FAINUL KHAN v. STATE OF JHARKHAND & Anr.

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 made on the head of the deceased with the lathi by appellant-S – The deceased fell down A B C D E F G H 926 SUPREME COURT REPORTS [2019] 13 S.C.R. 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-F – In the fracas the fact that the assault by appellant-M landed on the thigh of the witness was not of much relevance – Likewise, P.W. 8 was assaulted by appellant-S on the face and head – The fact that the co-accused may have assaulted on the head again cannot be considered 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 them have since been deceased and the fate of one is not known. 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. Therefore, no prejudice was 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 objection about a defective charge, without any evidence of the prejudice caused, has been raised for the first time in the instant appeal and for that reason also merits no consideration. [Para 9][931-D, F-H]

#2. P.W. 8 and the 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. However, P.W. 6 does not appear to be 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-S upon P.W. 8 with lathi and also upon the witness himself by appellants-F and M causing injuries on his head and right hand. Appellant-M 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-S A B C D E F G H FAINUL KHAN v. STATE OF JHARKHAND AND ANOTHER 927 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 is 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. P.W. 11, the officer-in-charge of the 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. There was no material in his cross-examination to discredit his statements. [Para 10][932-A-F]

#3. 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. 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 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 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, and the evidence of P.W. 11, 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 A B C D E F G H 928 SUPREME COURT REPORTS [2019] 13 S.C.R. A B C D E F them, it cannot be said in the facts of the case that any prejudice has 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.

#4. 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-S. 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-F. In the fracas the fact that the assault by appellant-M landed on the thigh of the witness is not of much relevance. Likewise, P.W. 8 was assaulted by appellant-S on the face and head. The fact that the co-accused may have assaulted on the head again cannot be considered very relevant to eschew the absence of common object. [Para 17][936-F-H]