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2002 DIGILAW 1560 (MAD)

Welding Kumar v. Inspector of Police

2002-12-11

P.D.DINAKARAN, V.S.SIRPURKAR

body2002
Judgment :- V.S. SIRPURKAR, J. This appeal is directed against the finding of conviction recorded by the Fifth Additional Sessions Judge, Chennai against the accused Kumar @ Welding Kumar and sentencing him to suffer rigourous imprisonment for life for the offence under Sec.302 I.P.C. as also one year rigourous imprisonment for the offence under Sec.148 I.P.C. 2. This case has a chequered history. The prosecution case was that on 22-5-1985, the original accused persons, viz. Kumar @ Welding Kumar and Jayaraman, along with other accused persons, formed an unlawful assembly with a common object of assault and murder of one Radhakrishnan and actually assaulted the said Radhakrishnan and committed his murder. This was at about 9.30 p.m. on 22-5-1985 on Thiruvottiyur High Road, coming within the jurisdiction of Thiruvottiyur Police Station. 3. The deceased Radhakrishnan used to run liquor shops and there was enmity between the accused persons and the said Radhakrishnan out of which, the said incident took place. Originally as many as seven persons came to be roped in on the basis of the First Information Report given by Narayanan (P.W.1). They were Babu @ Kozi Babu, Raja, Sampath, Vincent and Das. It was reported by P.W.1, immediately after the incident that while he, Baskar, Radhakrishnan (deceased) were returning to their house, three known persons, viz. Babu @ Kozi Babu, Raja, Welding Kumar and four other unknown persons came, waylaid Radhakrishnan and abused him in filthy language. He was confronted by Kozi Babu, who abusing him filthily and saying as to why he was interfering in the affairs of Kozi Babu. Seeing that the accused persons were armed to the teeth, Radhakrishnan started running towards the Dhall Mill belonging to one Prithiviraj. However, Kozi Babu stabbed him with knife on his right and left chest while accused Raja stabbed on the right side of his stomach and on the left side of the chest. While so, Welding Kumar, the present appellant, stabbed Radhakrishnan repeatedly on his neck. P.W.1 also pointed out that the other accused persons viz. Jayaraman and others were armed to the teeth and they stopped him and the other persons from rescuing Radhakrishnan. Radhakrishnan was taken along with Sampath to the hospital. However, he was declared dead in the hospital. This First Information Report was made at about 11 p.m. on 22-5-1985. 4. On the basis of the complaint given by P.W.1, investigation proceeded. Jayaraman and others were armed to the teeth and they stopped him and the other persons from rescuing Radhakrishnan. Radhakrishnan was taken along with Sampath to the hospital. However, he was declared dead in the hospital. This First Information Report was made at about 11 p.m. on 22-5-1985. 4. On the basis of the complaint given by P.W.1, investigation proceeded. The police party reached the spot, executed spot mahazar, seizure mahazar, etc. and on the basis of the information, arrested the accused persons one by one. Since in the First Information Report, some unknown persons were mentioned as the assailants, after the arrest of the accused persons, an identification parade was held in the jail by the Judicial Magistrate and this was held on 26-6-1985. 5. On completion of the investigation, charge sheet came to be filed as against the seven persons named above. However, before the charge was framed, accused Sampath died while accused Babu @ Kozi Babu was murdered. Accused Raja, Vincent and Dhass absconded during the trial. Thus only two accused persons remained in the field. They being Welding Kumar and Jayaraman. They were charged for the offences under Secs.148, 302 and 147, 302 read with Sec.149 I.P.C. Needless to say that the trial of the other accused persons was separated from the presently mentioned two accused persons. 6. In support of the prosecution case, the prosecution relied on the evidence of P.W.1 Narayanan, who is one other but the brother of the deceased Radhakrishnan. P.W.2 Baskaran was also examined as an eye-witness. However, he turned hostile. 7. The defence of the accused was that of denial. It was suggested by the accused that there were number of enemies to the deceased Radhakrishnan on account of the liquor business that he was running and it was out of that business rivalry that some one must have murdered him. However, the prosecution had failed to prove by sufficient and cogent evidence that the two accused persons, viz. Welding Kumar and Jayaraman had anything to do with it. 8. The defence did not prevail and the first accused Welding Kumar was convicted and sentenced to undergo rigourous imprisonment for life for the offence under Sec.302 I.P.C. and was also awarded one year rigourous imprisonment for the offence under Sec.148 I.P.C. The second accused Jayaraman was, however, acquitted. Welding Kumar and Jayaraman had anything to do with it. 8. The defence did not prevail and the first accused Welding Kumar was convicted and sentenced to undergo rigourous imprisonment for life for the offence under Sec.302 I.P.C. and was also awarded one year rigourous imprisonment for the offence under Sec.148 I.P.C. The second accused Jayaraman was, however, acquitted. It is against this verdict that the first accused Welding Kumar comes up before us by way of the present appeal. 9. Learned counsel for the appellant contended that it is within a very narrow conspectus that the prosecution case lies. However, according to him, the evidence of P.W.1 was slipshod, full of contradictions and omissions and there was every possibility of his having deposed out of his loyalty for his brother. According to the learned counsel, he was an “interested witness”. As regards the evidence of P.W.2, the learned counsel pointed out that since he was a hostile witness, his evidence was liable to be thrown out and was rightly thrown out by the trial court. The learned counsel, however, pointed out that it was extremely risky on the part of the learned Sessions Judge to have convicted the accused practically on the basis of the evidence sole eye-witness. 10. The learned counsel further contended that there was insufficient material for convicting the appellant for the substantive offence under Sec.302 I.P.C. as there was nothing on record to suggest that it was the result of the injuries allegedly caused by the accused Welding Kumar that Radhakrishnan died. Learned counsel was at pains to point out that the Doctor had deposed that the death was caused on account of the cumulative effect of the injuries suffered by Radhakrishnan and in fact Radhakrishnan had suffered as many as 19 injuries which were of very serious nature. The learned counsel, therefore, urged that the trial court should have given the benefit of doubt to the present appellant also. 11. In so far as the identification parade is concerned, learned counsel did not address us. 12. It has to be now considered as to whether the prosecution has proved the offence and whether the finding of conviction is right. 13. To begin, we are extremely unhappy with the manner in which the charge is framed. 11. In so far as the identification parade is concerned, learned counsel did not address us. 12. It has to be now considered as to whether the prosecution has proved the offence and whether the finding of conviction is right. 13. To begin, we are extremely unhappy with the manner in which the charge is framed. It is very strange that there should not have been a properly worded charge in respect of the formation of “unlawful assembly” and its “common object”. The charge in all is under three heads. They being, firstly for the offence under Sec.148; secondly, for the offence under Sec.302, which is substantively against the appellant herein; and thirdly, for the offence under Sec.302 I.P.C. read with Sec.149 I.P.C., which is against both the accused persons along with some known persons viz. Raja, Vincent, Dhas, Sampath, etc. and some unknown persons. In fact, if the charge sheet is properly scanned, it will be seen that this was a fit case where a charge under Sec.34 also could have been framed. When we see the language of the second head of the charge, it is obvious that the term “common object” ( ). The accused persons should have been put to the notice that they were the members of the “unlawful assembly”, the “common object” of which was to murder Radhakrishnan and in furtherance of the common object they had actually murdered Radhakrishnan. We are not at all happy with the slipshod manner in which the charge was framed. However, it is obvious that there is no complaint made against the charge and the accused have all through understood properly the prosecution case and the charge which was sought to be proved against them. It is really strange that even the Public Prosecutor should have remained a mute spectator and should not have suggested the properly worded charge. 14. To add to the list of irregularities, it is very strange that the learned Sessions Judge should have failed to record a finding regarding the formation of unlawful assembly. It is really strange that even the Public Prosecutor should have remained a mute spectator and should not have suggested the properly worded charge. 14. To add to the list of irregularities, it is very strange that the learned Sessions Judge should have failed to record a finding regarding the formation of unlawful assembly. In a prosecution, where the accused persons are alleged to be the members of an unlawful assembly, it is required of the trial court to give a finding regarding the formation of an unlawful assembly of which the accused persons were members; the reasons and the point of time when the said assembly becomes unlawful; the object of that assembly; and lastly, the acts committed by the members of the unlawful assembly. It cannot be forgotten that the accused persons, who are sought to be roped in with the aid of Sec.149, are made vicariously liable. It is not necessary that every member of the unlawful assembly must have done some criminal act. If he is and remains conscientiously the member of an unlawful assembly then, even if he has not committed any overt act, he becomes liable for the criminal acts done by any of the members of the unlawful assembly, which has the common object of committing an offence. When we see the judgment, at no point of time has the learned Sessions Judge given any finding regarding the formation of unlawful assembly. Though the trial court has convicted the accused for an offence under Sec.148 which offence can never become complete unless and until the accused is member of an unlawful assembly. A conviction cannot be recorded for an offence under Sec.148 or Sec.149 unless there is a finding of there being any unlawful assembly. It is strange, therefore, that the learned sessions judge should not have given any finding in respect of the formation of unlawful assembly. At least, we have not been able to find out any such finding in the judgment. 15. The trial court has convicted the appellant of the substantive offence under Sec.302 I.P.C. It will have to be seen as to whether this conviction is right. The Sessions Judge has proceeded on the ground that it was proved that the accused/appellant inflicted three injuries on the neck of the deceased. 15. The trial court has convicted the appellant of the substantive offence under Sec.302 I.P.C. It will have to be seen as to whether this conviction is right. The Sessions Judge has proceeded on the ground that it was proved that the accused/appellant inflicted three injuries on the neck of the deceased. The existence of those three injuries has also held to have been proved by the evidence of the Doctor. It is on this short basis that the Sessions Judge has proceeded to convict the accused straight away holding those injuries were covered by “thirdly” of Sec.300 I.P.C. In fact, when we see the evidence of the Doctor, there is no such evidence. On the other hand, the evidence suggests that the death of Radhakrishnan was due to the cumulative effect of all the injuries suffered by him. In our opinion, there could not have been a substantive conviction unless and until it was proved that these injuries individually were also fatal. Indeed, such finding is also wanting. Since we are in appeal, we will have to now take up an exercise of scanning and appreciating the evidence and then find out as to whether the accused/appellant can be held guilty of any of the offences charged. We, therefore, agree with the learned counsel for the defence that the accused could not have been convicted for the substantive offence under Sec.302 I.P.C. However, that does not solve the problem. 16. It cannot be forgotten that all the accused persons were properly charged with the aid of Sec.302 I.P.C. branding them to be the members of the unlawful assembly with the unlawful object of committing the assault and murder of Radhakrishnan. They have also been charged that in pursuance of that they had actually committed the murder of Radhakrishnan and, therefore, all the accused persons were guilty for the offence under Sec.302 read with Sec.149 I.P.C. It has to be seen, therefore, as to whether the accused can be straight away acquitted or can be dealt with as is the contention of the Public Prosecutor. His contention is that even if the accused cannot be convicted substantively for an offence under Sec.302, he could still be booked with the aid of Sec.149 I.P.C., for which there was a proper charge against him. For this purpose, we will have to scan the evidence of the two eye-witnesses, viz. His contention is that even if the accused cannot be convicted substantively for an offence under Sec.302, he could still be booked with the aid of Sec.149 I.P.C., for which there was a proper charge against him. For this purpose, we will have to scan the evidence of the two eye-witnesses, viz. P.W.1 Narayanan and P.W.2 Baskaran. 17. In his evidence, P.W.1 Narayanan has graphically stated that on the fateful day, at about 9.15 p.m., he along with his brother Radhakrishnan, Sampath and Baskar were proceeding to their house after closing the shop. He then deposes that when they came near Thirunagar, as many as seven persons, who were armed with deadly weapons like aruval, knives, etc. immediately came and firstly filthily abused Radhakrishnan, who was walking ahead of him. There can be no dispute and it was not really challenged in the cross-examination that the deceased Radhakrishnan had a shop in a place called Thirunagar at Thiruvottiyur. It would be very natural for the witness to be along with his brother and two others. Some doubt was tried to be thrown that there was no necessity for these persons to go to the bus-stand to go to their house by bus as the deceased Radhakrishnan owned a car as also a jeep. Merely because the deceased owned a car and a jeep, it would not mean that the deceased was not present near the place where he was done away with. It has been amply proved that the attack took place precisely at the place where the witness claimed the same to be. The spot mahazar stands testimony to this. 18. Be that as it may, the witness then goes on to suggest that all the seven assailants were together and were armed and after Kozi Babu firstly filthily abused the deceased Radhakrishnan, they all started assaulting the deceased, the first amongst the assailants was being Kozi Babu. The witness knew the names and identity of only three assailants and did not know the names of the other assailants. Therefore, he had stated in his evidence as well as in the First Information Report that three known persons, viz. Kozi Babu, Raja and Welding Kumar and four some other persons, whose names were not known to him, assaulted his brother Radhakrishnan. There was no cross-examination of the witness on this very important aspect. Therefore, he had stated in his evidence as well as in the First Information Report that three known persons, viz. Kozi Babu, Raja and Welding Kumar and four some other persons, whose names were not known to him, assaulted his brother Radhakrishnan. There was no cross-examination of the witness on this very important aspect. This witness had later on identified the remaining accused persons. The only use that can be made of the identification parade is that as per the evidence of this witness, there were more than five persons involved in the incident. The names and identity of three of them being known to the witness, the names of the other persons were not known but their identity was known to this witness. Before us as also before the Sessions Judge, the evidence regarding the identification parade was hardly challenged by way of cross-examination or otherwise. Perhaps, because it was felt that these two witnesses were not concerned with the identification. However, the fact remains that if the identification parade evidence is not challenged, the fact that this witness identified about three more persons as the assailants of Radhakrishnan also establishes the fact that at the spot there were more than five persons and thus it was a clear-cut unlawful assembly, the object of which was to assault and murder Radhakrishnan. Unfortunately, the learned Sessions Judge has not paid any attention to this very important aspect. It was for this reason that it was important for him to have written a finding of unlawful assembly. This witness was then brave enough to try to save his brother Radhakrishnan but deposed that he was stopped by the other accused persons. All this has practically gone unchallenged in the cross-examination and some wild suggestions have been thrown at the witness that in fact the said Radhakrishnan was assaulted somewhere and was murdered by some one else. One fails to understand as to why would this witness be interested in naming the accused persons and more particularly the appellant herein as the assailants of his brother Radhakrishnan. It was tried to be suggested that he being the brother of the deceased Radhakrishnan, his evidence has to be appreciated with that caution in mind. One fails to understand as to why would this witness be interested in naming the accused persons and more particularly the appellant herein as the assailants of his brother Radhakrishnan. It was tried to be suggested that he being the brother of the deceased Radhakrishnan, his evidence has to be appreciated with that caution in mind. We have seen the appreciation of evidence of this witness on the part of the Sessions Judge and we are convinced that the appreciation of the evidence of this witness appears to have been done with that caution in mind. It cannot be forgotten that it was this witness who took the deceased to the hospital and lodged the complaint barely within two hours of the incident. It is difficult to attribute to this witness the kind of intelligence to cook an imaginary story in such a short time. When we compare the evidence on the backdrop of the First Information Report, it is seen that there is hardly any departure from the story disclosed in the First Information Report. 19. Some criticism was made that he had stated in his complaint that at the time of the occurrence, the second appellant and other accused persons started obstructing the buses and other vehicles from approaching the occurrence spot. The learned Sessions Judge has taken note of that but, it must be remembered that that by itself cannot bring the cloud on the main story of murder of Radhakrishnan by as many as seven persons, the appellant being one among them. Very unfortunately, the learned Sessions Judge also used the statements recorded under Sec.161 of Crl.P.C. and has referred to it. It was not possible to use that statement in view of the specific bar under Sec.161(2) of the Code. It was also tried to be suggested that though the other accused person, viz. Jayaraman, who was acquitted, was having and wielding a cycle-chain, the cycle-chain was not recovered. We are not impressed by any such defence. The basic question is as to whether a group, consisting of about seven persons, of which the appellant was a member, had actually committed the assault and murder of Radhakrishnan or not. In his judgment, the learned Sessions Judge has given the benefit of doubt to the second accused, Jayaraman of the fact that he was not identified by the witness Sampath. In his judgment, the learned Sessions Judge has given the benefit of doubt to the second accused, Jayaraman of the fact that he was not identified by the witness Sampath. We have nothing to say regarding the acquittal of Jayaraman since the State has not come up in appeal against the acquittal of Jayaraman. But, we only say that the evidence of this witness has a ring of truth when he describes about the assault by about seven persons on Radhakrishnan. 20. As regards the present appellant, he has graphically described as to how the assault took place and stated that the present appellant assaulted on the neck portion of the deceased and there is a corroboration to this version inasmuch as there were as many as three injuries on the neck region of the deceased. If firstly seven persons came there, who were armed with lethal weapons, it was obvious that the assembly had the purpose to assault somebody. The accused persons could not be expected to parade on the main street being armed to the teeth. That they were in a group has not come in challenge at all. It is obvious that these persons were lying in wait for the deceased which is clear from the fact that Kozi Babu firstly approached the deceased and abused him filthily and then started assaulting. It is to be noted that out of the whole group, it was only Radhakrishnan who was targeted and assaulted. Butt of the assault, therefore, was Radhakrishnan alone. It is, therefore, obvious that a group of seven persons, who were armed with deadly weapons, had the object of assaulting Radhakrishnan and in pursuance of that Radhakrishnan was assaulted and murdered. There can be, therefore, no doubt that an unlawful assembly was formed there and in pursuance of the common object of that unlawful assembly, the members of that unlawful assembly assaulted Radhakrishnan and accomplished their object. We have, therefore, no doubt that this witness is a truthful witness. Though a brother, he has not unnecessarily exaggerated the scene and has graphically described the whole affair. 21. We have, therefore, no doubt that this witness is a truthful witness. Though a brother, he has not unnecessarily exaggerated the scene and has graphically described the whole affair. 21. Some effort was made in the cross-examination to take advantage that there may not be an opportunity to see the incident because of absence of light in the area but, that is obviously incorrect because the incident took place in a busy business area on Thiruvottiyur High Road in the city of Madras, with shops on both sides. It is, therefore, unthinkable that at 9.30 p.m. the whole area would be engulfed in darkness. This witness has also graphically described the description of the weapon handled by the present appellant and the manner in which it was done. There is sufficient corroboration for the same in the First Information Report. This brings us to the evidence of P.W. Baskaran. 22. There can be no doubt that P.W.2 Baskaran was declared hostile the moment he refused to state anything against the accused persons. It must be seen that in his evidence, the witness has specifically stated that on 22-5-1985, he along with P.W.1 Narayanan, deceased Radhakrishnan and Sampath was proceeding to their house, after closing the shop owned by Radhakrishnan. According to this witness, P.W.1 was walking about 20 feet ahead of him and at that time he saw Radhakrishnan, who was going ahead of him, was quarrelling with some persons. When the witness went near Radhakrishnan, he found that Radhakrishnan had already fallen having been assaulted by them. Though this witness has refused to state the manner in which Radhakrishnan was assaulted and the names of the assailants who assaulted Radhakrishnan, in his cross-examination on behalf of the prosecution, he has accepted that he had identified as many as about six to seven persons, whose names he gave in the evidence. Therefore, the witness though declared hostile, his whole evidence was not liable to be thrown out as was done by the learned Sessions Judge. In fact, the acceptable portion of the evidence of this witness would be that the witness has admitted that P.W.1 Narayanan and Sampath were on the spot and as such they were also witnesses to the assault on Radhakrishnan and that the incident took place exactly what P.W.1 deposed in his evidence. In fact, the acceptable portion of the evidence of this witness would be that the witness has admitted that P.W.1 Narayanan and Sampath were on the spot and as such they were also witnesses to the assault on Radhakrishnan and that the incident took place exactly what P.W.1 deposed in his evidence. The only difficulty was in respect of the number of persons who assaulted Radhakrishnan but even there, the witness stated that he had identified seven persons. 23. In the name of his cross-examination, a very strange procedure was observed in the Sessions Court. His whole statement using the words “and further” ( ) was put to him in one blow and he denied the whole statement as incorrect in one simple word. Such cannot be the way of recording the evidence. The learned Sessions Judge should have been careful in that behalf. Cross-examination of a hostile witness by the Prosecution is not an empty formality. We also express our consternation at the casual manner in which the cross-examination seems to have been done by the Public Prosecutor. The presiding officer is not expected to be a mute spectator. If the Public Prosecutor sought to put the whole statement in just one question using the words “and further” ( ), the learned Sessions Judge should have put an end to that and should have asked the Public Prosecutor to ask short but separate questions. It is obvious that the witness could have been confused because of the lengthy question which covers almost one full page. We therefore hold that this witness has provided corroboration to the evidence of P.W.1 at least in respect of the fact that Radhakrishnan was done away with at the spot stated by P.W.1 Narayanan and almost in the same manner. The admission that he had identified seven accused persons as the assailants of Radhakrishnan also goes a long way to support the theory of unlawful assembly. 24. Once the evidence of P.W.1 is accepted as the truthful evidence and duly corroborated by the evidence of P.W.2 Baskaran, there would be no other alternative but to hold that the accused was a member of an unlawful assembly, the object of which was to eliminate the deceased Radhakrishnan and in pursuance of that common object, he along with others did actually assault the deceased, causing his instantaneous death. We need not go into the other questions regarding the injuries as there is very little or no cross-examination of the doctor regarding the nature of the injuries suffered. We have already seen the evidence of P.W.7 Dr. Ravindran that there were three injuries which were ascribable to the assault with knife which has been deposed to by the witness. Those three injuries were injury nos.4 to 6. The handling of these injuries were obviously authored by the appellant-accused. The deceased had in all nineteen injuries, a number of which were caused by the sharp and cutting weapons. This will suggest the intention on the part of the accused as well as that of the members of the unlawful assembly. We have had in the evidence that once Kozi Babu started assaulting the deceased, the accused did not remain behind and started the assault. At the same time, the other accused persons were assaulting and few of them were trying that nobody should come near Radhakrishnan for being rescued. All this goes to suggest that the appellant was undoubtedly a member of the unlawful assembly and he would have to be held guilty for the acts committed by the members of the unlawful assembly or any one of them. Here, when the other persons were assaulting the deceased, the accused-appellant had also remained behind and had assaulted. Therefore, his conviction would have to be under Sec.302 I.P.C. read with Sec.149 I.P.C., which was also the one of the charges against him. We do not see any reason to convict the accused-appellant substantively for the offence under Sec.302 I.P.C. and we have given our reasons for that. The findings of the Sessions Judge in that behalf was clearly incorrect. This takes us to the conviction of the accused-appellant for the offence under Sec.148 I.P.C. 25. The accused-appellant was undoubtedly a member of the unlawful assembly and the unlawful assembly had committed the riot within the definition of the offence of “riot”. The accused-appellant, being a member of the unlawful assembly, armed with deadly weapons, would be squarely covered under Sec.148 I.P.C. We, therefore, confirm the conviction of the accused-appellant for the offence under Sec.148 I.P.C. also. 26. In the result, we would choose to dismiss the appeal, confirming the verdict of the Sessions Judge but for the reasons stated by us in this judgment.