Case – Cherubin Gregory v. State of Bihar, 1964
Fact –
The appellant was charged under section 304A of IPC, 1860 for causing the death of one Madilen by contact with an electrically charged naked copper wire which he had fixed up at the back of his house with a view to prevent the entry of intruders into his latrine.
The wall of the latrine of the house of the deceased had fallen down about a week prior to the day of the occurrence with the result that the latrine had become exposed to public view.
Consequently, the deceased, among others, started using the latrine of the accused.
The accused resented this and made it clear to them that they did not have his permission to use it and protested their coming there. The oral warnings, however, proved ineffective and it was for this reason that the accused made the entry dangerous to the intruders. There was no warning that the wire was live.
Issue
Whether Cherubin Gregory will get the right of private defense? Whether Cherubin Gregory act was rash and negligent?
Contentions & Judgement:
- Supreme Court observed, “The right of private defense of property which is set out in Section 97 of the Indian Penal Code is, as that section itself provides, subject to the provisions of Section 99 of the Code. It is obvious that the type of injury caused by the trap laid by the accused cannot be brought within the scope of Section 99, nor of course of Section 103 of the Code.”
- Accused had no intention to cause death. So, he was not liable for culpable homicide.
- It is no doubt true that the trespasser enters the property at his own risk and the occupier owes no duty to take any reasonable care for his protection, but at the same time the occupier is not entitled to do willfully, acts such as set a trap or set a naked live wire with the deliberate intention of causing harm to trespassers or in reckless disregard of the presence of the trespassers.
- The voltage of the current passing through the naked wire being high enough to be lethal, there could be no dispute that charging it with the current of that voltage was a ‘rash act’ done in reckless disregard of the serious consequences to people coming in contact with it.
- The contention was that the deceased was a trespasser and that there was no duty owed by an occupier like the accused towards the trespasser, and therefore, the latter would have had no cause of action for damages for the injury inflicted and that if the act of the accused was not a tort, it could not also be a crime. The Supreme Court rejected this argument and said that there was no substance in this line of argument.
- Cherubin Gregory was liable under section 304A. His appeal was dismissed by the Supreme Court.
