IMPORTANT POINTS
Objection about a defective charge, without any evidence of the prejudice caused, and raised for the first time in Supreme Court merits no consideration.
There cannot be a generalised presumption of prejudice to an accused merely by reason of any omission or inadequate questions put to him.

JUDGMENT

NAVIN SINHA, J.

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.

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, 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 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 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 defec