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2003 DIGILAW 400 (MP)

Abid Hussain v. State of M. P.

2003-03-10

S.L.KOCHAR

body2003
JUDGMENT This revision, has been, filed by the applicant against order dated 14.11.2002 passed by learned Sessions Judge, West Nimar in ST No. 318/02 framing charge under sections 304 (II) IPC and section 39 of the Electricity Act. Police of PS Maheshwar District West Nemar has filed charge-sheet in the Court of Judicial Magistrate, First Class, under section 304 IPC and 39 of the Electricity Act. In nutshell, the prosecution case is that applicant had fixed iron wire fencing in his field wherein crop of Maiz was standing. He had also taken direct electric connection from the pole illegally and supplied it to the iron wire fencing. In the intervening ni8l1t of 1st and 2nd August, 2002, deceased Mansingh along with his son Kalu were going through the said field having with them a drum of liquor. While deceasea Mansingh entering the field of appellant touched the fencing iron wire as a result of which due to current he fell to the ground, later on died. His son ran away from the said field and gave information to this effect to Chhannu, Pahad Singh, and Mangilal. They have not lodged any report to police station but the applicant himself went to police station on 2nd August, 2002 at 7-.30 a.m. and lodged First Information Report about the death of Mansingh on account of electric current. At the initial stage, police registered offence under section 304-A IPC and under section 39 of the Electricity Act but later on filed charge sheet under section 304 IPC and section 39 of the Electricity Act. The trial Court framed charge under sections 304-II IPC and 39 of the Electricity Act. The contention of the learned counsel for the applicant relied on the decision of the Supreme Court in the case of Cherubin Gregory v. State of Bihar; ( AIR 1964 SC 205 ) and submitted that even if complete prosecution case is accepted, offence at the most would fall under section 304A IPC and section 39 of the Electricity Act against the applicant. On the other hand, Mr. Chandel, learned Dy. GA appearing for the State vehemently argued that learned trial Court has rightly framed charge and ordered that the matter would be considered as to what offence would be made out, at the stage of passing of final judgment. On the other hand, Mr. Chandel, learned Dy. GA appearing for the State vehemently argued that learned trial Court has rightly framed charge and ordered that the matter would be considered as to what offence would be made out, at the stage of passing of final judgment. Having heard learned counsel for the parties and after perusing the entire record of the case, this Court is of the opinion that as per provision under section 228 (b) of CrPC, it is the abundant duty of the trial Court to look into the matter whether the offence exclusively triable by the Court of Sessions is made out or not. In the present case, the applicant has no enmity with the deceased. He had fixed the iron wire fencing and supplied, electricity therein though by taking connection illegally for production of his crop of maiz. No warning was fixed by him in the fencing to show whether electric current is present in the said fencing. The electric current was present in the said fencing because of which trespasser got shocked and died. The applicant was neither having intention or knowledge that deceased would enter inside the field, after trespass and crossing live wire. Therefore, the act of the applicant would, at the most fall under section 304A IPC. The LRs of the deceased have right to sue the applicant for damages. In the case of Cherubin Gragory v. State of Birhar (supra) the Supreme Court has held that: "A trespasser is not an out law, a caput lupinem. The mere fact that the person entering a land is a trespasser does not entitle the owner or occupier to inflict on him personal injury by direct violence and the same principle would govern the infliction of injury by indirectly doing something on the land, the effect of which he must know was likely to cause serious injury to trespasser. The mere fact that the person entering a land is a trespasser does not entitle the owner or occupier to inflict on him personal injury by direct violence and the same principle would govern the infliction of injury by indirectly doing something on the land, the effect of which he must know was likely to cause serious injury to trespasser. Thus, one who sets live electric naked wire in the passage to the latrine, so that no trespasser should come and use the latrine but there was no warning that the wire was live and a trespasser manages to pass into the latrine without contacting the wire but her hand happens to touch the same while coming out and as a result of a shock she receives injury, is guilty of a tort and the person injured is entitled to recover." In view of the aforesaid factual and legal analysis, order of framing charge under section 304-II IPC is hereby set aside. Instead thereof, learned trial Court is directed to remand the case back to the learned Judicial Magistrate, First Class, Maheshwar for trying the saine for the offence punishable under section 304-A IPC and section 39 of the M.P. Electricity Act. The LRs of the deceased are also entitled to file Civil Suit for recovery/compensation of the damages against applicant. In the aforesaid direction, this revision stands disposed of.