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2018 DIGILAW 3764 (MAD)

M. SHEIK DAWOOD v. STATE

2018-10-11

G.JAYACHANDRAN

body2018
JUDGMENT G. Jayachandran, J. The Criminal Appeal No.267 of 2010 is preferred by A1, A4, A5 and A6 in S.C.No.532 of 2006 on the file of Principal Sessions Court, Madurai, aggrieved by imposing of 3 years Rigorous Imprisonment and Rs. 3,000/- fine, in default 3 months Rigorous Imprisonment for offences under Sections 307 r/w. 109 of I.P.C. 2. The Criminal Revision Case No.130 of 2013 is filed by P.W.1/the de- facto complainant for enhancement of the punishment imposed on accused Nos.1, 4, 5 and 6 for offences under Sections 307 r/w. 109 I.P.C. 3. The short facts of the case is that on 18.09.2004, at about 12.30 p.m., when one Subaria Begam was waiting in Mattuthavani Bus stand, she was abducted by A4 in a Toyota Qualis Car bearing Registration No.TN 58 F 3999. A2, A3 and A6 were accompanying A4. The girl was taken to the house of A1 at K.K.Nagar. After calling A1 through phone, A4 to A6 brought the girl to the de-facto complainant viz., Dr.K.Abdul Latiff's house. The car was driven by A4. But before reaching to the complainant's house, they proceeded in New Natham Road. So, the complainant rushed to the main road from his house along with the witnesses and intercepted the vehicle and brought back the vehicle to his house and questioned the occupants why they have taken the young girl forcibly. A4 was on the wheels of the Toyota Qualis Car. At that time, with an intention to run over Dr.K.Abdul Latiff (de-facto complainant) and kill him, reversed the car at high speed. One of the witnesses by name Mohamed Ali pulled the complainant and saved him, else the de-facto complainant could have been killed. With this allegation, complaint has been registered by the local police and after investigation, charges were framed against A1 to A6 for various offences such as 352, 366 of I.P.C., Section 4 of Tamil Nadu Prevention of Women Harassment Act, 307 of I.P.C. etc. Specifically the charge under Section 109 r/w. 34 of I.P.C., has been framed against the first accused for abetment and common intention. 4. The prosecution has examined 18 witnesses, marked 18 exhibits and one M.O. 5. Specifically the charge under Section 109 r/w. 34 of I.P.C., has been framed against the first accused for abetment and common intention. 4. The prosecution has examined 18 witnesses, marked 18 exhibits and one M.O. 5. After considering the evidence and the facts including the statement recorded by the Judicial Magistrate under Section 164 of Cr.P.C., A1 was convicted for offences under Sections 307 r/w. 109 I.P.C., A4 was convicted for offence under Section 307 I.P.C., and A5 and A6 were convicted for offences under Sections 307 r/w. 34 I.P.C. For the rest of the charges, the accused were found not guilty and acquitted. In the said circumstances, the convicted accused are challenging the judgment of conviction and sentence in Crl.A.(MD).No.264 of 2010, whereas the de-facto complainant seeks enhancement of sentence. 6. The learned counsel appearing for the appellants / accused and the respondents 2 to 5 in the revision petition would submit that the entire episode germane out of the love affair between the victim girl by name Subaria Begam and one Sheik Allauddin, who is none other than the brother of A1. Now, after lapse of 14 years from the incident, both Sheik Allauddin and Subaria Begam got married and they are living happily and A1 has met with an accident and hospitalised. The de-facto complainant Dr.K.Abdul Latiff (P.W.1) had decided to withdraw the revision petition, since the victim girl and the accused are closely related to each other and they have buried their hatred and living happily. Hence, submitted that without adverting to the merit in the appeal the entire issue may be disposed of. He would further submit that recording the subsequent event and change of mind between the parties and the compromise entered between the parties, which could be seen by withdrawal of the revision petition filed for enhancement, instead of dragging the proceedings unnecessarily, the Court may pass appropriate orders. 7. The learned Senior counsel appearing for the accused in Crl.A.No.267 of 2010 would specifically point out that the trial Court while rightly disbelieved the embellishment and exaggeration of the prosecution witnesses, in respect of all other offences, had erroneously held that A1, A4, A5 and A6 had an intention to kill P.W.1 and with the said intention, A4 reversed the car in high speed and attempted to run over him. Pointing out that as per the complaint, the de-facto complainant could have been run over by the vehicle, but by the timely intervention of Mohamed Ali, he was saved. However, the said Mohamad Ali, who is the most appropriate witness to speak about this, was not examined by the prosecution to prove the allegation made. Furthermore, all of a sudden, if the car driven by A4 was reversed in high speed to run over the complainant, whether that was done with the intention to kill the complainant and whether that was done in furtherance of common intention of the other accused or it was done with aid, assistance and abetment by the other accused are not been properly spoken by the witnesses and therefore, the finding of the trial Court needs to be set aside. 8. This Court has perused the records of the Court below and considered the submissions made by both sides. 9. The offence held to be proved by the trial Court is purely based on the events which has preceded the allegation of attempt to murder. The Court has disbelieved all the incident which commenced right from 18.09.2004 at 12.00 p.m. starting at Mattuthavani bus stand. While so, in-isolation the fact that A4 reversed the Toyota Car with intention to run over and kill the de-facto complainant and timely intervention of Mohamed Ali, he was saved stand without corroboration since the said Mohamad Ali was not examined by the prosecution. 10. This Court is of the opinion that de-hors of the compromise entered between the parties, the fact that the prime and pivotal witness Mohamad Ali has not been examined by the prosecution and there is no injury on the part of the de-facto complainant and all the other offences held not proved. So conviction under Section 307 or 307 r/w. 34 or 307 r/w. 109 found proved against the accused cannot sustain. 11. Hence, the Crl.A.(MD).No.267 of 2010 is allowed and the order passed by the learned Principal Sessions Judge, Madurai in S.C.No.532 of 2006, dated 27.07.2010 is set aside and the appellants are. Fine amount paid if any shall be refunded to the appellants. Consequently, the connected Miscellaneous Petition is closed. 12. The Crl.R.C.(MD).No.130 of 2013 is dismissed as withdrawn.