Karnataka High Court
Shri. Astin Dumingo Maskarinus, vs The State Of Karnataka on 8 March, 2013
Author: H S Kempanna
Bench: H S Kempanna
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IN THE HIGH COURT OF KARNATAKA
CIRCUIT BENCH AT DHARWAD
DATED THIS THE 8TH DAY OF MARCH 2013
PRESENT
THE HON'BLE MR.JUSTICE B.V.PINTO
AND
THE HON'BLE MR.JUSTICE H.S.KEMPANNA
CRIMINAL APPEAL NO.2532/2011 (C)
BETWEEN:
Shri. Astin Dumingo Maskarinus
Age: 30 years
Resident of Sangargalli
Taluka Khanapur, Dist. Belgaum.
. ...Appellant
(By Sri.Shrishail Mohan Angadi, Adv.,)
AND :
The State of Karnataka
Through C.P.I. Khanapur Police Station
Represented by
The State Public Prosecutor
High Court of Karnataka
Circuit Bench, Dharwad.
...Respondents
(By Sri. V.M.Banakar, Addl.S.P.P., Adv.,)
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This appeal is filed under Section 374 (2) of
Cr.P.C., praying to set aside the impugned judgment of
conviction and order of sentence dated 22.06.2009 in
S.C.No.138/2008 by the I-Addl. Sessions Judge,
Belgaum, by allowing this appeal, consequently,
acquitting the appellant/accused of the charges levelled
against him in the above mentioned case to
substantiate.
This appeal coming on for hearing this day,
B.V.Pinto J., delivered the following:
JUDGMENT
This appeal is filed challenging the judgment and order dated 22.6.2009 passed by the I Addl. Sessions Judge, Belgaum, in S.C.138/2008 convicting the appellant of the offence punishable under Sections 302 and 201 of IPC and sentencing him to undergo imprisonment for life and to pay a fine of Rs.1,000/-, in default, to undergo S.I. for a period of one month for the offence under Section 302 of IPC and further sentencing him to undergo S.I. for one year and to pay a fine of Rs.1,000/-, in default to undergo SI for one month for the offence under Section 201 of IPC. :3:
2. It is the case of the prosecution that the appellant was a married person and that his first wife by name Usha had left him due to misunderstanding between himself and the said first wife and thereafter, about three years prior to the date of the occurrence, the accused was living with one Pooja and was having illicit relationship with her in his hut at Sy.No.18 of Sangargali village coming within the jurisdiction of Khanapur police station, as a result of such living together, the said Pooja became pregnant for 7 months and she was torturing the accused to marry her, to which the accused refused and therefore, on 19.8.2007 at about 8.00 p.m., it is alleged that the accused has assaulted the said Pooja by means of a rolling pin on her head and caused her death and thereby, he has committed an offence under Section 302 of IPC. Secondly, it is further alleged that, on the said place and time, after committing the murder of the said Pooja, the accused had dug a pit near his shed and buried her :4: dead body in order to cause disappearance of the evidence of murder to screen himself from the legal punishment and thereby he has committed an offence under Section 201 of IPC.
3. In order to prove the case, the prosecution has examined in all 17 witnesses as PWs.1 to 17 and got marked Exs.P.1 to P.40 and produced MOs.1 to 14. The defence of the accused is one of total denial. However, by the impugned judgment, the learned Sessions Judge was pleased to convict the appellant and sentenced him as aforesaid. It is this order of conviction and sentence that the accused has challenged in this appeal.
4. The prosecution in this case commenced with filing of a complaint by PW.10 as per Ex.P.25 on 2.9.2007. PW.10 is one Laxmishankar Ganapatrao Mane, who has stated in his complaint that the deceased Pooja is missing and that she was living along :5: with the accused and that he got suspicion about the involvement of the accused in the missing of said Pooja. The police on receipt of the said complaint registered a case in Crime No.227/2007 of Khanapur police station on 2.9.2007. Later on 24.11.2007 the Sub-Inspector of Police apprehended the accused and on the basis of the information given by the accused, he registered suo- motu complaint in Ex.P.28 for the offence under Sections 302 and 201 of IPC. The said case is registered in Cr.No.291/2007 of Khanapur Police Station and the investigation was handed over to PW.16 - CPI. PW.16 recorded the voluntary statement of the accused and thereafter, on the basis of the said voluntary statement, he recovered the dead body of the deceased Pooja along with certain materials near the house of the accused. After recording the statement of neighbouring persons, who had stated before him that the deceased was living with the accused and that the deceased had become pregnant and on the basis of the recovery of the dead :6: body, charge sheet for the offence under Section 302 of IPC along with Section 201 of IPC was filed against the accused.
5. Heard Sri. Shrishaila Mohan Angadi, learned counsel for the appellant and Sri. V.M.Banakar, learned Addl.S.P.P. for the State.
6. The learned counsel appearing for the appellant submits that, the prosecution has not proved that the land in which the dead body was found, was either in the possession of the accused or it was owned by him. Ex.P.40 - RTC of the land bearing Sy.No.18 does not contain the name of the accused and therefore, he submits that, the land in Sy.No.18 of Sangargalli village is not proved to be belonging to the accused. So far as the oral evidence is concerned, the learned counsel for the appellant submits that the witnesses, who are supposed to speak about the relationship of the accused with the deceased namely, PWs.2 to 4, PW.6, :7: PWs.11 and 14, have not supported the case of the prosecution and therefore, there is no material to show that the deceased was having any relationship with the accused. It is his submission that, there is no evidence to show that the deceased was in fact living with the accused and that she became pregnant, as a result of their living together as husband and wife. Learned counsel further submitted that the entire prosecution case has been filed on the basis that the dead body, which is recovered by the police on exhuming the same from the land belonging to the accused. However, there is no convincing evidence that has been put forward by the prosecution to show that the dead body recovered is that of the deceased Pooja and therefore, the learned Sessions Judge could not have convicted the accused and hence, he submits that, the accused is entitled for an order of acquittal and accordingly, prays for allowing the appeal.
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7. Sri.V.M.Banakar, learned Addl.S.P.P. for the State on the other hand submits that, as per the information given by the accused before PW.16, the dead body was recovered at his instance and existence of the dead body was within the exclusive knowledge of the accused, therefore, he submits that it is the accused, who is responsible for the death of the deceased. He further submits that the prosecution has proved that the accused is responsible for the death of the deceased, since they were living together and that the deceased became pregnant. It is further submitted that, the postmortem report of the deceased indicates that, there was a foetus in the womb of the deceased and therefore, the said fact corroborates the case of the prosecution and hence, he submits that the learned Sessions Judge has rightly convicted the accused. Therefore, he submits that the appeal may be dismissed.
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8. The prosecution case commenced with filing of a missing complaint by PW.10. PW.10 Laxmishankar Ganapatrao Mane has stated in his complaint that his wife Umadevi is a Taluk President of National Woman Federation and also a social worker. He had given a missing complaint on 2.9.2007 stating that his wife is a social worker and that one Smt.Pooja, a resident of Sangargalli village is living with Austin Dumingo Maskarinus, who was aged about 25 years and that about 15 days prior to the date of the incident, she was not seen in the house and that she has gone somewhere. This information he has heard from the village people. Hence, he has got suspicion against the accused and therefore he requested that the said pooja may be traced and her whereabouts may be made known. On the basis of the said information, a case in Crime No.227/2007 (woman missing) was registered by the Khanapur police and investigation was commenced. On 24.11.2007 when PW.13 - Kariyappa Yallappa - PSI, : 10 : Khanapur police station, was returning in a Government Jeep near Jambotti cross, one person was coming in a motor cycle and on seeing the police, the person on the motor cycle started to escape and when he observed that number plate of the said motor cycle was blackened, he got suspicious and hence he apprehended him. On questioning, it was found that he is one Austin Duming Maskarin of Sangargalli village. Since his name was mentioned in Crime No.227/2007, PW.13 apprehended him and took him to police station. In the police station, when he questioned the accused, he gave a statement, on the basis of which, a case in Crime No.291/2007 for the offences under Sections 302 and 201 of IPC was registered. Subsequently, on the basis of the information given by the accused, PW.16 himself took the accused to the place where he had buried the dead body of the deceased. PW.16 has also stated that he made arrangement to secure the Sub- Divisional Magistrate to exhume the dead body of the : 11 : deceased and thereafter, in the presence of the panchas and under the orders of the Sub-Divisional Magistrate, the dead body was exhumed and photos of the occurrence have been taken and panchanama has also been drawn. PW.10 also recovered the property namely, rolling pin, which according to the accused was used for the commission of the offence by beating with the said rolling pin, he has committed the murder of the deceased. Thereafter, after collecting the marriage photographs of the accused and after completing the investigation, he had filed the charge sheet.
9. Out of 17 witnesses examined by the prosecution, PWs.2 to 4, PWs.6 to 8, PWs.11 and PW.14 have turned hostile to the case of the prosecution. Their evidence is of no help to the prosecution either to show that the accused was living with the deceased prior to her death or that the land, in which he was residing at Sy.No.18 belonged to him. So far as other : 12 : witnesses are concerned, PW.1 is one Malagouda Iragouda Patil, who has stated that, he was present when the police seized the motor cycle along with the accused when he was first apprehended by the police. PW.1 has also stated that after conducting the panchanama for the seizure of motor cycle, the accused informed that he would show the place of commission of the offence. Hence, PW.1 accompanied the police in a Jeep near the hut of the accused. At that place, a towel had been placed as a curtain to the hut. It is in the evidence of PW.1 that, the accused told the police that in the said hut, he had assaulted his wife in a rolling pin. He further told that, he has buried her body by digging a pit in a place near to that hut. The accused produced a spade pickaxe, and iron pot. It is in the evidence of PW.1 that blood had fallen on the earth. The police have seized the blood stained earth and other properties. The police have also conducted another panchanama as per Ex.P.2. The police had taken the : 13 : photographs of the scene of the occurrence. PW.1 has identified the said photographs. Police have also seized roller, broken piece of roller, spade, pickaxe, iron pot, blood stained earth and sample earth, which are marked as MOs.2 to 8. The police have also seized chimini, which is marked as MO.9.
10. PW.5 - Narayana Parashuram Katgalkar, is a businessman, who has stated that he knows both the accused as well as CW.4. He was called to the police station on 26.11.2007. He was called by the police to be a witness for the recovery of dead body under the panchanama. Accordingly, in his presence dead body was exhumed, which was decomposed. However, identity of the dead body was not forthcoming at that time. PW.5 has signed Ex.P.8, which is a panchanama prepared by the police at the time of exhumation. PW.5 has also stated regarding the photograph, which was taken at the time of exhumation of the dead body. PW.9 : 14 : is a police constable, who has carried FIR to the Magistrate on 24.11.2007. PW.10 is Laxmishakar Ganapatrao mane, about whose role in the case is stated earlier. PW.12 - Shivappa Ramanna Belakudi is Junior Engineer of PWD, who has prepared sketch of the scene of occurrence as per Ex.P.27.
11. PW.13 is Sub-Inspector of police, Khanapur police station, during the relevant period, who apprehended the accused, subsequent to registration of the missing complaint in Crime No.227/2007. He had questioned the accused and accused had stated before him that he had killed the deceased and he would show the place where he had buried the dead body. Ex.P.28 is the complaint - suo motu registered by him on the basis of the information given by the accused.
12. PW.15 -Dr.Satish B.C. was working as Assistant Commissioner, Belgaum, who has stated that on the basis of the information given by PW.17 - Raghu, : 15 : he has passed an order under Section 173 of Cr.P.C., directing exhumation of the dead body. It is in the evidence of PW.15 that he had summoned the Medical Officer of Forensic Science Laboratory and also the doctors of KLE hospital and thereafter went to the scene of the occurrence and conducted exhumation proceedings, photographs of which have taken place as per Exs.P.23 to P.33. He has also stated that the panchanama has been drawn regarding exhumation of decomposed body of a female person. It is his evidence that, the local people have identified the dead body as that of Pooja. To that effect panchanama Ex.P.8 was drawn. The materials seized at the place are torn grown, green colour cloth, which are marked as MOs.10 to 12. The police also have seized a Tali and a pair of ear flowers from the dead body, which are marked as MOs.13 and 14. The photographs are marked as Exs.P.9 to P.15, which were taken at the place of exhumation of the dead body.
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13. PW.16 is PSI. He was present on 24.11.2007, when PW.13 has filed a written complaint as per Ex.P.28. He has registered a case in Crime No.291/2007 of Khanapur Police Station for the offences under Sections 302 and 201 of IPC and sent FIR to the Court. Thereafter, he has recorded the statement of the accused as per Ex.P.35 and arrested him. He has also seized motor cycle under the panchanama Ex.P.1. The accused thereafter led him to his hut where he was residing and on the basis of the information given by him, a wooden stick was seized from the house of the accused. The accused also produced the spade, pickaxe, and iron vessel, which were used for burying the dead body. He has also seized one chimini found in the house. He had prepared panchanama as per Ex.P.2 regarding the property seized in the shed of the accused. Photos of the scene of the occurrence have also been taken by PW.16. : 17 : He has collected the marriage photographs of the accused and thereafter, he handed over the investigation to PW.17.
14. PW.17 - Raghu J., is the Investigating officer in this case, who after taking over the investigation, on 25.11.2007 secured the orders from the Assistant Commissioner for exhuming the dead body as per Ex.P.31 and thereafter, on the basis of the information given by the accused, exhumation was conducted, wherein the dead body of a female person was discovered, which was in decomposed stage. Thereafter, PW.17 has conducted the investigation and after completion of the investigation and receiving the records, he has filed charge sheet against the accused.
15. From the above evidence led by the prosecution, it is seen at the first instance that the prosecution has not at all proved that the accused was living with the deceased Pooja prior to the incident. All : 18 : the witnesses, who were supposed to speak regarding the fact that the deceased and the accused were living together have turned hostile and not proved that part of the case of the prosecution. Hence, at the outset, the prosecution has failed to prove that the accused was living with the deceased Pooja prior to the date of the occurrence. Secondly, the fact that the accused was living in the shed is also not proved by the prosecution beyond reasonable doubt. Ex.P.40, which is RTC of the land in Sy.No.18 of the Sangaragalli village, indicates that the said property does not belong to the accused. The names of some other persons are found in RTC, so also the name of the cultivators. The name of the accused is not found. Therefore, Ex.P.40 is of no help for the prosecution to hold that the accused was either the owner or occupier of Sy.No.18 of Sangargalli village. Hence, the prosecution has not proved the connection between the accused and land in Sy.No.18 of Sangagalli village where the dead body had been found. : 19 :
16. So far as the identity of the dead body is concerned, none of the relatives of the deceased Pooja have been examined by the prosecution to show that the dead body belongs to deceased Pooja. No person has identified the dead body as that of Pooja either by means of looking at her face or by any other physical identification marks, which is said to have been noticed when she was alive. Therefore, the prosecution has not established that the dead body recovered at the instance of the accused is that of the deceased Pooja. In that view of the matter, it cannot be said that the prosecution has proved that the said Pooja has suffered homicidal death. In view of this position, since there is no witness to identify the body of the deceased as that of Pooja, the prosecution case that Pooja has been done to death by the accused has not been proved beyond reasonable doubt. Therefore, we are left with the evidence of PWs.13 and 16, who have stated before the Court that the accused had given statement that he had committed : 20 : the murder of the deceased. The said statement is hit by Section 26 of the Evidence Act and therefore, the said statement given by the accused to the Investigating Officer cannot be held against him. In that view of the matter and after carefully considering the materials on record, we find that there is absolutely no material to connect the accused with the crime.
17. We have gone through the judgment of the trial Court. We find that the reasoning assigned by the learned Sessions Judge in convicting the accused is not based on the evidence on record and therefore, we hold that the learned Sessions Judge has erroneously come to the conclusion that the prosecution has proved the case as against the accused beyond reasonable doubt.
18. From the above discussion and on a thorough re-appreciation of the evidence on record, we are of the opinion that the prosecution has failed to prove the case against the accused beyond reasonable : 21 : doubt and consequently, the accused is entitled for an order of acquittal. Hence, we pass the following:-
ORDER Appeal is allowed.
The impugned judgment of conviction and order of sentence passed on the appellant/accused dated 22.06.2009 in S.C. No.138/2008 on the file the I- Addl. Sessions Judge, Belgaum, is hereby set aside.
Appellant/accused is acquitted of the charges levelled against him. He is in custody. He is ordered to be set at liberty forthwith, if not required in any other case.
Sd/-
JUDGE Sd/-
JUDGE SA