul and Mir Shaukat causing injuries

on his head and right hand. Appellant Mir Shaukat is also

stated to have assaulted the witness on his thigh with lathi.

P.W.8 deposed that the accused surrounded him and the

deceased. Appellant Sainul assaulted the deceased on the

head. The witness was assaulted on his face, head and hand

with the lathi. Both the witnesses deposed that they were then

taken to the hospital along with the deceased where their

injuries were examined. 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

7
is also stated to have been recorded at the hospital. The fact

that there is no injury report, in our opinion, 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 fact that P.W.8 may be related to the

deceased or previous enmity existed, are irrelevant in the facts

of the case. P.W. 11, the officer­in­charge of the Kisko police

station where the deceased and injured were taken, has

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 was the

charge sheet was submitted by him. We do not find any

material in his cross­examination 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 by making him aware fully of the prosecution

allegations against him and to answer the same in support of

his innocence. The importance of the provision for a fair trial

brooks no debate.

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

8
the accused personally to explain any
circumstances appearing in the evidence against
him, the Court—
(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 been examined and before he is called on
for his defence, question him generally on the
case:
Provided that in a summons­case, where the
Court has dispensed with the personal
attendance of the accused, it may also dispense
with his examination under clause (b).
(2) No oath shall be administered to the accused
when he is examined under sub­section (1).
(3) The accused shall not render himself liable to
punishment by refusing to answer such
questions, or by giving false answers to them.
(4) The answers given by the accused may be
taken into consideration in such inquiry or trial,
and put in evidence for or against him in any
other inquiry into, or trial for, any other offence
which such answers may tend to show he has
committed.
(5) The court may take help of Prosecutor and
Defence Counsel in preparing relevant questions
which are to be put to the accused and the Court
may permit filing of written statement by the
accused as sufficient compliance of this section.”

12. But equally there cannot be a generalised presumption of

prejudice to an accused merely by reason of any omission or

inadequate questions put to an accused thereunder. Ultimately

it will be a question to be considered in the facts and

circumstances of each case including the nature of other

9
evidence available, the kind of questions put to an accused,

considered with anything further that the accused may state in

his defence. In other words, there will have to be a cumulative

balancing of several factors. While the rights of an accused to a

fair trial are undoubtedly important, the rights of the victim

and the society at large for correction of deviant behaviour

cannot be made subservient to the rights of an accused by

placing the latter at a pedestal higher than necessary for a fair

trial.

13. In the facts of the present case, considering the nature of

ocular evidence available of the injured witnesses P.Ws. 7 and 8

who have also been cross­examined by the appellants, and the

evidence of P.W. 11, we are of the considered opinion that no

prejudice has been 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 has been caused to them. The questions
10
asked being similar we consider it proper to extract it with

regard to one of the appellants. The appellants did not offer any

explanation or desire to lead evidence except for stating that

they had been falsely implicated. Questions asked to Fainul

Khan are extracted hereunder:

“Question: As has been stated by the prosecution
witnesses, on 1st November, 1983 you along with
other accused participated in an 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 common object of the
unlawful assembly of murdering Rabbani Khan.
Is that true?
Answer: It is wrong.
Question: It has also been said the during the
said incident, you had also caused injuries upon
Nabiul hasan Khan, Eshanul Khan, Mir Tarabul
and Mir Sanif. Is this true?
Answer: No. It is wrong.
Question: Do you want to say anything in your
defence?
Answer: We have been falsely implicated.”

14. In Suresh Chandra Bahri vs. State of Bihar, 1995

Suppl (1) SCC 80, it was observed as follows :

“26…..It is no doubt true that the underlying object
behind Section 313 CrPC is to enable the accused to
explain any circumstance appearing against him in
the evidence and this object is based on the maxim
audi alteram partem which is one of the principles of
natural justice. It has always been regarded unfair to

11
rely upon any incriminating circumstance without
affording the accused an opportunity of explaining
the said incriminating circumstance. The provisions
in Section 313, therefore, make it obligatory on the
court to question the accused on the evidence and
circumstance appearing against him so as to apprise
him the exact case which he is required to meet. But
it would not be enough for the accused to show that
he has not been questioned or examined on a
particular circumstance but he must also show that
such non­examination has actually and materially
prejudiced him and has resulted in failure of justice.
In other words in the event of any inadvertent
omission on the part of the court to question the
accused on any incriminating circumstance
appearing against him the same cannot ipso facto
vitiate the trial unless it is shown that some
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 is not sufficient for the accused merely to
show that he has not been fully examined as required
by Section 342 of the Criminal Procedure Code (now
Section 313 in the new Code) but he must also show
that such examination has materially prejudiced
him. The same view was again reiterated by this
Court in Rama Shankar Singh v. State of W.B.,1962
Suppl(1)SCR 49…..”

15. In Shobhit Chamar (supra), considering the nature of

ocular evidence 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 rested upon the ocular evidence of
eyewitnesses. On conclusion of the prosecution
evidence, the trial court did put the necessary
questions relating to the evidence of eyewitnesses to

12
both the appellants and thereafter recorded the
answers given by them.
xxxx
24. We have perused all these reported decisions
relied upon by the learned advocates for the parties
and we see no hesitation in concluding that the
challenge to the conviction based on non­
compliance of Section 313 CrPC first time in this
appeal cannot be entertained unless the appellants
demonstrate that the prejudice has been caused to
them. In the present case as indicated earlier, the
prosecution strongly relied upon the ocular evidence
of the eyewitnesses and relevant questions with
reference to this evidence were put to the
appellants. If the evidence of these witnesses is
found acceptable, the conviction can be sustained
unless it is shown by the appellants that a prejudice
has been caused to them. No such prejudice was
demonstrated before us and, therefore, we are
unable to accept the contention raised on behalf of
the appellants.”

16. Notwithstanding our conclusions as aforesaid that there

has in fact been no irregularity in procedure under Section 313

Cr.P.C. much less any prejudice caused to the appellants we

shall now deal with the issue whether the appellants could at

this stage raise objections with regard to the same. In Sukha

vs. State of Rajasthan,1956 SCR 288, it was observed as

follows :­

“35. …..We have recently decided that we will be
slow to entertain question of prejudice when details
are not furnished; also the fact that the objection is
not taken at an early stage will be taken into
13
account. There is not a hint of prejudice in the
petition filed by the appellants here in the High
Court for leave to appeal to this Court; nor was this
considered a ground for complaint in the very
lengthy and argumentative petition for special leave
filed in this Court. The only complaint about
prejudice was on the score that there was no proper
examination under Section 342 of the Criminal
Procedure Code. We decline to allow this matter to
be raised.”

17. Masalti (supra) concerned a case of death sentence and it

does not appear that attention was invited to Sukha (supra).

In view of the above discussion we regret our inability to

consider the alternative submission of Shri Luthra. The

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 made on the head of the deceased with the lathi by

appellant Sainul. The deceased fell down and when he was

trying to stand up, he was assaulted by two persons with

spears. P.W. 7 was assaulted on the head by appellant Fainul.

In the fracas the fact that the assault by appellant Mir Shaukat

landed on the thigh of the witness is not of much relevance.

14
Likewise, P.W. 8 was assaulted by appellant Sainul on the face

and head. The fact that the co­accused may have assaulted on

the head again cannot be considered very relevant to eschew

the absence of common object.

18. We, therefore, find no reason to interfere with the

conviction of the appellants. The appeals are dismissed. The

appellants are stated to be on bail. Their bail bonds are

cancelled and they are directed to surrender forthwith to serve

out remaining period of sentence.

………………………….J.
[NAVIN SINHA]

………………………….J.
[B.R. GAVAI]
NEW DELHI
OCTOBER 04, 2019.

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