1989 Supreme(MP) 637

IN THE HIGH COURT OF MADHYA PRADESH
S.D. JHA, J.
Harikishan - Appellant
Versus
State of M. P. - Respondent
Cr. A. No. 77 of 1986 (I)
Decided on : 11-07-1989

Headnote:Indian Penal Code, 1860 – S. 304 – A and 304 (Pt. II) – death caused due to alive electric wire left in field – offence falls under S. 304 – A.

        Short Note

       1. The case against the appellant is that he has agricultural lands at village Guwal Toli, Neemuch. The appellant grows grass on the land. The land is protected by barbed wire fencing fixed on wooden poles and has a well. The well has an electric motor for irrigation. On the day of incident 16 – 7 – 1985 the appellant ran electric current in the barbed wire fixing wire to the starter. He had done so to protect his field. On the day of the incident in the morning deceased Rajaram had come in search of his cow. He and the cow happened to come in contact with the barbed wire fencing in which electric current was running. Rajaram and the cow died due to electric current consequent to contact of fencing. The appellant himself gave information of death of deceased Rajaram and the cow at Police Station Neemuch and Murg (Ex. P/1) was registered. Inquest (Ex. P/4) was held on the body and the body of Rajaram was sent for post – mortem examination. Dr. R. P. Maheshwari (P.W. 7) on 16 – 7 – 1985 vide Ex. P/7 conducted post – mortem examination on the dead body. He found number of burn injuries on the dead body and opined that death of Rajaram was due to electric shock. Balwirsingh Mehta, Veterinary doctor (P.W. 3) vide report (Ex. P/5) conducted post mortem examination of the cow and found that she had died as a result of electric shock. After usual investigation the challan was put up against the appellant for offences under section 304 and 429 I.P.C. in the Court of Additional Chief Judicial Magistrate, Neemuch, who by order dated 10 – 9 – 1985 committed the case to the Court of Sessions.

       2. Held: Coming to the offence committed by the appellant as regards death of Rajaram. Cherubin Gregory's case (AIR 1964 SC 205) is directly on the point. In this case, the owner fixed live naked electric wire of high voltage across passage to his latrine to dissuade trespassers. There was no warning that the wire was live. The trespasser got electric shock and some time after died. The Supreme Court held the occupier guilty of offence under section 304 – A I.P.C. In the other precedent, State of Gujrat v. Haidar – ali Kalubhai (AIR 1976 SC 1012) speeding truck with lights on, while taking a turn in open field, hitting cot, throwing deceased resting on it, causing injuries to him which resulted in his death. The Supreme Court held that the offence did not fall under section 304 (Part II) I.P.C. but under section 304 – A, CPC On going through the decision it is seen that the trial Court had inter alia convicted the accused under section 304 (Part II) I.P.C. On appeal the high Court altered the conviction from section 304 (Part II) I.P.C. to one under section 304 – A I.P.C. On further appeal against acquittal of charge under section 304 (Part II) I.P.C. by State of Gujrat, the Supreme Court held that the offence would be under section 304 – A I.P.C. and upheld the alteration done by the Gujrat High Court. It would thus appear that it is permissible to alter the conviction under section 304 (Part II) I.P.C. to one under section 304 – A I.P.C.

       3. Following the Supreme Court decision in Cherub in Gregory's case (supra) where the facts were same and similar to the present case, the conviction of the appellant under section 304 (part II) I.P.C. is altered to one under section 304 – A I.P.C. The conviction, however, under section 429 I.P.C. for causing death of cow is upheld. AIR 1964 SC 205 and AIR 1976 SC 1012 followed. Appeal partly allowed.