JUDGMENT : C.R. Kumaraswamy, J. - This criminal appeal is filed under Section 374[2] of Criminal Procedure Code by the Advocate for the appellant praying that this Hon'ble Court may be pleased to set aside the judgment and order of conviction and sentence dated 7-12-2009 in Spl. Case No.114 of 2004 passed by the I Additional Sessions and Special Judge, Mysuru, convicting the appellant/accused No.1 for the offence punishable under Section 304 of Indian Penal Code and also under Section 135[1] of the Indian Electricity Act, 1910 and appellant/accused No.1 is sentenced to undergo rigorous imprisonment for three years with fine of Rs.5,000/- and in default of payment of fine, to undergo simple imprisonment for six months for the offence punishable under Section 304 of IPC and further the Accused No. 1 is sentenced to undergo rigorous imprisonment for six months with fine of Rs.1,000/- and in default of payment of fine, to undergo simple imprisonment for one month for the offence punishable under Section 135[1] of the Indian Electricity Act, 1910, the period of substantive sentence of imprisonment awarded to Accused No.1 run concurrently. 2. The contents of the FIR i.e., Ex.P.10 discloses as under: The Talakadu Police have registered a case in Crime No.29 of 2004 for the offences punishable under Sections 379 and 304 of IPC read with Sections 39 and 44 of Electricity Act, 2003 against Accused Nos.1 and 2 on the basis of the complaint of one Babu, aged 45 years. 3. The contents of the complaint reads as under: That on 23-6-2004 at about 5.30 p.m., Muktar Pasha woke up and went to attend nature call by the side of his land and he went to fetch water from a ditch and Accused have drawn live electricity wire from the Karnataka Electricity Board and he has also committed theft of electricity and Muktar Pasha came in contact with live wire and consequently he died. The owner of the land was Nagegowda and guard who was guarding the land was Potaiah. These are the two persons responsible for death of Muktar Pasha. The FIR was registered by the learned Magistrate on 23-6-2004 at about 4.15 p.m. with one enclosure. After investigation, the Investigating Officer have laid charge sheet. The owner of the land was Nagegowda and guard who was guarding the land was Potaiah. These are the two persons responsible for death of Muktar Pasha. The FIR was registered by the learned Magistrate on 23-6-2004 at about 4.15 p.m. with one enclosure. After investigation, the Investigating Officer have laid charge sheet. It is stated in the charge sheet that on 23-6-2004 at about 5.30 p.m., Accused No.1 in his land bearing Sy.No.1270, Muktar Pasha went to that land for nature call and at that time Accused Nos.1 and 2 have put wooden plank and live wire were connected to the plank. Muktar Pasha came in contact with live electricity wire which was taken illegally. Consequently, Muktar Pasha died at the spot. The Accused have taken electricity connection in spite of knowing that if the live wire is connected between the plank and if anybody comes in contact with it, they will die. 4. In the Special Court, the learned Sessions Judge has framed charges for the offences punishable under Section 304 read with Section 34 of IPC and also under Section 135(l)(a) of the Indian Electricity Act, 1910. The accused has pleaded not guilty. Thereafter, the prosecution has examined P.W.1 to P.W.21. 5. P.W.1-Babu is brother of the deceased. He is the complainant. He has deposed that Accused No.1 has put electric fence wire illegally. The complainant's brother who went for nature call accidentally came in contact with wire. Accused No.2 narrated this aspect. Then he went to the spot. Accused No.2 was looking after the land and due to the negligence on the part of the Accused, the complainant's brother came in contact with wire and died. The complainant gave a written complaint and it is marked as Ex.P.1. 6. He further deposed that the Police came to the spot at 11 a.m., inspected and drew spot mahazar. He further deposed that in and around the land of Accused No.1, wooden pegs were inserted. There were live wire spread on the fence. The electricity was drawn from the department. The Police after inspecting the same drew spot mahazar. During cross examination, he states that Muktar Pasha went to the land of Accused No.1 for attending nature call. For lifting water, accused No. 1 used diesel motor. He also admits that wire has passed through the land of Accused No. 1. The electricity was drawn from the department. The Police after inspecting the same drew spot mahazar. During cross examination, he states that Muktar Pasha went to the land of Accused No.1 for attending nature call. For lifting water, accused No. 1 used diesel motor. He also admits that wire has passed through the land of Accused No. 1. The distance between the spot and the residence of deceased is about 1½ kilometers. On that day of the incident, it was raining. The other suggestions put to him were all denied. 7. P.W.2 - Madhavan has deposed that he does not know why Muktar Pasha died. Muktar Pasha went to the land of Accused No. 1 for nature call. Police came there and inspected the spot and drew spot mahazar. The Police have not seized any article from the spot. This witness has turned hostile. During cross examination by the Defence, he states that fence is installed in and around the land of Accused No. 1. There is borewell and to lift water from the borewell, electricity connection is obtained. Four zinc wires were tied in and around the land so as to prevent wild animals to trespass into the agricultural land. 8. P.W.3 - Guruswamy is witness for spot mahazar. He has deposed that M.NOs.1 to 5 were seized under mahazar. He came to know that the reason for the death of deceased is accused. During cross examination, he states that he does not know survey number of land of Accused No. 1. 9. P.W.4 - K. Shivanagu is witness to inquest panchanama. He has deposed that the deceased died due to the electric shock. The Police have drawn inquest Panchanama and apparels of the deceased were also marked as M.NOs.6 to 9. 10. P.W.5 - Mahadeva is witness to Inquest Panchanama. He has turned hostile. However, during his cross examination by learned Special Public Prosecutor, he states that deceased has suffered 1½ inch burn injuries. 11. P.W.6 - Mymunabi is mother of the deceased. She has deposed that when deceased went to the land of accused No. 1, he died due to electric shock. This aspect was narrated by his son. Then she went to the spot. Her evidence is of hear say. 12. P.W.7 - Satish is neighbouring land owner. He has deposed that he went and saw the dead body. The deceased died due to electric shock. This aspect was narrated by his son. Then she went to the spot. Her evidence is of hear say. 12. P.W.7 - Satish is neighbouring land owner. He has deposed that he went and saw the dead body. The deceased died due to electric shock. During cross examination, he states in and around land of accused No. 1, fence was installed. There is borewell in the land of Accused No. 1. 13. P.W.8 - Muneer Pasha is witness for seizure of apparels of the deceased. 14. P.W.9 - Ameer Pasha is neighbouring landowner and has deposed that in and around neighbouring land of Accused No. 1, fence was put up. When deceased Muktar Pasha went to land of Accused No. 1 for nature call, he came in contact with electric wire and consequently he died. 15. P.W.10 - Ataulla has deposed that deceased Muktar Pasha went to the land of Accused No. 1. He came in contact with the electric wire and died. In and around the land, there was fencing and electric connection was supplied to the fence and Muktar Pasha died due to electric shock. During cross examination, he states that there were cases pending against Muktar Pasha and his brother Akram Pasha in connection with the theft of electric wires. 16. P.W.11 - R. Sampath is a Village who went to the spot to see dead body. This witness has turned hostile. 17. P.W.12 - M. Rachaiah is Section Officer of MESCOM. He was one of the witness to spot panchanama. The line man Vyramudi, Rangappa and Siddaraju accompanied him. About 100-150 feet away from the dead body, there was electrical transformer. From the electric transformer, zinc wire and insulated wire had fallen on the ground. There was supply of electricity. He states that there was live wire and to that effect, he certifies the same. During cross examination, he states that he has not mentioned in Ex.P.6 about visit of the spot. The theft of electricity by Accused No. 1 is not known to their Department. No wire was tied to the dead body. He does not know about supply of electricity to the wire. On that day, it was raining. Accused No. 1 has not obtained electricity connection for operating the pumpset. Electricity line has passed on the land. He has affixed his signature to the spot panchanama. 18. P.W.13 - Chandrashekar is Electrical Inspector. No wire was tied to the dead body. He does not know about supply of electricity to the wire. On that day, it was raining. Accused No. 1 has not obtained electricity connection for operating the pumpset. Electricity line has passed on the land. He has affixed his signature to the spot panchanama. 18. P.W.13 - Chandrashekar is Electrical Inspector. He has identified the wooden pegs, insulated wires and fence wires. 19. P.W.14 - Ramesh is Assistant Engineer. He has inspected the spot and drawn sketch of scene of offence. 20. P.W.15 - Dr. M.S. Thimmegowda has deposed that Muktar Pasha died due to electric shock and consequently due to vasovagal shock and cardiac arrest. 21. P.W.16 - R.N.Kumar is Police Constable who filed FIR case. 22. P.W.17 - Rangaswamy M.K. is Head Constable assigned with duty of watching the dead body and handed over the dead body to the father of the deceased. 23. P.W.18 - K. Mariswamy who is Police Constable apprehended Accused Nos 1 and 2 on 23-6-2004 at about 12.30 p.m. 24. P.W.19 - Ashwathamurthi is Sub-Inspector who registered the case in Crime No.29 of 2004 and sent FIR to the learned Magistrate. 25. P.W.20 - Muthuswamy Naidu is Investigating Officer. After investigation, he laid charge sheet. During his cross examination, he admits he did not observe any tampering of the seal of transformer. There was no electricity taken from the transformer. The complainant's brother was in the habit of stealing. 26. P.W.21 - Doddaraje Urs is a witness to Inquest Panchanama who has turned hostile. 27. Statement under Section 313 of Cr.PC was recorded. Accused have denied the allegations made against them. 28. The sum and substance of the finding of the Trial Court is as under: The prosecution witnesses have spoken to that the deceased Muktar Pasha who died on the spot and has sustained burn injuries on his body. PW. Nos. 1, 3, 5, 11 and 15 have stated that Muktar Pasha died on the spot and has sustained bum injuries on his body. P.W.15 who had conducted postmortem examination on the dead body of deceased Muktar Pasha has given clear finding that death of the deceased was due to vasovagal shock and cardiac arrest due to electrocution. PW. Nos. 1, 3, 5, 11 and 15 have stated that Muktar Pasha died on the spot and has sustained bum injuries on his body. P.W.15 who had conducted postmortem examination on the dead body of deceased Muktar Pasha has given clear finding that death of the deceased was due to vasovagal shock and cardiac arrest due to electrocution. P.W.13 states that after inspection, he visited the spot on 24-6-2004 and thereafter on 5-7-2004 he has received MOs.1 to 4 and he has given opinion as per Ex.P.7. This witness has stated that he verified MOs.1 to 4. This witness has stated electricity has passed through the wire. Further, if zinc wire is connected, electricity will flow through zinc wire also. PW.1 who is the complainant in this case has stated that Accused No. 1 had planted wooden poles around his land, drawn zinc wire and taken electric connection from the main line by using a white wire. Ex.P.8 says that supply line from the main line passes through the land which is very near to the scene of occurrence. PW.12 has stated that he has visited the spot and verified the same. 29. The Trial Court at paragraph 35-of its judgment mentions cumulative effect of these materials on record to show that there was a barbed wire in the land belonging to Accused No.1 and the zinc wire was also tied to the barbed wire and Muktar Pasha came in contact with the wire, died at the spot after sustaining several bum injuries on his body. These undisputed facts leads to a definite conclusion that Accused No.1 has taken illegal electric connection to the barbed wire fence and he is responsible for the death of Muktar Pasha. There is no direct evidence to speak about the facts of the case. 30. The Trial Court looked at the circumstances and came to the conclusion that the prosecution has proved guilt of the Accused beyond reasonable doubt for the offence punishable under Section 135(1) of Indian Electricity Act and also under Section 304 of IPC. The prosecution has contended that Accused No.2 is a Manager and he was taking care of the field belonging to Accused No.1. PW.1 has spoken regarding this aspect. The prosecution has contended that Accused No.2 is a Manager and he was taking care of the field belonging to Accused No.1. PW.1 has spoken regarding this aspect. But, no other witness have spoken regarding the same and there are absolutely no materials to contend that Accused No 1 was responsible for taking illegal electric connection and responsible for the death of Muktar Pasha. Therefore, the prosecution is of the opinion that Accused No.2 was not guilty and therefore Accused No.1 was convicted for the offence punishable under Section 135(1) of Indian Electricity Act and Section 304 of IPC and Accused No.2 was acquitted of the offence punishable under Section 135(1) of Indian Electricity Act and Section 304 of IPC. 31. Learned Counsel for the appellant submits as under: That there was no electricity connection supplied to the fence by the Accused No. 1. Accused No. 1 is only the owner of the land and Accused No. 1 was managing the agricultural operations; that none of the witnesses state that the live wire was running between the main line and barbed wire fence; that on the previous day there was rain; that the leakage of electricity from the transformer may be the cause of the death of Muktar Pasha; that according to panch witnesses, they speak about junk wires, insulated wires, wooden pegs were already placed by the side of the dead body before they reached the spot. The amount of electricity drawn by Accused No. 1 has not been mentioned in the Police papers either in the FIR or in the charge sheet. There is no positive evidence to show that there is stealing of electricity from the main line. The amount of electricity stolen is not forthcoming from the report of the Engineers. Section 151 of the Electricity Act mentions that the complaint has to be presented by the concerned Officer who has been authorised by the Competent Authority. But, in this case, on the basis of Police report, the crime has been registered against the accused and subsequently charge sheet has been filed. Amendment to Electricity Act was brought during the year 2007. Earlier to that, the complaint has to be filed by the Officer who has been entrusted to the present complaint by the Competent Authority and that in criminal cases, contributory negligence will not play a role. Amendment to Electricity Act was brought during the year 2007. Earlier to that, the complaint has to be filed by the Officer who has been entrusted to the present complaint by the Competent Authority and that in criminal cases, contributory negligence will not play a role. The mitigating factor is that the deceased was in the habit of stealing wires. The deceased has come to attend nature call from his house to 1½ to 2 kilometers. There was malafide intention on the part of the deceased to enter into the land of the Accused to steal the wires. 32. Learned Government Pleader submits that he supports the impugned judgment and order. He further submits that the learned Sessions Judge after appreciating the evidence and materials placed on record has come to a right conclusion. No ground is made out to interfere with the impugned judgment and order. 33. The points that arise for my consideration in this case are: (a) Whether the finding recorded by the Trial Court that the offence falls under Section 304 of IPC is sustainable or whether the offence falls under Section 304-A of IPC?. (b) Whether the judgment and order of conviction is sustainable in law or not?. 34. In the instant case, charge is framed for the offence punishable under Section 304 of IPC read with Section 34 of IPC and also under Section 135(l)(a) of Indian Electricity Act, 1910. The appellant/accused has been convicted for the offence punishable under Section 304 of IPC and also under Section 135 of the Indian Electricity Act. The ingredients of Section 304 of IPC reads as under: "(i) the death of the person must have been caused; (ii) such death must have been caused by the act of the accused by causing bodily injury; (iii) there must be an intention on the part of the accused; (a) to cause death; or (b) to cause such bodily injury which is likely to cause death (Part I); (c) there must be knowledge on the part of the accused that the bodily injury is such that it is likely to cause death (Part II)." 35. The ingredients of Section 304-A of IPC are as under: "(i) Death of a person (ii) Death was caused by accused during any rash and negligent act. (iii) Act does not amount to culpable homicide." 36. The ingredients of Section 304-A of IPC are as under: "(i) Death of a person (ii) Death was caused by accused during any rash and negligent act. (iii) Act does not amount to culpable homicide." 36. In this background, let us examine whether offence falls under Section 304 or 304-A of IPC?. 37. The evidence placed on record discloses that Muktar Pasha went to the land of Accused No. 1 and came in contact with the live wire and consequently he died. In the land of Accused, two electric cement poles were installed. The distance between the two poles is about 150 meters and the fencing of wire is not forthcoming clearly in the panchanama. Even no witness speaks about the tying of barbed wires and also giving connection to the barbed wires. 38. The common ingredients in so far as under Sections 304 and 304-A is concerned, is death of human being. Under Section 304 of IPC, such death must have caused by the act of the Accused by causing bodily injury whereas under Section 304-A of IPC, the Accused has caused the death. In so far as the third ingredient for the death for the offences under Section 304 of IPC is concerned, there should be an intention on the part of the Accused to cause death or knowledge where as in case of offence under Section 304-A of IPC, the death is due to rash and negligent act though it did not amount to culpable homicide. 39. In Indian Penal Code, 'negligence' is not defined. It may be stated that 'negligence' or omission to do something which a reasonable man, guided upon those considerations which ordinarily regulate the conduct of human affairs would do, or doing something which a reasonable and prudent man would not do. 40. The Trial Court, on the basis of the evidence and also on appreciation of evidence, has come to a conclusion that the offence falls under Section 304 of IPC. There is no evidence to the effect that there was intention on the part of the Accused to cause death or there was no knowledge on the part of the Accused that bodily injury is such that likely to cause death. Such being the case, the Trial Court, on appreciation of the evidence coming to the conclusion that the offence falls under Section 304 of IPC is not sustainable in law. Such being the case, the Trial Court, on appreciation of the evidence coming to the conclusion that the offence falls under Section 304 of IPC is not sustainable in law. 41. Learned Counsel for the appellant relies on the decision of 'State of Rajasthan v. Chhittarmal'[2007[10] SCC 729], wherein the Hon'ble Supreme Court observed at paragraphs 2, 4 and 5 as under: "2. BACKGROUND facts in a nutshell are as follows: Shri Girdhari (PW-13) submitted a written report to S.H.O., 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 sometime 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 29/27). 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 of 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. 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. 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. 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. 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. 4. 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 of IPC. Learned Counsel for the respondent accused supported judgment of the High Court. Coming to the plea of the applicability of Section 304A it is to be noted that the said provision relate 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 of 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 of 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. 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. 5. 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 304-A has no application." 42. In the instant case, there is no evidence that there was intention or knowledge on the part of the accused to cause death. 43. The next question that arises for my consideration is whether the findings falls under Section 304-A of IPC?. 44. In this regard, I have carefully examined the evidence of the prosecution witnesses. PW.1-Brother of the deceased clearly states that his brother went to attend nature call to the land of Accused No. 1. At that time, he came in contact with live wire and consequently he died. Evidence of this witness is corroborated with the evidence of PWs.9 and 10. PW.15 Doctor has also stated that death was due to vasovagal shock and cardiac arrest due to electrocution. 45. All these witnesses speak that the deceased went to the land of Accused No. 1 and came in contact with live wire and died. Even PW.12 has stated in his evidence that there was transformer away from 100-150 meters away from the dead body and zinc wire was lying in the land. He has also issued Ex.P.6 certificate to that effect. PW.13 - Electrical Inspector inspected the spot. He examined MOs.1 to 4 in the Court. He issued Ex.P.7. He has deposed that aluminium wire is installed. This wire is connected to main line. The other line is connected to zinc wire. Evidence of these witnesses clearly show that there were several poles and electric aluminium wire and flow of current in the wire installed in the land of Accused No. 1. Therefore, due to negligence on the part of the Accused, death of Muktar Pasha is caused. 46. It is the contention of learned Counsel for the appellant that Muktar Pasha was in the habit of committing theft of wires. Therefore, due to negligence on the part of the Accused, death of Muktar Pasha is caused. 46. It is the contention of learned Counsel for the appellant that Muktar Pasha was in the habit of committing theft of wires. There is positive evidence to the effect that he was in the habit of committing theft of wires. To this effect, evidence of PW.20 reveals that deceased was in the habit of stealing wires and the defence version is that due to the rain there might have been a leakage of electricity and consequently he might have died. 47. Acquittal of offence of higher degree cannot stand in the way of the accused for lesser offence depending upon the actual evidence on record. 'Minor offence' means offence made out by some ingredients of major offence. Major offence must be cognate offence which are minor, main ingredients being common. When an accused is charged with major offence and ingredients of major offence are missing, ingredients of minor offence are made out, then he must be convicted for minor offence even though he was not charged with it. [Tarkeshivar Sahu v. State of Bihar, (2006) 8 SCC 560 ]. 48. Section 464 of the Criminal Procedure Code deals with effect of omission to frame change or absence of, or error in, charge- (1) No finding, sentence or order by a Court of competent jurisdiction shall be deemed invalid merely on the ground that no charge was framed or on the ground of any error, omission or irregularity in the charge including any misjoinder of charges, unless, in the opinion of the Court of appeal, confirmation or revision, a failure of justice has in fact been occasioned thereby. This clearly shows that any error, omission or irregularity in the charge including misjoinder in invalidating the order of a Competent Court unless appellate Court or revisional Court comes to the conclusion that failure of justice has in fact been occasioned thereby. Omission or irregularity in framing charge by itself is not sufficient for upsetting the conviction. If the offence committed is clearly covered and has ingredients of minor offence, Court is empowered to convict the accused by invoking provisions of Section 222 of Criminal Procedure Code. 49. In this background, I have carefully examined evidence and materials placed on record though charge was framed under Section 304 of IPC. If the offence committed is clearly covered and has ingredients of minor offence, Court is empowered to convict the accused by invoking provisions of Section 222 of Criminal Procedure Code. 49. In this background, I have carefully examined evidence and materials placed on record though charge was framed under Section 304 of IPC. The ingredients relating to intention on the part of the accused or knowledge about the accused to cause death is missing in this case. However, evidence placed on record disclose that there is negligence on the part of the accused. Therefore, the finding recorded by the Trial Court that the accused is liable to be convicted under Section 304 of IPC is not sustainable in law. However, evidence placed on record clearly discloses that the accused is liable to be convicted for the offence punishable under Section 304-A of IPC. Accordingly, finding recorded by the Trial Court to the effect that accused is guilty of offence punishable under Section 304 of IPC is altered to Section 304-A of IPC. 50. In so far as offence under Section 135(1) of the Indian Electricity Act is concerned, learned Counsel for the appellant submitted as under: The date of offence in this case is 23-6-2004 whereas amendment was carried out on 15-6-2007. This offence has taken place prior to amendment. Earlier to amendment, it was the concerned Officer from the Department has to file private complaint before the Competent Court. But, in the instant case, the Police have investigated the case and filed the report. Therefore, he submits that charge under Section 135 of the Indian Electricity Act is not made out. Even the Officers of MESCOM have not measured what is the amount of electricity stolen. No mahazar has been done to that effect. The accused has committed theft of electricity and what is the quantum of electricity that has been stolen by the concerned Authority is not forthcoming from the evidence of prosecution. Therefore, even charge under Section 135 has not been established by the prosecution. 51. The next question that arises for my consideration is what is the punishment that has to be awarded for the offence punishable under Section 304-A of IPC?. 52. In this regard, learned Counsel for the appellant submitted as under: The Accused is aged about 80 years, the date of accident is on 23-6-2004. More than a decade has passed. 51. The next question that arises for my consideration is what is the punishment that has to be awarded for the offence punishable under Section 304-A of IPC?. 52. In this regard, learned Counsel for the appellant submitted as under: The Accused is aged about 80 years, the date of accident is on 23-6-2004. More than a decade has passed. He is also suffering from ill health, he is blind and has also got knee problem. He is very old and needs an attendant to walk. He was also imprisoned for 26 days. Considering this aspect of the matter, he may be released as per the provisions of Probation of Offenders Act, 1958. 53. Learned Government Pleader submits that substantial fine may be imposed. 54. In this case, more than one decade has lapsed. The accused has undergone 26 days detention. He is also aged 80 years and he needs an attendant to walk and he is also suffering from illness. Though it is contended by learned Counsel for the appellant that the deceased was in the habit of stealing wires, it cannot be a mitigating factor. However, taking into consideration that the Accused is aged about 80 years ands of justice will be met if sentence was reduced to the period already undergone. However, the fine amount of Rs. 12,000/- imposed. In default to pay fine, he shall undergo imprisonment for a period of three months. If the fine amount is realised, fine shall be paid to the Class-I heirs of the deceased. 55. In view of the discussion above, I pass the following: ORDER (i) Criminal appeal is allowed in part. (ii) Appellant/accused is acquitted of the offence punishable under Section 135[1] of the Indian Electricity Act. (iii) Finding of conviction for the offence punishable under Section 304 of IPC is altered to Section 304-A of IPC. (iv) The sentence is reduced to the period already undergone. (v) Accused/appellant is sentenced to pay fine amount of Rs.12,000/-. In default to pay fine, he shall undergo imprisonment for three months. (vi) If fine is realised, the same shall be paid to the Class-I legal heirs of the deceased.