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CASE NO.: Appeal (crl.)  477 of 2001

PETITIONER: State of Rajasthan

RESPONDENT: Chittarmal

DATE OF JUDGMENT: 21/06/2007

BENCH: Dr. ARIJIT PASAYAT & D.K. JAIN

JUDGMENT: J U D G M E N T

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.

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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 the field.  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 above.

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 High Court.  

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 culpable  homicide.   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

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were as follows:

"(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 confession."

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 court.  

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.