(Prayer: Criminal Appeal filed under Section 374(2) of Criminal Procedure Code, to set aside the conviction and sentence imposed on the appellant by the learned Additional District cum Sessions Judge, (Fast Track Court No.IV) Ponneri dated 23.09.2011 made in S.C.No.107 of 2009 by allowing the above criminal appeal.)
1. This criminal appeal is arising out of the judgment of conviction and sentence passed by the learned Additional District and Session Judge, Fast Track Court-IV, Ponneri in S.C.No.107 of 2009 convicting the appellant and sentence him to undergo five years rigorous imprisonment and imposed fine of Rs.5,000/- in defalut to undergo six months simple imprisonment.
2. The case of the prosecution is as follows :- The accused, deceased, the injured Krishnan(P.W.1), Veetabathiran, Mani, Rajendiran, Somu, Senthil, Ananthan, Suresh and Shankar were used to play cards for money at the vacant place belonging to Chennai Metro Water and Sewerage, Manali, Chennai. On 06.11.2008, these persons while they were playing cards under the kerosine cada lamp at about 7.00 p.m., there was a quarrel between the accused and the deceased, in which, the accused thrown kerosine cada lamp on the floor. The fire spread out and the deceased sustained grievous hurt due to fire. He was admitted into the Pavithra Private Hospital, Kodungaiyur and he died on 15.11.2008.
3. P.W.1, Krishnamurthy and P.W.2, Narendirakumar were also sustained fire injury and got admitted in KVT Health centre at Moolakadai. The Doctor, P.W.11 treated them and issued Accident Registers under Ex.P.2 and Ex.P.3. On receipt of information, P.W.20 recorded the statement of P.W.1 and registered a case in Crime No.808 of 2008, for the offence under Section 324 and 506(ii) of IPC under Ex.P.11. On 08.11.2008, the XXI Metropolitan Magistrate, P.W.21, received the request to record dying declaration of the deceased. On such request, P.W.21 recorded the dying declaration of the deceased under Ex.P.17. Due to the death of the deceased on 15.11.2008, P.W.22 altered the offences to 324, 326 and 302 of IPC and filed the charge sheet against the accused.
4. The trial Court framed charges and the accused pleaded not guilty. During the course of trial, the prosecution examined P.W.1 to P.W.22 and Ex.P.1 to Ex.P.20 were marked and M.O.1 to M.O.3 were produced. When the accused was questioned under Section 313 of Cr.P.C. about the incriminating evidences against him, he denied the same. On considering the above oral and documentary evidences, the trial Court acquitted the accused for the offences under Sections 324, 326 and 302 of IPC however, convicted the accused for the offence under Section 304(ii) of IPC and sentenced him as stated above.
5. The learned counsel appearing for the appellant contended that there was no motive to commit the alleged offence by the accused. The prosecution witnesses P.Ws.1,3,10,13 and 14 turned hostile and did not support the case of the prosecution. Even P.W.1, who is one of the injured persons did not support the case of the prosecution. The entire conviction mainly relied on the evidence of P.W.2, who was one of the injured witnesses and the prosecution failed to corroborate the evidence of P.W.2 to prove the offence.
6. Further, the learned counsel appearing for the appellant would contend that P.W.14, son of the deceased originally laid the complaint before the Kodungaiyur Police Station and on the same day, the police personnels enquired about the occurrence, as such, the first complaint was suppressed by the prosecution. Even according to the prosecution, more than seven persons were played cards, in which there is a confusion in fixing the person. Due to the enmity, the accused alone pointed out and convicted.
7. Further, the occurrence took place on 06.11.2008 and on 08.11.2008, the dying declaration of the deceased was recorded by P.W.21, XXI Metropolitan Magistrate, Egmore, Chennai. Thereafter, only on 15.11.2008 the deceased died. Therefore, the statement recorded by the learned Magistrate cannot be treated as dying declaration and it was tutored and prompted one. Further, there was absolutely no evidence to corroborate the dying declaration and as such it cannot be taken for consideration. The learned counsel appearing for the appellant further argued that the sentence undergone by the accused may be treated as quantum of sentence and ordered to pay compensation to the deceased family.
8. Per contra, the learned Government Advocate (Crl. Side) appearing for the respondent/Police vehemently opposed the submission made by the learned counsel appearing for the appellant and submitted that the prosecution proved the case beyond all doubts and prayed for confirming the conviction and sentence passed against the accused.
9. Heard the argument advanced by Mr.B.Kumarasamy, learned counsel appearing for the appellant and Mr.R.Ravichandran, learned Government Advocate (Crl. Side) appearing for the State and perused the available records.
10. It is true that the deceased, the appellant and P.Ws.2 to 8 are friends and they used to play cards. On the fateful day i.e., on 06.11.2008, while they were playing cards, due to the wordy quarrel, the accused had thrown the kerosine cada lamp on the playing floor due to which, the bed sheet got fire and the deceased, P.Ws.1 and 2 sustained fire injury. The deceased was taken to the Pavithra Hospital and P.W.1 and 2 were taken to the KVT Health Centre, Moolakkadai. The incident had been taken place due to sudden provocation of the accused and there was no previous motive to kill the deceased. Even though, the prosecution witnesses P.Ws.1, 3 to 10, 13 and 14 are turned hostile, their evidences considered to the extent that the incident took place on 06.11.2008, by fire accident and due to which, the deceased and they have sustained injury.
11. P.W.14, the son of the deceased, deposed that on 06.11.2008, when the quarrel arose between his father and the accused, the accused had thrown the kerosine cada lamp in which, his father sustained fire injury and he was admitted into the Pavithra Private Hospital and died. Further P.W.15, wife of the deceased also deposed that P.Ws.1, 3, 5 and 8 to 10 had come to their house and invited her husband to have a tea at tea shop. Thereafter, all of them along with the deceased had gone to the place of occurrence and played cards.
12. P.W.19, the Doctor who treated the deceased deposed that the deceased was admitted at about 10.00 p.m., on 06.11.2008 by his son P.W.14. He recorded the Accident Register Ex.P.8 as that the fire accident took place by throwing the kerosene cada lamp towards the floor leading to burn. As such the deceased was sustained burn injury in upper and lower limps and inhalation burns and on 15.11.2008, due to failure of treatment, he died.
13. P.W.20, the Superintendent of Police, Moolakadai Police Station upon information received from KVT Health Centre, went there and recorded statement from P.W.1 and registered the case for the offence under Sections 324, 506(ii) of IPC. Thereafter, he went to the Pavithra Private Hospital and recorded the statement of Dr. Senthamilpari and Dr.Vijayan. Since the deceased was in unconscious stage, P.W.20 did not record the statement from the deceased.
14. P.W.21, the XXI Metropolitan Magistrate, Egmore, Chennai recorded the dying declaration of the deceased on 08.11.2008, under Ex.P.17, it reads as follows :-
It is seen from the above dying declaration, the accused only with the intention to take away the money on the playing table, he thrown the kerosene cada lamp on the floor. Therefore, he had no intention to kill anybody or caused injury to anybody, however, that leads to cause fire injuries on the deceased and P.Ws.1 and 2. As such the trial Court rightly convicted the accused for the offence under Section 304(ii) IPC. Hence the appellant/accused found guilty of the offence under Section 304(ii) IPC and as such his conviction liable to be confirmed.
15. Regarding the sentence imposed on the appellant/accused, the learned counsel for the appellant would focus upon the age of the appellant and the occurrence had taken place due to sudden provocation in respect of the petty quarrel with regard to take away the money from the playing table and as such, there was no pre-plan to commit the crime. Further, he prayed that the period of sentence already undergone by the appellant is sufficient and offered for compensation to be paid to the deceased family. It is seen from the records, the appellant during the trial and after conviction, he was incarcerated only for 50 days. In the said circumstances, the above contention cannot be considered to the present case.
16. In the present case due to the petty quarrel in respect of taking away the money on the playing table due to sudden provocation, the occurrence has taken place. In such circumstances, this Court is of the opinion that the appellant is entitled to be given the benefit of Section 4 of Probation of Offenders Act. The Hon'ble Supreme Court of India held in the judgment reported in '1999(SCC) Cr.1046 - State of Karnataka Vs. Muddappa', as follows:-
'2. The learned Counsel for the appellant is not in a position to assail the acquittal of the accused under Section 302 I.P.C., but he vehemently contends that the Court did not bear in mind germane considerations for releasing the accused on probation after convicting him under Section 304 Part II I.P.C. Whether the benefit of the Probation of Offenders Act could be extended in any particular case depends upon the circumstances of that case. Admittedly, there is no statutory bar for application of the Act to an offence under Section 304 Part II where the maximum punishment is neither death nor imprisonment for life. In that view of the matter and on examining the impugned judgment of the High Court, we find that the Court did consider the relevant material and then came to the conclusion that the accused should be released on probation by applying the provisions of Section 4 of the Probation of Offenders Act. We see no infirmity with that order to be interfered with by this Court after this length of time, more so when nothing has been pointed out as to whether the accused has, in any way, violated the terms and conditions of allowing him on probation.'
In another case the Hon'ble Supreme Court of India held in the judgment reported in "1976 Cr.LJ 1987(1) Musakhan & others Vs. State of Maharashtra", as follows:-
'......The Probation of Offenders Act is a social legislation which is meant to reform juvenile offender so as to prevent them from become hardened criminals by providing an educative and reformative treatment to them by the Government. Unfortunately, though the provisions of Section 6 of the Probation of Offenders Act are mandatory, the Courts do not appear to make wise use of these provisions which is necessary to protect our young generation from becoming professional criminal and therefore a menace to the society.....'
17. This Court felt that to avail the benefit under the Probation of Offenders Act, this Court asked to pay some compensation to the deceased family, the learned counsel appearing for the appellant voluntarily submitted that the appellant would pay a reasonable amount. Considering these circumstances, n
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o useful purpose will be served if the appellant is in custody, particularly without his involvement in any other cases after suspending of sentence as surfaced. 18. In fine, the criminal appeal is partly allowed with the following directions:- (a) The conviction of the appellant for the offence under Section 304(ii) IPC is confirmed. (b) The appellant is entitled to be given the benefit of Section 4 of Probation Offenders Act and the sentence imposed on the appellant for the offence under Section 304(ii) of IPC are set aside and appellant is released on probation of good conduct for the period of three years and in the mean time, he shall maintain peace and good behaviour and shall bear and receive sentence when he called upon during the said period. (c) The appellant shall execute a bond for a sum of Rs.25,000/- (Rupees twenty five thousand) with two sureties each for a like sum to the satisfaction of the trial Court. (d) the appellant is directed to pay a sum of Rs.1,00,000/- (Rupees one lakh only) as compensation to the deceased family members P.W.14 and 15, father and mother of the deceased, within a period of eight weeks from today, failing which the sentence imposed by the trial court shall be restored.