It has to be said right at the outset that a two Judge Bench of the Apex Court comprising of Justice Navin Sinha and Justice BR Gavai just recently on October 4, 2019 in Fainul Khan vs State of Jharkhand and another in Criminal Appeal No(s). 937 of 2011 with Criminal Appeal No(s). 938 and 939 of 2011 has very rightly maintained that the rights of victim and society at large cannot be subservient to rights of accused. The accused certainly has the right to get a fair trial but what also cannot be denied is that the rights of victim and society at large cannot be accorded any inferior position. There has to be a fair and proper balance between the rights of victim and society at large on the one hand and the rights of the accused on the other hand.

To start with, this notable judgment authored by Justice Navin Sinha for himself and Justice BR Gavai first and foremost set the ball rolling by pointing out in para 1 that, 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 same. The sentences have been directed to run concurrently. The appellants had high hopes that their sentence would be reduced. This alone explains why they preferred this appeal!

To recapitulate, it is then unfolded in para 2 that, 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.

While presenting the appellant's version, it is then pointed out in para 3 that, 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, 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 inconsistencies in the prosecution evidence it was submitted that P.W.7 claims lathi injury on his thigh and leg, but P.Ws6 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.

Furthermore, para 4 says that, 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 refer to the presence of P.W.7 at the place of occurrence. Also, para 5 then states that, The evidence of P.Ws 6 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 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.

Not stopping here, it is then illustrated in para 6 that, 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.

On the contrary, it is then pointed out in para 7 that, 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 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.

What's more, it is then argued on behalf of the State by the learned counsel in para 8 that, 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 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.

After hearing both the parties, it is then observed by the Bench in para 9 that, 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. Effort 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 revision, a failure of justice has in fact been occasioned thereby.

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.

Be it noted, it is then envisaged in para 10 that, 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 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 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 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 to which their injury reports were made available to him. Only thereafter was the charge sheet submitted by him. We do not find any material in his cross-examination to discredit his statements.

Briefly stated, para 11 then brings out that, 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.

While adding a caveat, it is then very rightly enunciated in para 12 that, But equally there cannot be a generalized 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 other words, there will have to be a cumulative balancing of several factors.

Most importantly, it is then very rightly underscored further in this same para 12 that, 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.

Needless to say, it is then also clarified in para 13 that, 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 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. It is also made clear in this same para further that, The appellants did not offer any explanation or desire to lead evidence except for stating that they had been falsely implicated.

It would be imperative to now mention that it is then stated in para 17 that, 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. 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 considered very relevant to eschew the absence of common object.

Finally, it is then held in the last para 18 that, 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.

We thus see that the appellants appeals fail to find any favour with the top court. We also see that the Bench gives fair and adequate reasons for rejecting their appeals. So their bail bonds also stand cancelled! They have now no option but to surrender forthwith and serve out the remaining period of sentence which is indispensable now!

To sum up, it is a very well balanced and well written judgment which makes it absolutely clear that while it is true that the accused has a right to get a fair trial which is very important also but what is equally important is that the rights of the victim and also 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. There has to be a proper balance which is what has been underscored also very aptly by the top court in this noteworthy case also! Very rightly so!

Sanjeev Sirohi, Advocate,
s/o Col BPS Sirohi, A 82, Defence Enclave,
Sardhana Road, Kankerkhera, Meerut – 250001, Uttar Pradesh