272

OFFENCES AGAINST PROPERTY

K. SUBBA RAO, J. - This appeal by special leave is directed against the decision of the High
Court of Rajasthan in Criminal Revision No. 237 of 1951 confirming that of the Sessions
Judge, Alwar, convicting the appellant under Section 379 of the Indian Penal Code and
sentencing him to a fine of Rs. 200.
2. To appreciate the questions raised in this appeal the following facts, either admitted
or found by the High Court, may be stated. On November 24, 1945, one Ram Kumar Ram
obtained permission, Ex. PB, from the Government of the former AlwarState to supply
electricity at Rajgarh, Khertal and Kherli. Thereafter, he entered into partnership with 4
others with an understanding that the licence would be transferred to a company that be
floated by the said partnership. After the company was formed it, put an application to the
Government through its managing agents for the issue of a licence in its favour. Ex. PW 15/B
is that application. On the advice given by the Government Advocate, the Government
required Ram Kumar Ram to file a declaration attested by a Magistrate with regard to the
transfer of his rights and the licence to the company. On April 8, 1948, Ram Kumar Ram filed
a declaration to that effect. The case of the prosecution is that Ram Kumar Ram was a friend
of the appellant, Pyarelal Bhargava, who was a Superintendent in the Chief Engineer’s Office,
Alwar. At the instance of Ram Kumar Ram, Pyarelal Bhargava got the file Ex. PA/1 from the
Secretariat through Bishan Swarup, a clerk, before December 16, 1948, took the file to his
house sometime between December 15 and 16, 1948, made it available to Ram Kumar Ram
for removing the affidavit filed by him on April 9, 1948 and the application, Ex. PW 15/B
from the file and substituting in their place another letter Ex. PC and another application Ex.
PB. After replacing the said documents, Ram Kumar Ram made an application to the Chief
Engineer on December 24, 1948 that the licence should not be issued in the name of the
company. After the discovery of the tempering of the said documents, Pyarelal and Ram
Kumar were prosecuted before the Sub-Divisional Magistrate, Alwar, — the former for an
offence under Section 379 and Section 465, read with Section 109 of the Indian Penal Code,
and the latter for an offence under Sections 465 and 379, read with Section 109, of the
Indian Penal Code. The Sub-Divisional Magistrate convicted both the accused under the said
sections and sentenced them on both the counts. On appeal the Sessions Judge set aside the
conviction under Section 465, but maintained the conviction and sentence of Pyarelal
Bhargava under Section 379, and Ram Kumar Ram under Section 379 read with Section 109
273

of the Indian Penal Code. Ram Kumar Ram was sentenced to pay a fine of Rs. 500 and
Pyarelal Bhargava to pay a fine of Rs. 200. Against these convictions both the accused filed
revisions to the High Court, and the High Court set aside the conviction and sentence of Ram
Kumar Ram but confirmed those of Pyarelal Bhargava. Pyarelal Bhargava has preferred the
present appeal.
3. Learned counsel for the appellant raised before us three points. [The first two points
raised are not relevant for discussion under section 379 IPC]. The third point which was
raised and is relevant here was that on the facts found the offence of theft has not been
made out within the meaning of Section 379 of the Indian Penal Code.
8. The facts found were that the appellant got the file between December 15 and 16,
1948, to his house, made it available to Ram Kumar Ram and on December 16, 1948
returned it to the office. On these facts it is contended that the prosecution has not made
out that the appellant dishonestly took any movable property within the meaning of Section
378 of the Indian Penal Code. The said section reads:
Whoever, intending to take dishonestly any movable property out of the
possession of any person without that person’s consent, moves that property in
order to such taking, is said to commit theft.
The section may be dissected into its component parts thus: a person will be guilty of
the offence of theft, (1) if he intends to cause a wrongful gain or a wrongful loss by unlawful
means of property to which the person gaining is not legally entitled or to which the person
losing is legally entitled, as the case may be: see Sections 23 and 24 of the Indian Penal
Code; (2) the said intention to act dishonestly is in respect of movable property; (3) the said
property shall be taken out of the possession of another person without his consent; and (4)
he shall move that property in order to such taking. In the present case the record was in the
possession of the Engineering Department under the control of the Chief Engineer. The
appellant was the Superintendent in that office; he took the file out of the possession of the
said engineer, removed the file from the office and handed it over to Ram Kumar Ram. But it
is contended that the said facts do not constitute the offence of theft for three reasons,
namely (i) the Superintendent was in possession of the file and therefore he could not have
taken the file from himself; (ii) there was no intention to take in dishonestly, as he had taken
it only for the purpose of showing the documents to Ram Kumar Ram and returned it the
next day to the office and therefore he had not taken the said file out of the possession of
any person; and (iii) he did not intend to take it dishonestly, as he did not receive any
wrongful gain or cause any wrongful loss to any other person. We cannot agree that the
appellant was in possession of the file. The file was in the Secretariat of the Department
 274

concerned, which was in charge of the Chief Engineer. The appellant was only one of the
officers working in that department and it cannot, therefore, be said that he was in legal
possession of the file. Nor can we accept the argument that on the assumption that the
Chief Engineer was in possession of the said file, the accused had not taken it out of his
possession. To commit theft one need not take movable property permanently out of the
possession of another with the intention not to return it to him. It would satisfy the
definition if he took any movable property out of the possession of another person though
he intended to return it later on. We cannot also agree with learned Counsel that there is no
wrongful loss in the present case. Wrongful loss is loss by unlawful means of property to
which the person losing it is legally entitled. It cannot be disputed that the appellant
unauthorizedly took the file from the office and handed it over to Ram Kumar Ram. He had,
therefore, unlawfully taken the file from the department, and for a short time he deprived
the Engineering Department of the possession of the said file. The loss need not be caused
by a permanent deprivation of property but may be caused even by temporary
dispossession, though the person taking it intended to restore it sooner or later. A
temporary period of deprivation or dispossession of the property of another causes loss to
the other. That a person will act dishonestly if he temporarily dispossesses another of his
property is made clear by illustrations (b) and (l) of Section 378 of the Indian Penal Code.
It will be seen from the said illustrations that a temporary removal of a dog which might
ultimately be returned to the owner or the temporary taking of an article with a view to
return it after receiving some reward constitutes theft, indicating thereby that temporary
deprivation of another person of his property causes wrongful loss to him. We, therefore,
hold that the facts found in this case clearly bring them within the four corners of Section
378 of the Indian Penal Code and, therefore, the courts have rightly held that the appellant
had committed the offence of theft.
9. No other point was pressed before us. In the result the appeal fails and is dismissed.

*****
275

Jadunandan Singh v. Emperor

Narain Dusadh and Sheonadan Singh, the gorait and gomasta respectively of a landlord,
were returning after the inspection of some fields when the two petitioners and others
came out of an ahar and assaulted them. The petitioner Alakh gave bhala blow to Narain on
the right leg, and then other people assaulted him with lathis. The petitioner Jadunandan
and others then assaulted Sheonandan. Jadunandan after this forcibly took the thumb
impressions of Narain on one piece of blank paper, and of Sheonandan on three blank
papers. On these findings the two petitioners and two others were convicted by the trying
Magistrate, Jadunandan being sentenced under Section 384, Penal Code, to six months
rigorous imprisonment and Alakh to four months rigorous imprisonment under Section 324.
Jadunandan was also found guilty under Section 323 but the Magistrate did not consider it
necessary to pass any separate sentence on him under that section. Two other men were
also convicted by the Magistrate under Section 323 and fined. An appeal which was heard by
the Additional Sessions Judge of Gaya failed. When the matter came to this Court, Verma J.,
rejected the revisional application of Jadunandan Singh and also, so far as the question of
sentence was concerned, that of Alakh. It has been contended on behalf of Jadunandan
Singh that no offence under Section 384 has been brought home to him. This contention is
rested on the definition of ‘extortion’ in Section 383.
It is clear that this definition makes it necessary for the prosecution to prove that the
victims Narain and Sheonandan were put in fear of injury to themselves or to others, and
further, were thereby dishonestly induced to deliver paper containing their thumb
impressions. The prosecution story in the present case goes on further than that thumb
impressions were “forcibly taken” from them. The details of the forcible taking were
apparently not put in evidence. The trial Court speaks of the wrists of the victims being
caught and of their thumb impressions being then ‘taken.’ Cases frequently occur which turn
on the difference between the giving and the taking of thumb impressions. In criminal Revn.
No. 125 of 19311 heard by Sir Courtney-Terrell C. J., and myself on 15th April 1931, the
victim was tied up on refusing to give his thumb impression on a piece of paper. He then
consented to put his thumb impression on that piece of paper, and it was by that fear he
was found to have been induced to put his thumb impression on the paper. The conviction
under Section 384 was therefore upheld. This was contrasted with the case which had come
before me sitting singly in 1930, Criminal Revn. No. 420 of 1930, 2 decided on 15th August
1930, where the finding of fact that, helped by two others, the petitioner took by force the
 276

thumb impressions of the victim-the man was thrown on the ground, his left hand pulled out
and the thumb put into a kajrauta and then impression of that thumb taken on certain
papers. I had held that in the circumstances there was no inducing the victim to deliver the
pieces of paper with his thumb impressions. As to this, the late Chief Justice observed:
If the facts had been that the complainant’s thumb had been forcible seized by
one of the petitioners and had been applied to the piece of paper notwithstanding
his struggles and protests, then I would agree that there is good ground for saying
that the offence committed, whatever it may be, was not the offence of extortion
because the complainant would not have been induced by the fear of injury but
would have simply been the subject of actual physical compulsion, and I venture to
agree with the reasoning of my learned brother Dhavle in Cri. Rev. No. 420 of 1930.
The Assistant Government Advocate has drawn attention to 13 PLT 5883 where the
petitioners were convicted under Section 347. It is said in one part of the report that the
victim was laid down on the floor and gagged and only allowed to go after his thumb
impressions were taken on several pieces of paper. Macpherson, J. upheld the conviction,
after pointing out however that it had been found as a fact that the petitioners intentionally
put the victim in fear of injury to himself and thereby dishonestly induced him to place his
thumb impression upon certain pieces of paper. There is no such finding in the present case.
The lower Courts only speak of the forcible taking of the victim’s thumb impressions: and as
this does not necessarily involve inducing the victim to deliver papers with his thumb
impressions (papers which could no doubt be converted into valuable securities), I must hold
that the offence of extortion is not established. The learned advocate suggested that in that
event this may be a case of robbery, but it has not been asserted or found that the papers
were taken from the victim’s possession. It seems to me that on the findings the offence is
no more than the use of criminal force or an assault punishable under Section 352, Penal
Code.
Jadunandan Singh was also convicted under Section 323, but no separate sentence was
passed upon him under that section. I do not propose to interfere with that part of the order
of the lower Court, and as regards his conviction under Section 384, Penal Code, which must
be replaced by a conviction under Section 352, Penal Code, I sentence him to rigorous
imprisonment in default. As regards the petitioner Alakh it had been urged that he is a
student. From the record it appears that his age is 22, and though record does not show that
he is a student, an attempt has been made before me quite recently by means of an affidavit
and a certificate to show that he is a student. I am not sure that this is any mitigation of the
offence of causing hurt with a bhala, but having regard to the nature of the injury that he
277

caused, it seems to me that the ends of justice will be served if the sentence passed upon
him under Section 324, Penal Code, is reduced to rigorous imprisonment for three months.

*****
 278

Sekar v. Arumugham
(2000) Cr. L. J. 1552 (Mad.)

A.RAMAMURTHI, J. - Petitioner Sekar has filed these revision petitions aggrieved against
the orders passed in Cri MPs 1530 and 2049 of 1999 respectively in C.C. 121 of 1999 on the
file of Learned Judicial Magistrate, Manapparai, petitioner in Cri. R.C. 658/99 has preferred
the revision aggrieved against the order passed by learned Additional District Judge. Trichy
Cri. R.C. No. 117/98 dated 26-2-1999.
2. The case in brief for the disposal of these revision petitions is as follows: Petitioner
Sekar filed petition under S. 451 of the Code of Criminal Procedure seeking custody of the
lorry bearing registration no. TN-45/D 5649 and also petition under Section 91 of the Code
of Criminal Procedure for production of the said lorry before the Court. He filed a private
complaint before the learned Magistrate for an offence under Section 379 on the ground
that the vehicle in question had been taken away be the respondent. The complaint was
dismissed under Section 203 of the Code of Criminal Procedure by the learned Magistrate
and aggrieved against this the petitioner preferred Cri. R.C. 117/98 on the file of learned
Additional District Judge. Trichy and the revision was allowed and aggrieved against this
only, the Branch Manager, Bank of Madura filed the revision petition no. 658/99. The
petitions filed by the petitioner Sekar missed by the learned trial Magistrate and aggrieved
against this only, the other revision petitions are filed.
3. Learned counsel for the petitioner Sekar contended that the learned Magistrate erred
in dismissing both petitions holding that the investigation is pending and as such, they
cannot be called upon to produce the vehicle into the Court. He is the owner of the lorry in
dispute and the registration certificate book also stands only in his name. The respondent
has not claimed any rival ownership of the lorry and there is no impediment for directing the
respondent to produce the lorry and also to give custody. The learned Magistrate failed to
appreciate that keeping the lorry in the custody is illegal.
4. Learned counsel for the petitioner in Cri. R.C. 638/99 and the respondent in the other
two revision petitions contended that the petitioner Sekar had availed a loan for a sum of Rs.
4 lakhs during November 94 from the Bank of Madura, cantonment Branch, Trichy towards
purchase of Ashok Leyland Lorry. The petitioner executed a deed of hypothecation dated 9-
11-1994 in favour of the bank and in terms of which had hypothecated the lorry in question
as a security towards the due repayment of the amount borrowed by him. The loan was
repayable in 60 monthly instalments. In terms of clause 14(3) of the deed of hypothecation,
in the event of any default in the payment of the loan instalments, the bank had the right to
279

seize the said lorry. As per clause 15(b) of the said deed, the bank upon seizure of the vehicle
was vested with the right to sell the same and appropriate the sale proceeds towards the
outstanding dues and payable of monthly instalments and as such, on 30-7-1998 the bank
seized the said lorry. Aggrieved against seizure he filed a suit in OS 230/96 against the bank
in District Munsif Court, Manaparai and the suit was ultimately dismissed. The petitioner
also filed W.P. 17835/98 against the bank and ultimately, in view of the pendency of the suit,
he was not permitted to invoke Article 226 of the Constitution and the writ petition was also
dismissed. After exhausting all these remedies, he filed C.C. 210 of 1998 against the bank for
alleged offence under Section 379, IPC. The learned Magistrate on recording the evidence of
the prosecution witnesses and on conducting an enquiry under Section 202 of Criminal
Procedure Code inter alia holding that for the seizure of the said lorry by the bank for the
default in payment of instalments, the bank or its officers cannot be prosecuted for the
offence of theft in the absence of mens rea. The petitioner filed the revision Cri. R.C. No.
117/98 before the learned Additional District Judge. Trichy and the revision was allowed.
Only the owner of the property can claim right to seize the vehicle and the petitioner cannot
claim the right. The bank continues to be the owner of the lorry and as such, the dismissal of
the petitions is proper and correct.
5. The parties in all the revision petitions are one and the same and as such, a common
order is pronounced in all these revision petitions. The parties will be hereinafter referred to
as they are described in Cri. R.C. 585 of 1999 to avoid confusion.
6. It is admitted that the petitioner has availed the loan of Rs. 4 lakhs during November
1994 from the respondent towards purchase of the lorry in question. He also executed a
deed of hypothecation dated 9-11-1994 in favour of the bank. The petitioner defaulted in
payment of the monthly instalments and because of this the respondent bank seized the
lorry on 30-7-1998. The petitioner filed a petition under Section 91, Cr. P.C. to send for the
property to the Court and he also filed another petition under Section 451, Cr. P.C. to return
the lorry in question to him since he claims that he is the owner of the property and the
registration certificate stands in his name. These two petitions are dismissed by the learned
Magistrate. Learned counsel for the petitioner mainly contended that the registration
certificate book stands in the name of the petitioner and since he is the owner, the trial
Court ought to have allowed both the petitions and as such, the dismissal is not proper and
correct.
7. Learned counsel for the respondent contended that the petitioner hypothecated the
lorry to the banks as a security and clause 14(e) of the deed of hypothecation clearly
indicates that in the event of any default in the payment of instalments, the bank had the
 280

right to seize the lorry. Moreover, according to clause 15(b) of the said deed of
hypothecation, the bank upon seizure of the vehicle was vested with the right to sell the
same and appropriate the sale proceeds towards the outstanding dues and payable to it. It is
therefore clear from clauses 14(e) and 15(b) of the deed that the respondent is entitled to
seize the lorry in case of default. Inspite of these provisions, after the seizure of the lorry by
the respondent, it appears that the petitioner filed a private complaint before the learned
Magistrate and the same was dismissed under Section 203, Cr. P.C. Aggrieved against this,
the petitioner preferred revision before the learned Chief Judicial Magistrate, Trichy and the
appeal was allowed, directing the learned Magistrate to dispose of the case in accordance
with law. Aggrieved against this order only, the respondent has filed the other revision
petition 658/99.
8. It is necessary to state that the petitioner filed a suit in O.S. 250/98 against the
respondent bank on the file of District Munsif Court, Manaparai for a declaration that he is
the owner of the lorry and also filed I.A. No. 610/98 for a mandatory injunction. The petition
was dismissed. Subsequently, he filed the suit in O.S. 187/98 on the file of Sub-Court,
Kulithalai for damages and it is pending. Not satisfied with that, the petitioner filed writ
petition and the same was dismissed by the Court. When the respondent has been
empowered to seize the lorry under clause 14(e), it cannot be said that the respondent has
committed theft of the lorry when the petitioner has committed default in payment of
instalments, the bank has seized the lorry. The private complaint has been filed against the
respondent for alleged offence under Section 379, IPC only and the learned Chief Judicial
Magistrate, Trichy had directed the learned Magistrate to dispose of the case. Taking into
consideration the fact that the respondent has seized the lorry in accordance with the
power, I am of the view that it cannot be construed as a theft committed by the respondent
and as such, the dismissal of the complaint by the learned Magistrate under Section 203, Cr.
P.C. is proper and correct and the order by the learned Chief Judicial Magistrate is liable to
be set aside. Similarly the dismissal of the two petitions filed by the petitioner under
Sections 91 and 451, Cr. P.C. is also proper and correct for the simple reason that in view of
the default committed by the petitioner, the respondent had seized the lorry. Even in the
writ petition, the petitioner filed W.M.P. wherein it is directed that he can pay the arrears;
but however, the same was also not paid. In the light of these facts only, the learned
Magistrate had dismissed these two petitions filed by the petitioner and there is no illegality
or infirmity in the orders passed by the Courts below in these two petitions.
9. Cri. R.C. 585 and 586 of 1999: both revision petitions are dismissed. Cri. R.C. 658/99,
for the reasons mentioned above the revision is allowed and the order passed by the
281

learned Chief Judicial Magistrate, Trichy is set aside and the order passed by the learned
Magistrate, Manaparai is restored. Consequently, Cri. M. Ps. 5101 and 5102 of 1999 are
closed.

*****
 282

State of Karnataka v. Basavegowda

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.
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 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
283

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.
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 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.
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 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
 284

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.
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 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.
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
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
285

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.
7. 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.
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 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.
9. 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.
10. 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.
11. 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.
12. 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.
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/-.