' This revision application is directed against the judgment of District & Sessions Judge, Karachi whereby he maintained the conviction of the appellant for offence under section 304-A, P. P. C. And sentence of 6 months' R. I. Passed against him by S. D. M. Harbor, Karachi.
2. The facts of this case are more or less undisputed. Deceased Riaz Muhammad was a labourer working in the factory of Messrs Elite Publishers, SITE, Karachi. On 12-7-1970 at about 4 p.m. He and 4 other laborers including the appellant entered the factory water reservoir pool for taking bath.
Bashiruddin first got into the pool and the water came upto his knees. Appellant Jamal, P. Ws.
Ahmad Illahi, Tariq Illahi and deceased Ghiasuddin also got into the pool and they were having good time. As usual, these bathers in the pool enjoyed themselves and in fun and frolic, appellant Jamal gave a push to deceased Ghiasuddin. The deceased lost his foothold and fell down in the water. He became so nervous that he did not have the courage to stand on his feet and he got choked. The Chowkidar on hearing the alarm jumped into the pool and brought Ghiasuddin out, but by that time he had stopped breathing and he could not be revived. A phone message was sent to the police and within half an hour the police arrived there and registered the case.
3. It has been clearly stated in evidence that applicant Jamaluddin had no enmity with deceased Ghiasuddin and he just gave him a push in fun. Unfortunately none of them was a swimmer, with the result that timely aid could not be provided to save their companion from getting drowned.
4. The learned S. D. M. Has observed in his judgment that it was a fact according to the evidence on record that no enmity existed between the accused and deceased and there was no intention of the accused to cause death of the deceased but the fact remained that the death was caused due to negilgent act on the part of the accused, and he accordingly found the appellant guilty of offence under section 304-A, P. P. C.
5. The learned Sessions Judge also came to the same finding on facts, that the accused pushed the deceased in fun and made him fall into the deeper part of the swimming pool; that the intention of the accused in all probability was to tease the stupid boy by making him fall into the water and watch the fun. The learned Sessions Judge, however, came to the conclusion that pushing a stupid young man into the deep water was a rash and negligent act on his part specially when the deceased did not know swimming. He accordingly maintained the conviction of the appellant.
6. The only question in this case which needs to be considered is whether on the facts of the case as proved the appellant was rash or negligent within the meaning of section 304-A, P. P. C. :Hens tea or guilty mind is an important ingredient of every criminal offence including an offence under section 304-A, P. P. C. Mere rashness or negligence is not enough, unless it can be considered to be culpable rashness or criminal negligence. Culpable rashness in the words of Holloway, J., is acting with the consciousness that the mischievous and illegal consequence may follow but with the hope that they will not, and a belief that the actor has taken sufficient precautions to prevent their happening. But immutability arises from acting despite the consciousness. Culpable negligence is acting without the consciousness that the illegal and mischievous effect will follow but under the circumstances which show that the actor had not exercised the caution incumbent upon him, and that if he had, he would have the consciousness. The imputability arises from the neglect of the civic duty of circumspection. In 3 All. 776 Straight, J. Observed as follows :- "Criminal rashness is hazarding a dangerous or wanton act with the knowledge that it is so, and that it may cause injury, but without the intention to cause injury or knowledge that it will probably be caused. The criminality lies in running the risk of doing such an act with recklessness or indifference as to the consequence. Criminal negligence is the gross and culpable neglect or failure to exercise that reasonable and proper care to guard against injury either to the public generally or to an individual in particular which, having regard to all the circumstances out of which, the charge has arisen, it was the imperative duty of the accused person to have adopted."
' The test which ought to be applied in each case is, firstly the amount of care and circumspection which a prudent and reasonable man would consider to be sufficient in the circumstances of the case and secondly whether the accused had taken that amount of care or he had conducted himself in a careless manner. This was also the view of Shiv Dayal J., in AIR 1960 Madh. Pra. 105). He has brought out a distinction between rashness and negligence and observed that while culpable rashness is acting with consciousness that mischievous and illegal consequences may follow but with the hope that they will not, culpable negligence is acting without the consciousness that the illegal and mischievous effect will follow, in the circumstances which show that the actor has not exercised the caution incumbent upon him, and that if he had, he would have had the consciousness.
7. Thus mere carelessness is not enough and there must be a disregard of life and safety of others amounting to a crime against the state and a conduct deserving of punishment. Whether negligence is to be regarded as of such a nature is a question of fact.
8. In this case the persons bathing in the pond knew that the water, was knee-deep. There is no evidence to suggest that they had any knowledge' that the water was deeper on the side where the deceased was standing. In fact it could not be so as the present applicant and the deceased were standing so close to one another that the deceased could be given a push. The applicant had, therefore, neither the intention nor the knowledge that what he was doing would endanger the life or safety of the deceased. The bathers were in a jolly mood and they were having fun at one another. It is a common sport in foreign countries to give a ducking to a new come in a boarding school by bodily throwing him in a pond. The applicant could not have been conscious that the act was dangerous in itself. Nor could it be said, that as a prudent man he ought to have known that a person by mere push in a knee deep water would get drowned. The degree of negligence or rashness rendering an act to be criminal is thus wanting in this case and in absence of mens Tea or guilty mind a person cannot be convicted of a criminal offence.
9. The revision application is therefore, accepted and the conviction and sentence passed against the applicant are set aside and he is acquitted. The applicant is on bail his bail bond is discharged and he need not surrender.