Judgment

AYYANGAR, J. : This is an appeal by special leave against the judgment of the High Court of Patna dismissing an appeal by the appellant against his conviction and the sentence passed on him by the Sessions Judge, Champaran.

2. The appellant was charged with an offence under S. 304 A of the Indian Penal Code for causing the death of one Mst. Madilen by contact with an electrically charged naked copper wire which he had fixed up at the back of his house with a view to prevent the entry of intruders into his latrine. The deceased Madilen was an inmate of a house near that of the accused. The wall of the latrine of the house of the deceased had fallen down about a week prior to the day of the occurrence-July 16, 1959, with the result that her latrine had become exposed to public view. Consequently the deceased, among others, started using the latrine of the accursed. The accused resented this and made it clear to them that they did not have his permission to use it and protected against their coming there. The oral warnings, however, proved ineffective and it was for this reasons that on the facts, as found by the courts below, the accused wanted to make entry into his latrine dangerous to the intruders.

3. Though some of the facts alleged by the prosecution were disputed by the accursed, they are now concluded by the findings of the courts below and are no longer open to challenge and, indeed, learned Counsel for the appellant did not attempt to controvert them. The facts, as found, are that in order to prevent the ingress of persons like the deceased into his latrine by making such ingress dangerous (1) the accused fixed up a copper wire across the passage leading up to his latrine, (2) that this wire was naked and uninsulated and carried current from the electrical wiring of his house to which it was connected, (3) there was no warning that the wire was live, (4) the deceased managed t o pass into the latrine without contacting the wire but that as she came out her hand happened to touch it and she got a shock as a result of which she died soon after. On these facts the Courts below held that the accused was guilty of an offence under S. 304A of the Indian Penal Code which enacts:

"304A. 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".

The accused made a suggestion that the deceased had been sufficiently warned and the facts relied on in this connection were two : (1) that at the time of the accident it was past daybreak and there was therefore enough light, and (2) that an electric light was bunging some distance away. But it is manifest that neither of these could constitute warning as the condition of the wire being charged with electric current could not obviously be detected merely by the place being properly lit.

4. The voltage of the current passing through the naked wire being high enough to be lethal, there could be no dispute that charging it with current of that voltage was a rash act done in reckless disregard of the serious consequences to people coming in contact with it.

5. It might be mentioned that the accused was also charged before the learned Sessions Judge with an offence under section 304 of the Indian Penal Code but on the finding that the accused had no intention to cause the death of the deceased he was acquitted of that charge.

6. The principal point of law which appears to have been argued before the learned Judges of the High Court was that the accused had a right of private defence of property and that the death was caused in the course of the exercise of that right. The learned Judges repelled this defence and, in our opinion, quite correctly. The right of private defence of property which is set out in S. 97 of the Indian Penal code is, as that section itself provides, subject to the provisions of S. 99 of th