1. We are of opinion that the Magistrate, Mr. Kittur, has failed properly to understand the nature of this offence. He finds that the three accused severely beat the deceased man with a piece of stone and with a stick ; that they kicked him with their sandaled boots in the stomach. Within a week of the injuries thus inflicted, peritonitis supervened and the deceased died of that malady after seven days. It is just possible on the record to suggest a doubt whether the peritonitis was the consequence of the injuries, and for this reason we have refrained from ordering the accused's commitment for trial on a far more serious charge. It is certain, however, that the injuries were such as to endanger life within the meaning ' of Section 320 of the Indian penal Code, and the three accused are consequently guilty of voluntarily causing grievous hurt under Section 325. But the Magistrate has convicted them under Section 304A or in the alternative under Section 323 of voluntarily causing simple hurt.
2. Section 304A deals with the causing of death by a rash and negligent act, and on its very face has nothing in the world to do with a case where injuries are inflicted, not rashly, not negligently, but intentionally and designedly as was the case here on the Magistrate's own finding. The meaning of Section 304A is well explained in the case of Regina v. Nidamarti (1872) 7 M. H. C. R. 119 where Mr. Justice Holloway in dealing with a similar case, to which Section 304A had been mistakenly applied, said : ' This section is, in our opinion, wholly inapplicable to the facts of this case. Culpable rashness is acting with the consciousness that the 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 precautions to prevent their happening. The immutability arises from acting despite the consciousness. Culpable negligence: is acting without, the consciousness that the ill. gal and misbehave effect will follow, but in 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. The imputability arises from the neglect of the civic duty of circumspection. It is manifest that personal injury, consciously and intentionally caused, cannot fall within either of these categories.'
3. Reference may also be made to the decision of this Court in King-Emperor v. Heera Joeeta (1901) 3 Bom. L. R. 394.
4. We must set aside the conviction and sentences of the lower Court and convict each of the three accused persons of the offence of voluntarily causing grievous hurt under Section 325, Indian Penal Code, and direct that each of them be rigorously imprisoned for a term of two years. The lines, if paid, should be refunded.