Case Note & Summary
The Supreme Court dismissed the appeals filed by Fainul Khan, Sainul Khan, and Mir Shaukat, upholding their conviction under Section 302/149 IPC for murder and other offences. The occurrence took place on 01.11.1983 at about 6:30 PM, when the deceased and P.W. 8 were surrounded and assaulted by six accused persons armed with spears and lathis. P.W. 7, an independent resident, also suffered injuries. The appellants were convicted by the trial court and the High Court affirmed the conviction. The appellants raised two main grounds: (1) the charge under Section 147 IPC was defective as it was framed against only four persons, and (2) their examination under Section 313 CrPC was perfunctory, causing prejudice. The Court held that the defective charge did not cause any failure of justice, as the appellants were aware of the allegations and the common object. Regarding Section 313 CrPC, the Court noted that while the provision is important for a fair trial, the omission to put detailed questions does not automatically cause prejudice. In this case, the appellants were asked about their participation in the unlawful assembly and causing injuries, and they did not offer any defence. The Court also found the testimony of injured eye witnesses P.W. 7 and P.W. 8 credible, despite the absence of injury reports, which was attributed to defective investigation. The Court concluded that the appellants shared a common object with the co-accused and their conviction was sustainable. The appeals were dismissed.
Headnote
A) Criminal Procedure - Defective Charge - Section 464 CrPC - Omission to frame charge under Section 147 IPC against all accused does not vitiate trial if no failure of justice - The charge under Section 147 was framed against four persons only, but the appellants were aware of the common object and the allegations. The omission was inadvertent and no prejudice was caused. (Paras 9) B) Criminal Procedure - Examination of Accused - Section 313 CrPC - Inadequate questioning does not automatically cause prejudice - The court must consider the nature of other evidence, the questions put, and the defence offered. In this case, the appellants were asked about their participation in the unlawful assembly and causing injuries, and no prejudice was shown. (Paras 11-13) C) Evidence - Injured Eye Witness - Credibility despite absence of injury report - The absence of injury reports for P.Ws. 7 and 8 is a defective investigation but does not discredit their oral evidence as injured witnesses, especially when corroborated by the investigating officer (P.W. 11). (Paras 10) D) Indian Penal Code - Unlawful Assembly - Common Object - Section 149 IPC - Common object can be inferred from the conduct of the accused - The appellants were part of an unlawful assembly armed with lathis and spears, and the deceased was assaulted. The presence of only one bruise does not negate common object. (Paras 9-10)
Issue of Consideration
Whether the conviction of the appellants under Sections 302/149, 323/149, and 147 IPC is sustainable despite alleged defective charge and inadequate examination under Section 313 CrPC
Final Decision
The Supreme Court dismissed the appeals, upholding the conviction of the appellants under Sections 302/149, 323/149, and 147 IPC with sentences to run concurrently.
Law Points
- Defective charge under Section 147 IPC does not vitiate trial if no prejudice caused
- Section 313 CrPC examination must be meaningful but omission does not automatically cause prejudice
- Injured eye witness testimony credible despite absence of injury report
- Common object under Section 149 IPC can be inferred from conduct
