State of Karnataka v Basavegowda 1997

हिंदी में पढ़ने के लिए यहां क्लिक करें

Case Summary

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 aer 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 opon, 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. Thereaer, the accused is alleged to have assaulted her with a big stone whereupon, Bhagyamma screamed. The accused connued to assault her with his fists and seeing two other persons coming there, he ran away. Bhagyamma was thereaer taken to the town and ulmately to the hospital. The hospital sent a memo to the police and in the meanwhile, her own relaons were informed and they came to the hospital. The police took down the complaint of Bhagyamma aer which, they placed the accused under arrest and it is alleged that the ornaments were recovered form his possession under a Panchanama. On compleng the invesgaon, the accused was put up for trial, was charge-sheeted and the case was commied to the court of Sessions because, he stood charged with offences punishable under Secon 307, IPC in so far as he had aempted to cause murder and secondly, he was also charged with an offence punishable under Secon 392, IPC in respect of the robbery of the jewellery in queson. The learned trail judge, aer assessing the evidence before him, held that the sole tesmony of Bhagyamma was insufficient to prove the prosecuon case beyond reasonable doubt principally because, the majority of witnesses had turned hosle. In this background, the accused was acquied and the State of Karnataka has preferred the present appeal assailing the correctness of the order.

2. 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 aer 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 treang her well and that he had told her on the day in queson that he was taking her to aend 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 thereaer described the manner in which the accused assaulted her despite the fact 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 aer she raised an alarm he connued to assault her and it is only aer two persons came running there, that the accused ran away. She has also described as to how her relaons ulmately came to the hospital and the police also came there. She was retained in the hospital for 7 days as an in paent. Bhagyamma had also taken the police to the scene of offence and pointed out the stone M. O. I which was aached 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- examinaon and at the same me, we need to record that her basic evidence remains unshaken.

3. 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 poinng 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 addion 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 prosecuon has established that aer his arrest, the enre set of ornaments were recovered from the pant pocket of the accused and that when he produced them, they were sll wrapped in a handkerchief. Learned advocate submied 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 substanated.

4. 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 indicaon 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 scrunised the evidence and we find that nothing has been brought on record to indicate that Bhagyamma was not happy with the marriage at the me when it took place or that she had other intenon or for that maer, 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 hosle to the accused at the me of the incident and that she would go to the extent of fabricang serious charges against him if these were not true. Having regard to the seriousness of the maer 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 thereaer put an end to that marriage. We are therefore unable to discredit Bhagyamma’s evidence purely for this reason.

5. 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 inially 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 queson. This in our opinion sets the maer at rest. The learned advocate has also submied 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 intenon 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 submied to a fatal aack 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. Cumulavely, 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.

6. 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 sll not come within the ambit of Secon 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 aempted murder. The learned advocate has submied that the weapon used and the type of injuries caused are the two crucial factors while assessing quesons as to whether there was intenon to cause death and he is right in 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 relavely minor.

7. The respondent’s learned advocate then pointed out to us that the majority of witnesses in this case have turned hosle. He submits that this is not a mere co-incidence, but that it very clearly reflects on the type of invesgaon that has taken place and the high degree of fabricaon exaggeraon. Why witnesses who have given full and complete statement to the police should thereaer turn hosle is not a maer of conjecture any longer because, it is very clear that the only beneficiary of such a situaon is the accused and it would, therefore, be impossible to rule out complicity on the part of the accused when witness aer witness turns hosle. The fact that the majority of witnesses have not supported the prosecuon case is therefore, not a factor in favour of the accused, but one which militates heavily against him.

8. 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 assumpon 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 situaons, 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. Parcularly in criminal cases, such facts are not to be considered in a vacuum, but must be looked at strictly in relaon to the special situaon that prevails in that parcular 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 constute her personal possessions and divesng 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 irrespecve of such situaon, that the possession of the wife’s personal ornaments by husband sll connues to be lawful. In our considered view, the extoron 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 extoron. Though the learned S.P.P. submied that even if the case did not qualify for a convicon under Secon 392, I.P.C., that on these facts, it would clearly come within the ambit of Secon 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 lile diluon because, the F.I.R. indicates a slightly less serious situaon. It would be more appropriate, therefore, to record a convicon under Secon 384, I.P.C.

9. As regards the rest of the evidence, we would prefer not to refer to it because, the majority of witnesses have turned hosle 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.

10. The learned S.P.P. submied 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 submied that injury no.4. which has resulted in the fracture of a rib is sufficient to bring the case within the ambit of Secon 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, submied that the offence at the highest would come under Secon 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 intenon divesng 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 intenon of either killing her or seriously injuring her, but that he ulmately 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 convicon under Secon 325, I.P.C.

11. On the queson of sentence, the learned S.P.P. has submied that this is one more of the heinous instances where an (avaricious) unscrupulous husband has aacked a newly married wife and that too with the sole purpose of gain. He submits that irrespecve of what ulmately 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 ulmate injuries were not of extreme seriousness and he puts forward the plea that there is no material to indicate hoslity on the part of the accused due to any other reason and that the Court must, therefore, accept the posion that Bhagyamma either had some other liaison or that she was not interested in the accused as a husband as she had an intenon to marrying some other person and that in this background, there was very strong provocaon to the accused. We have discounted this submission, but we need to point out that even assuming that this was the situaon, nothing could jusfy the act of the husband in taking her to a forest extorng her ornaments and then aempng 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 jusce dispensaon 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 consideraon while compung the degree of sentences. In this case, the only extenuang 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 rusc person and would therefore qualify for some degree of leniency as he did not have the benefit of either educaon 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 relavely lenient sentence to the accused.

12. The order of acquial is accordingly set aside. The accused is convicted in the first instance of the offence punishable under Secon 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 Secon 384 I.P.C. and it is directed that he shall undergo R.I. for a period of two years. The substanve sentences to run concurrently. The respondent accused shall be entled to the set-off for the enre 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.

13. 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/-.