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. 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