FAINUL KHANversusSTATE OF JHARKHAND AND ANOTHER

924                      [2019]REPORTS
               SUPREME COURT    13 S.C.R. 924            [2019] 13 S.C.R.


A                               FAINUL KHAN
                                       v.
                 STATE OF JHARKHAND AND ANOTHER
                      (Criminal Appeal No(s). 937 of 2011)
B                             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
C
      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
D     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
E
      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
F
      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
G     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
H
                                      924
 FAINUL KHAN v. STATE OF JHARKHAND AND ANOTHER                           925


the instant case, considering the nature of ocular evidence available    A
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
                                                                         B
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.                                                              C
       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       D
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       E
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   F
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           G
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
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926           SUPREME COURT REPORTS                     [2019] 13 S.C.R.


A     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
B
      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
C     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
D     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
E     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
F     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.
G     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
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 FAINUL KHAN v. STATE OF JHARKHAND AND ANOTHER                         927


assaulted the deceased on the head. The witness was assaulted          A
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
                                                                       B
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         C
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]
                                                                       D
      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            E
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     F
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.             G
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

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928           SUPREME COURT REPORTS                     [2019] 13 S.C.R.


A     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.
B           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.
C     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
D     on the head again cannot be considered very relevant to eschew
      the 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 of
E           Rajasthan [1956] SCR 288 – relied on.
            Masalti v. State of U.P., AIR 1965 SC 202 : [1964] SCR
            133; 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.
F           Valerabhai Deganbhai Vagh and Ors., (2017) 3 SCC
            261 – referred to.
                            Case Law Reference
      [2009] 7 SCR 653              referred to             Para 3
G     (2019) (11) SCALE 458         referred to             Para 3
      (2017) 3 SCC 261              referred to             Para 6
      [1994] 1 Suppl. SCR 483       relied on               Para 14
      [1998] 2 SCR 117              relied on               Para 15
H     [2011] 5 SCR 577              relied on               Para 7
 FAINUL KHAN v. STATE OF JHARKHAND AND ANOTHER                              929


[1956] SCR 288                   relied on                 Para 16          A
[1964] SCR 133                   referred to              Para 17
      CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No.
937 of 2011.
      From the Judgment and Order dated 28.05.2009 of the High Court        B
of 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. Sounder
                                                                            C
Rajan, 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                            D
      NAVIN SINHA, J.
      1. The appellants are aggrieved by their conviction under Section
302/149 of the Indian Penal Code (IPC) sentencing them to rigorous
imprisonment for life, along with conviction under Sections 323/149 and
147 IPC, sentencing them to varied terms of imprisonment under the          E
same. The sentences have been directed to run concurrently.
       2. The occurrence is said to have taken place on 01.11.1983at
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     F
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            G
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
                                                                            H
930            SUPREME COURT REPORTS                         [2019] 13 S.C.R.


A     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, 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
B
      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
C     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
D     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 challenged in absence of any
      injury report with regard to them. False implication of the appellants
E     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
F     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
G     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.
H
 FAINUL KHAN v. STATE OF JHARKHAND AND ANOTHER                                931
                  [NAVIN SINHA, J.]

Moreover this objection cannot be raised at the present belated stage         A
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    B
as injured eye witnesses in view of the nature of their oral evidence and
that of P.W. 11, the officer-in-charge 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
co-accused.                                                                   C

       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:-
                                                                              D
      “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 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          E
      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              F
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            G
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.
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932             SUPREME COURT REPORTS                         [2019] 13 S.C.R.


A            10. P.W. 8 and the deceased were going together when they were
      surrounded and assaulted by the accused persons. We do not find any
      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, we are not satisfied that
B
      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
C     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
D
      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 is no injury report,
      in our opinion, can at best be classified as a defective investigation but
E     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 officer-in-charge 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
F
      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 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 by
G     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 the accused personally to explain
H
 FAINUL KHAN v. STATE OF JHARKHAND AND ANOTHER                                 933
                  [NAVIN SINHA, J.]

      any circumstances appearing in the evidence against him, the             A
      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        B
      generally on the case:
      Provided that in a summons-case, where the Court has dispensed
      with the personal attendance of the accused, it may also dispense
      with his examination under clause (b).
                                                                               C
      (2) No oath shall be administered to the accused when he is
      examined under sub-section (1).
      (3) The accused shall not render himself liable to punishment by
      refusing to answer such questions, or by giving false answers to
      them.                                                                    D
      (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            E
      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         F
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 other words, there will have to be a cumulative balancing
of several factors. While the rights of an accused to a fair trial are         G
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.
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934            SUPREME COURT REPORTS                          [2019] 13 S.C.R.


A            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 cross-examined 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
B
      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 asked being similar we consider it
C     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
D           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
E           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,
F           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.”
G          14. 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 Section
            313 CrPC is to enable the accused to explain any circumstance
            appearing against him in the evidence and this object is based on
H           the maxim audi alteram partem which is one of the principles of
 FAINUL KHAN v. STATE OF JHARKHAND AND ANOTHER                                935
                  [NAVIN SINHA, J.]

      natural justice. It has always been regarded unfair to rely upon        A
      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
                                                                              B
      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 non-
      examination 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           C
      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
                                                                              D
      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
      ShankarSingh v. State of W.B.,1962 Suppl(1)SCR 49…..”
      15. In Shobhit Chamar (supra),considering the nature of ocular          E
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   F
      relating to the evidence of eyewitnesses to both the appellants
      and thereafter recorded the answers given by them.
                                  xxxx
      24. We have perused all these reported decisions relied upon by         G
      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,
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936            SUPREME COURT REPORTS                          [2019] 13 S.C.R.


A           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
B           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
C     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
D           that the objection is not taken at an early stage will be taken into
            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
E           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
F     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
G
      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. Likewise,
      P.W. 8 was assaulted by appellant Sainul on the face and head. The fact
      that the co-accused may have assaulted on the head again cannot be
H     considered very relevant to eschew the absence of common object.
  FAINUL KHAN v. STATE OF JHARKHAND AND ANOTHER                               937
                   [NAVIN SINHA, J.]

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


Devika Gujral                                            Appeals dismissed.   B




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