Judgment :- Accused 1 and 2 in S.C.69/95 on the file of Additional District Judge are the appellants. Appellants/Accused were convicted for the offences punishable under Section 304(II) and 201 I.P.C and under Sections 39, 40 and 44(d) of the Indian Electricity Act and sentencing them to imprisonment and imposing fine. 2.Case of prosecution could briefly stated thus: Deceased and prosecution witnesses belong to Schedule Caste and are related as under: | ----------------------------- | | Gopal (PW3) Subramani (PW1) =Sengammal (PW5) | ---------------------- | | | Mohan Chandran Babu (deceased) (PW4) (PW9) Kanchana (Pw2) A2 is the son of A1 and they belong to Naidu Community. On the western side of land of A1-Sundaram the deceased and his family own five acres of land in Kammapalayam Village. During October 1994 family of the deceased have raised groundnut crops in their field. Deceased and their family are to proceed only through Varappu of A1, much to their disliking. 3.Deceased Mohan was a Social Worker and a member of READ and was said to be working for the upliftment of Schedule Caste people. On 29.10.94 P.W.9-Babu and deceased Mohan proceeded through the lands of A1. At that time A1 has scolded that despite warning they are proceeding so in their lands and further scolded "vd;iwf;fhtJ xU ehs; vd; tHpapy; khl;o bfhz;L jhd; Mf ntz;Lk;". P.W.9 and deceased Mohan did not bother about the same and thought that it is the usual scolding of A1. 4.Occurrence: On 29.10.94-5.00 a.m, P.W.1-Subramani, deceased Mohan and P.W.4-Chandran went to their field. P.W.4 returned back to the house at about 12.00 noon. Again at about 5.00 p.m, P.W.1 had taken the cattle back to the house. At that time he saw A1 electrifying the fence to prevent the crops from being damaged. At that time P.W.1 informed A1 that Mohan would be coming later and to warn him of the electrification of the fence. 5.Mohan did not return back to the house till 6.00 p.m. P.W.1-Subramani enquired P.W.5-mother and P.W.2-wife of the deceased. Since Mohan did not return, P.W.1 had taken P.W.4 and went in search of Mohan. At that time, A1 and A2 came and fell down in P.W.1's feet informing that Mohan died of electrification of the wire in their field and that they kept the body in the land of one Ranganatha Naidu. Since Mohan did not return, P.W.1 had taken P.W.4 and went in search of Mohan. At that time, A1 and A2 came and fell down in P.W.1's feet informing that Mohan died of electrification of the wire in their field and that they kept the body in the land of one Ranganatha Naidu. Shocked over the same, P.Ws.1 and 4 went to the land of Ranganatha Naidu. The accused themselves brought the body of deceased Mohan to his house. At that time P.W.3-Gopal, father of the deceased had gone to Bangalore. He returned back only on 30.10.94. After his return, P.W.1 lodged Ex.P1-Complaint in Sholingar Police Station on 31.10.94-9.00 a.m. 6.Registration of F.I.R: P.W.14-Head Constable received Ex.P1-Complaint on 31.10.94-9.00 a.m. On the basis of Ex.P1-P.W.14 had registered Ex.P7-F.I.R under Section 304 and 201 I.P.C. 7.Investigation: P.W.15-Inspector of Police had taken up the investigation. Firstly P.W.15 held Inquest, examining the witnesses before the Panchayatars. Ex.P8 is the Inquest Report. After the Inquest the body was sent to Autopsy along with Ex.P5-Requisition. 8.Postmortem: Pursuant to the requisition from the Inspector of Police, P.W.12-Dr.Sachidhanandham conducted Autopsy. P.W.12 has noted the following injuries: "Point of electric contact burns extending from right thigh laterally lower third to right leg front upper third. Charring of skin present. Peeling of skin over right and left upper limbs neck back. Blood stained fluid from nose and mouth." P.W.12 opined that the deceased died of shock due to electric current. Ex.P6 is the Postmortem Certificate. Scene of occurrence-land of the accused was inspected in the presence of the witnesses. Ex.P2-Observation Mahazar and Ex.P9-Rough Plan were prepared on the scene of occurrence. M.Os.1 to 4 were seized under Ex.P3-Mahazar. 9.Service Connection No.27: P.W.11-Assistant Executive Engineer, T.N.E.B inspected Service Connection No.27 of Kammapalayam. The said service connection was in the name of Ranganatha Naidu, elder brother of A1. After is death, his younger brother A1 is in enjoyment of the service connection. P.W.11 had also noted traces of electrification of the fence. Unauthorised electrification of the fence by committing theft of energy is punishable under the provisions of the Indian Electricity Act. The Department had taken separate action against the accused for such violation. 10.Arrest of the accused: A1 and A2 were arrested on 25.11.94-9.00 a.m in Arcot near a hotel and they were sent to judicial custody. Unauthorised electrification of the fence by committing theft of energy is punishable under the provisions of the Indian Electricity Act. The Department had taken separate action against the accused for such violation. 10.Arrest of the accused: A1 and A2 were arrested on 25.11.94-9.00 a.m in Arcot near a hotel and they were sent to judicial custody. On 4.12.94, P.W.2-Kanchana, wife of the deceased had given a Report suspecting foul play. On that basis, the case was altered into Section 302 and 201 I.P.C, under Section Ex.P10 Express Report. Upon completion of the investigation, Charge Sheet was filed against the accused for various offences. 11.To substantiate the charges against the accused, in the trial court, P.Ws.1 to 15 were examined. Exs.P1 to P10 were marked. M.Os.1 to 4 were produced. Accused 1 and 2 were questioned under Section 313 Crl.P.C about the incriminating circumstances and the evidence. Denying the same, the accused had stated that a false case is foisted against them. Upon consideration of the evidence, the learned Sessions Judge found the accused guilty under Section 304(II) and 201 I.P.C inter alia on the following findings:- (i)that on 29.10.94 A1 and A2 had clandestinely electrified the fence, committing theft of energy; (ii)That Electrification of the fence was only to prevent the rats and pigs entering into the field and causing damage to the crops; (iii)That the accused had no intention of committing murder and that Mohan accidentally came into contact with the electrified fence; (iv)By laying the body of Mohan in Ranganatha Naidu's field, the accused tried to screen the traces of offence. 11.Details of the charges framed against the accused and the findings and the sentence of imprisonment are as noted below: Charge Gist of offence Against which accused Finding 1 u/s39(1),40, 44(d) misuse of electricity and theft of electricity A1 and A2 Found guilty No separate sentence or fine 2 u/s.302 I.P.C committing of murder of Mohan A1 and A2 Not guilty u/s.302 I.P.C but convicted u/s.304(II) I.P.C R.I for 5 years and fine of Rs.11,000/- each 3 u/s.201 I.P.C for causing of screening of evidence A1 and A2 Convicted u/s.201 I.P.C R.I for 6 months each (sentenced to run concurrently) 12.Aggrieved over the findings of the trial court and the conviction, Appellants/Accused have preferred this appeal. Denying the electrification of the fence of the accused, the learned counsel for the accused submitted that the crops raised in the field of the accused was only young paddy plants and that there was no necessity to electrify the fence during the relevant time. In any event, it is submitted one Ranganatha Naidu, owner of nearby field was also in the habit of electrifying the fence and in all probability deceased Mohan might have come in contact with the electrified fence of either the said Ranganatha Naidu or elsewhere. Assailing the findings of the trial court, it is submitted that the trial court erred in believing the evidence of P.W.11 that the fence of the accused was electrified. It is further submitted that in any event, since the death was found to be accidental, the conviction under Section 304(II) I.P.C cannot be sustained. 13.Countering the arguments, the learned Government Advocate laid much emphasis upon the conduct of the accused in bringing the body of deceased Mohan to the house of P.Ws.1 and 2. Submitting that the electrification of the fence of the accused is clear from the evidence of P.W.1 and from P.W.11, the learned Government Advocate submitted had the death been elsewhere, the accused themselves would not have carried the body to the house of the deceased. The Government Advocate has drawn the attention of the court to the evidence of P.W.11 that electrification of the fence of the accused is well proved by his evidence and also by the objective findings in the investigation and seizure of M.Os.1 to 4. 14.Upon careful assessment of the evidence, judgment of the trial court and other materials on record and the submissions of both sides, the following points arise for determination in this appeal: (i)Whether the guilt of the accused in electrifying their fence and causing death of Mohan is proved beyond reasonable doubt? (ii)Whether the finding under Section 304(II) I.P.C is sustainable? (iii)Whether the finding of guilt under Section 304 (II) I.P.C is to be altered? If so, for what penal provision? 15.We may firstly refer to the common grounds emerging from the facts and circumstances:- Survey No.880/2E of Kammapalayam Village-64 Cents belong to the accused. It lies in two stretches-24 Cents and 40 Cents. The well and Service Connection No.27 is on the southern stretch. If so, for what penal provision? 15.We may firstly refer to the common grounds emerging from the facts and circumstances:- Survey No.880/2E of Kammapalayam Village-64 Cents belong to the accused. It lies in two stretches-24 Cents and 40 Cents. The well and Service Connection No.27 is on the southern stretch. From this service connection installed in the well electrification of fencing and theft of energy is alleged. 16.Land of the deceased Mohan and prosecution witnesses are on the western side. It emerges from the evidence that only through the land of the accused the deceased and the prosecution witnesses had to pass through. That on the day of occurrence, 29.10.94 the deceased had electrified the fence is clear from the evidence of P.W.1. P.W.1-Subramani, deceased Mohan and P.W.4-Chandran went to the field. Chandran had returned back at 12.00 noon. At about 5.00 p.m when P.W.1 taken back the bullock to the house, he saw A1 electrifying the fence to prevent the crops being damaged. P.W.1 informed A1 that Mohan is coming later and asked A1 to warn him of the electrification of the fence. Mohan did not return till 6.00 p.m. After enquiring P.W.5-mother and P.W.2-wife of Mohan, P.W.1 had taken P.W.4 and went in search of Mohan. At that time, A1 and A2 had fallen down in P.W.1's feet and informed that Mohan died of electrification of the wire in their field and they kept the body in the land of Ranganatha Naidu. Later the accused themselves brought the body to the house of the deceased. Thus from the evidence of P.Ws.1 and 4 the electrification of the fence of the accused is well brought out. 17.That the accused had electrified the fence is clear from the evidence of P.W.11-Assistant Executive Engineer, Sholingar. According to P.W.11, Service Connection No.27 stands in the name of one Ranganatha Naidu, who is the elder brother of A1. After his death, A1, being the younger brother, is in enjoyment of the service connection. On 31.10.94 P.W.11-A.E.E inspected Service Connection No.27 and found the traces of electrification of the fence. The crops were found to be slightly removed to facilitate electrification. We may usefully refer to his evidence:- "me;j kpd; ,izg;g[ gP]; nfhpah; bgl;o fk;gj;jpd; fPH; cs;sJ. me;j bgl;oapypUe;J gf;fj;jpYs;s tay; btspapy; gapiu ePf;fp kpd;rhu ntyp mikj;jjw;fhd jlak; ,Ue;jJ. xaiu Rw;wp fl;oapUe;j Fr;rpfs; mq;F ,Ue;jJ. mt;thW mikg;gJ kpd;rhu Fw;wkhFk;. The crops were found to be slightly removed to facilitate electrification. We may usefully refer to his evidence:- "me;j kpd; ,izg;g[ gP]; nfhpah; bgl;o fk;gj;jpd; fPH; cs;sJ. me;j bgl;oapypUe;J gf;fj;jpYs;s tay; btspapy; gapiu ePf;fp kpd;rhu ntyp mikj;jjw;fhd jlak; ,Ue;jJ. xaiu Rw;wp fl;oapUe;j Fr;rpfs; mq;F ,Ue;jJ. mt;thW mikg;gJ kpd;rhu Fw;wkhFk;. mt;thW mDkjpapy;yhky; kpd;rhuk; vLg;gJk;> kpd; ntyp mikg;gJk; Fw;wk;. mJ kpd;rhu rl;lk; 1910 ,d;go 39> 40> 44(,) go Fw;wkhFk;." For the violation of Section 39, 40 and 44(e) the Department had taken separate action against the accused. Ex.P4 is the complaint lodged by the Department to the police to register the case against the accused for violation of the provisions of the Electricity Act. 18.There is no direct evidence that deceased Mohan came in contact with the electrified fence of the accused. The defence tries to take advantage of this in denying the occurrence in their field and the prosecution case. Interalia two-fold defence is advanced:- (i)In the field of the accused there was only young paddy plant and that there was no necessity to put up fence; (ii)That Mohan would have been electrocuted elsewhere probably in the land of one Ranganatha Naidu where the paddy was found and that the accused are not responsible for the electrocution of deceased Mohan. This contention has no force in view of the evidence of P.W.11 and the objective findings during the investigation. As noted earlier, at the time of inspecting the field, P.W.11-A.E.E has clearly noted the traces of electrification the fence of the accused. During the investigation, P.W.15-Inspector of Police inspected the field and prepared Ex.P2-Observation Mahazar. 19.The objective findings during investigation: That the sticks were found planted around the field of the accused was noted during the investigation. "me;j g[jhpy; kpd;rhu xah;> fl;Lfk;gp> gP]; nfhpah;> Fr;rp ,itfs; Rw;wp itf;fg;gl;Ls;sJ. rk;gtk; ele;j Re;juk; eha[L epyj;jpy; fpHf;F kw;Wk; bjw;F gf;fj;jpy; tug;ig xl;odhw;nghy; bey; gaph; xJq;fpa[k;> me;j ,lj;jpy; Mq;fhq;F Fr;rp itj;jjpdhy; Vw;gl;l rpd;d FHpfs; 10 mo ,ilbtspapy; bjhlh;e;J cs;sJ." The findings during the investigation, as seen from Ex.P2 clearly shows the electrification of the fence of the accused. This point was raised before the trial court. In para 13 of its judgment, the learned Sessions Judge has elaborately considered this aspect and found that M.O.4-Series-Sticks were found to have been planted only in the filed of the accused. This point was raised before the trial court. In para 13 of its judgment, the learned Sessions Judge has elaborately considered this aspect and found that M.O.4-Series-Sticks were found to have been planted only in the filed of the accused. In the light of the definite objective findings during the investigation, it is not open to the accused to deny electrification of their fence. 20.Main contention urged is that deceased Mohan had no necessity to come near the field of the accused and that there are alternative ways to pass through Ranganatha Naidu's land, who is also in the habit of electrifying his field. During cross-examination certain answers were elicited from P.W.1 that the groundnut crops were raised in the land of Ranganatha Naidu (said to be not the elder brother of the accused). The land of the said Ranganatha Naidu is said to be on the western side of the land of the accused. The land of the deceased and the prosecution witnesses is on the south-western side. In his cross-examination, P.W.1 has stated that at the time of occurrence the said Ranganatha Naidu had raised paddy crops and provided electrified fence to protect the groundnut crops. On the strength of the answers elicited from P.W.1, main contention urged is that the possibility of the deceased coming in contact with the electrified fence of Ranganatha Naidu. 21.This is sought to be further strengthened that body was kept in the field of Ranganatha Naidu. It is to be noted that the name of the elder brother of A1 is also Ranganatha Naidu. When being questioned in the cross examination, the possibility of confusion being caused in the mind of P.W.1 cannot be ruled out. We may also refer to Charge No.3-Charge under Section 201 I.P.C for causing screening of evidence in removing the body and placing the same in the field of Ranganatha Naidu. By so placing the body in the field of Ranganatha Naidu to screen the evidence, the accused cannot take advantage in denying the prosecution case. This defence is discredited by the fact that the accused themselves carried body of deceased Mohan to the house of the deceased as is clear from the evidence of P.Ws.1, 2, 4 and 5. By so placing the body in the field of Ranganatha Naidu to screen the evidence, the accused cannot take advantage in denying the prosecution case. This defence is discredited by the fact that the accused themselves carried body of deceased Mohan to the house of the deceased as is clear from the evidence of P.Ws.1, 2, 4 and 5. If really the deceased Mohan had come into contact with the electrified fence of Ranganatha Naidu's field, the accused had no necessity to carry the body to the house of the deceased. 22.M.O.4-Sticks seized from the place of occurrence are about an height of one feet. From Ex.P6-Postmortem Certificate, it is clear that deceased Mohan sustained burns due to contact on his right thigh laterally lower third to right leg front upper third. It was elicited from P.W.12-Dr.Sachidhanandham who conducted autopsy that the burn injuries was 2-1/2 feet above the foot level. Pointing out that M.O.4-Sticks are only one feet and that the injury was sustained at about 2-1/2 feet above foot level, case of the prosecution is attacked on the ground that the burn injuries does not fit in with the prosecution case. It is the main contention that Mohan came into contact with the electrified fence of the accused, the burn injury would have been only just only one feet from the foot level and that the deceased sustaining burn injury on the right thigh throws serious doubts on the prosecution case. This contention does not merit acceptance. The pattern of injuries depend upon how and in what manner the deceased came in contact with the electrified sticks. He might have fallen slightly coming into contact or he might have fallen on the same. The definite prosecution case cannot be doubted on the improbability of the nature of injuries advanced. 23.Prosecution has well established:- (i)Electrification of the fence by the accused; (ii)That P.W.1 saw the accused electrifying the fence; (iii)Seizure of incriminating articles M.O.1-Fuse Carrier; M.O.2-Electric Wire; M.O.3-Fence Wire and M.O.4-Sticks. The above aspects, coupled with the oral evidence of P.Ws.1, 2, 4 and 5 clearly establish that the accused are responsible for electrifying their fence and that deceased Mohan came in contact with the electrified fence of the accused. The above aspects, coupled with the oral evidence of P.Ws.1, 2, 4 and 5 clearly establish that the accused are responsible for electrifying their fence and that deceased Mohan came in contact with the electrified fence of the accused. When P.Ws.1 and 4 went in search of the deceased, the accused in said that deceased Mohan came in contact with the electrified fence in their field and died of electrification. Later body was carried to the house of deceased by the accused themselves. The conduct of the accused in informing to P.Ws.1 and 4 and carrying the body to the house of the deceased is a formidable circumstance militating against the accused. Any amount of argument advanced cannot stifle that conduct of the accused. 24.Delay in F.I.R is yet another contention advanced in assailing the prosecution case. The occurrence was on 29.10.94. Since P.W.3-father of deceased Mohan had gone to Bangalore, immediately the complaint was not lodged. After his return, Ex.P1-Complaint was lodged on 31.10.94-9.00 a.m. On the basis of Ex.P1, the case was registered in Crime No.700/94 under Ex.P7-F.I.R on 1.10.94-.9.00 a.m. Delay in lodging the complaint cannot be said to be unreasonable. Since P.W.3-father was not available, it is quite natural for the family members to have waited for P.W.3 to return from Bangalore. In his cross-examination, when being questioned, P.W.1 has stated that he had given Ex.P1-Complaint as instructed by the villagers. That answer does not in anyway suggest deliberation or counselling or exaggeration in Ex.P1. For a simple rustic man like P.W.1 who belongs to Schedule Caste, it is quite natural to have taken advice from the villagers. Delay in F.I.R is well explained. The delay does not in any way undermine the prosecution case. There could be no denying that deceased Mohan came into contact with the electrified fence of the accused. That the death of Mohan is due to electrocution is also well established by the prosecution by the impeachable medical evidence. P.W.12-Dr.Sachidhanandham has opined that deceased died of shock due to electric current. 25.On the facts and circumstances, it clearly emerges that electrification of the fence by the accused was only to prevent rats, pigs and other wild animals from causing damage to the crops. Feeble attempt was made to set up motive. Absolutely there is no intention to kill. P.W.12-Dr.Sachidhanandham has opined that deceased died of shock due to electric current. 25.On the facts and circumstances, it clearly emerges that electrification of the fence by the accused was only to prevent rats, pigs and other wild animals from causing damage to the crops. Feeble attempt was made to set up motive. Absolutely there is no intention to kill. The learned Sessions Judge has rightly found that death of Mohan by electrocution was purely accidental. 26.In the light of the definite finding that death of Mohan by electrocution was only accidental, was the trial court right in convicting the accused under Section 304(II) I.P.C-culpable homicide not amounting to murder is the question now before us. 27.Section 304 would apply only to the following clauses of case:- (i)when the case falls under one or the other of the clauses of section 300 but it is covered by the Exceptions to that section; (ii) when the injury caused is not of the higher degree of likelihood which is covered by the expression "sufficient in the ordinary course of nature to cause death" but is of a lower degree of likelihood which is generally spoken of as an injury "likely to cause death" and the case does not fall under clause (2) of section 300; (iii) when the act is done with the knowledge that death is likely to ensure but there is no intention to cause death or an injury likely to cause death. In such cases there may be either no intention to cause any injury at all, or there may be an intention to cause simple or grievous hurt but not an injury likely to cause death. 28.Thus the first part of Section 304 I.P.C applies where there is guilty intention. The second part of the section applies where there is no intention, but there is guilty knowledge. In this case the accused cannot be said to be having guilty knowledge. P.W.1 in his evidence stated that Mohan would be coming later and asked A1 to warn Mohan about the electrification of the fence. This part of evidence of P.W.1 is uncorroborated by any other evidence. As said earlier, on the date of occurrence-29.10.94 P.W.1 accompanied by Mohan and P.W.4 went to the field in the early morning. Mohan went back to the house for meal at 12.00 noon. P.W.4 had no reason to come back. This part of evidence of P.W.1 is uncorroborated by any other evidence. As said earlier, on the date of occurrence-29.10.94 P.W.1 accompanied by Mohan and P.W.4 went to the field in the early morning. Mohan went back to the house for meal at 12.00 noon. P.W.4 had no reason to come back. P.W.1's evidence that he A1 to caution Mohan about the electrification is unsupported by other material. Evidence is found to be wanting that accused had knowledge about the fact that Mohan was working in the fields and that the accused had knowingly left the electrified fence. In the absence of evidence that the accused electrified the fence with guilty knowledge, conviction under Section 304(II) I.P.C cannot be sustained. 29.Death of Mohan is caused by rashness and act of criminal negligence of the accused. The facts and circumstances clearly show that the accused showed such disregard for the life and safety of others as would amount to rashness and criminal negligence. Section 304-A 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 not amounting to murder under section 299, or murder under Section 300. Thus Section 304-A is directed for the offences outside the range of Sections 399 and 300 I.P.C and cover those cases where death has been caused without intention or knowledge. 30.The question whether the accused's conduct amounted to culpable rashness or negligence depends directly on the question as to what is the amount of care and circumspection which a prudent and reasonable man would consider it to be sufficient in the circumstances of the case. From the circumstances it is clear that the accused had not taken reasonable care which a reasonable and prudent man would take in the circumstances. From Ex.P9-Plan and Ex.P2-Observation Mahazar, it is clear that the land of the accused is surrounded by the fields of others. The accused have had knowledge about the possibility of others coming into contact with such electrified fence. The accused have not acted as reasonable and prudent men. Further the accused had contravened the provisions of the Electricity Laws. Death of Mohan is proved to be due to rash and criminal negligence of the accused. The accused have had knowledge about the possibility of others coming into contact with such electrified fence. The accused have not acted as reasonable and prudent men. Further the accused had contravened the provisions of the Electricity Laws. Death of Mohan is proved to be due to rash and criminal negligence of the accused. In that view of the matter, the conviction under Section 304(II) I.P.C cannot be sustained and is to be altered into Section 304-A of the Indian Penal Code. 31.For the conviction under Section 304(II) I.P.C the trial court has sentenced the accused to undergo imprisonment for a period of five years. For the conviction under Section 304-A of the Indian Penal code imprisonment may extend to two years or with fine or with both. Since the accused had acted rashly, unmindful of the consequences, for the conviction under Section 304-A of the Indian Penal Code maximum punishment of two years is to be imposed on the accused and an additional fine of Rs.11,000/- each is imposed. 29.The judgment of the Additional Sessions Judge/Chief Judicial Magistrate, Vellore in S.C.69/95 (dated 31.3.97) convicting the appellants/A1 and A2 under Section 304(II) I.P.C is altered into conviction under Section 304-A I.P.C. For the conviction under Section under Section 304-A I.P.C the Appellants/A1 and A2 are sentenced to undergo rigorous imprisonment of two years and additional fine of Rs.11,000/- each (totalling Rs.22,000/-) are imposed, in default to undergo rigorous imprisonment for further period of one year. Out of fine of Rs.22,000/-, compensation of Rs.10,000/- is to be paid to P.W.2-Kanchana, wife of Mohan and compensation of Rs.10,000/- is to be paid to P.W.5-Sengammal, mother of the deceased (under Section 357 (1)(b) Crl.P.C. This appeal is partly allowed accordingly. The trial court is directed to take immediate steps by issuing warrant to secure the appellants to commit them to prison to serve the sentence and to recover the fine amount.