J.N. Chaudhuri, J.
1. This revisional application arises out of an appellate judgment and order of the 7th Additional Sessions Judge, Alipore dismissing the appeal of the present accused-petitioner and, confirming his conviction under Section 304A, I.P.C. and a sentence of 1 year's R.I. and a fine of Rs. 500/-, in. default, further R.I. for six months passed by the Judicial Magistrate, 5th Court, Alipore.
2. The prosecution case in short is that on 15.2.1976 at about 9 a.m. one Ashim Kumar Das alias Buro, a boy of about 13 years of age, son of P.W. 6, of S.S. Dhawan Colony, Sodhpur, P.S. Behala, while passing in front of the house of the petitioner, also of the same colony, was electrocuted from the naked live galvanised electric wire taken from the house of one Gopal Chandra Samanta outside the said colony to the house of the petitioner inside the colony. As a result Buro died instantaneously of the A.C. shock. It is the prosecution case that due to the criminal negligence on the part of the petitioner and the said Gopal to take precautions, this death of Buro occurred.
3. The case first started as an U.D. (Unnatural death) case on 15.2.1976 but later on 19.5.1976 on a suo motu FIR by the police the present case was started against the petitioner and the said Gopal Samanta. At the trial both the accused were convicted and; sentenced under Section 304A, I.P.C. but the petitioner who had been further charged under Section 379, I.P.C. and Section 39 of the Electricity Act was acquitted of those charges, On appeal however Gopal Samanta was acquitted of the charge under Section 304A, I.P.C. The prosecution examined 12 witnesses. The defence did not call any witness, The defence case of the petitioner in the suggestions in cross-examination and the answers under Section 313, Cr.P.C. was a complete denial that there was any electric connection from Gopal's house to the petitioner's house at all.
4. Both the lower Courts have held on the evidence, that in fact there was this live galvanised A.C. wire as alleged from Gopal's house to the petitioner's house and that Buro died instantaneously as a result of electric shock from that unprotected, naked wire.
5. Sitting in revision, normally evidence is not gone into. In this case there are concurrent findings of fact against the petitioner by the trial court and the lower appellate Court. We have however looked, into the evidence since Mr. Ghosh, learned Advocate on behalf of the petitioner has submitted that there is no evidence to show that either the petitioner was personally responsible for taking the electric connection from Gopal's house or that he knew that such a connection was there.
6. There is evidence from P.W. 6, the father of the deceased; that this connection was there from 2/3 days before and that an electric bulb was burning in the room of the accused at the time of occurrence.
7. It is not necessary on a charge under Section 304A I.P.C. as in the present case, that the petitioner must have personally got the electric connection from Gopal's house. Allowing the A, C. connection to remain in this bare, uninsulated dangerous condition, is suffiient negligence on his part to bring him within the ambit of the section, even if lie was not personally responsible for procuring the electric connection in question. Under Section 32 I.P.C. acts include illegal omissions. In the case of S.N. Hussain v. State of Andhra Pradesh reported in 1972 SCC (Cri) 254 : 1972 CriLJ 496 the Supreme Court has laid down that 'Culpable negligence lies in the failure to exercise reasonable and proper care and the extent of its reasonableness will always depend upon the circumstances of each case.'
8. The fact that an electric bulb was burning in the petitioner's room at the time of the incident and that the connection had, been taken 2/3 days before, leaves little room for doubt as to the knowledge of the petitioner about the electric connection. There is no dispute that the house in question was occupied by the petitioner. The defence case has been a total denial of the fact of the existence of the electric connection and not that it may have - been there, but that the petitioner did not know about the same. The submissions of the petitioner fail. We are satisfied of the petitioner's criminal negligence within the meaning of Section 304A I.P.C. in this case.
9. Mr. Ghosh on the question of sentence has submitted that it is an unfortunate case and the sentence in any event is too severe. On being asked by us, he has submitted that it is within the Court's power to reduce the substantive sentence of imprisonment and increase the fine if the Court so thinks fit.
10. We uphold the conviction of the petitioner under Section 304A I.P.C. We however reduce the sentence under Section 304A I.P.C. to 6 months R.I. but increase the fine to Rs. 2000/-, in default, to further R.I. for 3 months. In the event of the fine being realised half of the same will be paid to the father of the deceased who is the de facto complainant.
11. Subject to the said, modification as to sentence, this application fails and the rule is discharged. The petitioner will immediately surrender to his bail bond and serve out the remaining period of the sentence subject to any setoff that he may be entitled to under Section 428 Cr.P.C.
B.C. Chakrabarti, J.