{"id":237077,"date":"2002-12-11T00:00:00","date_gmt":"2002-12-10T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/welding-kumar-vs-inspector-of-police-on-11-december-2002"},"modified":"2014-05-12T09:56:56","modified_gmt":"2014-05-12T04:26:56","slug":"welding-kumar-vs-inspector-of-police-on-11-december-2002","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/welding-kumar-vs-inspector-of-police-on-11-december-2002","title":{"rendered":"Welding Kumar vs Inspector Of Police on 11 December, 2002"},"content":{"rendered":"<div class=\"docsource_main\">Madras High Court<\/div>\n<div class=\"doc_title\">Welding Kumar vs Inspector Of Police on 11 December, 2002<\/div>\n<pre>       \n\n  \n\n  \n\n \n \n IN  THE  HIGH  COURT  OF  JUDICATURE  AT  MADRAS\n\nDated: 11\/12\/2002\n\nCoram\n\nThe Honourable Mr. Justice V.S. SIRPURKAR\nand\nThe Honourable Mr. Justice P.D. DINAKARAN\n\nCrl. Appeal No.1024 of 1997\n\n\nWelding Kumar                          .....         Appellant\n\n-Vs-\n\nInspector of Police\nThiruvottiyur Police Station\nChennai                                 .....           Respondent\n\n\nAppeal under Sec.374(2) of the Crl.P.C.  against the\njudgment dated 25-11-1997 in S.C.  No.198 of 1998\non the file of I Addl.  Sessions Judge, Chennai\n\n!For Appellant          ::  Mr.  A.  Babu\n\n^For Respondent ::  Mr.  Navaneethakrishnan\n                   Addl.  Public Prosecutor\n\n\n:JUDGMENT\n<\/pre>\n<p>V.S.  SIRPURKAR, J.\n<\/p>\n<p>                This appeal is directed  against  the  finding  of  conviction<br \/>\nrecorded  by  the First Additional Sessions Judge, Chennai against the accused<br \/>\nKumar @ Welding Kumar and sentencing him to suffer rigourous imprisonment  for<br \/>\nlife for  the  offence  under  Sec.302  I.P.C.    as  also  one year rigourous<br \/>\nimprisonment for the offence under Sec.148 I.P.C.\n<\/p>\n<p>                2.  This case has a chequered history.  The  prosecution  case<br \/>\nwas that  on  22-5-1985,  the  original accused persons, viz.  Kumar @ Welding<br \/>\nKumar and Jayaraman, along with other  accused  persons,  formed  an  unlawful<br \/>\nassembly  with  a common object of assault and murder of one Radhakrishnan and<br \/>\nactually assaulted the said Radhakrishnan and committed his murder.  This  was<br \/>\nat about 9.30 p.m.  on 22-5-1985 on Thiruvottiyur High Road, coming within the<br \/>\njurisdiction of Thiruvottiyur Police Station.\n<\/p>\n<p>                3.   The  deceased  Radhakrishnan used to run liquor shops and<br \/>\nthere was enmity between the accused persons and the said Radhakrishnan out of<br \/>\nwhich, the said incident took place.  Originally as many as seven persons came<br \/>\nto be roped in on the basis of the First Information Report given by Narayanan<br \/>\n(P.W.1).  They were Babu @ Kozi Babu, Raja, Sampath, Vincent and Das.  It  was<br \/>\nreported  by  P.W.1,  immediately  after  the  incident that while he, Baskar,<br \/>\nRadhakrishnan (deceased) were returning to their house, three  known  persons,<br \/>\nviz.   Babu  @  Kozi  Babu, Raja, Welding Kumar and four other unknown persons<br \/>\ncame, waylaid Radhakrishnan and  abused  him  in  filthy  language.    He  was<br \/>\nconfronted  by Kozi Babu, who abusing him filthily and saying as to why he was<br \/>\ninterfering in the affairs of Kozi Babu.  Seeing that the accused persons were<br \/>\narmed to the teeth, Radhakrishnan  started  running  towards  the  Dhall  Mill<br \/>\nbelonging to  one  Prithiviraj.   However, Kozi Babu stabbed him with knife on<br \/>\nhis right and left chest while accused Raja stabbed on the right side  of  his<br \/>\nstomach and  on  the  left  side  of  the chest.  While so, Welding Kumar, the<br \/>\npresent appellant, stabbed Radhakrishnan repeatedly on his neck.   P.W.1  also<br \/>\npointed out  that  the  other  accused persons viz.  Jayaraman and others were<br \/>\narmed to the teeth and they stopped him and the other  persons  from  rescuing<br \/>\nRadhakrishnan.   Radhakrishnan  was  taken along with Sampath to the hospital.<br \/>\nHowever, he was declared dead in the hospital.  This First Information  Report<br \/>\nwas made at about 11 p.m.  on 22-5-1985.\n<\/p>\n<p>                4.    On   the   basis   of  the  complaint  given  by  P.W.1,<br \/>\ninvestigation proceeded.  The police party reached  the  spot,  executed  spot<br \/>\nmahazar, seizure  mahazar, etc.  and on the basis of the information, arrested<br \/>\nthe accused persons one by one.  Since in the First Information  Report,  some<br \/>\nunknown  persons  were  mentioned  as  the assailants, after the arrest of the<br \/>\naccused persons, an identification parade was held in the jail by the Judicial<br \/>\nMagistrate and this was held on 26-6-1985.\n<\/p>\n<p>                5.  On completion of the investigation, charge sheet  came  to<br \/>\nbe filed as against the seven persons named above.  However, before the charge<br \/>\nwas  framed, accused Sampath died while accused Babu @ Kozi Babu was murdered.<br \/>\nAccused Raja, Vincent and Dhass absconded during the trial.    Thus  only  two<br \/>\naccused persons  remained  in  the  field.    They  being  Welding  Kumar  and<br \/>\nJayaraman.  They were charged for the offences under Secs.148,  302  and  147,<br \/>\n302 read  with  Sec.149  I.P.C.    Needless to say that the trial of the other<br \/>\naccused persons  was  separated  from  the  presently  mentioned  two  accused<br \/>\npersons.\n<\/p>\n<p>                6.  In support of the prosecution case, the prosecution relied<br \/>\non  the  evidence  of P.W.1 Narayanan, who is one other but the brother of the<br \/>\ndeceased Radhakrishnan.  P.W.2 Baskaran was also examined as  an  eye-witness.<br \/>\nHowever, he turned hostile.\n<\/p>\n<p>                7.  The  defence  of  the  accused was that of denial.  It was<br \/>\nsuggested by the accused that there were number of  enemies  to  the  deceased<br \/>\nRadhakrishnan on account of the liquor business that he was running and it was<br \/>\nout of  that  business rivalry that some one must have murdered him.  However,<br \/>\nthe prosecution had failed to prove by sufficient and cogent evidence that the<br \/>\ntwo accused persons, viz.  Welding Kumar and Jayaraman had anything to do with<br \/>\nit.\n<\/p>\n<p>                8.  The defence did not prevail and the first accused  Welding<br \/>\nKumar  was  convicted and sentenced to undergo rigourous imprisonment for life<br \/>\nfor the offence under Sec.302 I.P.C.  and was also awarded one year  rigourous<br \/>\nimprisonment for  the  offence  under  Sec.148  I.P.C.    The  second  accused<br \/>\nJayaraman was, however, acquitted.  It is against this verdict that the  first<br \/>\naccused Welding Kumar comes up before us by way of the present appeal.\n<\/p>\n<p>                9.   Learned  counsel  for  the appellant contended that it is<br \/>\nwithin a very narrow conspectus that the  prosecution  case  lies.    However,<br \/>\naccording  to  him, the evidence of P.W.1 was slipshod, full of contradictions<br \/>\nand omissions and there was every possibility of his having deposed out of his<br \/>\nloyalty for his brother.    According  to  the  learned  counsel,  he  was  an<br \/>\n\u201cinterested witness\u201d.  As regards the evidence of P.  W.2, the learned counsel<br \/>\npointed out that since he was a hostile witness, his evidence was liable to be<br \/>\nthrown out  and  was  rightly  thrown  out  by  the  trial court.  The learned<br \/>\ncounsel, however, pointed out that it was extremely risky on the part  of  the<br \/>\nlearned  Sessions Judge to have convicted the accused practically on the basis<br \/>\nof the evidence sole eye-witness.\n<\/p>\n<p>                10.  The learned counsel  further  contended  that  there  was<br \/>\ninsufficient material for convicting the appellant for the substantive offence<br \/>\nunder Sec.302  I.P.C.    as there was nothing on record to suggest that it was<br \/>\nthe result of the injuries allegedly caused by the accused Welding Kumar  that<br \/>\nRadhakrishnan died.  Learned counsel was at pains to point out that the Doctor<br \/>\nhad  deposed  that the death was caused on account of the cumulative effect of<br \/>\nthe injuries suffered by Radhakrishnan and in fact Radhakrishnan had  suffered<\/p>\n<p>as many  as  19  injuries  which  were  of  very  serious nature.  The learned<br \/>\ncounsel, therefore, urged that the trial court should have given  the  benefit<br \/>\nof doubt to the present appellant also.\n<\/p>\n<p>                11.   In  so  far  as  the identification parade is concerned,<br \/>\nlearned counsel did not address us.\n<\/p>\n<p>                12.  It has to be now considered as to whether the prosecution<br \/>\nhas proved the offence and whether the finding of conviction is right.\n<\/p>\n<p>                13.  To begin, we are extremely unhappy  with  the  manner  in<br \/>\nwhich the  charge  is  framed.   It is very strange that there should not have<br \/>\nbeen a properly worded  charge  in  respect  of  the  formation  of  \u201cunlawful<br \/>\nassembly\u201d and  its  \u201ccommon  object\u201d.  The charge in all is under three heads.<br \/>\nThey being, firstly for the offence under Sec.148; secondly, for  the  offence<br \/>\nunder  Sec.302,  which  is  subst  antively  against the appellant herein; and<br \/>\nthirdly, for the offence under Sec.302 I.P.C.  read with Sec.149 I.P.C., which<br \/>\nis against both the accused persons along with some known persons viz.   Raja,<br \/>\nVincent, Dhas, Sampath,  etc.    and  some  unknown  persons.  In fact, if the<br \/>\ncharge sheet is properly scanned, it will be seen that this  was  a  fit  case<br \/>\nwhere a  charge  under  Sec.34  also  could have been framed.  When we see the<br \/>\nlanguage of the second head of the charge, it is obvious that the term \u201ccommon<br \/>\nobject\u201d ( ).  The accused persons should have been put to the notice that they<br \/>\nwere the members of the \u201cunlawful assembly\u201d, the \u201c common object\u201d of which was<br \/>\nto murder Radhakrishnan and in furtherance  of  the  common  object  they  had<br \/>\nactually murdered  Radhakrishnan.    We are not at all happy with the slipshod<br \/>\nmanner in which the charge was framed.  However, it is obvious that  there  is<br \/>\nno  complaint  made  against  the  charge  and  the  accused  have all through<br \/>\nunderstood properly the prosecution case and the charge which was sought to be<br \/>\nproved against them.  It is really strange that  even  the  Public  Prosecutor<br \/>\nshould  have  remained  a  mute  spectator  and  should not have suggested the<br \/>\nproperly worded charge.\n<\/p>\n<p>                14.  To add to the list of irregularities, it is very  strange<br \/>\nthat  the  learned  Sessions  Judge  should  have  failed  to record a finding<br \/>\nregarding the formation of unlawful assembly.  In  a  prosecution,  where  the<br \/>\naccused  persons  are alleged to be the members of an unlawful assembly, it is<br \/>\nrequired of the trial court to give a finding regarding the  formation  of  an<br \/>\nunlawful  assembly  of which the accused persons were members; the reasons and<br \/>\nthe point of time when the said assembly becomes unlawful; the object of  that<br \/>\nassembly;  and  lastly,  the  acts  committed  by  the members of the unlawful<br \/>\nassembly.  It cannot be forgotten that the accused persons, who are sought  to<br \/>\nbe roped  in  with the aid of Sec.149, are made vicariously liable.  It is not<br \/>\nnecessary that every member of the  unlawful  assembly  must  have  done  some<br \/>\ncriminal act.   If he is and remains conscientiously the member of an unlawful<br \/>\nassembly then, even if he has not committed any overt act, he  becomes  liable<br \/>\nfor  the  criminal  acts  done by any of the members of the unlawful assembly,<br \/>\nwhich has the common object of  committing  an  offence.    When  we  see  the<br \/>\njudgment, at no point of time has the learned Sessions Judge given any finding<br \/>\nregarding the  formation  of  unlawful  assembly.   Though the trial court has<br \/>\nconvicted the accused for an offence under Sec.148  which  offence  can  never<br \/>\nbecome  complete  unless  and  until  the  accused  is  member  of an unlawful<br \/>\nassembly.  A conviction cannot be recorded for an  offence  under  Sec.148  or<br \/>\nSec.149 unless there is a finding of there being any unlawful assembly.  It is<br \/>\nstrange,  therefore, that the learned sessions judge should not have given any<br \/>\nfinding in respect of the formation of unlawful assembly.  At least,  we  have<br \/>\nnot been able to find out any such finding in the judgment.\n<\/p>\n<p>                15.   The  trial  court  has  convicted  the  appellant of the<br \/>\nsubstantive offence under Sec.302 I.P.C.  It  will  have  to  be  seen  as  to<br \/>\nwhether this  conviction  is  right.   The Sessions Judge has proceeded on the<br \/>\nground that it was proved that the accused\/appellant inflicted three  injuries<br \/>\non the  neck  of the deceased.  The existence of those three injuries has also<br \/>\nheld to have been proved by the evidence of the Doctor.  It is on  this  short<br \/>\nbasis  that  the  Sessions Judge has proceeded to convict the accused straight<br \/>\naway holding those injuries were covered by \u201cthirdly\u201d of Sec.300  I.P.C.    In<br \/>\nfact, when  we  see the evidence of the Doctor, there is no such evidence.  On<br \/>\nthe other hand, the evidence suggests that the death of Radhakrishnan was  due<br \/>\nto the cumulative effect of all the injuries suffered by him.  In our opinion,<br \/>\nthere  could  not  have  been a substantive conviction unless and until it was<br \/>\nproved that these injuries individually were also fatal.  Indeed, such finding<br \/>\nis also wanting.  Since we are in appeal, we will  have  to  now  take  up  an<br \/>\nexercise  of  scanning  and  appreciating the evidence and then find out as to<br \/>\nwhether the accused\/appellant can be  held  guilty  of  any  of  the  offences<br \/>\ncharged.   We,  therefore, agree with the learned counsel for the defence that<br \/>\nthe accused could not have been convicted for the  substantive  offence  under<br \/>\nSec.302 I.P.C.  However, that does not solve the problem.\n<\/p>\n<p>                16.   It cannot be forgotten that all the accused persons were<br \/>\nproperly charged with the aid of Sec.302 I.P.C.    branding  them  to  be  the<br \/>\nmembers  of  the  unlawful assembly with the unlawful object of committing the<br \/>\nassault and murder of Radhakrishnan.  They have  also  been  charged  that  in<br \/>\npursuance of that they had actually committed the murder of Radhakrishnan and,<br \/>\ntherefore,  all  the accused persons were guilty for the offence under Sec.302<br \/>\nread with Sec.149 I.P.C.  It has to be seen,  therefore,  as  to  whether  the<br \/>\naccused  can  be  straight  away  acquitted  or  can  be  dealt with as is the<br \/>\ncontention of the Public Prosecutor.  His  contention  is  that  even  if  the<br \/>\naccused  cannot  be  convicted  substantively for an offence under Sec.302, he<br \/>\ncould still be booked with the aid of Sec.149 I.P.C., for which  there  was  a<br \/>\nproper charge  against  him.    For  this  purpose,  we  will have to scan the<br \/>\nevidence of the two eye-witnesses, viz.  P.W.1 Narayanan and P.W.2 Baskaran.\n<\/p>\n<p>                17.  In his evidence, P.W.1 Narayanan has  graphically  stated<br \/>\nthat  on  the  fateful  day,  at  about  9.15  p.m., he along with his brother<br \/>\nRadhakrishnan, Sampath and Baskar were proceeding to their house after closing<br \/>\nthe shop.  He then deposes that when they came near  Thirunagar,  as  many  as<br \/>\nseven  persons,  who  were armed with deadly weapons like aruval, knives, etc.<br \/>\nimmediately came and firstly filthily abused Radhakrishnan,  who  was  walking<br \/>\nahead of him.  There can be no dispute and it was not really challenged in the<br \/>\ncross-examination that the deceased Radhakrishnan had a shop in a place called<br \/>\nThirunagar at  Thiruvottiyur.   It would be very natural for the witness to be<br \/>\nalong with his brother and two others.  Some doubt was tried to be thrown that<br \/>\nthere was no necessity for these persons to go to the bus-stand to go to their<br \/>\nhouse by bus as the deceased Radhakrishnan owned a car as also a jeep.  Merely<br \/>\nbecause the deceased owned a car and a  jeep,  it  would  not  mean  that  the<br \/>\ndeceased was  not  present near the place where he was done away with.  It has<br \/>\nbeen amply proved that the attack took place precisely at the place where  the<br \/>\nwitness claimed the same to be.  The spot mahazar stands testimony to this.\n<\/p>\n<p>                18.   Be  that  as it may, the witness then goes on to suggest<br \/>\nthat all the seven assailants were together and were armed and after Kozi Babu<br \/>\nfirstly  filthily  abused  the  deceased  Radhakrishnan,  they   all   started<br \/>\nassaulting the deceased, the first amongst the assailants was being Kozi Babu.<br \/>\nThe  witness  knew the names and identity of only three assailants and did not<br \/>\nknow the names of the other assailants.   Therefore,  he  had  stated  in  his<br \/>\nevidence  as well as in the First Information Report that three known persons,<br \/>\nviz.  Kozi Babu, Raja and Welding Kumar and four  some  other  persons,  whose<br \/>\nnames were  not  known to him, assaulted his brother Radhakrishnan.  There was<br \/>\nno cross-examination of the witness on  this  very  important  aspect.    This<br \/>\nwitness had  later  on identified the remaining accused persons.  The only use<br \/>\nthat can be made of the identification parade is that as per the  evidence  of<br \/>\nthis witness, there were more than five persons involved in the incident.  The<br \/>\nnames  and  identity of three of them being known to the witness, the names of<br \/>\nthe other persons were not known but their identity was known to this witness.<br \/>\nBefore us as also before  the  Sessions  Judge,  the  evidence  regarding  the<br \/>\nidentification  parade  was  hardly  challenged by way of cross-examination or<br \/>\notherwise.  Perhaps, because it was felt that these  two  witnesses  were  not<br \/>\nconcerned with  the  identification.    However,  the fact remains that if the<br \/>\nidentification parade evidence is not challenged, the fact that  this  witness<br \/>\nidentified  about  three  more persons as the assailants of Radhakrishnan also<br \/>\nestablishes the fact that at the spot there were more than  five  persons  and<br \/>\nthus  it was a clear-cut unlawful assembly, the object of which was to assault<br \/>\nand murder Radhakrishnan.  Unfortunately, the learned Sessions Judge  has  not<br \/>\npaid any attention to this very important aspect.  It was for this reason that<br \/>\nit was important for him to have written a finding of unlawful assembly.  This<br \/>\nwitness  was  then  brave  enough to try to save his brother Radhakrishnan but<br \/>\ndeposed that he was stopped by the  other  accused  persons.    All  this  has<br \/>\npractically   gone   unchallenged  in  the  cross-examination  and  some  wild<br \/>\nsuggestions  have  been  thrown  at  the  witness  that  in  fact   the   said<br \/>\nRadhakrishnan was  assaulted somewhere and was murdered by some one else.  One<br \/>\nfails to understand as to why would this witness be interested in  naming  the<br \/>\naccused  persons  and more particularly the appellant herein as the assailants<br \/>\nof his brother Radhakrishnan.  It was tried to be suggested that he being  the<br \/>\nbrother of the deceased Radhakrishnan, his evidence has to be appreciated with<br \/>\nthat caution  in  mind.    We  have  seen the appreciation of evidence of this<br \/>\nwitness on the part of the Sessions  Judge  and  we  are  convinced  that  the<br \/>\nappreciation  of  the  evidence of this witness appears to have been done with<br \/>\nthat caution in mind.  It cannot be forgotten that it  was  this  witness  who<br \/>\ntook  the  deceased to the hospital and lodged the complaint barely within two<br \/>\nhours of the incident.  It is difficult to attribute to this witness the  kind<br \/>\nof intelligence  to  cook  an  imaginary  story in such a short time.  When we<br \/>\ncompare the evidence on the backdrop of the First Information  Report,  it  is<br \/>\nseen  that there is hardly any departure from the story disclosed in the First<br \/>\nInformation Report.\n<\/p>\n<p>                19.  Some criticism  was  made  that  he  had  stated  in  his<br \/>\ncomplaint  that  at the time of the occurrence, the second appellant and other<br \/>\naccused  persons  started  obstructing  the  buses  and  other  vehicles  from<br \/>\napproaching the occurrence spot.  The learned Sessions Judge has taken note of<br \/>\nthat  but, it must be remembered that that by itself cannot bring the cloud on<br \/>\nthe main story of murder of Radhakrishnan by as many  as  seven  persons,  the<br \/>\nappellant being  one  among  them.    Very unfortunately, the learned Sessions<br \/>\nJudge also used the statements recorded under Sec.161 of  Crl.P.C.    and  has<br \/>\nreferred to  it.    It  was  not possible to use that statement in view of the<br \/>\nspecific bar under Sec.161(2) of the Code.  It was also tried to be  suggested<br \/>\nthat though  the other accused person, viz.  Jayaraman, who was acquitted, was<br \/>\nhaving and wielding a cycle-chain, the cycle-chain was not recovered.  We  are<br \/>\nnot impressed  by  any  such  defence.   The basic question is as to whether a<br \/>\ngroup, consisting of about seven persons, of which the appellant was a member,<br \/>\nhad actually committed the assault and murder of Radhakrishnan or not.  In his<br \/>\njudgment, the learned Sessions Judge has given the benefit  of  doubt  to  the<br \/>\nsecond  accused,  Jayaraman  of  the  fact  that  he was not identified by the<br \/>\nwitness Sampath.  We have nothing to say regarding the acquittal of  Jayaraman<br \/>\nsince  the State has not come up in appeal against the acquittal of Jayaraman.<br \/>\nBut, we only say that the evidence of this witness has a ring of truth when he<br \/>\ndescribes about the assault by about seven persons on Radhakrishnan.\n<\/p>\n<p>                20.  As regards the  present  appellant,  he  has  graphically<br \/>\ndescribed  as  to  how  the  assault  took  place  and stated that the present<br \/>\nappellant assaulted on the neck  portion  of  the  deceased  and  there  is  a<br \/>\ncorroboration to this version inasmuch as there were as many as three injuries<br \/>\non the  neck region of the deceased.  If firstly seven persons came there, who<br \/>\nwere armed with lethal weapons, it was  obvious  that  the  assembly  had  the<br \/>\npurpose to  assault  somebody.    The accused persons could not be expected to<br \/>\nparade on the main street being armed to the teeth.  That they were in a group<br \/>\nhas not come in challenge at all.  It is obvious that these persons were lying<br \/>\nin wait for the deceased which is clear from the fact that Kozi  Babu  firstly<br \/>\napproached  the  deceased and abused him filthily and then started assaulting.<br \/>\nIt is to be noted that out of the whole group, it was only  Radhakrishnan  who<br \/>\nwas targeted and assaulted.  Butt of the assault, therefore, was Radhakrishnan<br \/>\nalone.   It  is,  therefore,  obvious  that a group of seven persons, who were<br \/>\narmed with deadly weapons, had the object of assaulting Radhakrishnan  and  in<br \/>\npursuance of  that  Radhakrishnan  was  assaulted and murdered.  There can be,<br \/>\ntherefore, no doubt  that  an  unlawful  assembly  was  formed  there  and  in<br \/>\npursuance  of the common object of that unlawful assembly, the members of that<br \/>\nunlawful assembly assaulted Radhakrishnan and accomplished their object.    We<\/p>\n<p>have, therefore,  no  doubt that this witness is a truthful witness.  Though a<br \/>\nbrother, he has not unnecessarily exaggerated the scene  and  has  graphically<br \/>\ndescribed the whole affair.\n<\/p>\n<p>                21.   Some  effort  was  made in the cross-examination to take<br \/>\nadvantage that there may not be an opportunity to see the incident because  of<br \/>\nabsence  of  light  in  the  area but, that is obviously incorrect because the<br \/>\nincident took place in a busy business area on Thiruvottiyur High Road in  the<br \/>\ncity of  Madras, with shops on both sides.  It is, therefore, unthinkable that<br \/>\nat 9.30 p.m.  the whole area would be engulfed in darkness.  This witness  has<br \/>\nalso  graphically  described  the  description  of  the  weapon handled by the<br \/>\npresent appellant and the manner in which it was done.   There  is  sufficient<br \/>\ncorroboration for the same in the First Information Report.  This brings us to<br \/>\nthe evidence of P.W.  Baskaran.\n<\/p>\n<p>                22.   There  can  be no doubt that P.W.2 Baskaran was declared<br \/>\nhostile the moment he refused to state anything against the  accused  persons.<br \/>\nIt must be seen that in his evidence, the witness has specifically stated that<br \/>\non  22-5-1985,  he  along  with  P.W.1  Narayanan,  deceased Radhakrishnan and<br \/>\nSampath was proceeding to  their  house,  after  closing  the  shop  owned  by<br \/>\nRadhakrishnan.   According  to  this  witness, P.W.1 was walking about 20 feet<br \/>\nahead of him and at that time he saw Radhakrishnan, who  was  going  ahead  of<br \/>\nhim, was   quarrelling  with  some  persons.    When  the  witness  went  near<br \/>\nRadhakrishnan, he found that Radhakrishnan  had  already  fallen  having  been<br \/>\nassaulted by  them.    Though  this witness has refused to state the manner in<br \/>\nwhich Radhakrishnan  was  assaulted  and  the  names  of  the  assailants  who<br \/>\nassaulted   Radhakrishnan,   in   his   cross-examination  on  behalf  of  the<br \/>\nprosecution, he has accepted that he had identified as many as  about  six  to<br \/>\nseven persons,  whose  names  he gave in the evidence.  Therefore, the witness<br \/>\nthough declared hostile, his whole evidence was not liable to be thrown out as<br \/>\nwas done by the learned Sessions Judge.  In fact, the  acceptable  portion  of<br \/>\nthe evidence of this witness would be that the witness has admitted that P.W.1<br \/>\nNarayanan and Sampath were on the spot and as such they were also witnesses to<br \/>\nthe  assault  on  Radhakrishnan  and that the incident took place exactly what<br \/>\nP.W.1 deposed in his evidence.  The only difficulty  was  in  respect  of  the<br \/>\nnumber  of  persons  who  assaulted  Radhakrishnan but even there, the witness<br \/>\nstated that he had identified seven persons.\n<\/p>\n<p>                23.  In the name of  his  cross-examination,  a  very  strange<br \/>\nprocedure was  observed  in the Sessions Court.  His whole statement using the<br \/>\nwords \u201cand further\u201d ( ) was put to him in one blow and  he  denied  the  whole<br \/>\nstatement as  incorrect  in  one  simple  word.    Such  cannot  be the way of<br \/>\nrecording the evidence.  The learned Sessions Judge should have  been  careful<br \/>\nin that  behalf.  Cross-examination of a hostile witness by the Prosecution is<br \/>\nnot an empty formality.  We also  express  our  consternation  at  the  casual<br \/>\nmanner  in  which  the  crossexamination seems to have been done by the Public<br \/>\nProsecutor.  The presiding officer is not expected to be a mute spectator.  If<br \/>\nthe Public Prosecutor sought to put the whole statement in just  one  question<br \/>\nusing  the words \u201cand further\u201d ( ), the learned Sessions Judge should have put<br \/>\nan end to that and should have asked the Public Prosecutor to  ask  short  but<br \/>\nseparate questions.    It is obvious that the witness could have been confused<br \/>\nbecause of the lengthy question  which  covers  almost  one  full  page.    We<br \/>\ntherefore hold that this witness has provided corroboration to the evidence of<br \/>\nP.W.1 at least in respect of the fact that Radhakrishnan was done away with at<br \/>\nthe spot  stated  by  P.W.1  Narayanan  and  almost  in  the same manner.  The<br \/>\nadmission that he had identified seven accused persons as  the  assailants  of<br \/>\nRadhakrishnan also goes a long way to support the theory of unlawful assembly.\n<\/p>\n<p>                24.   Once  the  evidence of P.W.1 is accepted as the truthful<br \/>\nevidence and duly corroborated by the evidence of P.W.2 Baskaran, there  would<br \/>\nbe  no  other  alternative  but  to  hold  that the accused was a member of an<br \/>\nunlawful  assembly,  the  object  of  which  was  to  eliminate  the  deceased<br \/>\nRadhakrishnan and in pursuance of that common object, he along with others did<br \/>\nactually assault  the  deceased, causing his instantaneous death.  We need not<br \/>\ngo into the other questions regarding the injuries as there is very little  or<br \/>\nno  cross-examination  of  the  doctor  regarding  the  nature of the injuries<br \/>\nsuffered.  We have already seen the evidence of  P.W.7  Dr.    Ravindran  that<br \/>\nthere  were  three  injuries  which  were ascribable to the assault with knife<br \/>\nwhich has been deposed to by the witness.  Those three  injuries  were  injury<br \/>\nnos.4 to  6.    The  handling of these injuries were obviously authored by the<br \/>\nappellantaccused.  The deceased had in all  nineteen  injuries,  a  number  of<br \/>\nwhich were  caused  by  the  sharp and cutting weapons.  This will suggest the<br \/>\nintention on the part of the accused as well as that of  the  members  of  the<br \/>\nunlawful assembly.    We  have had in the evidence that once Kozi Babu started<br \/>\nassaulting the deceased, the accused did not remain  behind  and  started  the<br \/>\nassault.   At the same time, the other accused persons were assaulting and few<br \/>\nof them were trying that nobody  should  come  near  Radhakrishnan  for  being<br \/>\nrescued.  All this goes to suggest that the appellant was undoubtedly a member<br \/>\nof  the  unlawful  assembly  and  he would have to be held guilty for the acts<br \/>\ncommitted by the members of the unlawful assembly or any one of them.    Here,<br \/>\nwhen the other persons were assaulting the deceased, the accused-appellant had<br \/>\nalso remained  behind and had assaulted.  Therefore, his conviction would have<br \/>\nto be under Sec.302 I.P.C.  read with Sec.149 I.P.C., which was also  the  one<br \/>\nof the  charges  against  him.    We  do  not  see  any  reason to convict the<br \/>\naccused-appellant substantively for the offence under Sec.302 I.P.C.   and  we<br \/>\nhave given  our  reasons for that.  The findings of the Sessions Judge in that<br \/>\nbehalf was clearly incorrect.    This  takes  us  to  the  conviction  of  the<br \/>\naccused-appellant for the offence under Sec.148 I.P.C.\n<\/p>\n<p>                25.   The  accused-appellant  was  undoubtedly a member of the<br \/>\nunlawful assembly and the unlawful assembly had committed the riot within  the<br \/>\ndefinition of the offence of \u201criot\u201d.  The accused-appellant, being a member of<br \/>\nthe  unlawful  assembly,  armed with deadly weapons, would be squarely covered<br \/>\nunder Sec.148  I.P.C.    We,  therefore,  confirm  the   conviction   of   the<br \/>\naccused-appellant for the offence under Sec.148 I.P.  C.  also.\n<\/p>\n<p>                26.   In  the  result,  we would choose to dismiss the appeal,<br \/>\nconfirming the verdict of the Sessions Judge but for the reasons stated by  us<br \/>\nin this judgment.\n<\/p>\n<p>Index:Yes<br \/>\nWebsite:Yes<\/p>\n<p>Jai<\/p>\n","protected":false},"excerpt":{"rendered":"<p>Madras High Court Welding Kumar vs Inspector Of Police on 11 December, 2002 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 &#8230;.. Appellant -Vs- Inspector of Police Thiruvottiyur Police Station Chennai &#8230;.. [&hellip;]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[8,13],"tags":[],"class_list":["post-237077","post","type-post","status-publish","format-standard","hentry","category-high-court","category-madras-high-court"],"yoast_head":"<!-- This site is optimized with the Yoast SEO plugin v27.3 - https:\/\/yoast.com\/product\/yoast-seo-wordpress\/ -->\n<title>Welding Kumar vs Inspector Of Police on 11 December, 2002 - Free Judgements of Supreme Court &amp; High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/welding-kumar-vs-inspector-of-police-on-11-december-2002\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Welding Kumar vs Inspector Of Police on 11 December, 2002 - Free Judgements of Supreme Court &amp; 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