Ali Khan vs State Rep. By The Inspector Of … on 3 May, 2017

BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT

DATED: 03.05.2017

CORAM

THE HONOURABLE MR.JUSTICE P.N.PRAKASH

Crl.O.P.(MD)No.11403 of 2015
and
M.P.(MD)Nos.1 2 of 2015

1.Ali Khan
2.Mohamed Meeran : Petitioners

Vs.

1.State Rep. By the Inspector of Police,
Keelavalavu Police Station,
Madurai District,
(In Crime No.30 of 2009)

2.Mohamed Ayyadurai : Respondents

Prayer : Criminal Original Petition is filed under Section 482 of the Code of
Criminal Procedure praying to call for the records pertaining to the charge
sheet in S.C.No.15 of 2014 on the file of the Sessions Mahila Court, Madurai
and quash the same.

For Petitioners :: Mr.S.M.A.Jinnah

For Respondent No.1 :: Mr.K.Anbarasan,
Government Advocate (Crl.side)
For Respondent No.2 :: No Appearance

:ORDER

For the sake of convenience, the parties will be referred to by their
names.

Sithika Begum (deceased) was married to Mohamed Meeran(A3) some time in
the year of 2001 and their marriage ran into rough weather because her
husband was addicted to liquor. It is alleged by the prosecution that Sithika
Begum (deceased) was ill-treated by Saluka Beevi (A1), mother in law and Ali
Khan (A2), nephew of A1 and Mohamed Meeran (A3) would always take sides with
his mother and not support the deceased. It is the specific case of the
prosecution that the accused forcibly evicted Sithika Begum (deceased) from
the portion in which she was living and, therefore, Sithika Begum (deceased)
complained to the Local Jammath and the Jammathdars conducted a Panchayat on
30.01.2009 and handed over the keys to Sithika Begum (deceased) for her to
live in her portion. Sithika Begum (deceased) went to her portion in the
evening on 31.01.2009 and at that time, it is alleged that Saluka Beevi(A1)
came inside her portion and set her on fire and locked the door from outside,
resulting in Sithika Begum suffering from serious burn injuries. Sithika
Begum was taken to the Hospital, wherein a dying declaration has been
recorded from her by the Magistrate, in which, she has implicated Saluka
Beevi clearly to the effect that Saluka Beevi has set her on fire and bolted
the door from outside. Sithika Begum succumbed to the injuries thereafter.
On the complaint lodged by Mohamed Ayyadurai, the brother of the deceased
Sithika Begum, the respondent police registered a case in Crime No. 30 of
2009 on 01.02.2009 under Section 306 of the Indian Penal Code, and
thereafter, altered the case to one under Section 302 of the Indian Penal
Code and after completing the investigation, has filed a charge sheet and the
case is now pending trial in S.C.No.15 of 2014 before the Sessions Mahila
Court, Madurai, for offences under Sections 498A, 302 r/w 109 of the Indian
Penal Code, challenging which, Ali Khan (A2) and Mohamed Meeran(A3) are
before this Court.

2. Heard Mr.S.M.A.Jinnah, learned counsel for the petitioners and
Mr.K.Anbarasan, learned Government Advocate (Criminal side) appearing for the
first respondent.

3. Mr.S.M.A.Jinnah, learned counsel appearing for the petitioners
submitted that there is absolutely no material as against Ali Khan (A-2) in
the alleged offence and that he has been falsely implicated on the short
ground that he is a relative of Saluka Beevi (A1) and further that he was a
police man. The learned counsel took this Court through the entire case
records and submitted that even in the dying declaration given by the
deceased Sithika Begum, she has implicated only Saluka Beevi (A1) and even
the presence of A2 and A3 has not been mentioned by her.

4. Per contra, the learned Government Advocate (Criminal side) refuted
the said contentions.

5. This Court gave its anxious consideration to the rival submissions.

6. On a thorough reading of the First Information Report, dying
declaration and the statement of witnesses, this Court does not find any
material to show that Ali Khan (A2) was anywhere near the place of occurrence
on 31.01.2009 when the incident took place. Therefore, the question of he
abetting the offence committed by A1 under Clause I and III of Section 107 of
the Indian Penal Code does not arise. It is also not the case of the
prosecution that the accused had conspired to kill Sithika Begum and,
therefore, the second clause of 107 and 120-B of the Indian Penal Code also
cannot be invoked. Of course, it is not necessary, for the offence of
abetment under Section 109 of the Indian Penal Code, there should be physical
presence of the accessory near the principal accused. However, in this case,
the only allegation against Ali Khan (A2) is that he used to ill-treat
Sithika Begum (deceased) by joining hands with other accused. It is nobody’s
case that he had done any of the acts mentioned in Section 107 of the Indian
Penal Code for abetting the offence that was allegedly committed by Saluka
Beevi (A1). Therefore, in the considered opinion of this Court, a charge
under Section 302 r/w 109 of the Indian Penal Code cannot be maintained as
against Ali Khan (A2). However, there are prima facie materials to show that
he had committed acts of cruelty against the deceased Sithika Begum and,
therefore, in the course of same transaction, he can be charged for the
offence under Section 498-A of the Indian Penal Code. As regards Mohamed
Meeran (A3), it is reported that he died in the year 2013 and, therefore,
charge against him abates.

7. In the result, this Criminal Original Petition is partly allowed and
the charge against Ali Khan (A2) for offence under Section 302 r/w 109 of the
Indian Penal Code alone is quashed and the charge against him for the offence
under Section 498-A of the Indian Penal Code is sustained. The Trial Court is
directed to complete the trial, within a period of six months from the date
of receipt of a copy of this order, provided the accused co-operate with the
Trial Court by engaging a counsel and cross-examining the witnesses on the
day they are examined in chief. Consequently, the connected miscellaneous
petitions are closed.

8. At this juncture, the learned counsel for the petitioners submitted
that the presence of the first petitioner-Ali Khan before the Trial Court
may be dispensed with, since he is working as a Police Constable.

9. Accepting the said submission, the Trial Court may show indulgence
in dispensing with the personal appearance of Ali Khan (A2) on his counsel
filing an application under Section 317 of the Code of Criminal Procedure and
undertaking that the identity of Ali Khan (A2) will not be disputed and that
the prosecution witnesses will be cross-examined in his absence on the day
they are examined in chief.

To

1.The Sessions Mahila Court,
Madurai.

2.The Inspector of Police,
Keelavalavu Police Station,
Madurai District,

3.The Additional Public Prosecutor,
Madurai Bench of Madras High Court,
Madurai..

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