Important Point
When neither the intention nor knowledge to cause death is established, offence would be covered by section 304A and not 302.

JUDGMENT

Dr. ARIJIT PASAYAT, J.—

1.Challenge in this appeal is to the judgment rendered by a Division Bench of the Rajasthan High Court, Jaipur Bench altering conviction of the respondent from one punishable under Section 302 of the Indian Penal Code, 1860 (in short the ‘IPC’) to Section 304A IPC. Two years rigorous imprisonment and a fine of Rs.5000/- with default stipulation was awarded.

2.Background facts in a nutshell are as follows :

“Shri Girdhari (PW-13) submitted a written report to S.H.0., 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 some time 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 29/97). 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 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”.

3.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.

4.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.

5.On the basis of evidence produced before the learned Additional Sessions Judge, he held that due to enmity with the intention to kill Ram Kumar and his son Murlidhar, accused Chhittar fixed naked live wire of electricity on the drain for supplying water in the field in between the fields of Ram Kumar and Chhittar with the result that in the night when Ram Kumar went to his field he died due to electric current. When Murlidhar went there to give tea to his father he also came in contact with the electric wire and died on the spot. On this finding he convicted the accused under Section 302 IPC and sentenced as mentioned above.

6.The High Court found that the proper conviction would be under Section 304A IPC and not Section 302 IPC as was held by the trial court.

7.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