IN THE HIGH COURT OF JUDICATURE AT MADRAS
Dated: 11/12/2002
Coram
The Honourable Mr. Justice V.S. SIRPURKAR
and
The Honourable Mr. Justice P.D. DINAKARAN
Crl. Appeal No.1024 of 1997
Welding Kumar ..... Appellant
-Vs-
Inspector of Police
Thiruvottiyur Police Station
Chennai ..... Respondent
Appeal under Sec.374(2) of the Crl.P.C. against the
judgment dated 25-11-1997 in S.C. No.198 of 1998
on the file of I Addl. Sessions Judge, Chennai
!For Appellant :: Mr. A. Babu
^For Respondent :: Mr. Navaneethakrishnan
Addl. Public Prosecutor
:JUDGMENT
V.S. SIRPURKAR, J.
This appeal is directed against the finding of conviction
recorded by the First 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. 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. 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. 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 subst antively 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. 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. 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. 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. 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. 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. 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. 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. 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 crossexamination 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
appellantaccused. 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.
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