Jharkhand High Court
Krishna Karamkar S/ O Suresh Karamkar vs The State Of Jharkhand on 16 December, 2022
Author: Ratnaker Bhengra
Bench: Ratnaker Bhengra
1
CRIMINAL APPEAL(SJ) NO. 363 of 2010
Against the judgment of conviction and order of sentence both
dated 10.03.2010 passed in Session Trial No. 231 of 2007 by
the learned Additional District and Sessions Judge-F.T.C. No.
I, Ghatshila.
1. Krishna Karamkar S/ o Suresh Karamkar
2. Suresh Karamkar, S/o late Rajballav Karamkar
3. Podiya Karamkar W/o Suresh Karamkar
4. Shankari Karamkar D/o Sidan Karmakar
All resident of village Hensal Hill, P.S. & P.O.- Potka,
District- East Singhbhum .......Appellants
Vs.
1.The State of Jharkhand
2. Janki Karamkar, D/o Sukhdeo Karamkar, PO- Parajori, PS-
Ghatshila, Dist- East Singhbhum ........Respondents
For the Appellant :Mr. Suman Kumar Ghosh, Advocate For the Respondent : Mrs. Ruby Pandey, APP PRESENT HON'BLE MR. JUSTICE RATNAKER BHENGRA C.A.V. ON 11.02.2022 DELIVERED ON 16 /12 /2022 Ratnaker Bhengra,J: This appeal is directed against the judgment of conviction and order of sentence both dated 10.03.2010 passed by the learned Additional District and Sessions Judge-FTC No. I, at Ghatshila in S.T. No. 231 of 2007 whereby and whereunder all the appellants except appellant no.4 were convicted under sections 498A, 323 and 313/511 read with section 34 of IPC. Appellant nos. 2 and 3 were further convicted under section 120B of the Indian Penal Code. Appellant no. 4 was convicted only under section 120 B of IPC. Appellant nos. 1, 2 and 3 were sentenced to RI for three years and fine of Rs. 2000/- each under section 498A/34 of the Indian Penal Code and in default to suffer SI for three months each. Appellants no. 1, 2, 3 were further sentenced to undergo RI for one year under section 323/34 of the Indian Penal Code and sentenced to undergo RI for two years under section 313/511 of the Indian Penal Code read with section 34 of the Indian Penal Code. Further, appellant nos. 2,3 and 4 were sentenced to undergo RI for a period of two years for their conviction under section 120 B of the Indian Penal Code and all the 2 sentences were ordered to run concurrently.
2. The prosecution case arose out of a complaint case being C/1 Case no. 96/2006 dated 18.06.2006 filed by PW-5 informant/complainant Janki Karamkar (Respondent no. 2 herein) filed before the learned Additional Chief Judicial Magistrate, Ghatshila. The prosecution case, in brief, as per the complaint petition is that informant Janki Karamkar was married to Krishna Karamkar (appellant no.1 herein) on 5th of Shrawan month of 2005 as per Hindu rites and rituals. At the time of marriage, sufficient articles were given as gift and after the marriage, informant went to her matrimonial home and for sometimes informant enjoyed conjugal life peacefully. The further case of prosecution is that after four months, informant became pregnant and gradually she was unable to carry out the domestic work for which her mother-in-law and father-in-law, started abusing her. All of sudden, one day her husband appellant no.1 slapped her and asked to bring Rs. 5000/- from her parents in order to purchase a piece of land. Mother-in-law and father-in-law of the informant used to quarrel with the informant and used to say if she does not bring the aforesaid amount of money, then, they will remarry their son with some other girl. The appellant no.1 or the husband of the informant insisted her to get the pregnancy terminated to which she denied, then, her husband forcibly tried to administer medicine for the purpose of miscarriage but any how informant avoided the medicine. Lastly, on 28th June, 2006, informant's husband said that he was incapable in providing medical aid in respect of her pregnancy and took informant to her parental home and left her there and thereafter, informant started living in her parental home. In the month of July, 2006, informant came to know that her in-laws were conspiring to remarry the informant's husband appellant no.1 Krishna Karamkar with the appellant no.4 Shankari Karamkar. The informant came to know in the first week of August, 2006, that her husband appellant no.1 had remarried with the appellant no.4 Shankari Karamkar and since then both of them were residing together as husband and wife at the informant's matrimonial home. The father of 3 the informant went to the matrimonial home of his daughter on 13 th August, 2006 and found appellant no.4 there, to which informant's father objected, then, he was assaulted by appellants. Thereafter, informant's father, informed the mukhiya of the appellant's village, who, advised to go to the police, but, no FIR was lodged by the police and then the present complaint case was filed.
3. On the basis of the order of learned ACJM, Ghatsila, FIR being Ghatsila P.S. case no. 104 of 2006 dated 20.10.2006 was registered under sections 313, 323, 498A, 120B and 494 of IPC against the appellants herein along with Sidan Karamkar and Surukuni Karamkar, who are the father and mother of the appellant no.4 respectively. After investigation charge sheet was submitted and the cognizance of the offences were taken and the case was committed to the court of Sessions. Charges were framed against the appellant no.1, appellant no.2 and appellant no.3 under sections 498A/34 and 323/34 and 313/511 of IPC. Separate charge under section 494 of IPC was framed against the appellant no.1. Charge was framed under section 120B of IPC against the appellant no.2 to 4 along with Sidan Karamkar and Surukuni Karamkar. Trial was held and at the conclusion of the trial Sidan Karamkar and Surukuni Karamkar were acquitted of the charges, but, the remaining appellants were convicted and sentenced as aforesaid, hence, this appeal.
4. Prosecution had examined altogether six witnesses out of whom PW-5 Janki Karamkar is the informant/ complainant of the case; PW- 1 is Bhujanjo Karamkar, who is the uncle of the informant; PW-2 is Sudhir Gorai; PW-3 is Sukhdeb Karamkar, who is the father of the informant; PW-4 is Sreemati Karamkar, who is the mother of the informant and PW-6 is Kathiya Karamkar, who is the maternal uncle (mama) of the informant.
5. PW-5 Janki Karamkar is the informant/ complainant of the case. In her evidence, informant had stated that her marriage was solemnized with the appellant no. 1 Krishna Karamkar, in the month of Sharavan, 2005, as per Hindu rites and rituals. Thereafter she went to her matrimonial house and leaved there peacefully for about 5/6 4 months and during this period she conceived and became pregnant of about five months and due to this, she was unable to do domestic work as usual. Hence, her husband and members of her matrimonial home started assaulting her. Informant further stated that her husband asked her to bring Rs. 5000/- from her father as he had to buy land, to which informant denied. Thereafter, her husband forcibly administered medicine to her as a result she started vomiting and became unconscious. Her husband forcibly took her to her parental home and left her there and immediately thereafter, her husband married with appellant no. 4 Shankari Karamkar. In her cross- examination, informant denied that her husband never assaulted her. Informant further stated that in this case, she had filed compromise petition before the learned court below on the condition that her husband will keep her and leave his second wife. After the aforesaid compromise her husband took her to her matrimonial home but did not leave his second wife. She stayed for about 10 to 12 in her matrimonial home after the aforesaid compromise.
6. PW-2 Sudhir Gorai is co-villager of the informant's parents. PW-2 had stated in his cross-examination that he had heard about assault on the complainant by the accused Krishna Karamkar and his parents and sending the complainant at her parental home. He had himself not seen the occurrence and he never visited the complainant's matrimonial home.
7. PW-3 Sukhdeb Karamkar is the father and PW-4 Sreemati Karamkar is the mother of the informant. Both PW-3 and PW-4 had stated in their evidence that her daughter complainant Janki Karamkar was married to the appellant no.1 Krishna Karamkar and out of the said wed-lock, she became pregnant. PW-3 and PW-4 also deposed that their daughter was being assaulted by her husband appellant no.1 Krishna Karamkar and her husband also said to bring Rs. 5000/- from her parents to which she refused.
8. PW-1 Bhujango Karamkar is the uncle and PW-6 Kathiya Karamkar is the maternal uncle (mama) of the informant. Both PW-1 and PW-6 had stated in their evidence that family members of the 5 matrimonial home of the informant used to quarrel with the informant.
ARGUMENTS OF THE APPELLANTS
9. Learned counsel for the appellants has argued that the convictions of the appellant nos. 1, 2 and 3 under sections 498A, 323 and 313/511 r/w 34 of IPC as well as conviction of the appellants no. 2, 3 and 4 under section 120B of the Indian Penal Code is not based on the evidences. Learned counsel has argued from the evidence of PW-1 Bhujango Karamkar, who is the uncle of the complainant and submitted that PW-1 in his cross-examination had stated that he had not much information about the occurrence. Hence, PW-1 is an hearsay witness. Learned Counsel further submitted that PW-2 Sudhir Gorai, who is the co-villager from the paternal home of the complainant is an independent witness. PW-2 had also in his cross- examination had stated that he did not see anything and deposed what was conveyed to him by the alleged victim girl and therefore, PW-2 is also a hearsay witness and his evidence cannot be relied upon.
10. Learned counsel has then referred to the evidence of PW- 3, who is the father of the complainant and pointed out that he has also in his cross-examination stated that he is only saying what was told to him by his daughter or the complainant. Learned Counsel also refers to the evidence of PW-4, who is the mother of the complainant and submitted that PW-4 even in her cross-examination had stated that she had not seen the occurrence and deposed what was conveyed to her by her daughter and hence PW-4 is also an hearsay witness.
11. Learned counsel further submitted that PW 5 is the alleged victim girl herself and even she had in her evidence had stated that she delivered a male child in the month of Bhado in 2006 and therefore, appellants cannot be held guilty for the offence under section 313/511 of IPC. Informant had also in her cross-examination deposed that informant's husband appellant no. 1 was residing together with his second married wife appellant no. 4, but, this is patently not true because learned court below had acquitted the appellant no. 1 for the charge under section 494 IPC and therefore, 6 doubt is created on the reliability of the complainant.
12. Learned counsel further submitted that PW-6 is Kathiya Karmakar and he is maternal uncle (mama) of the informant and PW- 6 in his cross-examination had stated that he had never gone to the matrimonial home of the informant and he did not see the quarrel done by the in-laws at her matrimonial home.
13. Learned counsel further argued that husband of the informant or appellant no. 1 herein was acquitted of the charge under section 494 IPC which would have been a major offence and since charge under section 494 IPC was not proved before the learned lower court and this raises doubt in the evidence of the alleged victim along with the evidence of the other witnesses who are basically only hearsay witnesses. Counsel also submits that conviction of the appellants no. 1, 2 and 3 under section 313/511 r/w 34 IPC is not proper as evidence of expert witness of a doctor was crucial to prove the charge under section 313/511 IPC. In the absence of the evidence of the doctor for such a major offence, which carries considerable punishment in fact imprisonment for life, doubt is raised and conviction should not be sustained.
14. Learned counsel has then gone on to refer the compromise or settlement arrived at between the parties and has referred to the supplementary affidavit dated 26.02.2021 and the contents of the compromise which has been annexed to this supplementary affidavit which indicate that the settlement has been arrived at between the parties and therefore section 313/511 IPC fails and for offence of 498A/34 IPC there is much vagueness about it and even for section 323/34 IPC, there is no doctors evidence and hence, aforesaid compromise shall be taken into account.
ARGUMENTS OF THE APP
15. The learned counsel for the State has, on the other hand, argued that the offence under section 498A/34 and 313/511 of IPC is definitely made out. Learned counsel submitted that the alleged victim or the complainant has supported the prosecution case. Complainant in her evidence had stated that she was forcibly made to 7 consume some medicine which resulted in harm to her pre born child and that there was demand for Rs. 5000/- and for this demand there was accompanying harassment and for which she was also assaulted. Learned counsel further submitted that the father and mother of the girl, who are PW 3 Sukhdeb Karamkar and PW4 Sreemati Karamkar respectively have also supported the demand for money and also that she was harassed and tortured for the same. Learned counsel further says that even the independent witnesses who is PW 2 had also supported the case of the prosecution. Learned counsel further submitted that offences under section 323/34 IPC is also made out since the evidence for assault has consistently being stated by the witnesses. Learned counsel further argues that the conviction of appellant no. 4 Shankari Karamkar for 120B IPC should be sustained because there is evidence of her involvement or entanglement with the husband of the complainant or appellant no.1 herein and for which appellant nos. 2 and 3 were also convicted under section 120B of IPC.
CONCLUSIONS
16. I have heard both counsels, gone through the record of the case and the evidences.
17. First of all coming to the conviction of the appellant nos.1, 2 and 3 under section 498A/34 IPC. From the contents of complaint case no. C/1-96/2006 dated 18.06.2006, filed by the PW-5 complainant/ informant Janki Karamkar, I find that in her complaint petition, informant had stated that when complainant became pregnant, she was unable to carry out her domestic work then her mother-in-law appellant no. 3 and father-in-law appellant no.2 abused her. Informant had also stated in her complaint petition that her husband appellant no.1 Krishna Karamkar, had asked her to bring Rs. 5000/- from her parents to purchase a piece of land. Ongoing through the deposition of the informant, I find that informant in her examination-in-chief had reiterated her statement made in her complaint petition. Hence, appellant no.2 and appellant no.3 are guilty for causing danger to the health of their daughter-in-law or respondent no. 2 herein, when she was pregnant and husband appellant no.1 8 herein is guilty for causing unlawful demand. Therefore, charge under section 498A/34 of IPC is proved against appellant nos. 1, 2 and 3.
18. Regarding conviction of the appellant nos. 1, 2 and 3 under section 323/34 IPC and 313/511 r/w 34 IPC, I find that informant had stated in her complaint petition that her husband, appellant no.1 had slapped her. In her deposition also, informant had deposed that her husband appellant no.1, had assaulted her. But, regarding appellant no.2 father-in-law and appellant no.3 mother-in-law, informant, in her deposition, had nowhere deposed that they had assaulted her. Hence, charge under section 323 is proved against the appellant no.1 husband and not proved against the appellant nos. 2 and 3. Further, for the conviction of the appellants no. 1, 2 and 3 under section 313/511 r/w 34 of IPC, I find that informant in her complaint petition at para-8 had stated that her husband and his parents tried forcibly to administer medicine to cause miscarriage, but, she did not take medicine. But, informant in her deposition had specifically stated that her husband had brought medicine from somewhere and forcefully gave her to eat as a result, she vomited and became unconscious. So, on one hand in her complaint petition, informant had stated that, she did not consume medicine, but, in her evidence, informant had stated that she consumed medicine as a result she vomited and became unconscious. Hence, there are two version of the informant as to consuming medicine and these two versions of informant raises doubt in the prosecution case. Moreover, there is no medical evidence for proving charge under section 313/511 r/w 34 of IPC. Hence charge under section 313/511 r/w 34 of IPC is not proved against the appellant nos. 1, 2 and 3.
19. Further appellant nos. 2, 3 and 4 are convicted under section 120-B of IPC. I find from the impugned judgment that the learned lower court had already rejected the charge under section 494 of IPC against the appellant no.1 and in the case of conviction of the appellant no.1 under section 494 of IPC, appellant no. 4 Shankari Karamkar would definitely been more involved. But, acquittal of appellant no.1 for the charge under section 494 of IPC raises doubt as 9 to charge under section 120-B against the appellant no. 4 Shankari Karamkar. Further, one of the main ingredient of section 120B IPC is that there must be an agreement between the parties for committing an illegal act and for conviction under section 120-B of IPC, some material evidence must be there for proving conspiracy. But, no such agreement or material evidence as to conspiracy has been brought forward by the prosecution to sustain charge under section 120B of IPC against appellant nos. 2 and 3. Hence, charge under section 120B is not proved against appellant nos. 2, 3 and 4.
20. Accordingly, impugned judgment of conviction dated 10.03.2010 passed by the learned Additional District and Sessions Judge-FTC No. I, at Ghatshila in S.T. No. 231 of 2007, so far as it concerns the conviction of the appellant nos. 1, 2 and 3 under section 498-A/34 IPC, is sustained and upheld. Further conviction of the appellant nos. 2 and 3 under sections 323/34 of IPC is set-aside, but conviction of the appellant no.1 under section 323 IPC is sustained and upheld. Conviction of the appellant nos. 1, 2 and 3 under section 313/511 r/w 34 IPC cannot sustain and is hereby set-aside. Further conviction of appellant nos. 2, 3 and 4 under section 120B IPC is also set-aside.
21. So far as sentence of appellant nos. 1, 2 and 3 under section 498A/34 of IPC and sentence of the appellant no.1 under section 323 is concerned, I find that supplementary affidavit has been filed and compromise between the appellant no. 1 Krishna Karamkar and complainant/respondent no.2 Janki Karamkar herein has been annexed to this supplementary affidavit. On perusal of compromise petition, I find that complainant has stated that now she has settled the dispute and she has no grievance. Hence, at this stage no custodial sentence is required. All the appellants are discharged from the liability of bail-bond.
22. Accordingly, this appeal is partly allowed.
( Ratnaker Bhengra,J.) Jharkhand High Court, Ranchi Dated 16 /12 /2022 Sharda/NAFR