1. We do not concur in the view of the law taken by the Sessions Judge. In the case of Khiran Nomiya (Unreported) this Court, on 3rd September 1877, held, that Section 304A does not apply to a case in which there has been the voluntary commission of an offence against the person. If a man intentionally commits such an offence, and consequences beyond his immediate purpose result, it is for the Court to determine how far he can be held to have the knowledge that he was likely by such act to cause the actual result.
2. If such knowledge can be imputed, the result is not to be attributed to mere rashness; if it cannot be imputed, still the wilful offence does not take the character of rashness, because its consequences have been unfortunate. Acts, probably or possibly, involving danger to others, but which in themselves are not offences, may be offences under sections 336, 337, 338 or 304a, if done without due care to guard against the dangerous consequences. Acts which are offences in themselves, must be judged with regard to the knowledge, or means of knowledge, of the offender and placed in their appropriate place in the class of offences of the same character.
3. There is a judgment of the Madras Court--Nidamarti Nagabhushanam (7 Mad. H.C.R., 119)--in which Mr. Justice Holloway explains the use of the words 'rashness' and negligence' in the Penal Code, and this judgment has been recently approved by the Chief Court of the Punjab, and reproduced in a circular issued by it to all Civil Courts.
4. Mr. Justice Holloway says: Culpable rashness is acting with consciousness that mischievous and illegal consequences may follow, but with the hope that they will not, and often with the belief that the actor has taken sufficient precaution to prevent their happening.
The imputability arises from acting despite of the consciousness.
Culpable negligence is acting without the consciousness that illegal or mischievous effects will follow, but in circumstances which show that the actor has not exercised the caution incumbent on him, and that if he had, he would have had the consciousness.
The imputability arises from the neglect of the civil duty of circumspection.
It is manifest that personal injury, consciously and intentionally caused, cannot fall within either of these categories, which are wholly inapplicable to the case of an act or series of acts themselves intended which are the producers of death.
5. We, therefore, set aside the conviction under Section 304A.
6. The facts set out above appear to us to require that the accused should be convicted under Section 304.
7. In judging of knowledge had by the accused, we must consider the circumstances: the blow that to one person, or under ordinary circumstances, may not, in the ordinary course of nature, be likely to cause death, may yet be imminently dangerous to another, or under special circumstances.
8. To kick a girl of tender age with such force as to produce rupture of the abdomen in a healthy subject, appears to us to be an act of such a character that no reasonable man could be ignorant of the likelihood of its causing death.
9. We, therefore, convict the prisoner Ketabdi under the latter part of Section 304, Indian Penal Code, and sentence him to five years' rigorous imprisonment, to run from the date of his original sentence.