Supreme Court of India
Antony Alias Appachan vs State Of Kerala on 8 March, 1995
Equivalent citations: AIR1995SC2450, 1995CRILJ4166, AIR 1995 SUPREME COURT 2450, 1995 AIR SCW 3617, 1995 AIR SCW 3618, 1995 AIR SCW 3616, 1997 SCC(CRI) 632, 1996 APLJ(CRI) 145
Author: Madan Mohan Punchhi
Bench: Madan Mohan Punchhi
JUDGMENT
1. The victim of the crime stands believed in so far as the appellant is concerned not only by the trial Court but the High Court too, to the effect that he initiated the occurrence and the dagger blow given by him cut off the right wrist of the victim. In the incident, the victim suffered seven more injuries and the spread out as such was shared by the appellant as also A-2 and A-8. These three assailants were part of the ten who otherwise were present and played their respective parts in commission of the crime.
2. The trial Court considered that the evidence of the victim needed to be scrutinised closely because the motive of the crime was political rivalry; the side of the accused being of the Marxist party. By a process of reasoning, the trial Court disbelieved PW-2, PW-4 and PW-5, the eye-witnesses of the crime, but finally tilted, in accepting the evidence of the victim, and loaded the appellant with a presumption that he had caused to the victim all the eight injuries; the other accused having been added because of political rivalry. It is on that basis that the appellant was convicted under Section 307 I.P.C. and sentenced to five years R.I.
3. In the Court of Session, the appellant was successful in obtaining a verdict of acquittal on the basis that when PW-2, P-4 and P-5 had been disbelieved by the trial Court, the victim too needed to be disbelieved in the same strain. It is the acquittal of the other nine accused and more particularly that of A-2 and A-8 which was responsible for such finding. On further appeal by the State, the High Court restored the order of the trial Court demolishing the reasoning of the Court of Session. It is in this manner that the present appeal is before us.
4. In dealing with this matter, we would rather shed all the surplus on all fronts be it the pack of the remaining accused or the pack of eye-witnesses. The word of the victim stands singular and apart which is to the effect that the injury whereby his wrist was cut off. was the first one and caused by the appellant. The error of the trial Court that presumptively all the eight injuries were caused by the appellant on the victim is sought to be encashed upon by the learned Counsel seeking restoration of the order of the Court of Session but to no avail. The trial Court committed an error though, in culling out a case totally untuned with the prosecution version or that of the defence. The Court of Session overlooked the factor that the victim could never have substituted the appellant who had dismembered his most important limb - being his right hand. In this state of affairs there was no option for the High Court but to upset the Court of Session and to record conviction of the appellant even though an appeal against acquittal preferred by the State against the remaining accused stood dismissed right at the initiation. We thus have no hesitation in coming to the conclusion that the appellant was rightly convicted and sentenced by the High Court.
5. It is then urged that the offence of the appellant fell under Section 326, I.P.C. and not under Section 307, I.P.C. The victim has narrated that when he was accosted and exhortation raised to finish him and a blow was raised towards him by the appellant, he cried out that he should not be killed and. at the same time, raised his right arm to ward off the blow which, on falling, instantaneously severed his hand. The severity of the blow speaks for itself. The damage done has its own story to tell. Had the hand not been raised in a bid to defend the aim was the head of the victim. The blow thus aimed would have clearly spelled out the murderous intent of the appellant. It is from that angle the guilt of the appellant needs to be viewed rather than the result achieved. In any case, it would be an academic exercise if the matter is pressed any further, for even under Section 326, I.P.C., a sentence of five years is imposable.
6. For the foregoing reasons, we find no merit in this appeal and the same is accordingly dismissed.