Case – State of Karnataka v. Basavegowda, 1997
Case Summary
| Citation | State of Karnataka v Basavegowda 1997 |
| Keywords | |
| Facts : | Basavegowda was the husband of Bhagyamma. It was alleged that about 10 days after their marriage, on 30-4-1987, he took her to the Burudala Bore Forest under the pretext of going for the wedding of a friend and, there he threatened to kill her unless she parted with all her ornaments. Bhagyamma, finding no other option, removed all her jewelry valued at around Rs. 11,000/- and handed the same over to the accused who wrapped the same in a handkerchief and put it in his pocket. Thereafter, the accused is alleged to have assaulted her with a big stone whereupon, Bhagyamma screamed. The accused continued to assault her with his fists and seeing two other persons coming there, he ran away. Bhagyamma was thereafter taken to the hospital. He was charged with offences punishable under Sections 307 and 392. The majority of witnesses turned hostile. |
| Issues : | Whether Basavegowda has committed the robbery? |
| Contentions : | Merely because she has subsequently divorced the accused and remarried, would not necessarily indicate that she was hostile to the accused at the time of the incident and that she would go to the extent of fabricating serious charges against him if these were not true. It is true that the Doctor has initially opined that such an injury would have been unlikely having regard to the fact that the stone was of the dimension of I0″x 8″, but subsequently, the doctor himself has agreed that such an injury could be caused by the stone in question. This in our opinion sets the matter at rest. Cumulatively, therefore, we are of the view that merely because Bhagyamma escaped with some injuries, that it cannot lead to the conclusion that the accused did not assault her at all on that day. The fact that the majority of witnesses have not supported the prosecution case is therefore, not a factor in favour of the accused, but one which militates heavily against him. We have taken note of the fact that Bhagyamma has very clearly stated in her evidence that these ornaments belong to her as they had been made by her father for her wedding. She also states that they were in her custody and on her person and that the accused under threat, took the ornaments away from her. If the custody of the ornaments has come to the accused under these circumstances, then his possession becomes clearly unlawful. We are of the view that Bhagyamma’s evidence alone, which finds considerable support from the other material which we have discussed above, is sufficient to establish the charge against the accused. Accused was punished under section 325 and section 384. In our considered view, the extortion of the ornaments from Bhagyamma under threat and the subsequent recovery of these ornaments from the custody of the accused would clearly make him liable for an offence of extortion |
| Law Points : | |
| Judgement | |
| Ratio Decidendi & Case Authority |
Full Case Details
F. SALDANHA AND H. N.NARAYAN, JJ. – The respondent-accused to this appeal was the
husband of the complainant Bhagyamma and it was alleged that about 10 days after their
marriage, on 30-4-1987 , he took her to the Burudala Bore forest under the pretext of going
for the wedding of a friend and that he threatened to kill her unless she parted with all her
ornaments. Bhagyamma, finding no other option, removed all her jewellery valued at
around Rs. 11,000/- and handed the same over the accused, who wrapped the same in a
handkerchief and put it in his pocket. Thereafter, the accused is alleged to have assaulted
her with a big stone whereupon, Bhagyamma screamed. The accused continued to assault
her with his fists and seeing two other persons coming there, he ran away. Bhagyamma was
thereafter taken to the town and ultimately to the hospital. The hospital sent a memo to the
police and in the meanwhile, her own relations were informed and they came to the
hospital. The police took down the complaint of Bhagyamma after which, they placed the
accused under arrest and it is alleged that the ornaments were recovered form his
possession under a Panchanama. On completing the investigation, the accused was put up
for trial, was charge-sheeted and the case was committed to the court of Sessions because,
he stood charged with offences punishable under Section 307, IPC in so far as he had
attempted to cause murder and secondly, he was also charged with an offence punishable
under Section 392, IPC in respect of the robbery of the jewellery in question. The learned
trail judge, after assessing the evidence before him, held that the sole testimony of
Bhagyamma was insufficient to prove the prosecution case beyond reasonable doubt
principally because, the majority of witnesses had turned hostile. In this background, the
accused was acquitted and the State of Karnataka has preferred the present appeal assailing
the correctness of the order.
- The learned S.P.P. has taken us through the evidence of PW 2 Bhagyamma. He has
pointed out that the statement of Bhagyamma was recorded in the hospital shortly after the
incident took place and that there is no departure from the FIR and other subsequent
evidence before the Court. The learned advocate has also pointed out that Bhagyamma has
very clearly deposed to the fact that the accused was not treating her well and that he had
told her on the day in question that he was taking her to attend the marriage of his friend at
Yarehally. On one pretext or the other, he finally took her to the forest, whereupon he
picked up a stone and threatened to kill her if she did not give him all the golden ornaments.
She has thereafter described the manner in which the accused assaulted her despite the fact
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that she had parted with her jewellery and she points out that the accused had used the
stone in the assault and had caused serious injuries to her chest. Even after she raised an
alarm he continued to assault her and it is only after two persons came running there, that
the accused ran away. She has also described as to how her relations ultimately came to the
hospital and the police also came there. She was retained in the hospital for 7 days as an in
patient. Bhagyamma had also taken the police to the scene of offence and pointed out the
stone M. O. I which was attached by the police. The broken glass bangles were found at the
scene of offence. She has given value of the ornaments at about Rs. 10,500/-. Bhagyamma
has been cross-examined at considerable length, but nothing of any consequence has
emerged in the cross- examination and at the same time, we need to record that her basic
evidence remains unshaken. - The learned S.P.P. then relied on only two other pieces of evidence, the first of them
being the scene of offence Panchanama on which he relies for purposes of pointing out that
the broken glass bangles that were found at that spot in the forest fully support the version
of Bhagyamma as also the recovery of the stone. In addition to this, the learned S.P.P. relies
on the medical evidence because, he points out that the six injuries on the person of
Bhagyamma fully and completely support her evidence as the injuries correspond to the
areas where she was assaulted. The most serious of the injuries was injury No.4 which has
caused a fracture of the rib. The submission canvassed is that the medical evidence
completely corroborates the oral evidence of Bhagyamma. Apart from these two pieces of
evidence, the learned S.P.P. has also sought to place reliance on the evidence of recovery of
the ornaments because the prosecution has established that after his arrest, the entire set
of ornaments were recovered from the pant pocket of the accused and that when he
produced them, they were still wrapped in a handkerchief. Learned advocate submitted that
these ornaments happen to be a necklace, earnings and items of personal jewellery which
should normally be on the person of Bhayamma and the fact that they were found from the
pocket of the accused would fully establish that her version regarding the manner in which
the accused took them from her is substantiated. - As against this position, the respondent’s learned advocate has placed strong reliance
on the admission elicited form Bhagyamma that she has subsequently obtained a divorce
from the accused and has also remarried. He submits that this is the clearest indication of
the fact that Bhagyamma was not happy with the marriage and desired to put an end to it
which was why she has framed the accused. As far as this submission goes, we have carefully
scrutinised the evidence and we find that nothing has been brought on record to indicate
that Bhagyamma was not happy with the marriage at the time when it took place or that she
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had other intention or for that matter, that she desired to marry some other man. In the
absence of any such material, merely because she has subsequently divorce the accused and
remarried, would not necessarily indicate that she was hostile to the accused at the time of
the incident and that she would go to the extent of fabricating serious charges against him if
these were not true. Having regard to the seriousness of the matter and the fact that the
accused not only threatened to kill Bhagyamma, but also took away all her ornaments, could
have been a very valid and possible ground for her having wanted to thereafter put an end
to that marriage. We are therefore unable to discredit Bhagyamma’s evidence purely for this
reason. - The respondent’s learned advocate thereafter placed reliance on the medical
evidence in support of his plea that the injury to the chest could not have been caused by
the stone. It is true that the Doctor has initially opined that such an injury would have been
unlikely having regard to the fact that the stone was of the dimension of I0″x 8″, but
subsequently, the doctor himself has agreed that such an injury could be caused by the
stone in question. This in our opinion sets the matter at rest. The learned advocate has also
submitted that if the accused was callous enough to threaten Bhagyamma with death and if
he had taken her to a lonely place for this purpose, that there is no reason why the accused
would have not carried out his intention and that this itself shows that the story is
fabricated. His submission is that if the accused had got hold of a large stone and intended
using it, that he would most certainly have done so and would not have given Bhgyamma an
opportunity to escape. As far as this argument is concerned, we take note of the fact that
Bhagyamma was a young adult woman and even if the accused was the stronger of the two,
she would not have easily submitted to a fatal attack and she has in fact stated that on the
first occasion when the stone was aimed at her, that she was able to avoid it and that she
sustained only minor injuries. Cumulatively, therefore, we are of the view that merely
because Bhagyamma escaped with some injuries, that it cannot lead to the conclusion that
the accused did not assault her at all on that day. - We however, do agree with the submission canvassed by the respondent’s learned
advocate that even if Bhagyamma’s evidence were to be accepted, that the charge would
still not come within the ambit of Section 307, IPC. Even though Bhagyamma states that the
accused threatened to kill her, we would necessarily have to strictly go by what he actually
did and it is clear to us from the manner in which he assaulted Bhagyamma, that the acts
would not hold him liable for an offence of attempted murder. The learned advocate has
submitted that the weapon used and the type of injuries caused are the two crucial factors
while assessing questions as to whether there was intention to cause death and he is right in
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the present instance when he submits that at the very highest, the accused could be held
liable for the offence of causing grievous hurt since injury no. 4 indicated that there was
fracture of the rib though the other injuries are relatively minor. - The respondent’s learned advocate then pointed out to us that the majority of
witnesses in this case have turned hostile. He submits that this is not a mere co-incidence,
but that it very clearly reflects on the type of investigation that has taken place and the high
degree of fabrication exaggeration. Why witnesses who have given full and complete
statement to the police should thereafter turn hostile is not a matter of conjecture any
longer because, it is very clear that the only beneficiary of such a situation is the accused and
it would, therefore, be impossible to rule out complicity on the part of the accused when
witness after witness turns hostile. The fact that the majority of witnesses have not
supported the prosecution case is therefore, not a factor in favour of the accused, but one
which militates heavily against him. - The respondent’s learned advocate then advanced the submission that the accused
was the husband of Bhagyamma and that it is perfectly legitimate for him to keep the wife’s
ornaments in his custody and that he did so, that the custody does not become unlawful.
Learned advocate submission proceeds on the assumption that the husband has every right
to be found in possession of a wife’s ornaments and that the recovery of the ornaments
from him cannot be treated as a guilty circumstance. We do not dispute the fact that under
normal situations, a wife may even entrust her ornaments to the husband for safe custody
or a prudent or careful husband may, for reasons of safety, keep the ornaments with him or
under his control and such an arrangement could never lead to the inference that the
husband was disentitled to retain the wife’s ornaments and that it is a guilty circumstance
against him. Particularly in criminal cases, such facts are not to be considered in a vacuum,
but must be looked at strictly in relation to the special situation that prevails in that
particular case. We have taken note of the fact that Bhagyamma has very clearly stated in
her evidence that these ornaments belong to her as they had been made by her father for
her wedding. She also states that they were in her custody and on her person and that the
accused under threat, took the ornaments away from her. If the custody of the ornaments
has come to the accused under these circumstances, then his possession becomes clearly
unlawful. We need to add here that ornaments and personal property belonging to a wife
necessarily constitute her personal possessions and divesting a wife of these against her
wishes or without her consent would clearly bring the case within the ambit of a criminal
offence. It is a misnomer to argue that irrespective of such situation, that the possession of
the wife’s personal ornaments by husband still continues to be lawful. In our considered
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view, the extortion of the ornaments from Bhagyamma under threat and the subsequent
recovery of these ornaments from the custody of the accused would clearly make him liable
for an offence of extortion. Though the learned S.P.P. submitted that even if the case did not
qualify for a conviction under Section 392, I.P.C., that on these facts, it would clearly come
within the ambit of Section 386, I.P.C because, the ornaments were extorted under the
threat of death, we would prefer not to accept the evidence of Bhagyamma without a little
dilution because, the F.I.R. indicates a slightly less serious situation. It would be more
appropriate, therefore, to record a conviction under Section 384, I.P.C. - As regards the rest of the evidence, we would prefer not to refer to it because, the
majority of witnesses have turned hostile and their evidence is not of much consequence. It
is true that most of them have been cross-examined and have come a full circle, but we are
of the view that Bhagyamma’s evidence alone which finds considerable support from the
other material which we have discussed above, is sufficient to establish the charge against
the accused. - The learned S.P.P. submitted that the large stone used in this instance, if used as a
weapon of assault, was capable of causing death and that it could, therefore, come within
the ambit of a deadly weapon. He also submitted that injury no.4. which has resulted in the
fracture of a rib is sufficient to bring the case within the ambit of Section 326, I.P.C. The
respondent’s learned advocate points out to us that the stone in question was a relatively
small one and secondly, that the other five injuries that have resulted are all very minor
except for injury No.4 which has resulted in the fracture of the rib. There again, he points
out that Bhagyamma was not seriously injured and she was fit enough to travel on a bicycle
and then go to the hospital and that she has completely recovered within a period of 7 days
and he, therefore, submitted that the offence at the highest would come under Section 323,
I.P.C We need to point out here that the assault in this case cannot be brushed off as an
insignificant one because, a stone was used in a forest against a young wife with the criminal
intention divesting her of her jewellery. Having regard to the fact that this incident did not
take place in the home and that the accused had taken her to a forest under a false pretext,
it is clear that he had a criminal intention of either killing her or seriously injuring her, but
that he ultimately did not carry this out. Also, having regard to the medical evidence which
lists the fracture of the rib as a serious injury, we are of the clear view that this is a case
which would qualify for a conviction under Section 325, I.P.C. - On the question of sentence, the learned S.P.P. has submitted that this is one more
of the heinous instances where an (avaricious) unscrupulous husband has attacked a newly
married wife and that too with the sole purpose of gain. He submits that irrespective of
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what ultimately happened, the facts clearly disclose that the accused wanted to appropriate
the jewellery and get rid of the wife and in this background, he submits that a deterrent
sentence is called for. On the other hand, the respondent’s learned advocate has prayed for
utmost leniency because, he submits that the ultimate injuries were not of extreme
seriousness and he puts forward the plea that there is no material to indicate hostility on the
part of the accused due to any other reason and that the Court must, therefore, accept the
position that Bhagyamma either had some other liaison or that she was not interested in the
accused as a husband as she had an intention to marrying some other person and that in this
background, there was very strong provocation to the accused. We have discounted this
submission, but we need to point out that even assuming that this was the situation, nothing
could justify the act of the husband in taking her to a forest extorting her ornaments and
then attempting to do away with her. Also, we have taken note of the fact that in many
instances, on all sorts of pleas for sympathy, abnormally lenient sentences are awarded by
the Courts which have rightly been categorised as flea-bite punishments which not only
reduce the justice dispensation system to a mockery of the law, but almost to a joke. It is
very wrong on the part of Criminal Courts, when offences of some seriousness are
established, to award abnormally low sentences, though we do appreciate the fact that all
relevant factors must be taken: into consideration while computing the degree of sentences.
In this case, the only extenuating factors in favour of the accused are that he was a young
man; that he had no criminal background; and furthermore that he was a rustic person and
would therefore qualify for some degree of leniency as he did not have the benefit of either
education or acquiring a high degree of enlightenment. It is for these reasons and also
because nine years have passed since the incident took place that we are inclined to award a
relatively lenient sentence to the accused. - The order of acquittal is accordingly set aside. The accused is convicted in the first
instance of the offence punishable under Section 325, I.P.C and it is directed that he shall
undergo R.I for a period of two years. The accused is also convicted of the offence
punishable under Section 384 I.P.C. and it is directed that he shall undergo R.I. for a period
of two years. The substantive sentences to run concurrently. The respondent accused shall
be entitled to the set-off for the entire period that he has already undergone. The trial Court
shall, if the accused has not undergone the requisite sentence and is on bail, take necessary
steps to ensure that he is placed under arrest and consigned to prison. In that event, the bail
bond of the respondent-accused shall stand cancelled. - The appeal accordingly succeeds and stand disposed of, the fees payable to the
learned advocate who has represented the respondent accused is fixed at Rs. l,000/-.
