1. This criminal appeal is directed against the impugned judgment of conviction and order of sentence dated 08-10-2002 passed by the First Additional Sessions Judge Ambikapur, District Surguja, C.G. in S.T. No. 286/2000 by which the appellant has been convicted and sentenced in the following manner:-

2. Brief facts of the case are that, appellant has taken a live electricity connection from the electricity pole to his house which fell down near well and badi of one Gideshwar Dhobi and after stoppage of rain when Dilpati, Dinesh and Kameshwar went near the well, Dilpati came into contact of live wire lying on earth she got unconscious due to the electric current. Kameshwar informed the villagers and when Anil Ram and Parshuram went there, with the help of dried piece of wood they removed the electricity wire and took Dilpati to Darima hospital and on the way she died. Pramanand (PW-1) has lodged the merg intimation to the police on 02.06.2000 vide Ex.-P/1. Inquest (Ex.-P/3) was prepared in presence of the witnesses. Spot map was prepared vide Ex.-P/4. The dead body of the deceased was sent for postmortem to the District Hospital Ambikapur where Doctor A. Bhagat (PW-9) conducted the postmortem on the dead body of the deceased and found following injuries:-

"(i) Electric burn mark present over left back of neck extending towards left shoulder, obliquely placed, Black in colour, size 6 cm. x 1.5 cm.

(ii) electric Burn mark put over left Shoulder 6.5 cm. x 1 cm. in size, Black colour, extending towards left hand and below the left elbow joint it is interrupted at places with ecchymosis."

The doctor has opined that mode of death is asphyxia and cause of death is shock due to electrocution. Memorandum of the appellant was also recorded on 19.07.2000 vide Ex.-P/5 and based on that the bundle of wire was seized from the appellant vide Ex.-P/6. During course of the investigation the police has made query from the electricity department vide Ex.-P/12 as to whether the electricity connection of the appellant was in fact valid connection or not. A report has been endorsed by the Junior Engineer (Rural) MPEB Ambikapur in reply to the said query in which it has been replied that there is no legal electricity connection in the name of the appellant. The FIR (Ex.-P/13) was registered against the appellant under Section 304, 379 of the IPC and Section 39 of the Electricity Act. The appellant was arrested on 19.07.2000. Statement of witnesses under Section 161 of the Cr.P.C. have been recorded and after completion of the investigation charge sheet was filed before the Chief Judicial Magistrate Ambikpur. From the Court of Chief Judicial Magistrate Ambikapur the case was committed to the Sessions Judge Surguja, Ambikapur and it was transferred for trial to the First Additional Sessions Judge Ambikapur. Initially vide order dated 12.09.2001 the trial Court has framed the charges against the appellant under Sections 304-A and 379 of the IPC. The accused/appellant denied the charges and pleaded innocence. After examination of the witnesses, charges have been amended by the trial Court vide order dated 08.10.2002 and charges under Section 304 and Section 379 of the IPC read with Section 39 of the Electricity Act have been framed.

After amending the charges the trial Court has given opportunity to the parties to get their witnesses re-examined and re-cross-examined, but the parties have denied to get their witnesses re-examined and re-cross-examined. In order to establish charges against the appellant the prosecution has examined 14 witnesses. Statement under Section 313 of the Cr.P.C. of the appellant has been recorded, in which he pleads innocence and has stated that he has been falsely implicated in the offence. After hearing the parties the trial Court has convicted the appellant as mentioned in para 1 of this judgment. Hence, this appeal.

3. Learned counsel for the appellant would submit that the appellant is innocent and he has been falsely implicated in the offence. No offences are made out as alleged by the prosecution. He would further submit that there is no evidence with respect to the fact that the appellant has connected the live electricity wire from the pole to his house and there is no panchnama or any report from the aforesaid department to that effect. Similarly, on the basis of the oral evidence that the appellant has connected the live wire from the electricity pole to his house the appellant cannot be convicted. He would further submit that even if it is held that it is the appellant who has connected the live wire from the electricity pole to his house and the death of the deceased was due to said live electrical wire which was fell down on the earth, the offence does not travel beyond Section 304-A of the IPC because the appellant was not having any grudge against the deceased, he had not intentionally put the wire in that condition, but due to bad weather and storm and also the heavy rain the live wire fell down on earth by which the deceased injured while she came in the contact of the live wire. He would further submit that from the electricity pole there are so many electricity connections to the houses of nearby places, therefore, the prosecution has to establish that it was the appellant's electricity connection by which the incident occurred. Since the prosecution has failed to establish their case beyond reasonable doubt against the appellant, he be acquitted from the charges. He would further argue that considering the evidence available on record, initially the trial Court framed charge under Section 304-A of the IPC and the entire trial was held as the appellant was charged under Section 304-A of the IPC, whereas, at the time of passing of the judgment the trial Court has amended the charge and convicted the appellant under Section 304 part II of the IPC, therefore, serious prejudice has been caused to him, therefore, he is entitled for acquittal.

4. Per Contra, learned counsel for the respondent/State vehemently opposes the argument advanced by the learned counsel for the appellant and submits that there are sufficient evidence available on record to hold the appellant guilty for the alleged offence. There is a report from the electricity department that the electricity connection taken by the appellant from the electricity pole to his house is illegal and by taking illegal connection of electricity itself shows that it was within knowledge that anybody can come into contact of live wire and the incident may happen, therefore, the learned trial Court has rightly convicted the appellant which needs no interference.

5. I have heard learned counsel for the parties and perused the record with utmost circumspection.

6. It is not in dispute in the case that deceased Dilpati has died due to electrocution. Witnesses Pramanand (PW-1), Parashu (PW-3), Jairam (PW-4), Anil Kumar (PW-7), Kameshwar (PW-8), Chamaru (PW-10) have stated in their deposition that deceased Dilpati came into contact of live wire which had fallen down on earth by which due to electrocution she died. These all witnesses are present on the spot and have seen that deceased Dilpati was in the contact of live electricity wire near the well. From cross-examination of these witnesses nothing has been elicited by the defence that the deceased has not died due to electrocution and the defence could not rebut the fact that the deceased has died due to electrocution.

7. Dr. A. Bhagat (PW-9) who has conducted postmortem of the deceased, has stated in his deposition that on 03-07-2000 he conducted the postmortem of the body of deceased Dalpati who was aged about 7 years. He found the electric burn injuries on the body of the deceased as described in the postmortem report Ex.-P/8 and opined that the deceased died due to electrocution and the cause of death was shock due to electrocution. There is no cross-examination by the appellant with respect to cause and nature of death, therefore, it can safely be held that deceased Dilpati has died due to electrocution.

8. Now, so far as involvement of the appellant is concerned, I have considered the deposition of the witnesses who are the villagers and present on the spot where the deceased came into contact of the live electricity wire. Pramanand (PW-1) has stated in his deposition that it is appellant Veer Singh who has taken the illegal electric connection from the pole to his house which fell on earth near the well and at that place deceased Dilpati came into contact of the live wire and she died. Although, this witness has stated that he does not saw the appellant taking the electricity connection from the electricity pole to his house, but he has firm in his evidence that illegal electricity connection was taken from the electricity pole to the house of the appellant.

9. Parashu (PW-3), Jairam (PW-4), Anil Kumar (PW-7), Kameshwar (PW-8) and Chamaru (PW-10) are the witnesses who came on the spot on the date of incident and categorically deposed that it is the appellant who has taken the illegal connection from the electricity pole to his house which fell down on earth after the storm and heavy rain with which the deceased came into contact and she died due to electrocution. Nothing in their cross-examinations to establish that the live wire was not connected from the electricity pole to the house of the appellant. Further, it is also not the case of the appellant that he has not taken any electricity connection from the pole to his house and it is some else's electricity connection by which the incident occurred.

10. Pitbaso (PW-5) who is the witness of memorandum (Ex.-P/5) and seizure (Ex.-P/6) has stated that the appellant has given memorandum statement in front of her that after the incident he kept the electricity wire in his house and same has been seized on the instance of the appellant. This witness remained firm in her cross-examination which also proves that after the incident the appellant has taken the said wire along with him and kept in his house which has been seized vide Ex.-P/6 on his instance.

11. In his statement recorded under Section 313 of the Cr.P.C. the appellant has not given any reason as to why he has been falsely implicated in the offence and he simply denied the material appeared against him.

12. On close scrutiny of the evidence makes it clear that the appellant has taken an illegal electricity connection from the pole to his house which fell down on earth after storm and heavy rain by which deceased Dilpati has died after coming into contact of live electricity wire.

13. A.K. Jaiswal (PW-12) who is Junior Engineer (Rural), MPEB, Ambikapur has stated in his deposition that he has given answer of query raised by police vide Ex.-P/12 and stated that there was no electricity connection in the name of appellant Veer Singh. The answer of the query was made on the basis of record available with his office. In its rebuttal the appellant has not produced any document or any evidence to show that he is having legal electricity connection and he is paying electricity charges. But, from the evidence available on record it is established that the appellant has taken an illegal electricity connection from the pole to his house and thereby committed theft of electricity.

14. Now, the question is that what offence has been committed by the appellant if he has taken an illegal connection and live wire fell down on earth after storm and heavy rain and by which a 7 years old child has died due to electrocution. Pramanand (PW-1) has admitted in para 2 of his deposition that the electricity wire has broken down due to heavy rain and the wire was fell down on earth. Parashu (PW-3) has also stated in para 1 of his examination-in-chief that after heavy rain the wire has broken down and lying on earth.

15. Surabi Bai (PW-6) has admitted in para 2 of her cross-examination that the wire was broken due to heavy rain and the place where the wire was lying down on earth was isolated place. Anil kumar (PW-7) has also admitted in para 4 of his cross-examination that on the date when Dilpati has died due to electrocution there was heavy rain and storm.

16. Section 299 of the IPC defined culpable homicide which is as under:-

"299. Culpable homicide.-Whoever causes death by doing an act with the intention of causing death, or with the intention of causing such bodily injury as is likely to cause death, or with the knowledge that he is likely by such act to cause death, commits the offence of culpable homicide."

17. Section 299 of the IPC clearly says that whoever causes death by doing an act with the intention of causing death, or with the intention of causing such bodily injury as is likely to cause death, or with the knowledge that he is likely by such act to cause death, commits the offence of culpable homicide. But, here in the present case all these ingredients are missing in the act of the appellant, but it is the appellant who has failed to maintain the electricity connection taken by him, his negligence can be held in absence of his specific explanation.

18. In the present case it is clear from the statement of the witnesses and evidence produced by the prosecution that the appellant in negligent manner taken the electricity connection from the electric pole to his house which fell down on earth due to storm and heavy rain and the deceased died due to electrocution. It has not come in the evidence that there was any grudge between the appellant and the deceased and to eliminate the deceased he has intentionally put the live wire on earth. Even the Spot Map (Ex.-P/4) shows that there is no playground or any open place where children would play and particularly that was time when the storm and heavy rain came and due to which the electricity connection taken by the appellant fell down on earth, as such the basic ingredients of offence under Section 304 of the IPC, i.e., culpable homicide not amounting to murder is lacking in the matter and for the same prima facie offence under Section 304 of the IPC would not be made out against the appellant, rather the offence under Section 304-A of the IPC is made out against the appellant.

19. The submission made by learned counsel for the appellant that offence under Section 304 Part II of the IPC is not made out rather offence under Section 304-A of the IPC is made out is supportive by the fact that the trial Court has initially considered the material placed before it along with charge sheet and has framed the charges under Section 304-A of the IPC and 379 of the IPC and the entire trial was conducted for that offence. Although the appellant was well within knowledge that the deceased died due to electrocution and he is prosecuted for the alleged offence.

20. In the case of State of Rajasthan Vs. Chittarmal, reported in 2007 (10) SCC 792, [LQ/SC/2007/857] Hon'ble the Supreme Court has held in para 9 of the judgment as under:-

"9. Coming to the plea of the applicability of Section 304-A it is to be noted that the said provision relates to death caused by negligence. Section 304-A 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 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 304-A. 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 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. When the intent or knowledge is the direct motivating force of the act, Section 304-A IPC has to make room for the graver and more serious charge of culpable homicide."

21. In view of the aforesaid, this Court is of the view that the trial Court has wrongly convicted the appellant under Section 304 Part II of the IPC, whereas the appellant is liable to be convicted under Section 304-A of the IPC instead of Section 304 Part II of the IPC. Therefore, the conviction of the appellant is modified and he has been convicted for offence under Section 304-A of the IPC instead of Section 304 Part II of the IPC. Conviction of the appellant under Section 379 of the IPC read with Section 39 of the Electricity Act is maintained.

22. The appellant is sentenced for each of the offences under Section 304A of the IPC and Section 379 of the IPC read with Section 39 of the Electricity Act for the period already undergone by him in jail and fine of Rs. 15,000/-is imposed under Section 304-A of the IPC, with direction of concurrent running of all the jail sentences. In case of default of payment of fine amount imposed by this Court, the appellant shall have to undergo rigorous imprisonment for six months. Out of total fine amount Rs. 15,000/-, fine amount of Rs. 13,000/-is to be paid to the complainant as compensation under Section 357 of the Cr.P.C. and if the complainant is found to be dead, the same is to be paid to his legal heirs. If the fine amount as ordered by the trial Court is already deposited the same may be adjusted towards the total fine amount. The appellant was in jail from 19-07-2000 to 06-01-2001 and from the date of judgment 08-10-2002 to 31-03-2003 and at present the appellant is reported to be on bail. His bail bonds are continued for a period of six months as provided under Section 437-A of the Cr.P.C. The appeal is partly allowed.