Judgment: Dr. Arijit Pasayat, J
1. Challenge in this appeal is to
the judgment rendered by a Division Bench of the Rajasthan High Court,
Jaipur Bench altering conviction of the respondent from one punishable
under Section 302 of the Indian Penal Code, 1860 (in short the 'IPC') to
Section 304A IPC. Two years rigorous imprisonment and a fine of
Rs.5000/- with default stipulation was awarded.
2. Background facts in a nutshell
are as follows:
Shri Girdhari (PW-13) submitted a written report to S.H.0., P.S. Thoi,
District Sikar, to the effect that in the intervening night of 13/14th
March, 1997 his father Ram Kumar (hereinafter referred to as 'deceased')
went to his field for irrigation. Accused Chhittar due to enmity had
fixed naked live electricity wire near the fencing with the intention to
kill Ram Kumar. When in the night Ram Kumar came in contact with
electric wire he died due to electrocution. At about 3.15 A.M.
complainants' younger brother Murlidhar went to give tea to his father,
and he also died due to electrocution. After some time uncle of
complainant Sua Lal noticed the dead bodies of Ram Kumar and Murlidhar
lying in the field, he raised alarm.
Complainant and other neighbour
reached there. At that time Chhittar removed the wire from the
electricity pole and tried to remove the wire from the place of
occurrence, but he was prevented from doing so by the persons assembled
there. On the basis of this report a case under Section 302 IPC was
registered against the accused (FIR 29/97). The Investigating Officer
immediately proceeded to the place of occurrence, prepared panchnama,
site plan, and the wire was seized. Post mortem was conducted by the
Medical Officer. According to the post mortem report the cause of death
of Ram Kumar and Murlidhar was due to electrocution. The accused was
arrested on the same day. After completing investigation a charge sheet
was filed in the Court of Judicial Magistrate, Neem Ka Thana, for the
offence punishable under Section 302 IPC. Learned Magistrate committed
the case for trial to the Court of Sessions. The case was tried by the
learned Additional Sessions Judge, Neem Ka Thana.
3. The learned Additional Sessions Judge after hearing the arguments
framed the charge for the offence punishable under Section 302 IPC
against the accused, who denied the charge and claimed to be tried.
4. In this case the prosecution examined 15 witnesses and referred to
several documents. Statement of accused under Section 313 of the Code of
Criminal Procedure, 1973 (in short 'Cr. P.C.') was recorded. He stated
that he has been falsely implicated in this case. He was not cultivating
Prosecution witnesses relating to the incident are closely related to
the complainant. He has also examined Phool Chand (DW-1) in his defence.
5. On the basis of evidence produced before the learned Additional
Sessions Judge, he held that due to enmity with the intention to kill
Ram Kumar and his son Murlidhar, accused Chhittar fixed naked live wire
of electricity on the drain for supplying water in the field in between
the fields of Ram Kumar and Chhittar with the result that in the night
when Ram Kumar went to his field he died due to electric current.
When Murlidhar went there to give tea to his father he also came in
contact with the electric wire and died on the spot. On this finding he
convicted the accused under Section 302 IPC and sentenced as mentioned
6. The High Court found that the proper conviction would be under
Section 304A IPC and not Section 302 IPC as was held by the trial court.
7. In support of the appeal, learned counsel for the appellant submitted
that in this case with full knowledge that death would be the resultant,
accused had fixed electric wires in the fence and two persons lost their
lives after coming in contact with the live wire. The conduct of the
accused who was trying to take out the wire showed both his intention
and knowledge. Therefore the trial court had rightly convicted the
respondent under Section 302 IPC.
8. Learned counsel for the respondent accused supported judgment of the
9. Coming to the plea of the applicability of Section 304A it is to be
noted that the said provision relates to death caused by negligence.
Section 304A applies to cases where there is no intention to cause death
and no knowledge that the act done in all probabilities will cause
death. The provision relates to offences outside the range of Sections
299 and 300 IPC. It applies only to such acts which are rash and
negligent and are directly the cause of death of another person.
Rashness and negligence are essential elements under Section 304A. It
carves out a specific offence where death is caused by doing a rash or
negligent act and that act does not amount to culpable homicide under
Section 299 or murder in Section 300 IPC.
Doing an act with the intent to kill a person or knowledge that doing an
act was likely to cause a persons' death is culpable homicide. When the
intent or knowledge is the direct motivating force of the act, Section
304A IPC has to make room for the graver and more serious charge of
10. In order to be encompassed by
the protection under Section 304A there should be neither intention nor
knowledge to cause death. When any of these two elements is found to be
present, Section 304A has no application.
11. It is to be noted that the
defence of the accused was that to prevent wild animals from going into
his field he had put the wire. It is to be noted that the case rested on
circumstantial evidence and the circumstances highlighted were as
"(1). enmity with the deceased; (2)
presence of accused when Sua Lal raised alarm after seeing the dead body
of Ram Kumar and Murlidhar; (3) accused removed the electric wire from
the electric pole in presence of Sua Lal; (4) accused tried to remove
the wire from the place of occurrence but he was prevented to do so by
the neighbours who assembled by what time and (5) extra judicial
12. The High Court found that the so
called judicial confession was not established while the other aspects
were clearly established. The probability of the defence version is
borne out from several factors; firstly two poles were placed to which
wire was fastened. In fact this aspect has been clearly taken note of by
the trial court but it was concluded that merely because the wooden
poles were there that did not establish the defence plea that the same
was intended to keep away wild animals. High Court found that the
prosecution itself accepted that two sticks were fixed. There was also
seizure of the wooden sticks which aspect was also accepted by the trial
13. In view of the analysis made by
the High Court, the inevitable conclusion is that prosecution has not
been able to establish the accusation under Section 302 IPC and the High
Court rightly convicted the accused under Section 304A IPC.
14. The appeal is accordingly dismissed.
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