Judgment :- Appellant is the Accused in S.C.No.52 of 1997 on the file of Principal Sessions Judge at Pondicherry for causing the death of Venkatesan alias Munisamy due to electrocution. By the Judgment dated 27.03.1998, learned Principal Sessions Judge convicted the Appellant / Accused under Sec.304(II) I.P.C and sentenced him to undergo Rigorous Imprisonment for a period of three years. 2. Case of Prosecution could be stated thus:- The Deceased-Venkatesan @ Munisamy is the Brother of P.W.1-Naagamani and Son of P.W.2-Muniammal. On the night of 05.08.1996, the Deceased-Venkatesan, after taking dinner, left the house at 08.00 p.m to sleep in the house opposite to his house, which is adjacent to the Temple. At 07.30 p.m, P.W.3-Venkatesan came to the Deceased and was talking to him. Then, both of them went towards West and attended to the call of nature. Then Deceased and P.W.3 collected groundnut plants from the lands of Maniakkarar of Koodapakkan village. They were coming along the Nanja land of Devanathan where the paddy has been cultivated. On the bund, P.W.3 saw the Stick, having been fixed and he crossed over the same. The Deceased-Venkatesan sat down and pulled out the Stick from the bund and had fallen down in the field due to Electric Shock; out of fear, P.W.3 ran towards his house. He did not inform the occurrence to anyone and went to the work next morning. 3. On 06.08.1996, P.Ws.1 and 2 heard that the body of Venkatesan @ Munisamy was found lying in the field of Devanathan at Ulavaikkal. P.Ws.1 and 2 rushed to the spot and saw the body of Venkatesan near the bund of the field adjacent to the Electric Post. P.W.1 noted that the Fingers on the Right hand of the Deceased and backside of both his Thighs were burnt (scorched) due to Electrocution. 4. P.W.1- Naagamani went to Villiyanur Police Station on 06.08.1996 – 12.30 Noon and lodged Ex.P.1-Complaint, complaining about the death of his Brother. On the basis of Ex.P.1-Complaint, P.W.10-Head Constable registered the case for suspicious death under Sec.174 Crl.P.C in Crime No.264/96 under Ex.P.17-F.I.R. 5. P.W.10-Head Constable had taken up the Initial Investigation. He has inspected the Scene of occurrence and prepared Ex.P.5-Observation Mahazar and Ex.P.18-Rough Sketch. The body was found in the field of Singaravelu, which is cultivated by Devanathan. On the basis of Ex.P.1-Complaint, P.W.10-Head Constable registered the case for suspicious death under Sec.174 Crl.P.C in Crime No.264/96 under Ex.P.17-F.I.R. 5. P.W.10-Head Constable had taken up the Initial Investigation. He has inspected the Scene of occurrence and prepared Ex.P.5-Observation Mahazar and Ex.P.18-Rough Sketch. The body was found in the field of Singaravelu, which is cultivated by Devanathan. P.W.10-Head Constable also issued summons to the Panchayatars and held the Inquest on the body of Deceased-Venkatesan @ Munisamy. Panchayatars opined that the death was due to Electrocution. After the Inquest, the body was sent to Autopsy. 6. Dr.Rajkumar has conducted the Autopsy. Dr.Balaraman was examined in the Court as P.W.9 and he was acquainted with the hand writing and signature of Dr.Rajkumar. He has spoken about the Post Mortem Examination conducted by Dr.Rajkumar and Ex.P.14-Post Mortem Examination Report and also the findings thereon. Multiple Scorched injuries over the palm side of Right Hand on Thumb, 2nd Finger, 4th Finger and 5th Finger, Horizontal Scorched Injury over both the Thigh at the back and burns were noted on the body of the Deceased – Venkatesan. Dr. Rajkumar opined that the death was due to Electrocution. 7. P.W.11-the then Sub-Inspector of Police, Villiyanur Police Station has examined the Witnesses and continued his further Investigation. On 08.08.1996, the Accused was brought to the Villiyanur Police Station and he was interrogated about the occurrence. The Accused had voluntarily given the Confession Statement in the presence of P.W.7-Angalan and one Kulamani. On being satisfied about the involvement of the Accused – Electrifying the Paddy field, the Accused was arrested and the case registered under Sec.174 Crl.P.C was altered into one under Sec.304 I.P.C. From the scene of occurrence, on being identified by the Accused, Sticks joined with the Steel Wire (M.O.3-fl;Lf;fk;gp) were seized under Ex.P.7-Mahazar. M.O.4-Casuarina Pole, which was hidden in the channel (tha;f;fhy;)was seized under Ex.P.8-Mahazar. On 14.11.1996-P.W.12-Sub-Inspector of Police, Villiyanur had taken up the further Investigation. On receipt of the final opinion and the Post Mortem Report of the Deceased-Venkatesan, and on completion of the Investigation, the Accused was charged sheeted for the offence under Sec.304 I.P.C. 8. To prove that the Accused had caused the death of Venkatesan by Electrocution, in the Trial Court, Prosecution has examined P.Ws.1 to 12 and marked Exs.P.1 to P.19. M.Os.1 to 4 were produced. The Accused was questioned about the incriminating evidence and circumstance. To prove that the Accused had caused the death of Venkatesan by Electrocution, in the Trial Court, Prosecution has examined P.Ws.1 to 12 and marked Exs.P.1 to P.19. M.Os.1 to 4 were produced. The Accused was questioned about the incriminating evidence and circumstance. Denying all of them, the Accused had stated that he is neither an occupier nor the owner of the field and a false case has been foisted against him. 9. In consideration of the evidence, learned Principal Sessions Judge found that the death of the Deceased is proved to be due to Electrocution and that the Accused, Son of Devanathan was found responsible for electrifying fence of paddy field. After elaborately discussing that the Accused had neglected to take such care and that by his negligence, the Accused was found to be proved to be in cultivation of the land and also has caused the death of Deceased, learned Principal Sessions Judge has found him guilty under Sec.304(II) I.P.C and sentenced him as aforesaid in para (1). 10. Aggrieved over the verdict of Conviction, Appellant / Accused has preferred this Appeal. Assailing the verdict of Conviction and the reasonings of the Trial Court, learned counsel for the Appellant / Accused has submitted that the Conviction is unsustainable since the Appellant / Accused is neither the occupier or the owner of the field. Pointing out that the owner of the field is Singaravelu and that the Occupier is Devanathan-Father of the Accused, learned counsel for the Appellant / Accused has submitted that the Investigation suffers from non-impleading of the Occupier of the field and that the Conviction of the Appellant / Accused cannot be sustained. It is contended that in any event, the Electrification of the fence was only done with a view to prevent Rats, Fox and other Animals and that no intention could be attributed to the Accused for the death of the Deceased and that the Deceased was only a Trespasser and that the Accused cannot be held responsible for his death. 11. Contending that the death is proved to be due to Electrocution, which is due to the act of the Appellant, learned Public Prosecutor Mr.M.R.Thangavelu has submitted that the Accused being in cultivation of the lands onbehalf of his Father was rightly convicted and that the Conviction is based on the evidence on record. 11. Contending that the death is proved to be due to Electrocution, which is due to the act of the Appellant, learned Public Prosecutor Mr.M.R.Thangavelu has submitted that the Accused being in cultivation of the lands onbehalf of his Father was rightly convicted and that the Conviction is based on the evidence on record. Laying emphasis upon the Confession Statement of the Accused, which led to the recovery of M.O.3. learned Government Advocate has submitted that in the light of the definite evidence of Confession Statement recorded from the Accused, the Conviction of the Appellant / Accused is well founded warranting no interference. 12. In consideration of the evidence, Judgment of the Trial Court and the submissions of both sides, the following points arise for consideration are :- (i)Since Singaravelu is the Owner of the Field, Devanathan is said to be the Occupier, whether the Appellant / Accused (Son of Devanathan) is right in contending that he had been wrongly charge sheeted for the offence under Sec.304(II) I.P.C ? (ii)Whether the Conviction of the Appellant / Accused under Sec.304(II) I.P.C suffers from any infirmity warranting interference ? 13. Death of Deceased – Venkatesann @ Munisamy is proved due to Electrocution by (i)the evidence of P.W.3-Venkatesan ; (ii)Ex.P.-14-Post Mortem Report and Ex.P.16-Final Opinion of Dr. Rajkumar. As noted earlier, in the narration of facts, Dr.Rajkumar noted Multiple Scorched Injuries over the palm of Right Hand and over Thumb, 2nd, 4th and 5th Finger and Horizontal Scorched Injury over back of both Thighs. As per the Final opinion of Dr. Rajkumar, who conducted the Autopsy on the body of Deceased-Venkatesan, the death is due to Electrocution. 14. P.W.3-Venkatesan, who accompanied the Deceased at the time of occurrence is the key witness to speak to the Electrification of the Field. The land is situated on the Eastern Side of the Villiyanur Channel. The land belongs to Singaravelu. The land is under cultivation by Devanthan- Father of the Accused. On 05.08.1996, after taking groundnut plants in the lands of Maniakkarar of Koodapakkan Village, the Deceased and P.W.3 had been proceeding along with the bund of the Paddy field. To prevent entry of animals and others, fence of the field was electrified. Both P.W.3 and the Deceased came with the paddy field. P.W.3 safely passed through, but the Deceased came in touch with the electrification of the electrified wire of the bund. To prevent entry of animals and others, fence of the field was electrified. Both P.W.3 and the Deceased came with the paddy field. P.W.3 safely passed through, but the Deceased came in touch with the electrification of the electrified wire of the bund. The same was not insulated. P.W.3 has clearly spoken about the plantation of Stick and electrification of the field. His evidence is amply strengthened by the objective findings during the Investigation as to the Electrification. When the scene of occurrence was inspected, the field was found to be electrified as observed in Ex.P.5-Observation Mahazar, as noted below:- 15. Conviction of the Appellant / Accused is mainly attacked on the ground of non-impleading of the right person viz., Owner-Singaravelu or Occupier – Devanathan. It is mainly contended that when the owner or occupier of the field are not shown as the Accused, no intention could be attributed against the Appellant / Accused who is merely a care taker. It is further contended that the Deceased-Venkatesan is only a trespasser and that the Appellant / Accused cannot be held responsible for the acts of the trespasser and the consequences thereon. Devanathan-Father of the Accused is in occupation of the land. But, the Appellant / Accused has been in management of cultivation and care taker. Direct involvement of the Accused in the occurrence is clearly brought out by his Confession Statement to P.W.10. Confession Statement of the Accused to P.W.10 led to the recovery of M.O.3. under Ex.P.7-Mahazar. M.O.4-Casuarina Pole, which was hidden by the Appellant / Accused in the channel was seized under Ex.P.8-Mahazar. It may be that Devanathan – Father of the Accused might be in occupation of the land. Electrification of the fence has been done by connecting the electricity with live wire. Recovery of M.O.3, M.O.4-Casuarina Pole at the instance of the Accused is the formidable circumstance against the Accused. No doubt, the Prosecution would have done better had the case been filed against Devanathan also. But, the lapse on the part of the Investigation in not prosecuting Devanathan or Singaravelu cannot go to the advantage of the Accused. Learned Principal Sessions Judge has also taken the view that non-impleading of Devathan-Father of the Accused would not in any way affect the case against the Appellant / Accused. 16. But, the lapse on the part of the Investigation in not prosecuting Devanathan or Singaravelu cannot go to the advantage of the Accused. Learned Principal Sessions Judge has also taken the view that non-impleading of Devathan-Father of the Accused would not in any way affect the case against the Appellant / Accused. 16. Contending that any cases of causality due to live naked wire, only the occupier is to be prosecuted, learned counsel for the Appellant has relied upon the decision reported in CHERUBIN GREGORY ..VS.. STATE OF BIHAR (A.I.R. 1964 S.C. 205). In the said case, the owner has fixed the live naked wire and electrified the passage to the latrine, so that no trespasser could enter into the latrine. In the said case, occupier - Cherubin Gregory (Appellant) has been charge sheeted and found guilty under Sec.304-A I.P.C for causing death of one Mst. Madilen by contact with an electrically charged naked copper wire. Placing much reliance upon the above decision, learned counsel for the Appellant has submitted that the Occupier or the Accused had no duty to take care towards the Deceased, who was only a trespasser. For two reasons, this contention does not merit acceptance. Firstly, the said Appellant / Accused – Cherubin Gregory before the Hon'ble Supreme Court was proved to have fixed all the Copper Wire across the path, leading upto the latrine. In this case, there is nothing on record to show that Owner-Singaravelu or Occupier-Devanathan had electrified the fence around paddy field. In the light of recovery of M.O.3. under Ex.P.7-Mahazar, M.O.4-Casuarina Pole, the contention advanced by the Appellant / Accused that the Accused ought not to have been charged has no merits. 17. In fact, in the decision reported in CHERUBIN GREGORY ..VS.. STATE OF BIHAR (A.I.R. 1964 S.C. 205) the Supreme Court has only observed that the person in occupation of the lands is not entitled to set up a trap or a naked live wire, thereby putting the trespasser in risk. 17. In fact, in the decision reported in CHERUBIN GREGORY ..VS.. STATE OF BIHAR (A.I.R. 1964 S.C. 205) the Supreme Court has only observed that the person in occupation of the lands is not entitled to set up a trap or a naked live wire, thereby putting the trespasser in risk. We may usefully refer to the observations of the Supreme Court, which is as follows:- "....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 the trespasser. ..... .... It is no doubt, true that the trespasser enters the property at his own risk and the occupier owes no duty to take any reasonable care for his protection, but at the same time the occupier is not entitled to do wilfully acts such as setting a trap or a naked live wire of high voltage with the deliberate intention of causing harm to trespassers or in reckless disregard to the presence of the trespasser. If the trespasser dies soon after the shock, the owner who set up the trap is guilty under Sec.304-A I.P.C...." 18. The above decision squarely applies to the case in hand. The mere fact that the person entered the land is a trespasser does not entitle the occupier or his Son viz., the Appellant / Accused to inflict injury to the Deceased by Electrocution. Learned Principal Sessions Judge rightly found that the Accused is responsible for the death of Venkatesan @ Munisamy. 19. The offence is due to the voluntary commission of the act of the Accused. The Accused had failed and neglected to take such reasonable care, which any reasonable and prudent man would take under such circumstances. Loss of life of the Deceased-Venkatesan is proved to be due to the "Negligent act of the Appellant / Accused" and that he has committed the same with callous indifference to consequences. 20. The Appellant / Accused found guilty under Sec.304(II) I.P.C i.e., death due to intentional act. Electification of the fence is more an act of rashness and negligence than an intentional act. 20. The Appellant / Accused found guilty under Sec.304(II) I.P.C i.e., death due to intentional act. Electification of the fence is more an act of rashness and negligence than an intentional act. No arguments are advanced on the propriety of the Conviction under Sec.304(II) I.P.C. It need not be much elaborated upon whether the act of the Appellant / Accused is liable to be punished under Sec.304(II) I.P.C or under Sec.304-A I.P.C. On the proved facts and circumstances of the case, the Appellant / Accused is rightly held guilty for causing the death of Venkatesan @ Munisamy. This Appeal has no merits and the same is bound to fail. 21. C.A.No.333 of 1998:- Therefore, the Judgment (dated 27.03.1998) of Principal Sessions Judge at Pondicherry in S.C.No.52 of 1997 convicting the Appellant / Accused under Sec.304(II) I.P.C and sentencing him to undergo Rigorous Imprisonment for a period of three years is confirmed and this Appeal is dismissed. 22. Since the Appellant/First Accused is on bail, the Trial Court is directed to secure the custody of the Appellant/First Accused and make him to undergo remaining period of sentence.