FAINUL KHAN Vs. STATE OF JHARKHAND AND ANOTHER

JUDGEMENT

(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 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., 1965 AIR(SC) 202, Ranvir Yadav vs. State of Bihar, 2009 6 SCC 595 and Samsul Haque vs. State of Assam, 2019 11 Scale 458, (2019) SCC Online 1093;.