K. S. LODHA, J. - (1.) THE appellant Shyamlal has been convicted under Sec. 304 (11) I. P. C. and sentenced to 3 years rigorous imprisonment and a fine of Rs. 1,000/- (rupees one thousand) by the learned Sessions Judge, Partapgarh (Camp Chittorgarh) by judgment dated 1. 3. 1979, he has appealed against it.
(2.) THE prosecution story may be briefly stated here: an electric connection was to be installed at the well of one Lakhma Dhakar of village Katuda. On 6. 2. 1978, Shri Bhanwar Lal Kalal, Asstt. Engineer alongwith Shri Sobhag Mal, Junior Engineer and Shri Jamnashankar Mistri alongwith Ramkaran Driver reached the spot at about 3 or 4 P. M. As they were expected to reach there, Lakhma alongwith Govindsingh helper were waiting for them at Kooka's Hotel. When Shri Kalal & Party reached the spot and Lakhma and Govindsingh were sent for through Shri Jamnashankar, Govindsingh then removed the fuses from the transformer and placed them on a shed behind Kooka's Hotel. It is also alleged that while proceeding to Lakhma's well Govindsingh and Lakhma had gone to the flour mill where the accused Shyamlal was a employee and told him that the fuses had been removed in order to install the electric connection at Lakhma's well and that the fuses may not be placed back in the transformer till Govindsingh told him to do so. THE case of the prosecution further is that thereafter Govindsingh climbed the Electric Pole in order to connect the supply and while he was doing his job there, he received electric shock and fell down and later died. Shri Kalal then came to Kooka's Hotel and enquired as to who had placed the fuses in the transformer. He was informed by Kooka that it may be Shyamlal who had placed the fuses in the transformer. THEn he enquired from Shyamlal and he admitted that he had placed the fuses in the transformer and further told that he had heard Govindsingh telling him that the fuses may be placed back in the transformer and it was on that account that he did so. THE injured Govindsingh was carried to Begun Hospital where during the process of resuscitation he collapsed and died at 5. 22 P. M. , His Post Mortem examination was carried out by Shri S. S. Dass and he found that he had died on account of syncope due to traumatic and electrical shocks. It may be mentioned here that Shri Mahesh Kumar. Junior Engineer. R. S. E. B. , Begun then filed a written report about the death of Govindsingh at Police Station Begun at 5. 30 P. M. on which the police started enquiry under Section 174 Cr. P. C. and as a result there of a First Information Report was lodged by Shri Ghanshyamlal, S. H. O. at police Station Begun on 9. 2. 78. and a case u/sec. 304 (11) I. P. C. was register-ed against Shyamlal. After due investigations a challan was put up against him and he was committed to the Court of learned Sessions Judge, charge under section 304 (11) was framed against him to which he pleaded not guilty. He was thereupon tried and the prosecution examined 12 witnesses and produced certain documents. In his statement under section 313 Cr. P. C. the accused maintained his denial but did not produce any evidence in defence. THE learned Sessions Judge found him guilty and sentenced him as stated above. I have heard the learned counsel for the appellant and learned P. P. and gone through the record. The fact that Govindsingh died on account of Electrical shock received by him while he was working on the pole for installing electric connection at Lakhma's well has not been disputed before me by the learned counsel for the appellant, and in my opinion, rightly. The fact that Shyamlal had fixed the fuses after they had been removed by Govindsingh was of course lightly challenged before me but after some argument this contention also was given up. The main contention of the learned counsel for the appellant is that even if the prosecution story is believed, the offence would not fall u/sec. 304 (II) I. P. C. but would fall only u/sec. 304a I. P. C. The learned P. P. on the other hand, of course urged that the offence must be taken to be one under section 304 (11) as has been held by the learned Sessions Judge. I have given my careful and anxious consideration to the rival contentions and am inclined to agree with the learned counsel for the appellant. Shri Bhanwarlal Kalal, Asstt. Engineer, R. S. E. B. , P. W. 7, who was supervising the job of installation of electric connection at Lakhma's well has stated that when Govindsingh had fallen down after receiving electrical shock, he had gone to Kooka's Hotel and on being informed by Kooka that it was Shyamlal who had replaced the fuses in the transformer he made an enquiry from Shyamlal and Shyamlal told him that he had replaced the fuses because he had heard Govindsingh asking him to replace the fuses. He, of course, adds that the transformer is about 2000 feet away from Lakhma's well and a man working on the electric pole at Lakhma's well would not be visible from the transformer as there are trees and Shrubs in between but he has not stated that a man calling from the electric pole at Lakhma's well would not be heard by a person standing near the transformer. Therefore, the possibility that Shyamlal may have heard the voice of Govindsingh from the electric pole cannot be ruled out, altogether. It may also be mentioned here that according to Lakhma himself while proceeding to the electric pole Govindsingh had told Shyamlal that he may replace the fuses when Govindsingh calls out and tells him to replace the fuses. Then there is also the evidence of Jamnashankar P. W. 4 an employee of Zanwar Electric, Begun, who was also present at the time of this installation to the effect that Shyamlal on enquiry by Shri Kalal had stated that Govindsingh had told him when he signals to him he may replace the fuses. Again there is also evidence of Uda, P. W. 8 to show that at one stage Govind singh had finished his work on the pole and was getting down but when Shri Kalal told him to tighten the wires he again climbed the pole and Uda further slates that he does not know if Govindsingh had signaled for replacing the fuses. Looking to this state of the evidence, it cannot be said for certain that when Shyamlal replaces the fuses in the transformer he had the knowledge that Govindsingh was in the process of the installing the electric connection and his replacing the fuses was likely to causes his death. At the most it can only be said that he may have been a little rash and without making a proper enquiry whether Govindsingh had finished his job and there was no danger of his getting any electrical shock if the fuses were to be fixed, he may have fixed the fuses and thereby he has committed offence under Section 304 A I. P. C. He, therefore, could not have been convicted under section 304 (II) I. P. C. The learned P. P. , of course, stated that looking to the distance of 2000 feet between the transformer and the pole where Govindsingh was working, there was absolutely no possibility of Shyamlal either hearing Govindsingh telling him to replace the fuses or signaling him to do so. But I am unable to accept this contention for want of clear evidence in this respect. As already stated above, Shri Bhanwarlal Kalal has only stated that on account of trees and shrubs in between the transformer and the pole a person working on the pole is not visible to a person standing near the transformer but he does not say that a person calling from the pole cannot be heard near the transformer or nor does he say that if a man standing on the pole makes a signal by his hands it cannot be visible to a person standing near the transformer. In any case, when Shri Bhanwar Lal examined Shyamlal at the very spot, after Govindsingh had received the shock and was told by Shyamlal that he had heard Govind singh telling him to replace the fuses, he should have immediately made further inquiries in this respect in order to ascertain whether such a call was audible or not but he does not appear to have done so. Not only this the statement of Shyamlal recorded, by Shri Bhanwarlal Kalal has not been placed on the record which gives rise to an inference that Shyamlal's statement was not disbelieved by Shri Bhanwarlal. The matter does not rest here, it is important to note that even after this incident when Govindsingh was being sent to the hospital no immediate information was lodged with the police and later on also when Govindsingh had been declared dead, only a cryptic information was lodged by Shri Mahesh Kumar, Junior Engineer vide Ex. 3, in which he has only stated that Shri Govindsingh, helper had died on account of electric shock and was lying in the Begun hospital. Even at that stage, the fact that Shyamlal had acted with the knowledge that it was likely to cause death of Govindsingh was not stated. It was only on 8th of February during the enquiry by the police u/sec. 174 Cr. P. C, that Shri Bhanwarlal Kalal came out with this story that Shyamlal had replaced the fuses while he knew that Govindsingh was on the pole but in that statement also he admits that Shyam Lal had told him that Govindsingh had told him to do so (mlus dgk fd xksfounflag th us vkokt nh ftlls yxk;s gsa) Looking to all these circumstances, I am clearly of the opinion that the conviction of the appellant under section 304 (11) I. P. C. cannot be maintained and he should be convicted only under Section 304a I. P. C. As regards the question of sentence it appears that the appellant has already undergone 8 days imprisonment. The incident had taken place as far back as on 6. 2. 1978 and looking to these circumstances I am of the opinion that it would not be proper and in the interest of justice to send him to jail again and so far as the substantive sentences concerned the imprisonment already undergone by him would be sufficient, suitable fine, of course, may be added to it.
(3.) I, therefore, partly allow this appeal. The conviction of the appellant Shyamlal u/sec. 307 (II) is set aside instead he is convicted u/sec. 304a and sentenced to imprisonment for a term he has already undergone. He is further sentenced to a fine of Rs. 1000/-, (rupees one thousand ). He is on bail and need not surrender and two months time is granted to him to pay up the fine, in default of payment of fine he will undergo three months simple imprisonment. .;