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IN THE COURT OF THE X ADDITIONAL SESSIONS JUDGE :: TIRUPATI.
Present: Sri S.Sasidhar Reddy, X Additional Sessions Judge, Tirupati.
Saturday, the 6th day of June, 2015.
Sessions Case No. 90 of 2013
P.R.C.No. 21 of 2012 on the file of III Addl.J.M.F.C., Tirupati.
Complainant:-
State, represented by the Inspector of Police, Tiruchanur Police Station. (Crime No. 47/2012 of Tiruchanur Police Station)
Accused:-
1.Mangali Suri Babu @ Charan, 20 years, S/o. Muna Swamy, D.No.12-311, Mangalam, BTR Colony, Tirupati, Mangali by caste.
2.G.Sarath Kumar @ Sarath, 23 years, S/o. Gopi, D.No.86, Sathyamman Koil Street, S.N.Palem, Katpadi Taluk, Vellore District, Tamilnadu, now residing at D.No.126/2, Konaguntai Cross, Vasanthapura Main Road, Sathyamma Guntai, Bangalore. Caste : Modaliar.
PRC: P.R.C.No. 21 of 2012 of III Additional Judicial Magistrate of First Class, Tirupati.
Prosecution conducted by:- Sri K.Suryanadha Reddy, Additional Public Prosecutor, Tirupati.
Accused defended by:- Sri B.Chenchu Kumar, Advocate for Accused.
Charges :U/Sec.302 r/w.34 I.P.C., in the alternative, U/Sec.302 I.P.C., and, U/Sec.380 r/w.511 r/w.34 I.P.C., in the alternative, U/Sec.380 r/w. 511 I.P.C.
Plea of accused : Not guilty.
Finding of the Court : Found the accused Nos.1 and 2 guilty for the offence under Section 302 r/w. 34 of Indian Penal Code and for the offence under Section 380 r/w. 511 r/w. 34 of Indian Penal Code.
Sentence of Order:In the result,the accused Nos.1 and 2 are found guilty and convicted for the offence under Section 302 r/w. 34 of Indian Penal Code for the murder of Sadasivam and the accused Nos.1 and 2 are also convicted for the attempted robbery in the ATM Center under Section 380 r/w. 511 r/w. 34 of Indian Penal Code.
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The accused Nos.1 and 2 are sentenced to Life imprisonment each and to pay a fine of Rs.500/- (Rupees Five hundred only) each, in default of payment of fine, to suffer simple imprisonment for one month each, for the offence under Section 302 of Indian Penal Code.
The accused Nos.1 and 2 are further sentenced to Rigorous imprisonment of three years and to pay a fine of Rs.500/- each, in default of payment of fine, to suffer simple imprisonment for one month each, for the offence under Section 380 r/w. 511 r/w. 34 Indian Penal Code.
All the sentences shall run concurrently. All the total fine payable by Accused No.1 is Rs.1,000/- (Rupees One thousand only) and the total fine payable by Accused No.2 is Rs.1,000/- (Rupees One thousand only).
The remand period undergone by Accused No.1 from 25.03.2012 to 26.06.2012 and from 10.03.2015 to till date i.e., 06.06.2015 shall be set off against the sentence.
The remand period undergone by Accused No.2 from 25.03.2012 to 03.07.2012 and from 06.03.2015 to till date i.e., 06.06.2015 shall be set off against the sentence.
The accused are informed of their right to appeal the Judgment before the Hon’ble High Court of Judicature at Hyderabad for the State of Telangana and the State of Andhra Pradesh, Hyderabad. The accused are also informed of their right to seek Legal Aid in the event they do not have means to engage a counsel to represent them before the
Hon’ble High Court of Judicature at Hyderabad for the State
of Telangana and the State of Andhra Pradesh, Hyderabad.
M.O.3 be given to the custody of P.W.16 who had interim custody of the vehicle. M.O.9 be preserved in safe custody in a manner ensuring that the C.P.U. and Hard disc are not damaged for the purpose of display in any Appeal filed. M.Os.1, 2, 4 to 7 and 10 to 15 be destroyed after appeal time is over along with any other non-valuable unmarked property. M.O.8 also be preserved along with M.O.9. The property be forwarded to the Committal Court for execution of the Order.
Compensation:- The accused were enquired as to their financial status and both the accused had stated that they do not have any property in their names. Further, both accused 1 and 2 were provided legal aid. In the circumstances, the accused 1 and 2 are not in a position to satisfy any award of compensation. Therefore, the matter be referred to the District Legal Services Authority for adjudging the quantum of compensation and the eligibility of the victims to receive the compensation under the State Victims Compensation Scheme.
This case is presented before me on 21-05-2015 for final hearing in the presence of Sri K.Suryanadha Reddy, Additional Public Prosecutor for the Complainant, Sri B.Chenchu Kumar, Advocate for Accused, and upon hearing both sides, and upon perusing the material available on record, and having stood over for consideration till this day, this Court delivered the following:
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JUDGMENT
1. The case of the Prosecution is that the accused No.1 is a resident of
Tirupati, accused No.2 is a resident of S.N.Palem, Katpadi Taluk, Vellore District, the juvenile in conflict with law is also originally belonged to Katpadi but now resident of Sapthagiri Colony, Tirupati. That the deceased Talari Sadasivam was a native of Velavadi village, Nagari Mandal and was residing at Tirupati working as a
Security Guard at various ATM Centers in Tirupati. He was an employee of Central
Investigation Security Services Company (hereinafter referred to as “CISS
Company”). That in the month of March, 2012, the deceased and P.W.1 were deputed as Security Guards at the ATM Center of State Bank of Hyderabad, situated in front of APSPDCL Corporate Office, Raghavendra Nagar, Tirupati. The Security
Guards works in two shifts from 8.30 A.M. to 8.30 A.M. of the next day. On 17.03.2012 the deceased began a 24 hours shift from 17.03.2012 8.30 A.M. to 18.03.2012 8.30 A.M. The deceased went to his house for having his supper, and after finishing his meal, went back to duty. As was the usual practice the deceased slept inside the ATM Center and he had covered himself entirely with a blanket. The ATM Center had two ATM machines with a glass door and rolling shutter.
2. On 17.03.2012 itself, as per the directions of P.W.6, the P.W.7, P.W.8,
P.W.9 and P.W.10 had deposited Rs.14,00,000/- cash inside of the ATM machines.
The ATM Center also had two Closed Circuit Cameras.
3. On the intervening night of 17/18.03.2012 some unknown offenders entered into the ATM Center through unlocked door and killed the deceased who was sleeping in the ATM Center by repeatedly hitting him with a big stone on the head. Then the offenders attempted to commit theft of cash from the ATM Cash
Chest by opening the Outer Cover, but failing to open the Cash Chest, the offenders ran away from the place. P.W.1 went to the ATM Center in the morning at 8.30
A.M. for beginning his Shift and saw the dead body lying in a pool of blood in the 4
ATM Center. He informed P.W.5 and P.W.6 and lodged complaint with the
Tiruchanur Police Station on 18.03.2012 at 9.30 A.M.
4. On receipt of the complaint, case was registered as Crime No.47/2012 under Section 302 Indian Penal Code and Section 380 r/w. 511 Indian Penal Code and investigation was commenced. In the course of investigation, P.W.23 visited the scene of offence and conducted inquest over the dead body of the deceased on 18.03.2012 itself and sent the dead body for Postmortem examination. In the course of investigation, he recorded the statements of P.W.1, P.W.2, P.W.3, P.W.4,
P.W.5 and prepared Inquest Report and in the course of examination of the Scene of Offence he seized two screw drivers, piece of a rubber glove left at the scene of offence, the boulder used to kill the deceased, the bloodstained marble and Control marble, for chemical examination, in the presence of mediators under the cover of a Mahazar. Then P.W.23 proceeded to observe the Video Recording made by
Closed Circuit Cameras fixed in the ATM Center, in the presence of mediators
P.W.20 and Kadapa Murali (L.W.25) at the ATM Center. At that time P.W.5, P.W.6,
PW.7 and P.W.8 were also present. In the visuals, it was observed that two persons who entered into the ATM Center on 17.03.2012 at about 7-30 P.M., entered again into the ATM Center with another person at 1-46 A.M. on 18.03.2012 covering their faces with Monkey Caps and killed the deceased by hitting him with a boulder on the head while he was sleeping in the ATM Center. Accused No.2 was one of the two persons who entered into the ATM at 7-30 P.M. on 17.03.2012.
Then P.W.23 seized the Hard Disk and C.P.U. under the cover of Ex.P-4 and also had the Video recording made in a Pen Drive under the cover of a Mahazar in the presence of P.W.20 and Kadapa Murali. The bloodstained clothes of the deceased and the bloodstained mat on which he was sleeping and also bloodstained blanket were also seized.
5. On credible information on 25.03.2012 at 7-00 A.M. at Sivalayam, near
Janachaithanya Housing Plots, Chaithanyapuram, Tirupati Rural Mandal, the accused 1 and 2 and juvenile in conflict with law were arrested and their 5 confessions were recorded, and in pursuance of the confessions, recovered M.O.1,
M.O.2, M.O.3, M.O.8 and M.Os.10 to 15.
6. After completion of investigation, the Investigating Officer filed Charge sheet under Section 302 Indian Penal Code and Section 380 Indian Penal Code r/w.
511 Indian Penal Code r/w. 34 Indian Penal Code, before the III Additional Judicial
Magistrate of First Class, Tirupati.
7. Charge sheet was filed against accused Nos.1 and 2. The case against
Juvenile in conflict with law was separated and sent to the Juvenile Justice Board.
8. The learned Magistrate, after considering the material on record, committed the case for trial before the Sessions Court.
9. The accused were summoned and after hearing the counsel for the accused and the Additional Public Prosecutor, Charges were framed under Section 302 Indian Penal Code r/w. 34 Indian Penal Code against accused No.1 and accused
No.2, in the alternative, under Section 302 Indian Penal Code against accused No.1 and accused No.2; and, under Section 380 Indian Penal Code r/w. 511 Indian Penal
Code r/w. 34 Indian Penal Code against accused No.1 and accused No.2, in the alternative, under Section 380 Indian Penal Code r/w. 511 Indian Penal Code against accused No.1 and accused No.2. The Charges were read over and explained to the accused in Telugu and the accused pleaded not guilty and claimed to be tried. Accordingly, Schedule was fixed and trial conducted. The accused in the first instance did not appear on the date the trial was to commence. Non-
Bailable warrants were issued and the accused were produced before the Court.
The accused were remanded to custody. The accused No.1 requested appointment of a legal aid counsel. Legal aid counsel was appointed for accused No.1. The counsel for accused No.2 also requested discharge of his vakalat and the legal aid counsel filed Memo of Appearance for accused No.2 also.
10. The Prosecution examined P.Ws.1 to 23 and marked Exs.P-1 to P-16 and
M.Os.1 to 15 in support of their case.
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11. After completion of Prosecution’s evidence, the accused were examined under Section 313 Code of Criminal Procedure, 1973. The accused denied the entire evidence and accused No.1 examined D.W.1 in support of his case that he was not present in Tirupati on the date of incident.
12. The learned Additional Public Prosecutor and the counsel for the accused were heard.
13. The learned Additional Public Prosecutor contended that as per the Video recording in M.O.9, two persons had entered into the ATM Center at 7-30 P.M. on 17.3.2012 and three persons entered into the ATM Center at 1-46 A.M. on 18.03.2012, two of the persons who entered into the ATM Center on 18.03.2012 were wearing clothes similar to those of the two persons who had entered into the
ATM Center at 7-30 P.M. on 17.03.2012. One of the persons is clearly identifiable as accused No.2 in the present case. The learned Additional Public Prosecutor further contended that all the witnesses had supported the case of the Prosecution and that there is clear evidence of the involvement of accused Nos.1 and 2 in the offence.
14. The learned counsel for the accused contended that the very complaint given by P.W.1 is suspicious as there is no evidence to show P.W.1 was the employee of CISS Company and that he was employed as Security Guard at the
State Bank of Hyderabad ATM Center. The learned counsel further contended that there is no evidence to tie the accused to the offence except for the fact that similar clothes were worn by the persons who had entered into the ATM Center on 18.03.2012. There is no other evidence produced by the Prosecution to tie the accused to the offence. The learned counsel further contended that the evidence of the Prosecution that the Scooty Pep M.O.3 is also not believable, the evidence of the alleged owner P.W.16 is also unbelievable as they had not produced proper documentation to show the evidence of ownership. Further, there is no evidence to show that the accused had indeed stolen M.O.3. The learned counsel further contended that M.Os.1 and 2, and also, M.Os.10 to 15, are widely available in the 7 market and the very identification of M.Os.1 and 2 by P.W.14 is suspicious as surgical gloves similar to M.Os.1 and 2 are freely available in the open market and they are undistinguished from one another. The learned counsel further contended that the Prosecution has failed to comply with the requirements of Section 65-A and 65-B of the Indian Evidence Act, 1872, for producing M.O.9 and the Video recording, into evidence.
15. After hearing the learned Additional Public Prosecutor and the Counsel for the accused and examining the material on record, the following POINTS emerged for consideration:-
1.Whether the death of the deceased Sadasivam was homicidal in nature ?
2.Whether the Prosecution had established beyond reasonable doubt that the accused Nos.1 and 2 had intentionally caused the death of Sadasivam and thereby committed murder in furtherance of common intention under Section 302 I.P.C. r/w. 34 I.P.C. ?
3.Whether the Prosecution had established that the accused Nos.1 and 2 had attempted to commit robbery in furtherance of common intention and thereby committed an offence under Section 380 r/w. 511 r/w. 34 I.P.C. ?
16. POINT No.1:-
Whether the death of the deceased Sadasivam was homicidal in nature ?
It is the case of the Prosecution that the deceased Sadasivam was killed by three persons who had entered into the ATM Center on 18.03.2012 at about 1-46
A.M. That this murder was committed in furtherance of the common intention of
Accused 1 and 2 and Juvenile in Conflict with law. In support of its contention, the Prosecution had filed Video Recording showing the three persons assaulting the sleeping Sadasivamwith a boulder and repeatedly throwing the boulder on the head of the deceased Sadasivam. The Prosecution, also examined P.W.21 the
Doctor who had conducted the Postmortem examination of the deceased and marked Ex.P-7 Postmortem Examination Report. The Prosecution also marked
Ex.P-3 Inquest Report which showed several injuries on the head of the deceased and the place where the deceased was found and its position. P.W.21 had deposed 8 that she had conducted the Postmortem examination of the deceased and found extensive injuries on the body externally and internally and majority of the injuries were on the head. The cause of death was due to head injury as a result of exposure to blunt force and Wound No.4 namely a laceration of 2 X 1 cm. bone deep oblique over right temporal region of head 1 cm, below Wound No.3 with a contusion of 5 X 3 cm. around it. This wound corresponded to Wound No.21 i.e., a fissured fracture of 21 cm., long extending from right temporal bone to left temporal bone passing through coronal suture, corresponding with Wound No.4
Extending from it (Right temporal bone) another fissured fracture of 12 cm long extending to both parietal bones of skull is there. Above fractures also extended into base as multiple fractures involving bones of bases of skull. P.W.21 also opined that the injuries might have been caused by being repeatedly hit with an object similar to M.O.4. The injuries were also noted by the Inquest Witnesses and the observations of the witnesses as to the scene of offence and the position of the dead body also support the inference that the death was homicidal.
17. Considering the extensive nature of injuries and the Video recording in
M.O.9, it has to be held that the death of deceased Sadasivam was homicidal in nature.
18. POINT No.2:-
Whether the Prosecution had established beyond reasonable doubt that the accused Nos.1 and 2 had intentionally caused the death of Sadasivam and thereby committed murder in furtherance of common intention under Section 302 I.P.C. r/w. 34 I.P.C. ?
It is the Prosecution's case that the accused Nos.1 and 2 intended to commit theft of cash in the ATM Machine and had killed the Security Guard to facilitate the theft. The common intention was to kill the Security Guard and commit theft of the cash in the ATM machine. There are no eye witnesses to the incident. The
Prosecution’s case is based on circumstantial evidence. The circumstances relied upon by the Prosecution are:-
1.That the deceased was on duty as a Security Guard at the ATM Center.
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2.That the incident was recorded in the Closed Circuit Cameras installed in the ATM Center.
3.That the Video recording showed two persons entering into the ATM Center at 7-30 P.M. on 17.03.2012. One of the persons was Accused No.2 and the other person had coloured hair (Juvenile in conflict with law).
4.That at 1-46 A.M. on 18.03.2012 three persons entered into the ATM Center and killed the deceased who was sleeping in the ATM Center by repeatedly throwing a boulder on his head. This was recorded in the Closed Circuit Cameras. Then, one of the persons climbed on to the ATM Machine and disabled one of the Cameras. However, the second camera was working and had recorded the attempt of the said three persons to open the ATM machine. The Video recording also showed that having failed to open the machine, the three persons left the ATM Center.
5.Two of the persons who had entered into the ATM Center at 1-46 A.M. on 18.03.2012 were wearing clothes similar to those worn by accused No.2 and the other person with coloured hair on 17.03.2012 at 7-30 P.M., i.e., accused No.2 was wearing a shirt with red colour checks and the other person was wearing a full hands yellow, green and black coloured T-shirt with a hood. The video shows that two of the persons who entered into the ATM Center at 1-46 A.M. on 18.03.2012 were wearing similar clothes. The physical appearance, the height and shape of the body of the persons who committed murder is similar to the Accused 1 and 2.
6.That the Juvenile in conflict with law, had pawned his gold ring with P.W.12 and obtained Ex.P-14 and that the Juvenile in conflict with law had borrowed money from P.W.13 and had left his Cell phone with him.
7.That the accused No.1 and accused No.2 and the Juvenile in conflict with law had taken a room in Srinivasa Lodge, Tirupati, with the help of a friend Mahesh on 16.03.2012 and they were identified by P.W.11. That Accused 1 and 2 and Juvenile in conflict with law were found in one another's company and were seen near the scene of offence together.
8.That the finger print of the Juvenile in conflict with law was found in the ATM Center as deposed by P.W.22.
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9.That M.O.3 was recovered from accused No.1 and accused No.2 and M.O.3 belonged to P.W.16 who reported it stolen and M.Os.1 and 2 were discovered pursuant to the confession of accused No.1 and accused No.2, so also, M.Os.10 to 15, and that, M.O.8 was recovered from the custody of accused No.2.
19. The version of the Prosecution is that the accused had planned the robbery and had stolen M.O.3 for enabling them to move around and had purchased masks and gloves and on 17.03.2012 the accused had reconnoitered the
ATM Center by visiting it at 7-30 P.M. on 17.03.2012 and came back at 1-46 A.M.
on 18.03.2012 and killed the Security Guard and had attempted to rob the ATM machine. That Accused No.2 had obtained M.O.8 under false pretenses.
20. In support of its case, the Prosecution examined P.Ws.1 to 23.
21. The Prosecution in order to establish the 1st circumstance stated above, examined P.Ws.1 to 5. P.W.1 is the complainant and he is also one of the Security
Guards posted at the State Bank of Hyderabad ATM Center. P.W.1 deposed that he and the deceased were working there in shifts and that the deceased was on duty on the fateful night. P.Ws.2 to 4 are relatives of the deceased. P.W.2 is the brother-in-law, P.W.3 is the wife and P.W.4 is the elder brother. They deposed that the deceased was originally resident of Velavadi village of Nagari Mandal and that he had migrated to Tirupati in search of employment, but he had originally worked as a Cleaner in the bus of Amara Raja factory and that he had quit the job due to health reasons and joined as a Security Guard with CISS Company, that he was posted as Security Guard at the ATM Center situated in the APSRTC Bus Stand,
Tirupati, then he was posted as Security Guard at ATM Center near APSPDCL
Corporate Office, Tirupati, that his working hours are for a 24 hours shift from the morning of one day till the morning of next day, that they had come to know about the death from the people in their locality and had gone to the ATM Center and saw the dead body, that the deceased had two small children i.e., son aged 6 years and daughter aged one month at the time of the incident and that P.Ws.2 and 3 had last seen the deceased when he had come home for having his dinner. P.W.4 deposed 11 that his brother had left the village seeking employment at Tirupati and he was informed about the death of his brother, by P.W.2.
22. From this evidence, the Prosecution has been able to establish the first circumstance that the deceased was working as Security Guard at the SBH ATM
Center, near APSPDCL Corporate Office, Tirupati, and that the deceased was on duty on the intervening night of 17.03.2012 and 18.03.2012. The employment of the deceased was further established by examining P.W.5 who was a Supervisor at
CISS Company.
23. In support of the 2nd circumstance that there were Closed Circuit
Cameras in the ATM Center, the Prosecution has examined P.Ws.6, 7 and 8.
24. P.W.6 is the Branch Manager of State Bank of Hyderabad, Tirupati
Branch, deposed that there were two Video surveillance cameras fitted to the walls in the ATM Room and the purpose of the cameras is to record the entire activity in the ATM Room and that the cameras record continuously for entire day, and that with the help of the ATM Technician he saw the visuals recorded by the Cameras.
His evidence is corroborated by the evidence of P.W.7, the C.C.Camera Technician who had installed the cameras on behalf of AEGIS Auto Machine India Private
Limited and that he was maintaining the cameras for his employer. From the evidence of these two witnesses, it is established that there were two Closed Circuit
Cameras installed in the SBH ATM Center and one of the cameras was facing the door and one of the cameras was fixed on the right side wall when one enters the
ATM room, that between these two cameras the entire ATM room was covered and all the activity in the ATM room was recorded continuously. P.W.7 deposed that the Video is recorded in a Computer that is kept in the ATM Center itself, that the
Computer has power back up, so the recording will not be interrupted even in the case of power failure.
25. P.W.7 was examined at length about his qualifications and also his role in the maintenance of Closed Circuit Cameras and the recording system and he deposed that the system was working well at that time. P.W.7 also deposed that 12 he had displayed the visuals recorded by the Cameras on the Computer for the police and P.W.6 and the mediators and that the police had seized the disc along with C.P.U. The said C.P.U. was marked as M.O.9.
26. Since the very original recording was produced before the Court, the requirements of Section 65-A and 65-B of the Indian Evidence Act are held to be complied with, for admitting and proving the electrical evidence as held by the
Hon’ble Supreme Court in Anwar P.V. Vs. P.K.Basheer2014(10) SCC 473.
Since the very original is produced, non-filing of the certificate under Section 65-
B(4) of Indian Evidence Act would not effect the admissibility and proof of the video recorded in M.O.4.
27. To establish the 3rd, 4th and 5th circumstances, the Prosecution examined
P.Ws.6, 7, 8, 9 and 10, mediator P.W.20, and P.W.23 the investigating officer.
P.W.6 is the Branch Manager, P.W.7 is the C.C.Camera Technician, P.W.8 is the
ATM Engineer, P.W.9 is an Accountant who worked in State Bank of Hyderabad,
P.W.10 is the Head Cashier of State Bank of Hyderabad, P.W.20 is the mediator summoned by the police and P.W.23 is the Inspector of Police, in whose presence the video recording was displayed. All the witnesses stated that two persons had entered into the ATM Center at 7-30 P.M. on 17.03.2012, then again at 1-46 A.M.
on 18.03.2012 three persons entered into the ATM Center and they killed the sleeping Security Guard by throwing a boulder on his head repeatedly, then one of the persons disabled the Camera facing the door and then the persons attempted to open the ATM machine, they managed to open the outer door of the ATM machine, but however failing to open the Cash Chest, went away from the scene of offence, that the second camera was operational and it recorded the scene. The witnesses deposed that the clothes worn by two of the persons who entered into the ATM at 1-46 A.M. on 18.03.2012 were similar to the clothes worn by the two persons who entered into the ATM Center at 7-30 P.M. on 17.03.2012.
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28. From this, the witnesses state that the persons who had entered the ATM
Center at 7-30 P.M. on 17.03.2012 are the same persons who had entered into the
ATM Center on 18.03.2012 at 1-46 A.M.
29. The video recording was displayed in the Open Court and it was observed by the Court that the accused No.2 and another person with coloured hair had entered into the ATM Room and that accused No.2 was wearing a shirt with red colour checks and the other person was wearing full hands T-shirt with a hood down in yellow, green and black colours. The video recording at 1-46 A.M. on 18.03.2012 shows the persons wearing similar coloured clothes accompanied by a third person wearing a green colour T-shirt enter the ATM and commit the offence and all the persons were wearing masks and gloves.
30. Further, the witnesses deposed that the physical appearance of the persons is also similar to that of accused No.1 and accused No.2. One of the persons who had entered the ATM Center at 1-46 A.M. on 18.03.2012 to kill the deceased is tall and well built. The other person is short and lean. The physical characteristics of the accused 1 and 2 match with the physical characteristics of the persons who were shown in the video killing the deceased.
31. The Prosecution, in order to establish the circumstance that the accused were found in one another's company during the period leading upto the offence, had examined P.Ws.11, 12, 13, 14 and 15.
32. P.W.11 is the Manager of Srinivasa Lodge, Tirupati, who deposed that one Mahesh had taken a room in the Lodge on 16.03.2012 and that the accused
No.1 and accused No.2 along with another person with reddish hair had stayed in that room and P.W.11 identified accused No.1 and accused No.2 as two of the persons who had stayed in the room on 16.03.2012. The Prosecution was not able to examine the said Mahesh though he was cited as a witness, as his whereabouts are not known. However, P.W.11 had categorically identified the accused No.1 and accused No.2 and also remembered the characteristic feature of the third person namely the coloured hair. Therefore, the evidence of P.W.11 is 14 believable. P.W.11 deposed that the accused had vacated the room and left and later he saw in the news papers that these persons had committed murder in the
ATM Center.
33. P.W.12 deposed that he runs a Pawnbroker business and that his shop is located adjacent to the barber shop; of accused No.1, that the Juvenile in conflict with law used to visit the shop of the accused No.1 and that he was acquainted with accused No.1 and that the Juvenile in conflict with law had pawned a gold ring in his shop and had taken Rs.4,150/- from him and he had issued Ex.P-14 Receipt, that the shop of accused No.1 was closed from 15.03.2012, that later he saw the photographs of the accused No.1 and accused No.2 and the Juvenile in conflict with law in the news papers as being accused for the murder at the ATM Center.
34. P.W.13 deposed that he was running a Cosmetics shop, that the Juvenile in conflict with law was a regular customer at the shop, that he was accompanied by another person and the witness identified the accused No.1 as the said person.
That on 17.03.2012 the Juvenile in conflict with law had come to his shop and asked for money stating that he was injured and in need of money for treatment, that P.W.13 had lent him Rs.600/- and the Juvenile in conflict with law had left the
Cell phone with him.
35. P.W.14 had deposed that three persons came to his shop; on 17.03.2012 at about 8.00 P.M. and they had asked for four pairs of gloves, but he had refused to sell four pairs, then one of the persons had stated that he has a barber shop and he requires the gloves for applying hair dye, that the P.W.14 observed one of the persons had coloured hair and also there were stains of colour on their hands.
Therefore, he gave four pairs of gloves to them, and that he can identify one of the persons who had golden coloured hair.
36. The Prosecution examined P.W.15, a Police Constable, to establish the presence of accused No.2 near the scene of offence. P.W.15 deposed that on 17.03.2012 at about 12.30 to 1.00 midnight while he was on patrol, he had seen two persons walking in the AIR Bypass road towards SGS College (the ATM Center 15 is situated opposite to the SGS College). He deposed that one person was short and fair and had coloured hair and the other person was tall and had an injury to his right hand. The witness stated that he can identify the persons if he see them and the witness identified accused No.2 as the taller person of the persons he saw on 17.03.2012, that he had questioned them as to why they were out at so late night and they replied that they were returning from watching a Second Show movie. Then he had enquired them as to their residence and asked them to show identity proof and accused No.2 showed him the Axis Bank ATM card and he let them and went for patrol and on the next day of the duty he came to know about the incident at ATM Center and that he had seen two persons near the ATM near
SGS College and he can identify them if he can see them again, that his statement was record and he was shown the CC Camera footage, and that, he was also taken along with the Police Party which went to arrest the accused, in order to identify them. The investigating officer P.W.23 in his Cross-examination deposed that
P.W.15 did not accompany him when he went to arrest the accused, and that
P.W.15 did not state in his 161 Cr.P.C. statement that he was shown C.C. Camera footage. Therefore, P.W.15's evidence is not reliable.
37. However, the Prosecution is able to establish that the accused No.1 and accused No.2 were seen together, prior to the offence, in the company of a third person with coloured hair (Juvenile in conflict with law), that accused No.1 was not attending to his business and that his shop was remained closed through out the time period over which the offence had taken place.
38. The accused No.1, in support of his contention that he was not present in
Tirupati during the time period between 15.03.2012 and 18.03.2012, had examined
D.W.1, his aunt. D.W.1 had deposed that the accused No.1 had come to her village as her mother-in-law who is the paternal grand mother of the accused No.1 was seriously ill and the accused No.1 had come with his father, elder brother and sister to take care of her and they were in the village for six days and went back on 19.03.2012. However, in her Cross-examination she had admitted that she had not brought any document relating to the treatment of her mother-in-law and that 16 she did not tell the police or any other persons about the fact that accused No.1 had stayed in her village from 14.03.2012 to 19.03.2012 though she was aware that he was arrested by the police on the accusation of murder. Considering these circumstances, the evidence of D.W.1 is not reliable, as it is beyond belief that when her nephew is facing such a serious charge of murder she would keep quiet and not inform the police about his presence in the village until she is summoned as a witness to the Court by accused No.1. Therefore, her evidence is rejected and it is held that the Prosecution had established the presence of accused No.1 along with accused No.2 at Tirupati during the time period over which the offence was committed.
39. In support of the 8th circumstance that the finger print of the Juvenile in conflict with law was found at the ATM Center, the Prosecution examined P.W.22, who deposed that chance finger prints were lifted from ATM Center and after comparison it was matched with the finger print of the Juvenile in conflict with law.
40. In support of the circumstance that M.Os.1, 2, 3, 8 and 10 to 15 were recovered from the accused No.1 and accused No.2, the Prosecution examined
P.W.16 and P.W.20.
41. P.W.16 is the owner of M.O.3. He deposed that he purchased M.O.3, and that, on 14.03.2012 he had gone to the HDFC ATM on Tirumala Bypass road near Srivari Sannidhhi, Tirupati, parked his Scooty Pep before the ATM and that it was an Aqua Blue coloured vehicle and when he came out of the ATM he saw that his Scooty was missing, he immediately rushed to the Alipiri Police Station and informed the same to the police. Later he came to know that the M.O.3 was involved in the offence and that M.O.3 was used by accused, that he had obtained the document pertaining to M.O.3 and M.O.3 matched to the document submitted by him.
42. P.W.20 is a retired Village Revenue Officer. He deposed that he worked as V.R.O. of Tirupati Urban Mandal and that he retired in April, 2013. That he was summoned on 18.03.2012 to the ATM Center near SGS Arts College, Tirupati and 17 he had gone there and he found the Circle Inspector of Police, Tiruchanur and the staff, the Bank Manager, Technician and ATM Engineer present and also one Murali another Village Revenue officer of Tirupati Rural Mandal. That the police had displayed the video recorded by the C.C. Cameras in his presence, that the
Technician and the Engineer turned on the Computer that was in a Cupboard in the
ATM Room and showed the Video recorded by the CC Cameras, that in the Video he saw three persons with masks and gloves entered into ATM Room at around 1.30 a.m. and that one of them had thrown a boulder on the person sleeping in ATM
Room, tbat the time shown on the Video was around 1.30 a.m. and that the Circle
Inspector of Police had the Video Copies on a Pen-drive and he prepared mahazar and seized several articles in the presence, that on 25th of the same month he was again summoned by the Mandal Revenue officer and was directed to attend
Tiruchanur Police Station and Murali already came there, the Circle Inspector took them and other staff in a jeep and they had gone to a Siva temple at
Chaithanyapuram on Renigunta road and found some young persons who tried to run away on seeing the police party and the police had arrested them in his presence. Upon examination by the police, they confessed and from their custody, gloves, masks and clothes were seized. Further that, they were taken to the ATM
Center on the same day at 10-30 A.M. and the accused had pointed out a place near the compound of SGS Arts College opposite to the ATM Center where 4 hand gloves were found, they were torn and dirty and all of them were seized under the cover of Mahazarnamas witnessed by him. He also deposed that M.O.3 was seized from them in his presence. That the clothes, gloves, masks and screw driver kit were seized from the Scooty.
43. P.W.23 is the investigating officer. He deposed that on information he had summoned P.W.20 and Murali and with his staff had gone and arrested the accused and they had confessed and handed over the clothes M.Os.10 to 14 and multipurpose screw driver kit M.O.15 and that he had seized M.O.8 from Accused
No.2 in the presence of mediators, that accused No.1 and accused No.2 had pointed out the place where the gloves were thrown near the compound wall of SGS Arts 18
College, Tirupati at ATM Center and the place where he seized the M.Os.1 and 2 in the presence of mediators.
44. There is no reason for disbelieving the witnesses. It is the case of the
Prosecution that the identity of the persons is established by the clothes worn by them as seen in the video recording in M.O.9. The recovery of the clothes and gloves from the custody of accused and at the instance of the accused pursuant to their relevant portion of the confessions marked as Exs.P-5 and P-6, establish this circumstance beyond reasonable doubt.
45. The Hon'ble Supreme Court in Padala Veera Reddy vs. State of Andhra Pradesh
AIR 1990 SC 79 had laid down the following principles for appreciating Circumstantial evidence:
“(1) the circumstances from which an inference of guilt is sought to be
drawn, must be cogently and firmly established; (2) those circumstances should be of a definite tendency unerringly pointing towards guilt of the accused; (3) the circumstances, taken cumulatively, should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and none else;
and
(4) the circumstantial evidence in order to sustain conviction must be complete and incapable of explanation of any other hypothesis than that of the guilt of the accused and such evidence should not only be consistent with the guilt of the accused but should be inconsistent with his innocence. [See Garnbhir v. State of Maharashtra, (1982) 2 SCC 351 : (AIR 1982 SC 1157)].
See also Rama Nand v. State of Himacal Pradesh, (1981) 1 SCC 511 : (AIR 1981 SC 738), Prem Thakur v. State of Punjab, (1982) 3 SCC 462 : (AIR 1983
SC 61), Earabhadrappa v. State of Karnataka, (1983) 2 SCC 330: (AIR 1983 SC
446), Gian Singh v. State of Punjab, 1986 Suppl SCC 676: (AIR 1987 SC 1921), Balvinder Singh v. State of Punjab (1987) 1 SCC 1 : (AIR 1987 SC 350).”
Thus the Prosecution has to establish the various links in the chain of circumstances beyond reasonable doubt and all these circumstances taken together should point to the guilt of the accused and no other person. In the present case, the chain of circumstances as described above is that the deceased was working as
Security Guard, that he was on duty on the day of the incident, that he was killed by three persons who had entered into the ATM Room at 1-46 A.M. on 18.03.2012, that the clothes worn by two of the persons who had entered in the ATM room are 19 similar to the clothes worn by two persons who had entered into the ATM Center on 17.03.2012 at 7.30 P.M., that the Video recording establish that one of the said persons is accused No.2, further the accused No.1 and accused No.2 along with a
Juvenile in conflict with law were seen in one another’s company, by P.Ws.11, 12, 13 and 14, that the accused had stolen M.O.3 which was recovered from their custody, that the clothes worn by the accused and the gloves and masks were also recovered from the custody of the accused and also at their instance, and also,
M.Os.1 and 2 were recovered pursuant to the confession of accused Nos.1 and 2.
The entire chain of circumstances was established by the Prosecution by cogent evidence and all the evidence points to the accused No.1 and accused No.2 as the persons who had entered into the ATM room on 18.03.2012 and had killed the deceased. Apart from the clothes worn by the persons, the physical characteristics also match with those of the accused. As seen from the Video recording, one of the persons is tall and well built and the other person was short and lean. All these circumstances taken as a whole, point to the guilt of the accused Nos.1 and 2 only and there is no scope for any other hypothesis from the prosecution's evidence.
46. Therefore, it is held that the Prosecution had established the guilt of the accused Nos.1 and 2 beyond reasonable doubt.
47. The circumstances also point to the common intention of accused No.1 and accused No.2 to commit the robbery and also to murder the Security Guard who was sleeping in the ATM room, to facilitate the robbery. The accused No.1 and accused No.2 had acted on their common intention and the accused No.1 and accused No.2 both had thrown the boulder on the deceased as seen from the Video recording. Therefore, it is held that the Prosecution had established the common intention under Section 34 of Indian Penal Code.
48. POINT No.3:-
Whether the Prosecution had established that the accused Nos.1 and 2 had attempted to commit robbery in furtherance of common intention and thereby committed an offence under Section 380 r/w. 511 r/w. 34 I.P.C. ?
20
The Prosecution in support of its case that the accused 1 and 2 had attempted to rob the ATM machine relied upon the video recording and the evidence of the Bank officials. The video recording shows the accused attempting to open the ATM Machine. They succeeded in opening the Outer covers, but they were unable to open the Cash Chest. The evidence of the Bank officials P.Ws.6, 9 and 10 is that cash was loaded into the Machines on the previous day. The checks conducted after the incident revealed that no cash was missing.
49. In view of the discussion supra, the Prosecution has established the common intention of the Accused 1 and 2 to commit robbery of the ATM. They had attempted to open the ATM Machine and to facilitate the robbery, killed the deceased. They had purchased the Gloves and Masks and their presence together is deposed to by the witnesses as discussed above. All this evidence taken together proves the guilt of the accused beyond reasonable doubt.
50. Therefore, it has to be held that the Prosecution had proved beyond reasonable doubt that the accused Nos.1 and 2 had attempted the robbery of the
ATM machine of State Bank of Hyderabad, near APSPDCL Corporate Office, Tirupati, and thereby committed the offence under Section 380 r/w. 511 r/w. 34 I.P.C.
51. In the result, the accused Nos.1 and 2 are found guilty and convicted for the offence under Section 302 r/w. 34 of Indian Penal Code for the murder of
Sadasivam and the accused Nos.1 and 2 are also convicted for the attempted robbery in the ATM Center under Section 380 r/w. 511 r/w. 34 of Indian Penal
Code.
Dictated to the Personal Assistant, and after his transcription, corrected and
pronounced by me in the open Court, this the 6th day June, 2015.
X Additional Sessions Judge,
TIRUPATI.
The accused were questioned as to the quantum of sentence.
The accused No.1 had stated that he was innocent of the offence alleged and that he is the only person to look after his family and he does not have his mother 21 and his father had deserted them and he had a brother and sister dependent upon him and that he was married nine months back.
The accused No.2 had stated that he was innocent of the offence alleged and that he had an aged and unwell mother dependent upon him.
The learned Additional Public Prosecutor had sought maximum punishment for the offences.
However, having regard to the fact that the Prosecution’s case is dependent upon the circumstantial evidence and also since the facts do not fall within the standard of rarest of the rare cases, the accused Nos.1 and 2 are sentenced to Life imprisonment each and to pay a fine of Rs.500/- (Rupees Five hundred only) each, in default of payment of fine, to suffer simple imprisonment for one month each, for the offence under Section 302 of Indian Penal Code.
The accused Nos.1 and 2 are further sentenced to Rigorous imprisonment of three years and to pay a fine of Rs.500/- each, in default of payment of fine, to suffer simple imprisonment for one month each, for the offence under Section 380 r/w. 511 r/w. 34 Indian Penal Code.
All the sentences shall run concurrently. All the total fine payable by Accused
No.1 is Rs.1,000/- (Rupees One thousand only) and the total fine payable by
Accused No.2 is Rs.1,000/- (Rupees One thousand only).
The remand period undergone by Accused No.1 from 25.03.2012 to 26.06.2012 and from 10.03.2015 to till date i.e., 06.06.2015 shall be set off against the sentence.
The remand period undergone by Accused No.2 from 25.03.2012 to 03.07.2012 and from 06.03.2015 to till date i.e., 06.06.2015 shall be set off against the sentence.
The accused are informed of their right to appeal the Judgment before the
Hon’ble High Court of Judicature at Hyderabad for the State of Telangana and the
State of Andhra Pradesh, Hyderabad. The accused are also informed of their right 22 to seek Legal Aid in the event they do not have means to engage a counsel to represent them before the Hon’ble High Court of Judicature at Hyderabad for the
State of Telangana and the State of Andhra Pradesh, Hyderabad.
M.O.3 be given to the custody of P.W.16 who had interim custody of the vehicle. M.O.9 be preserved in safe custody in a manner ensuring that the C.P.U.
and Hard disc are not damaged for the purpose of display in any Appeal filed.
M.Os.1, 2, 4 to 7 and 10 to 15 be destroyed after appeal time is over along with any other non-valuable unmarked property. M.O.8 also be preserved along with
M.O.9. The property be forwarded to the Committal Court for execution of the
Order.
Compensation:-
The accused were enquired as to their financial status and both the accused had stated that they do not have any property in their names. Further, both accused 1 and 2 were provided legal aid. In the circumstances, the accused 1 and 2 are not in a position to satisfy any award of compensation. Therefore, the matter be referred to the District Legal Services Authority for adjudging the quantum of compensation and the eligibility of the victims to receive the compensation under the State Victims Compensation Scheme.
Dictated to the Personal Assistant, and after his transcription, corrected and
pronounced by me in the open Court, this the 6th day June, 2015.
X Additional Sessions Judge,
TIRUPATI.
APPENDIX OF EVIDENCE
Witnesses examined.
For Prosecution: For Defence:-
P.W.1:R.Pavan Kumar NaiduD.W.1 : S.Mallika P.W.2:V.Gajendra P.W.3:T.Sulochana P.W.4:Talari Damu P.W.5:C.Chandrasekhar Reddy P.W.6:N.Maheswara Reddy P.W.7:K.Bhaskar Rao 23
P.W.8:T.Munisekhar P.W.9:B.Lakshmi Pratap P.W.10:P.Bhanu P.W.11:B.Gopal P.W.12:R.Paras Singh P.W.13:Y.Nagamalleswara Rao P.W.14:P.Hari Prakash P.W.15:K.Srinivas P.W.16:V.Suresh Reddy P.W.17:G.Saravana P.W.18:Y.S.Pratheef Balaraj P.W.19:Kasa Chandra Sekhar P.W.20:Ramakrishnama Naidu P.W.21:Dr.K.Mamatha P.W.22:G.Manohar Babu P.W.23:T.Sainath
Exhibits marked on behalf of Prosecution:-
Ex.P-1:18-03-2012: Complaint given by P.W.1 to the C.I. of Police, Tiruchanur P.S. Ex.P-2:15-03-2012: Certified copy of pawn broker receipt. Ex.P-3:18-03-2012: Inquest report over the dead body of the deceased Talari Sadasivam. Ex.P-4:18-03-2012: Seizure mahazar for the seizure of C.P.U. prepared by P.W.23 at 2.30 P.M. Ex.P-5:25-03-2012: Portion of the Confession statement of accused, Arrest and Seizure Mahazar prepared by P.W.23 at 2.30 P.M. marked in red ink. Ex.P-6:25-03-2012: Seizure Mahazar for seizure of hand gloves prepared by P.W.23 at 10.30 A.M. marked in red ink. Ex.P-7:19-03-2012: Postmortem Certificate of T.Sadasivam. Ex.P-8:-: Photo Chance Print marked “A”. Ex.P-9:30-03-2012: Report of F.P. Expert (Inspector) on comparison of the photo copy of a chance print concerned in Cr.No.47/2012 of Tiruchanur P.S. Ex.P-10:-: Photo copy of Finger Print Search Slip of V.P.Siva Teja. Ex.P-11:18-03-2012: F.I.R. in Cr.No.47/2012 of Tiruchanur P.S. Ex.P-12:18-03-2012: Rough sketch of the scene of offence. Ex.P-13:19-02-2012: Police Proceedings prepared by P.W.23 at 2.00 P.M. for seizure of clothes. Ex.P-14:26-03-2012: Certified copy of Police Proceedings prepared by P.W.23 at 11.30 A.M. Ex.P-15:26-03-2012: Certified copy of Police Proceedings prepared by P.W.23 at 12.15 P.M. for seizure of Cell phone. Ex.P-16:06-07-2012: RFSL Report.
Exhibits marked on behalf of Defence:- -Nil-.
Material Objects marked:
M.O.1:Hand gloves. M.O.2:Torn piece of hand gloves. M.O.3:Scooty Pep vehicle. M.O.4:White colour Kaasi Rayi (big stone). M.O.5:Screw Drivers two in number. M.O.6:Bloodstained White coloured Marble Tile piece. M.O.7:Control White coloured Marble Tile piece.
24
M.O.8:AXIS Bank ATM Card. M.O.9:CPU with Hard Disk. M.O.10:Green coloured half T-shirt. M.O.11:Sky blue jeans pant. M.O.12:Full hands T-shirt. M.O.13:Readymade half shirt. M.O.14:Red, brown and blue coloured monkey caps. M.O.15:Multi purpose screw driver kit with four screw drivers.
X Addl.S.J., TPT.