Bangalore District Court
State By - Ashoka Nagara Police vs Lalu P.A on 2 January, 2016
IN THE COURT OF THE XI A.C.M.M., AT MAYO HALL UNIT.
Mahatma Gandhi Road, Bengaluru City.
Present: Sri.P.SRINIVASA, B.A.L., LL.M.,
XI A.C.M.M., Bengaluru City.
Dated: This 2nd day of January 2016.
C.C.No.24346/2012
COMPLAINANT :: State by - Ashoka Nagara Police
Station
(State represented by Sr.APP)
Vs.
ACCUSED :: Lalu P.A.
S/o. Anthony A.G.
26 years,
St. Philomina P.G.Hostel,
Opp: St. Philomina Hospital,
No.06, Comfort Apartment Mess,
Campbell Road,
Victoria Layout,
Bengaluru.
(Accused represented by
advocate Sri.Prabhakar L Shetty)
*****
1. Date of commission of the offence :: 13-04-2012
2. Date of report of offence :: 13-04-2012
3. Arrest of the accused :
a) Date of arrest of accused :: 16-04-2012
b) Release of accused on bail :: 25-04-2012
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C.C.NO.24346/2012
4. Name of the Complainant :: SHIRLEY ALBERT
5. Date of recording evidence :: 14-08-2012
6. Date of closing evidence :: 19-12-2014
7. Offences complained of :: Ss.427, 380 &
511 of IPC
8. Opinion of the Judge :: Accused found
not guilty.
XI A.C.M.M., Bengaluru.
JUDGEMENT
The PSI, of Ashokanagara Police Station has filed charge sheet against the accused herein for the offence punishable under Sections 427, 380 & 511 of I.P.C.
2. Brief facts of the prosecution case is as follows; The complainant is the Chief Manager of South Indian Bank, situated at no.74, Sumeru Towers, Brigade Road, Bengaluru. On 13-04-2012, at 6-15 a.m., the security guard of the bank informed the complainant that bank's ATM bearing No.1080001 situated at Brigade Road, Judgement 3 C.C.NO.24346/2012 Banglaore, was pulled down and she immediately went to the spot and after verifying the C.C.T.V. Footage, the complainant came to know that on 13-04-2012, at 1-35 am - 3-33 a.m., some miscreant had tried to break open the ATM and steal cash from the said ATM machine. Hence, complainant has filed the above complaint before the jurisdictional police.
3. On 16-04-2012, accused herein was arrested and produced before the court and later he was enlarged on bail. After filing of the charge sheet against the accused herein, cognizance of the offence was taken by this Court. Copies of the charge sheet and other prosecution papers were furnished to the accused as provided under Section 207 of Cr.P.C. Charges were framed and read over and explained to the accused. The accused pleaded not guilty. Hence, case was posted for trial. To bring the guilt of the accused, prosecution got examined PW-1 to 4, got marked Ex.P-1 to 5 and material object as MO-1. After completion of prosecution evidence, accused Judgement 4 C.C.NO.24346/2012 statement under Section 313 of Cr.P.C. was recorded. Accused has denied all the incriminating circumstances appearing against him in the evidence as false. Accused has not adduced any evidence before this Court.
4. Heard arguments.
5. After analysing oral evidence and materials available on records, points for my determination are as follows;
1. Whether the prosecution proves beyond all reasonable doubt that on 13-4-2012, between 1-35 a.m., - 3-33 a.m., at South Indian Bank ATM, situated at No.74, Sumeru Tower, Brigade Road, the accused herein tried to break open the ATM machine and pulled it down and damaged it and caused loss to the complainant bank and thereby committed an offence punishable U/s.427 of IPC ?
2. Whether the prosecution proves beyond all reasonable doubt that on the above said date, time and place the accused herein tried to break open the ATM machine and tried to steal the Judgement 5 C.C.NO.24346/2012 ATM cash and thereby committed an offence punishable U/s.380 of IPC ?
3. Whether the prosecution proves beyond all reasonable doubt that on the above said date, time and place the accused herein attempted to commit theft of cash from ATM machine and thereby committed an offence punishable U/s.511 of IPC ?
4. What order ?
6. My answers to the above points are as follows;
POINT NOs-1 to 3 :: In Negative
POINT NO-4 :: As per final order
for the following;
REASONS
7. POINT Nos-1 TO 3 :: The burden is on the
prosecution to prove that the accused herein committed offence punishable U/s.427, 380 & 511 of IPC. CW-1 is the complainant. CW-1 is examined as PW-1. PW-1 in her examination-in-chief has stated that on 13-04-2012, at 6.00 a.m., security guard informed her that some one had tried to break open the ATM machine situated at Judgement 6 C.C.NO.24346/2012 Brigade Road and she immediately she went to the spot and later lodged complaint before the police. Further, has stated that police came to the spot and conducted panchanama and on verification of CCTV footage she came to know that some person had tried to break open the ATM machine and tried to steal the cash from the ATM machine. Further, the complainant has stated that on the next day, the police informed her that they have arrested the accused and she identified the accused at the police station. It is pertinent to note that, as per prosecution case the accused was apprehended by the police and later complainant identified the accused at the police station and gave further statement. Per contra, PW-1 in her evidence says that after lodging the complaint she didn't visit the police station and she didn't identify the accused at the police station. Complainant has not spoken about her further statement in her evidence. It is also pertinent to note that, PW-1 in her evidence says that the person who tried to break open Judgement 7 C.C.NO.24346/2012 the ATM wore pant & shirt. Per contra, the photographs produced before this court shows that the accused is wearing shorts and shirt. As per prosecution case CCTV CD was seized on 13-04-2012. Per Contra, complainant in her evidence admits that she handed over one more CD to the police before commencement of evidence. Complainant says that mahazar was prepared as per Ex.P-2. Per contra, PW-3 in his evidence says that he does know the contents of mahazar. The evidence of complainant and mahazar witness are contrary to each other. The evidence of the complainant is inconsistent and not corroborated by independent witnesses. Therefore, the evidence of PW-1 cannot be relied upon.
8. The prosecution has produced CD before this Court as Ex.P-3. It is pertinent to note that, the prosecution has not produced any certificate of the person who had made the CD. Therefore, in the absence of relevant certificate, the CD produced by the prosecution cannot be relied upon. It is also pertinent to note that, the PW-2 & 3 in Judgement 8 C.C.NO.24346/2012 their evidence have stated that before commencement of evidence CD was handed over to the police. Therefore suspicion arises about seizure of CD on 13-04-2012. Hence, benefit of doubt has to be given to the accused herein.
9. CW-2 is the Bank employee. CW-2 is examined as PW-2. PW-2 in his evidence has stated that he came to know about the incident through his Manager and he went to the bank and he also watched the CCTV footage along with the Inspector and found that one person had tried to open the ATM machine with his bare hands and later he came with a wheel spanner and tried to open the ATM machine. For the first time PW-2 says that one person tried to open the ATM machine with his bare hands and later tried to open the ATM machine with spanner. The evidence of PW-2 is contrary to the prosecution case. Moreover, PW-2 also admits that the CD was handed over to the police before commencement of evidence of PW-1 herein. The evidence of PW-2 is Judgement 9 C.C.NO.24346/2012 inconsistent and not corroborated. Hence, cannot be relied upon.
10. CW-4 is the Bank Employee. CW-4 is examined as PW-3. PW-3 in his evidence has stated that on 13-04-2012 he came to know that some person had tried to break open the ATM machine and he saw CCTV footage and police took his statement. It is pertinent to note that, PW-3 in the cross-examination says that he did not watch the CCTV footage and as per the police say he has put his signature and he cannot identify the accused before the Court. The evidence of PW-3 is inconsistent hence, cannot be relied upon.
11. CW-8 is the IO. CW-8 is examined as PW-4. PW-4 in his part examination-in-chief has stated that on 13-04-2012 the complainant came to the police station and lodged complaint and he registered the case and conducted panchanama and seized the CCTV footage and arrested the accused and based on the voluntary Judgement 10 C.C.NO.24346/2012 statement of the accused, seized spanner and screw driver as per Ex.P-5 and later recorded the statements of the witnesses. It is pertinent to note that, PW-4 has failed to appear before this court and complete his examination-in-chief and tender for cross-examination. Therefore, evidence of PW-4 is incomplete and cannot be relied upon.
12. The prosecution has contended that based on the voluntary statement of the accused spanner and screw driver was seized under mahazar. Per contra, the mahazar witnesses are not examined to corroborate the said mahazar. Non-examination of CW-3, 5, 6 & 7 is fatal to prosecution case. The prosecution has failed to produce sufficient evidence before the Court to show that the accused herein tried to break open the ATM machine and attempted to commit theft. Hence, the prosecution has failed to prove the case against accused herein. Therefore, benefit of doubt has to be given to the Judgement 11 C.C.NO.24346/2012 accused herein. Hence, I answer Point Nos.1 to 3 in Negative.
13. POINT NO-4 :: In the result, I proceed to pass the following;
ORDER Acting under Section 248(1) of Cr.P.C. accused is acquitted for the offence punishable under Sections 427, 380 & 511 of I.P.C.
Bail bond and surety bond of accused shall stands cancelled.
MO-1 is worthless. Hence, ordered to be destroyed after appeal period is over. (Dictated to the stenographer, transcribed by her, the transcription corrected and then pronounced by me in the open court on this 2nd day of January 2016.) (P.SRINIVASA), XI A.C.M.M., Mayo hall, Bengaluru.
Judgement 12 C.C.NO.24346/2012 ANNEXURE WITNESSES EXAMINED ON BEHALF OF THE PROSECUTION ::
PW-1 :: Smt. Shirley Albert
PW-2 :: Santosh Krishnan
PW-3 :: L.Nagendra
PW-4 :: Jagadeesh.N
DOCUMENTS EXHIBITED ON BEHALF OF THE
PROSECUTION ::
Ex.P-1 :: Complaint
Ex.P-1(a) :: Signature of complainant Ex.P-1(b) :: Signature of PW-4 Ex.P-2 :: Spot mahazar Ex.P-2 (a) :: Signature of PW-1 Ex.P-2(c) :: Signature of PW-4 Ex.P-3 :: C.D. Ex.P-4 :: First Information Report Ex.P-4(a) :: Signature of PW-4 Ex.P-5 :: Mahazar Ex.P-5 (a) :: Signature of PW-4 WITNESSES EXAMINED ON BEHALF OF THE ACCUSED ::
NIL DOCUMENTS EXHIBITED ON BEHALF OF THE ACCUSED ::
NIL LIST OF MATERIAL OBJECTS MARKED ON BEHALF OF PROSECUTION ::
MO-1 :: Screw driver
(P.SRINIVASA),
XI A.C.M.M., Mayo hall,
Bengaluru.
Judgement
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C.C.NO.24346/2012
Judgement