Chattisgarh High Court
Bhav Singh And Others vs State Of Chhattisgarh on 29 July, 2025
Author: Rajani Dubey
Bench: Rajani Dubey
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Digitally
signed
by AMIT
PATEL
2025:CGHC:36947
NAFR
HIGH COURT OF CHHATTISGARH AT BILASPUR
CRA No. 486 of 2007
1. Bhav Singh, S/o Shri Prem Lodhi, aged about 60 years, R/o Village- Pathri
Khurd, Chowki Devkar, Police Station- Saja, District- Durg (C.G.)
2. Naresh Kumar, S/o Shri Bhav Singh Lodhi, aged about 35 years, R/o Village-
Pathri Khurd, Chowki Devkar, Police Station- Saja, District- Durg (C.G.)
3. Ravindra Kumar, S/o Shri Bhav Singh Lodhi, aged about 22 years, R/o
Village- Pathri Khurd, Chowki Devkar, Police Station- Saja, District- Durg
(C.G.)
...Appellants
versus
• State of Chhattisgarh, through District Magistrate, Durg, District- Durg (C.G.)
----Respondent
_____________________________________________________________
For Appellants
: Mr. Atul Kumar Kesharwani, Advocate appears
through Legal Aid.
For State : Ms. Nandkumari Kashyap, Panel Lawyer.
____________________________________________________________
Hon'ble Smt. Justice Rajani Dubey
Order on Board
29.07.2025
1. Looking to the pendency of this case, which is pending since 2007 and
today when the matter is called, no one appears on behalf of the
appellants, therefore, in these circumstances, this Court is directed to
Shri Atul Kumar Kesharwani, learned Panel Lawyer to assist the Court
and contest the matter on behalf of the appellants.
2. The Secretary, High Court Legal Aid Committee is directed to appoint
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Shri Atul Kumar Kesharwani, Advocate to contest the matter on behalf
of the appellants and authorization letter in this regard be also issued.
3. This appeal is preferred under Section 374 (2) of the Code of Criminal
Procedure, 1973 against the judgment dated 12.06.2007 passed by
Additional Sessions Judge, Bemetara, passed in S.T. No. 258/2006,
whereby the said Court convicted the appellants and sentenced them
as under:-
Conviction Sentence
U/S 304-II of IPC R.I for 05 years each and with fine
amount of Rs. 1000/- each in default
of payment of fine to undergo
additional S.I. for 03 months each.
U/S 304-II of IPC R.I for 05 years each and with fine
amount of Rs. 1000/- each in default
of payment of fine to undergo
additional S.I. for 03 months each.
(Both sentences are directed to run concurrently)
4. Brief facts of the case are that on 22.05.2006 at about 3:30 pm, the
appellants for safety of their field (badhi) from the cattle connected the
electric wire to the fencing from motor pump for using electricity and
when the deceased Kunj Bai and Jag Rakhan during their agricultural
work while passing in front of the field of appellants came in contact
with the electrocuted fencing (velvet ) wire which was barbed is
adjoined of the plot of the deceased Kunj Bai, as a result of which Kunj
Bai and Jagrakhan died on the spot of electric shock and on the basis
of the aforesaid information, morgue was registered. After completion of
due, necessary investigation, they were charge-sheeted before the
Court of concerned Jurisdictional Magistrate, who, in turn, committed
the case for trial. On the basis of the material contained in the charge-
sheet, learned trial Court framed charges against the appellants for
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alleged commission of offence under Section 304 of IPC. The
appellants/ accused persons having abjured guilt were subjected to
trial.
5. In order to establish the charges against the accused persons, the
prosecution has examined as many as 14 witnesses. The statement
under Section 313 of Cr.P.C. of the appellants have been recorded, in
which they denied the incriminating charges leveled against them and
pleaded their innocence that they have been falsely implicated in this
case. However, no witness examined by them in their defence.
6. The learned trial Court after hearing the counsel for the respective
parties and considered the material available on record has acquitted
the co-accused of all the charges and thereby convicted and sentenced
the present accused/appellants as mentioned in inaugural para of this
judgment. Hence, this present appeal.
7. Learned counsel for the appellants submits that the learned trial Court
acted with material irregularities and failed to establish any of the
ingredients of Section 299 of IPC, so conviction under Section 304-II of
IPC not at all sustainable, learned trial Court has failed to consider the
evidence of the seizure witnesses who were not supported the
prosecution case and without any legal admissible and clinching
evidence regarding the involvement of all the appellants for plying the
electricity for the barbed wire unnecessarily convicted all the appellants
for alleged commission of offence and the whole findings of the learned
trial Court is based on suspicion and it is well settled the suspicion,
however be strong it cannot replace legal proof against the appellants.
He further submits that if the entire case of the prosecution is taken as
it is, it would be a case, at the most, of commission of offence under
Section 304-A of the IPC and the appellants have already been in jail
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for about 01 year, as such, it is a fit case where conviction of the
appellants for offence under Section 304-II of the IPC can be
converted /altered to an offence under Section 304-A of IPC. Thus, the
present appeal deserves to be allowed in full or in part.
8. Ex adverso, learned State counsel, supporting the impugned judgment
submits that prosecution has been able to prove the offence beyond
reasonable doubt and the trial Court has rightly convicted the
appellants for the aforesaid offence and it is not the case of alteration of
offence from under Section 304-II of IPC to Section 304- A of the IPC
where the conviction of the appellants can be modified for lesser
offence, therefore, the instant appeal deserves to be dismissed.
9. It is evident from record of learned trial Court that it framed charges for
offence punishable under Section 304 of IPC against the present
appellants and after appreciation of oral and documentary evidence,
learned trial Court convicted the appellants as mentioned in inaugural
para of this judgment.
10. As per prosecution story itself, appellants were running their motor
pump in the field illegally and they were using electricity without any
authorized connection and by hooking an electric wire. It is evident from
the memorandum statement of accused- Ravinder Kumar Ex. P/11 that
his crops were getting damaged as the cattle used to feed on his crops,
as such, in order to protect them, he installed the fencing made of
barbed wire in the field (badhi) so that the cattle refrain themselves
from entering into his field, as such he made electricity pass through
the fencing wires which was connected in the motor pump and the
deceased Kunj Bai and Jagrakhan came in contact with the said live
wire and died.
11. Dular Ram (PW-1), Ramsheela Bai (PW-2) and Murit (PW-7) have
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stated in their depositions that the accused illegally were using
electricity in their field without any authorized connection and by
hooking an electric wire and running the motor pump and fixed the
electric wire in the fencing wire which was installed in the field.
12. Sanjay R. P. Khandelwal (PW-9) has stated in his deposition that the
accused used electricity illegally and did not take any electric
connection from electricity department. B.P. Mishra (PW-14) has
supported the whole proceedings.
13. From bare perusal of the record and from close scrutiny of the
statements made by all witnesses, it clearly establishes this fact that
the accused were running their motor pump in the field illegally and
they were using electricity without any authorized connection by
hooking an electric wire and installed fencing made of barbed wire in
the field (badhi) so that the cattle refrain themselves from entering into
their field. They also made electricity pass through the fencing wires
which was connected in the motor pump, for the purpose of protecting
their crop from the cattle. As such, they had no such wicked intention to
murder the people by doing so. However, as deceased Kunj Bai and
Jagrakhan came in contact with the said live wire they died.
14. It is not disputed in this case that both the deceased Kunj Bai and
Jagrakhan died due to electrocution when they came in contact with the
said live wire.
15. For the sake of convenience, Section 299 of IPC and Section 300 of
IPC are reproduced as under:-
" Section 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.
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Section 300. Murder.--
Except in the cases hereinafter excepted, culpable homicide is
murder, if the act by which the death is caused is done with the
intention of causing death, or
(Secondly)-- If it is done with the intention of causing such bodily
injury as the offender knows to be likely to cause the death of the
person to whom the harm is caused, or--
(Thirdly)-- If it is done with the intention of causing bodily injury to
any person and the bodily injury intended to be inflicted is sufficient
in the ordinary course of nature to cause death, or--
(Fourthly)-- If the person committing the act knows that it is so
imminently dangerous that it must, in all probability, cause death or
such bodily injury as is likely to cause death, and commits such act
without any excuse for incurring the risk of causing death or such
injury as aforesaid."
16. From the above submission, the point emerged for determination of this
Court is whether the learned trial Court was justified in convicting the
appellants under Section 304-II of IPC.
17. To appreciate this point, this Court has to extract the provision of
Section 304-II of IPC which reads as under :-
" Section 304 Part II of the Indian Penal Code (IPC) deals with
culpable homicide not amounting to murder, specifically when the
act causing death is done with the knowledge that it is likely to cause
death, but without the intention to cause death or such bodily injury
as is likely to cause death. Punishment under this section can
include imprisonment for up to ten years, a fine, or both"
18. A conjoint reading of the aforesaid sections makes it clear that the key
distinction between offenses under Section 304 Part II and Section
304A of IPC lies in the degree of mens rea (guilty mind) involved.
Section 304 Part-II deals with culpable homicide not nowledge that his
act is likely to cause death, even if he didn't intend to cause death.
Section 304A, on the other hand, deals with death caused by a rash
and negligent act, where there is no intention or knowledge of causing
death. Thus, the crucial factor in distinguishing between the two
sections is the presence or absence of "knowledge" that the act is likely
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to cause death. If such knowledge exists, even without the intention to
cause death, Section 304 Part-II is applicable and if there is only
rashness or negligence, without the knowledge element, Section 304A
is the relevant provision.
19. This issue came up for consideration before the Hon'ble Supreme Court
in the case of Anbazhagan vs State represented by the Inspector of
Police, reported in AIR 2023 SC 3660 wherein Hon'ble Supreme Court
considering what are the essential ingredients for attracting the
provisions of Section 304 of IPC has held in para 60 sub-para 12 as
under:-
"60. Few important principles of law discernible from the aforesaid
discussion may be summed up thus:-
...........
(12) In determining the question, whether an accused had
guilty intention or guilty knowledge in a case where only a
single injury is inflicted by him and that injury is sufficient in
the ordinary course of nature to cause death, the fact that
the act is done without premeditation in a sudden fight or
quarrel, or that the circumstances justify that the injury was
accidental or unintentional, or that he only intended a
simple injury, would lead to the inference of guilty
knowledge, and the offence would be one under Section
304 Part II of the IPC.”
20. The Hon’ble Supreme Court in the case of N. Ramkumar vs. State
Represented by Inspector of Police, reported in AIR 2023 SC 4246
has reiterated the same principle. The Hon’ble Supreme Court in the
case of Mahadev Prasad Kaushik vs. State of Uttar Pradesh and
another, reported in (2008) 14 SCC 479 has considered the comparison
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between Section 304 of IPC and Section 304-A of the IPC and has held
in paragraph 23, 24 and 26 as under :-
23. Section 304A was inserted by the Indian Penal Code
(Amendment) Act, 1870 (Act XXVII of 1870) and reads
thus;
“304A. Causing death by negligence. – Whoever causes
the death of any person by doing any rash or negligent act
not amounting to culpable homicide, shall be punished
with imprisonment of either description for a term which
may extend to two years, or with fine, or with both.
The section deals with homicidal death by rash or
negligent act. It does not create a new offence. It is
directed against the offences outside the range of Sections
299 and 300, IPC and covers those cases where death
has been caused without intention’ or ‘knowledge. The
words “not amounting to culpable homicide in the provision
are significant and clearly convey that the section seeks to
embrace those cases where there is neither intention to
cause death, nor knowledge that the act done will in all
probability result into death. It applies to acts which are
rash or negligent and are directly the cause of death of
another person.
24. There is thus distinction between Section 304 and
Section 304A, Section 304A carves out cases where death
is caused by doing a rash or negligent act which does not
amount to culpable homicide not amounting to murder
within the meaning of Section 299 or culpable homicide
amounting to murder under Section 300, IPC. In other
9words, Section 304A excludes all the ingredients of
Section 299 as also of Section 300. Where intention or
knowledge is the motivating force of the act complained of,
Section 304A will have to make room for the graver and
more serious charge of culpable homicide not amounting
to murder or amounting to murder as the facts disclose.
The section has application to those cases where there is
neither intention to cause death nor knowledge that the act
in all probability will cause death.
26. Though the term ‘negligence’ has not been defined in
the Code, it may be stated that negligence is the omission
to do something which a reasonable man, guided upon
those considerations which ordinarily regulate the conduct
of human affairs would do, or doing something which a
reasonable and prudent man would not do”
21. It is clear from statements of all the witnesses that appellants have no
intention or knowledge to cause death of the deceased, but due to their
rash and negligent act, the deceased died as a result of electrocution,
so their conviction for offence under Section 304-II of IPC is altered to
Section 304-A of IPC.
22. In light of aforesaid judicial pronouncements if the facts and evidence
emerging in the present case are seen, it is quite apparent that there
was no premeditation or intention on the part of the accused/appellants
of causing death of the deceased. However, looking to the manner in
which the death of the deceased is caused the act of the
accused/appellants falls in the category of the rash and negligent act
making them liable for conviction under Section 304-A of IPC instead of
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304-II of IPC.
23. As regards quantum of sentence, keeping in view the facts that incident
took place in the year 2006, this appeal is pending since 2007, the
appellants were on bail during trial as well as during pendency of this
appeal and did not misuse the liberty; appellant No. 1 is now aged more
than 70 years, appellant No. 2 is now aged more than 50 years and
appellant No. 3 is now aged more than 40 years and appellants have
remained in jail for about 01 year and this Court is of the opinion that
no useful purpose would be served in again sending them to jail at this
stage and the ends of justice would be met if they are sentenced to the
period already undergone by them under Section 304A of IPC.
24. In the result, the criminal appeal is partly allowed. Conviction of the
appellants under Section 304-II of IPC is hereby set aside and they are
instead convicted under Section 304-A of IPC and sentenced to the
period already undergone by them. The impugned judgment stands
modified to the above extent.
25. The appellants are reported to be on bail. However, keeping in view the
provisions of Section 481 of BNSS, 2023 the appellants are also
directed to furnish a personal bond for a sum of Rs. 25,000/- each with
one surety in the like amount before the Court concerned which shall
be effective for a period of six months alongwith an undertaking that in
the event of filing of special leave petition against the instant judgment
or for grant of leave, the aforesaid appellants on receipt of notice
thereon shall appear before the Hon’ble Supreme Court.
26. The trial Court record along with a copy of this judgment be sent back
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immediately to the trial Court concerned for compliance and necessary
action.
Sd/-
(Rajani Dubey)
JUDGE
AMIT PATEL