P. S. NARAYANA, J. ( 1 ) HEARD Sri Suresh Kumar, Counsel representing the appellant/accused and the learned Additional Public Prosecutor. ( 2 ) APPELLANT/accused was charged with Section 304 Part II IPC and Section 39 of the indian Electricity Act, 1910. But, however, ultimately convicted under Section 304-A IPC and was found to be not guilty for the offence under Section 39 of the Indian Electricity act, 1910 and a sentence was imposed to undergo rigorous imprisonment for a period of two years. Aggrieved by the same the present appeal is preferred. ( 3 ) SRI Suresh Kumar, learned Counsel representing the appellant/accused had drawn the attention of this Court to Exs. Pl and P2 and also to the evidence available on record and would contend that there are several inherent improbabilities in the version of prosecution. Learned Counsel would submit that the version of the prosecution that sometime prior to 25. 8. 1994 accused obtained direct electrical connection to his house for the purpose of lighting and for the said purpose accused ran an uninsulated iron wire from the electrical pole situated near the agricultural well of one lachu Mallu (Electrical Pole No. 75) and used 60 metres of wire up to his house with which he arranged an electrical bulb to burn in his house and on the night of 25. 8. 1994 the deceased came in touch with the same and consequently due to electrocution he died, definitely cannot be believed. Learned Counsel pointed out that the dead body was found in the Maize field of Tirupathi Ready and there was a live electric wire found on the dead body and when that being so the non-examination of tirupathi Reddy, Lachu Mallu and also any of the owners of the neighbouring agricultural fields would throw some doubt on the version of the prosecution. The learned Counsel had further explained that pws. 4, 5 and 6 were declared hostile and apart from this aspect of the matter when an acquittal had been recorded under Section 39 of the Indian Electricity Act, 1910, the learned ii Additional Sessions Judge, Warangal had totally erred in convicting the appellant/ accused under Section 304-A IPC. The learned Counsel had further explained that pws. 4, 5 and 6 were declared hostile and apart from this aspect of the matter when an acquittal had been recorded under Section 39 of the Indian Electricity Act, 1910, the learned ii Additional Sessions Judge, Warangal had totally erred in convicting the appellant/ accused under Section 304-A IPC. ( 4 ) PER contra, learned Additional public Prosecutor would contend that the mere acquittal recorded under Section 39 of the Indian Electricity Act, 1910 would be of no consequence since the ingredients of section 304-A IPC had been established. There is clear evidence available on record that the accused had taken the wire from the electrical pole which is illegal connection and the deceased by coming into contact with the same, due to such negligent act on the part of the accused, died on the fateful day and hence the prosecution had established the nexus between the death and the negligent act of the accused. Hence, the conviction under Section 304-A IPC is definitely sustainable. ( 5 ) HEARD the Counsel on record. ( 6 ) THE case of the prosecution is that the accused is a resident of Lakshmidevipet in Venkatapur Mandal and is residing in a tiled house in the outskirts of the said village surrounded by the fields. It is the version of the prosecution that prior to 25. 8. 1994 the accused obtained direct electrical connection to his house for the purpose of lighting and for the same the accused ran an un-insulated iron wire from the electrical pole situated near the agricultural well of one Lachu Mallu (Electrical Pole No. 75) and used 60 metres of wire up to his house with which he arranged an electrical bulb to burn in his house. It is also the case of the prosecution that on the night of 25. 8. 1994 the deceased went towards the land near the house of the accused and when he was passing through the Maize field of Polereddi tirupathi Reddy he came in touch with the un-insulated wire arranged by the accused and died due to electrocution and on the report given by the father of the deceased a case in Crime No. 45 of 1994 on the file of Venkatapur Police Station was registered under Section 304 Part II IPC and under Section 39 of the Indian Electricity act, 1910. ( 7 ) THE learned Judicial Magistrate of first Class, Mulug, committed the matter to the Court of Session and the Court of Session made over the same to the II Additional sessions Judge, Warangal and the learned judge recorded the evidence of PWs. 1 to 8 and marked Exs. Pl to P6 and MOs. 1 to 3 and arrived at a conclusion that the accused was not guilty of Section 304 Part II IPC and under Section 39 of the Indian Electricity act, 3910. But, however, convicted the accused under Section 304-A IPC and sentenced him to undergo rigorous imprisonment for a period of two years. Hence the appeal. ( 8 ) PW-1 the father of the deceased deposed that about three years back his son died due to electrocution and his body was found near the Maize field of Polereddy Tirupathi Reddy and one day prior to the death of his son he left his house in the night after taking meals and he did not return whole the night and at about 7. 00 a. m. , one Pendyala Venkatesham came to him and informed him that the dead body of his son was found in the field of Tirupathi Reddy and by the time they went there his son was found dead and across the dead body there was one iron wire which was running from the electric pole located near the agricultural well of lachumallu and extending up to the house of the accused. This witness also deposed that it appears that the accused had taken that wire for electrification of his house and his son accidentally touched the said wire and died due to electrocution and he gave report to the police in Ex. P1. This witness was cross-examined and it was specifically suggested to this witness that tirupathi Reddy himself arranged the electric wire around his agricultural lands to protect his Maize crop and the accused has nothing to do with the electric wire with which his son came into contact, but the same was denied. ( 9 ) EX. PL reads as hereunder:"it is to submit that my son Meenugu Ilaiah, age: 30 years, at about night 9. 30 p. m. , left the house and went out. He has not turned back till morning hence we started to search for his whereabouts are not known. Early morning at about 7. ( 9 ) EX. PL reads as hereunder:"it is to submit that my son Meenugu Ilaiah, age: 30 years, at about night 9. 30 p. m. , left the house and went out. He has not turned back till morning hence we started to search for his whereabouts are not known. Early morning at about 7. 00 a. m. , one Pendyala Venkatesham came and informed that my son Ilaiah is died with electricity shock in the nearby field of Poui reddy Thirupathireddy when we went and saw the dead body was lying there the left side of the dead body there was a thin iron wire below the left arm as well as on the left ribs the said wire was taken by Jodu ramulu, s/o Odelu pilferage of electricity from the main pole to his house at a length of 60 metres of wire that wire was not taken any safety and security. Thus when my son went that side by touching the said electric wire to shot shock he was died therefore I request you to come and conduct panchanama and to take necessary action on this matter. " ( 10 ) PW-2 is the mother of the deceased and no doubt she also deposed the same facts as deposed by PW-1. PW-3 deposed that the accused is his son-in-law and the deceased died about three years back due to electrocution and the dead body was found in the agricultural land of Polereddy tirupathi Reddy of Lakshmidevapeta. But this witness deposed that he does not know who arranged the electric wire which caused the death of the deceased and it is true that usually the agriculturists will arrange un-insulated electric fencing around their lands to protect the crops from being destroyed by the wild animals. ( 11 ) PWS. 4, 5 and 6 were declared hostile. PW-4 was examined in relation to ex. P2 and P3 and since he had not supported the prosecution in toto this witness was declared hostile. Likewise, PW-5 and PW-6 as well. ( 12 ) PW-7 deposed that Sri K. Sathyanarayana, Circle Inspector of Police filed charge-sheet. But, however, he deposed that he is working as Assistant Sub-Inspector of Police and PW-1 came to Police Station on 26. 8. 1994 at about 10. 00 a. m. , and presented Ex. Likewise, PW-5 and PW-6 as well. ( 12 ) PW-7 deposed that Sri K. Sathyanarayana, Circle Inspector of Police filed charge-sheet. But, however, he deposed that he is working as Assistant Sub-Inspector of Police and PW-1 came to Police Station on 26. 8. 1994 at about 10. 00 a. m. , and presented Ex. Pl report and the same was registered as a case in Crime No. 45 of 1994 under Section 304 Part II IPC and the original first Information Report was submitted to the Judicial Magistrate of First Class, mulug and Ex. P4 is the First Information report. This witness also deposed about the recording of the statements, drawing rough sketch Ex. P5 at the scene of offence and Ex. P2 panchanama and also deposed about the un-insulated wire running to a distance of 60 metres from the electric pole situated near the well of one Lachumallu and going all the way to the house of the accused with which he arranged an electric bulb for lighting in his house and the said connection is not a service connection but an unauthorized connection. This witness also deposed about the conducting of inquest over the dead body of the deceased and preparing inquest report Ex. P3 and sending the dead body for post-mortem examination and seizure of mos. 1 to 3. This witness no doubt deposed in cross-examination that the wire that was seized under MO-2 was found running from the electric pole to the house of the accused across the fields of several ryots including Tirupathi Reddy and he did not examine Tirupathi Reddy and other ryots to record their statements and it is true that the wires MOs. l and 2 were so arranged with the support of poles to run from the electric poles and it was not originally touching the ground and it appears that the pole supports were later fell down whereby the live electric wire fell on the ground. ( 13 ) PW-8 the Civil Assistant Surgeon not only deposed about the death of the deceased due to electrocution, but he had also deposed about the conducting of postmortem examination on the dead body of the deceased and issuance of Ex. P6 postmortem report. ( 14 ) AS already referred to supra, pws. 4, 5 and 6 were declared hostile, even otherwise relevant portion of Ex. P6 postmortem report. ( 14 ) AS already referred to supra, pws. 4, 5 and 6 were declared hostile, even otherwise relevant portion of Ex. P2 reads as hereunder:"there is about 60 metres length iron and plastic wire from agriculture well of gosukula Lachimallu to the residence of bodu Ramulu, S/o Odelu. When we observed the wire before the police, near the electric pole which was near Lachimallu s agriculture well, we disconnected the wire which was mentioned about plastic and iron wire when we opened the wire 5 metres length ash coloured plastic wire, in that wire thin red and black wires, in that copper wires are there, that wire has about 1 feet length iron wire hook was there that wire was jointed with thin iron wire about 51 metres length and that thin iron wire which was taken into the house of Boda Ramulu 4 meters black plastic current wire and about 1/2 metre red wire, and that wires one switch, beside one side of the switch MASTER was written the other side and one black colour plastic bulb holder and on that SE letters were on that. " ( 15 ) ON the strength of this evidence the learned Judge arrived at a conclusion that the offence under Section 304-A IPC had been established. ( 16 ) SECTION 304-A IPC dealing with causing death by negligence reads as hereunder:"304-A. Causing death by negligence : whoever causes the death of any person by doing any rash or negligent act not amounting to culpable homicide, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both. " ( 17 ) SECTION 39 of the Indian Electricity act, 1910 dealing with theft of energy reads as hereunder:"39. Theft of Energy: Whoever dishonestly abstracts, consumes or uses any energy shall be punishable with imprisonment for a term which may extend to three years, or with fine which shall not be less than one thousand rupees, or with both, and if it is proved that any artificial means or means not authorized by the licensee exist for the abstraction, consumption or use of energy by the consumer, it shall be presumed, until the contrary is proved that any abstraction, consumption or use of energy has been dishonestly caused by such consumer. " ( 18 ) IT is pertinent to note that the learned Judge recorded a finding that no permission was taken to file the charge- sheet under the Indian Electricity Act, 1910 nor any authorities belonging to Andhra Pradesh state Electricity Board were examined to prove that the electrical connection taken by the accused is unauthorized and without their knowledge and hence acquittal was recorded so far as it relates to the charge under Section 39 of the Indian Electricity Act, 1910 is concerned. ( 19 ) IN Syed Akbar v. State of karnataka, AIR 1979 SC 1848 , the Apex court while dealing with the negligence and proof thereof in relation to Section 304-A ipc and applicability of res ipsa loquitur held that:"two lines of approach in regard to the application and effect of the maxim res ipsa loquitur are possible. According to the first, where the maxim applies, it operates as an exception to the general rule that the burden of proof of the alleged negligence is, in the first instance, on the plaintiff. In this view, if the nature of an accident is such that the mere happening of it is evidence of negligence the burden shifts or is in the first instance, on the defendant to disprove his liability. Such shifting or casting of the burden on the defendant is on account of a presumption of law and fact arising against the defendant from the constituent circumstances of the accident itself, which bespeak negligence of the defendant. According to the other line of approach, res ipsa loquitur is not a special rule of substantive law; that functionally it is only an aid in the evaluation of evidence, "an application of the general method of inferring one or more facts in issue from circumstances proved in evidence". In this view, the maxim res ipsa loquitur does not require the raising of any presumption of law which must shift the onus on the defendant. It only, when applied appropriately, allows the drawing of a permissive inference of fact, as distinguished from a mandatory presumption properly so called, having regard to the totality of the circumstances and probabilities of the case. Res ipsa is only a means of estimating logical probability from the circumstances of the accident. It only, when applied appropriately, allows the drawing of a permissive inference of fact, as distinguished from a mandatory presumption properly so called, having regard to the totality of the circumstances and probabilities of the case. Res ipsa is only a means of estimating logical probability from the circumstances of the accident. " ( 20 ) WHAT constitutes negligence had been well explained in Kenny s outlines of criminal Law 19th Edition (1966) at Page 38 and Halsbury s Laws of England (4th edition) Volume 34 Paragraph 1. These principles are well settled and need no repetition at the hands of this Court. ( 21 ) IN Mohd. Rangawalla v. Maharashtra State, AIR 1965 SC 1616 , the apex Court held that:"death must be direct result of the rash or negligent act of accused and the act must be efficient cause without intervention of another s negligence and it must be the causa causans; it is not enough that it may have been the causa sine qua non. " ( 22 ) IN Bhalchandra v. State of maharashtra, AIR 1968 SC 1319 , a three judge Bench held that:"the criminal negligence is the gross and culpable neglect or failure to exercise that reasonable and proper case and precaution to guard against injury either to the public generally or to an individual in particular, which having regard to all the circumstances out of which the charge has arisen, it was the imperative duty of the accused person to have adopted. " ( 23 ) NOW it may have to be seen whether these tests had been satisfied by the prosecution in the present case. The same view was expressed in M. H. Lokre v. State of Maharashtra, AIR 1972 SC 221 , and also yet another decision of the three judge Bench of the Apex Court in Rakesh ranjan Gupta v. State of U. P. , AIR 1999 sc 2115 . The same view was expressed in M. H. Lokre v. State of Maharashtra, AIR 1972 SC 221 , and also yet another decision of the three judge Bench of the Apex Court in Rakesh ranjan Gupta v. State of U. P. , AIR 1999 sc 2115 . ( 24 ) IN Chakkarvarthy v. State, (1995) 2 L. W (Cr) 776 (Madras), where the accused was charged with Section 304-A IPC for death of a boy due to electrocution on a field and the field not belonging to the accused but however recovery of iron rod and copper wire kept in the house of the accused had been established, but there was no evidence to show as to how and from where service connection and electricity was taken and as to how deceased was electrocuted and the investigating agency or Electricity Department had not identified the source from which electric energy had unlawfully been taken, it was held that on mere conjectures and suspicion the accused cannot be fastened with criminal liability and hence conviction is liable to be set aside. ( 25 ) IN the present case even as per the version of the prosecution, the body was lying in the field of Polereddy Tirupathi reddy and the wire was running through the fields of several agriculturists and there is some evidence available on record to show that the agriculturists would be adopting these methods for the purpose of protecting their crops. Neither the owner of the well nor Tirupathi Reddy, the other neighbouring agriculturists had been examined by the prosecution. Apart from this aspect of the matter the so-called unauthorised connection of the charge under Section 39 of the Indian Electricity act, 1910 was held to be not established and acquittal had been recorded. On the mere fact that the wire was running up to a particular point, on suspicion that this would have been the act of the accused, the accused was fastened with criminal liability. Unless the proof is clear it cannot be said that the appellant/accused is guilty of section 304-A IPC. On the mere fact that the wire was running up to a particular point, on suspicion that this would have been the act of the accused, the accused was fastened with criminal liability. Unless the proof is clear it cannot be said that the appellant/accused is guilty of section 304-A IPC. Even otherwise there is some evidence that even while taking this wire certain precautions had been taken and at the best it may be some error of judgment and definitely this would not fall under any negligent act on the part of the accused especially in the light of the acquittal recorded under Section 39 of the indian Electricity Act, 1910. ( 26 ) VIEWED from any angle, this Court is of the considered opinion that the prosecution failed to establish the ingredients of Section 304-A IPC and hence the conviction and sentence imposed by the learned Judge cannot be sustained. Accordingly, the same is hereby set aside and the appeal is hereby allowed recording the acquittal of the accused in relation to the charge under Section 304-A IPC.