Full Judgment
HIGH COURT OF MADHYA PRADESH, PRINCIPAL SEAT, JABALPUR SINGLE BENCH PRESENT: HON'BLE JUSTICE SHRI N. K. GUPTA CRIMINAL APPEAL NO.847/1997 Pyarelal Vs. State of Madhya Pradesh ........................................................................................................... For the appellant : Shri Sharad Verma, Advocate. For the respondent: Shri S. K. Kashyap, Public Prosecutor ........................................................................................................... JUDGMENT
(Delivered on the 29th day of August, 2012) The appellant has preferred this appeal against the judgment dated 21.3.1997 passed by the IIIrd Additional Sessions Judge, Chhatarpur in ST. No.98/96 whereby the appellant was convicted for offence punishable under Section 304- A of I.P.C and sentenced for two years rigorous imprisonment with fine of Rs.1000/-. In default of payment of fine, he was to undergo two month's rigorous imprisonment in addition.
2. Prosecution's case in short is that on 11.3.1996, the appellant took an illegal connection of the electricity to run his water motor affixed in his field situated near the Village Richara, Police Station Bhagwa, District Chhatarpur. At 12 o'clock in the 2 Criminal Appeal No.847 of 1997 noon one Harbal Singh was passing from that place and therefore, his foot touched with a live wire of that connection taken by the appellant and therefore, he died due to electrocution. Surat Singh (PW1) brother of the deceased Harbal Singh, had lodged an FIR Ex.P/4 before the Police Station Bhagwa and therefore, a case was registered. The dead body of the deceased Harbal Singh was sent for the post mortem. Dr. Agrawal (PW4) gave his post mortem report Ex.P/5. After performing the post mortem on the body of Harbal Singh, he found that the deceased died due to electrocution. After due investigation a charge sheet was filed before the JMFC Bijawar who, committed the case to the Sessions Court, Chhatarpur and ultimately it was transferred to the IIIrd Additional Sessions Judge.
3. The appellant abjured his guilt. He has denied that he took any illegal connection of the electricity or he operated his water motor by that connection. However, no defence evidence was adduced.
4. Learned Additional Sessions Judge after considering the evidence adduced by the prosecution acquitted the appellant from the charges of offence punishable under Section 304 of I.P.C and section 379 of I.P.C read with Section 39 of the Electricity Act, 1910 but, convicted the appellant for the offence punishable under Section 304-A of the I.P.C.
5. I have heard the learned counsel for the parties.
6. The learned counsel for the appellant has submitted that it was not the appellant who, took a live wire of the electricity 3 Criminal Appeal No.847 of 1997 in his field. The appellant was an illiterate person who, did not knot that such type of wiring should be covered in a proper manner. The trial Court has wrongly convicted the appellant. In alternate it is submitted that the appellant has faced the trial and appeal for more than 16 years and he remained in the custody during the trial for a month and therefore, he may not be sent to the jail again.
7. On the other hand the learned Public Prosecutor for the State has submitted that the conviction as well as the sentence directed by the trial Court appears to be correct and no interference is required in this appeal.
8. After considering the submissions made by learned counsel for the parties and looking to the facts and circumstances of the case it is to be considered as to whether the appellant can be convicted for the offence punishable under Section 304-A of I.P.C ?. and If Yes then whether the sentence imposed upon the appellant can be reduced ?.
9. After perusal of record of the trial Court it appears that case was committed to the Sessions Court because Police filed a charge sheet for an offence punishable under Section 304 of I.P.C and therefore, a trial took place with the charges of offence punishable under Section 304 of the I.P.C and Section 379 of I.P.C read with Section 39 of the Electricity Act but, no charge for offence punishable under Section 304-A of I.P.C was framed. The learned Additional Sessions Judge did not consider that the appellant could not be convicted for the offence punishable under 4 Criminal Appeal No.847 of 1997 Section 304-A of the I.P.C without framing that charge for the offence. As per provisions of Section 222 of the Cr.P.C the Court can convict any accused for an inferior offence of the similar nature where the charge is framed for a superior offence of the same nature. Under the charge of Section 304 of I.P.C the appellant could be convicted for offence under Sections 307, 326 of I.P.C but, offence under Section 304-A of I.P.C could not be considered as a inferior offence of the same nature.
10. For the offence under Section 304-A of I.P.C no intention of the appellant was required. On the contrary his rashness or negligence was to be considered whereas, for the offence punishable under Section 304 of I.P.C is not at all related with the negligence or rashness. On the contrary if anyone causes the death of any person with the knowledge that due to his such act death could be caused then he would be liable for the offence punishable under Section 304 of I.P.C. Under such circumstances, purview of both the offences are different and therefore, the appellant cannot be convicted for the offence punishable under Section 304-A of I.P.C under the charge of offence punishable under Section 304 of the I.P.C on the basis of provisions under Section 222 of the Cr.P.C.
11. No person could be convicted for any offence without framing the charge for that offence. Under such circumstances, the conviction directed by the trial Court for offence punishable under Section 304-A of I.P.C is not at all sustainable.
12. On the basis of the aforesaid discussion it is apparent 5 Criminal Appeal No.847 of 1997 that conviction as well as the sentence directed by the trial Court is not maintainable. At this stage this Court has two options. Firstly to remand the case for a fresh trial for the offence punishable under Section 304-A of I.P.C or secondly to acquit the appellant for the offence under Section 304-A of I.P.C. It is true that in the case, one Harbal Singh expired but, at the same time the appellant remained in the custody for one month in the jail and he faced the trial and appeal for more than 16 years. If the conviction directed against the appellant was maintainable then he could be sentenced for the period which he has already undergone in the custody with a heavy fine of Rs.20,000/- but, it would be clear that in the last 16 years the appellant visited the Sessions Court and then High Court for so many times and it is possible that he must have spent more than that money which could be imposed upon the appellant as a fine. Under such circumstances, it would not be judicious after 16 years of the event to remand the case for a fresh trial for the offence punishable under Section 304-A of I.P.C. On the basis of the aforesaid discussion it would be proper not to remand the case before the trial Court for a fresh trial of the offence punishable under Section 304-A of I.P.C.
13. On the basis of the aforesaid discussion where the appellant cannot be convicted for offence punishable under Section 304-A of I.P.C in absence of the charge of that offence, the appeal filed by the appellant is hereby allowed. The conviction as well as the sentence directed by the trial Court for offence 6 Criminal Appeal No.847 of 1997 punishable under section 304-A of I.P.C is hereby set aside. The appellant is acquitted from all the charges appended against him.
14. Presence of the appellant is no more required before this Court and therefore, it is directed that his bail bonds shall stand discharged.
15. Copy of the judgment be sent to the trial Court with its record for information. (N.K.GUPTA) JUDGE 29 8.2012 bina