Andhra Pradesh High Court - Amravati

Komara Gandhi vs The State Of Andhra Pradesh on 5 May, 2022

           HIGH COURT OF ANDHRA PRADESH AT AMARAVATI
          THE HON'BLE Mr. JUSTICE AHSANUDDIN AMANULLAH
                                   AND
          THE HON'BLE Mr. JUSTICE G. RAMAKRISHNA PRASAD


                   CRIMINAL APPEAL NO.669 OF 2019

Komara Gandhi,
S/o Sanyasi, aged about 27 years,
Convict Prisoner C.T.No.3586,
C/o Komara Koralayya, Paidorapeta,
Visakhapatnam, N/o Kotturu Village,
Chintapalli Panchayati,
Pusapatirega Mandal,
Visakhapatnam District.                    ... Appellant/Accused


                                  Versus

The State of Andhra Pradesh
Rep. by its Public Prosecutor,
High Court Judicature of Andhra Pradesh
at Amaravathi.                               ...Respondent/

Complainant

Counsel for the Appellant/Accused : Ms. Ammaji Nettem, Legal aid counsel.

Counsel for the Respondent/
                Complainant                : Mr. S. Dushyanth Reddy,
                                             Addl. Public Prosecutor

                            ORAL JUDGMENT
                            Date: 05.05.2022


              (Per Hon'ble Mr. Justice G. Ramakrishna Prasad)

The present criminal appeal is filed by the sole accused challenging

the judgment dated 07.12.2016 in S.C.No.155 of 2012 passed by the

learned 1st Additional Metropolitan Sessions Judge, Visakhapatnam.

2. Murder took place between 4.15 p.m and 4.30 p.m on

18.07.2012 at Jetty Nos.9 and 10, fishing harbor, Visakhapatnam City.

Name of the deceased is one Kesam Seethayya (hereafter referred to as

„the deceased‟). The case of the prosecution is that the sole accused

had stabbed the deceased with a knife after he had a spat with the

deceased.

3. The story of the prosecution, in short, is as follows:

That the deceased and accused along with few other workers were

employed under the owner of the boat by name Mylapalli Masenu (PW.7).

That, there were differences between the accused and the deceased to

such an extent that the deceased was even planning to leave the present

employment and to look out for other suitable employment; that on the

fateful day, the accused came to the house of the deceased and both of

them went for work at about 1.00 p.m. That, at about 4.30 p.m, the wife

of the deceased Kesam Ammoru was informed that her husband received

a stab injury and died while he was being taken to KGH in an auto

rickshaw.

4. PW.1, Barri Konda is the eye witness. PW.1 was working as

watchman of the boat owned by PW.7 in the fishing harbor as on the

date of the alleged incident. He deposed that prior to the incident he

worked as cook in the boat owned by PW.7. He deposed that he knows

the deceased and the accused and that the offence took place on

18.07.2012 after 4.30 p.m. That, the incident happened after a spat

between the deceased and the accused relating to the fish. The accused

fled away and the driver of the boat Laxmana (PW.3) and Appanna (PW.4)

lifted the deceased and put him in an auto rickshaw to take him the

hospital. He also deposed that he was later informed that the deceased

succumbed due to stab injury enroute to KGH. In the cross examination,

the said witness stated that he is an illiterate and he had not met either

the police or the defacto complainant before coming to the Court hall. He

further stated that he straight away came to the Court.

5. As could be seen from the deposition of PW.1, it appears that

defence could not elicit anything to its advantage nor was able to throw

doubt about the evidentiary value of the witness by pointing out any

animosity or predilection against the accused nor any overbearing

relationship between him and the deceased. The said witness had stated

that he had witnessed the entire incident from a stone throw distance

including the spat and the subsequent aggressive action of the accused

including stabbing.

6. While the prosecution examined 13 witness on its behalf out of

22 listed witness, it had produced Exhibits P.1 to P.9 along with one

material object (M.O.1) namely knife.

7. PW.2, Kesam Ammoru, wife of the deceased deposed to the effect

that there was a dispute and altercation between the accused and her

husband (the deceased) relating to fish and that her husband expressed

his intention not to attend to work on the boat. She also deposed that at

her request, her husband went out for work along with the accused at

about 1.00 p.m on the fateful day. She had also deposed about her

source of information and the death of her husband through Karri

Lakshmana (PW.3). She deposed that upon such information, she had

reported to the police and lodged the report. She had confirmed that the

said report bears her thumb impression, indicative of the fact that she is

also an illiterate. In the cross examination, she had stated that her

husband returned home after being on the boat fishing for three days

before the incident. She further stated in the cross examination that the

accused never visited her home except on the date of incident and that

the accused came to the house on the date of the incident in a friendly

manner. She further deposed that she had followed PW.3 to the hospital,

where she saw the dead body of her husband (the deceased) at mortuary.

8. PW.3 to 5 are the direct witnesses who were present there and

immediately acted upon the deceased after he received the stab injury

although they did not directly witness the actual incident. They helped

the deceased by placing him to put in an auto rickshaw and took him to

KGH.

9. PW.3, Karri Lakshmana who is the driver of the boat owned by

PW.7 had deposed that he was present at Jetty No.4. One boy informed

him that there was a spat between the accused and the deceased at

platform no.10 and in that spat the accused stabbed the deceased. He

further deposed that on receiving the information, he immediately rushed

to the spot, by which time the deceased was being lifted into an auto

rickshaw. He further deposed that he accompanied the deceased to the

hospital, where the deceased was declared as died. He further deposed

that he went to the house of the deceased and revealed about the

incident to the wife of the deceased and there upon the wife of the

deceased came to the hospital along with him.

10. PW.4, Barri Appanna (labourer working in the boat owned by

PW.7 as Khalasi) deposed that himself, PW.3 along with accused and the

deceased were employed in the same boat. He further deposed that he

had enquired with PW.1 as to how the incident happened. He further

deposed that he brought an auto rickshaw there and helped lift the

deceased into the auto rickshaw. He further deposed that Barri Konda

(PW.1), the driver Karri Lakshmana (PW.3) and himself accompanied the

deceased to KGH. He further deposed that the deceased was taken to

the doctor and the doctor declared him as dead. He further deposed that

this occurrence and the death was informed by Karri Lakshmana to the

wife of the deceased. His cross examination by defence could not elicit

anything substantial except the minor discrepancy that PW.1 also

accompanied them in the auto rickshaw.

11. PW.5, Karri Chandrasekharam is also the driver of the boat

working with PW.7. He deposed that he knows the deceased and that he

is office in-charge of AITUC, workers union. He further stated that he

received information from the owner of the boat (PW.7) about the

incident. He immediately rushed to Jetty Nos.9 & 10, by which time he

found traces of blood at the spot. He stated that PW.2 also came there

and they all took the deceased to KGH and from there they went to the

police station. He further deposed that he scribed the report to the

dictation of PW.2, Kesam Ammoru at the police station. Nothing could

be elicited in the short cross examination done by the defence.

12. PW.6, K. Laxmayya is the father of the deceased. He is neither

eye witness nor direct witness to the incident. He had only stated that

while he was fishing, he came to know the information about this

occurrence.

13. Owner of the boat, Sri Mailapalli Masenu has also deposed as

PW.7. It appears from his deposition that he had brief interaction with

both the deceased and accused just before the incident has taken place.

He deposed that later he came to know that the accused stabbed the

deceased with a knife. He also deposed that upon receiving information

about this incident, he rushed to the hospital only to find that the

deceased succumbed due to the injury.

14. PW.8 was present during the inquest and PW.10 was the

mediator for recording of the scene of offence. PW.11, Talluri

Ramachandra Rao, Inspector of Finger Print Unit was examined as

regards the result of the comparison of the photo copy of the chance

print with the finger print records of Finger Print Unit. He deposed that

"upon the Investigating Officer concerned sent a requisition along with

finger prints slip of accused Komara Gandhi for comparison with the

chance print developed on 21.07.2012. Accordingly, I compared the photo

copy of chance print marked „A‟ with the finger print slip of accused. On

comparison, it is found that the photo copy of the chance print marked „A‟

is identical with right thumb finger impression marked „S-1‟ on the finger

print slip marked „S‟ of the accused mentioned above". During the cross

examination, he had stated that he did not measure the length of the

butt end i.e., handle portion of the knife. He had stated that length of

the knife is 7 inches and that the chance prints of the knife relate to

center portion of the right thumb finger print.

15. PW.12, Dr. M.D. Ismail is the Medical officer, who conducted

autopsy. He deposed that the cause of death is due to stab injury to

chest causing damage to the heart.

16. PW.13, S. Eliyas Mohammad, Inspector of Police is the

Investigating Officer who had spoken about the seizure of blood stained

knife admeasuring 17 cm with a blue colour handle admeasuring 8 ½

cm. He also stated that it bears the steel blade admeasuring 8 ½ cm at

the end. He deposed that he also collected finger prints from the weapon

used for committing the offence. He had also deposed that on

20.07.2012 at about 5.30 p.m, he had arrested the accused in the

presence of mediators and obtained finger prints of the accused for

comparison. He also stated that the accused has confessed about the

commission of the offence and the same was recorded in the presence of

mediators. Defence has done lengthy cross examination of this witness.

17. PW.9 acted as mediator at the request of I town police to record

the confession of the accused. However, it appears that nothing has

been elicited that is beneficial to the defence.

18. Exhibit P.5 is the Finger Print Report, which states "During the

course of comparison, it is found that the photo copy of the chance print

marked "A" is identical with the Right Thumb Finger Impression marked

"S-1" on the finger print slip marked "S" on the finger print slip marked "S"

of the accused by name Komara Gandhi S/o Sanyasi, age 20 years".

19. Exhibit P.6 is the Post-mortem Report, which indicates cause

of death is: "due to stab injury to chest causing damage to the heart".

Colomn No.12 dealing with injuries ante-mortem in nature, records two

injuries. First injury is the scalp deep laceration on the left side of

oscipital area. Second injury is described as: "stab injury is noted in the

anterior chest wall". The first injury of deep laceration would have been

due to fall after receiving the single stab on the chest. The second injury

that is stab injury led to the death on account of damage caused to the

heart due to stabbing. These findings given in the Exhibit P.6, Post-

mortem Report have corroborated with the deposition given by the

Medical officer, who conducted autopsy about the cause of death.

20. Heard Smt. Ammaji Nettem, learned counsel for the

convict/appellant representing appellant under legal aid and also Sri

S.Dushyanth Reddy, learned Additional Public Prosecutor for the State.

21. In support of the defence, Smt. Ammaji Nettem, learned

counsel for the convict/appellant has based her legal proposition as

regards trust worthiness of the evidence of the witness as well as

unnaturality of the facts as deposed by the prosecution witness. In

support of the submissions, the learned counsel has cited a judgment of

the Apex Court in Amar Singh Vs. The State (NCT of Delhi) in Criminal

Appeal No.335 of 2015. The noting of conduct of two brothers present on

the spot not trying to save the other brother being assaulted, the Apex

Court finds this conduct of two brothers as being unnatural. The

learned counsel has cited this judgment to state that PW.1 who is the eye

witness present on the spot did not intervene and confront assailant.

22. From the narration of present case, PW.1 deposed that he was

at a stone throw distance, watching the spat between the deceased and

the accused. He is only employed with the PW.7, boat owner. Therefore,

impeaching the trustworthiness of this witness as being unworthy and

unnatural by the learned counsel for the convict/appellant does not have

any merit. In the present case, the accused had only one blow directly

on the chest of the deceased spontaneously, when the PW.1 had no time

even to react. In any case, PW.1 who is co-employee cannot be expected

to react in a defence against assailant in a manner a sibling would as is

indicated in the judgment of the Apex Court. Hence, this judgment is not

useful to the convict/appellant.

23. The learned counsel for the convict/appellant cited a judgment

of the Apex Court in Krishnegowda and others Vs. State of

Karnataka1. The learned counsel has drawn the attention of this Court

to Para No.25A of this judgment, which is as follows:-

"25A. It is the duty of the Court to consider the trustworthiness of evidence on record. As said by Benthem, "witnesses are the eyes and ears of justice". In the facts on hand, we feel that the evidence of these witnesses is filled with discrepancies, contradictions and improbable versions which draws us to the irresistible conclusion that the evidence of these witnesses cannot be a basis to convict the accused."

This judgment is cited in order to highlight the discrepancies,

contradictions and improbable versions in the present case.

24. The learned counsel has also cited a judgment of the Apex

Court in Musheer Khan @ Badshah Khan and another Vs. State of

Madhya Pradesh2. The learned counsel has drawn the attention of this

Court to Para No.45 to throw a doubt on the Forensic Report as regards

2017 (2) ALD (Crl.) 42 (SC)

2010 (1) ALD (Crl.) 813 (SC)

the finger prints. In any case, this Court finds that even this judgment

would not help the appellant in any manner as the FSL Report (Exhibit

P.5) clearly states that the specimen finger print compared with that of

the thumb impression on material object is identical.

25. Learned Additional Public Prosecutor had submitted that the

analysis of evidence, both ocular and documentary as established by the

prosecution, has proved the guilt of the appellant beyond doubt. The

evidence of PW.1 could not be impeached in any manner and therefore

the Court shall give full credence to the testimony of PW.1.

26. Insofar as the animosity prevailing between the accused and

the deceased is concerned, it has been stated by the wife of the deceased

(PW.2). In support of the submissions made on behalf of the

prosecution, learned Additional Public Prosecutor Sri S.Dushyanth

Reddy has cited judgment of the Supreme Court in Jayantilal Verma

Vs. State of M.P (Now Chattisgarh)3. He has drawn the attention of

this Court to paragraphs nos.19 & 20 to canvas that it is the quality of

the evidence and not the number of witnesses which is relevant.

27. Learned counsel for the convict/appellant has also made

submission that in the event that this Court is not inclined to interfere

with the findings of the trial Court, this Court may consider convicting

the appellant and sentencing him under Part-II of Section 304 IPC.

Section 304 IPC reads as follows:-

304. Punishment for culpable homicide not amounting to murder.-

Whoever commits culpable homicide not amounting to murder, shall be punished with [imprisonment for life], or imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine, if the act by which the death is caused is done with the intention of causing death, or of causing such bodily injury as is likely to cause death;

2020 SCC Online SC 944

or with imprisonment of either description for a term which may extend to ten years, or with fine, or with both, if the act is done with the knowledge that it is likely to cause death, but without any intention to cause death, or to cause such bodily injury as is likely to cause death.

28. After analyzing the facts of the present case, it is clear that the

accused has dealt only a single blow on the chest that injured the heart,

causing the death. The previous animosity is also deposed by PW.2, who

is the wife of the deceased. PW.1 spoke about the spat between the

accused and the deceased as eye witness from the stone throw distance.

It is clear from ocular evidence read with FSL Report in Exhibit P.9 that

the stab injury that caused death is the single blow with the knife that

injured the heart. Therefore, this Court finds that the case of the

accused cannot be considered for convicting him under Section 304 Part-

II and sentencing him with imprisonment under the said provision. In

the instant case, the accused not only had the knowledge that this action

is likely to cause death but he also had the intention to cause death