Robert Stuart, C.J.
1. The circumstance that the accused, O'Brien, was at the time of the offence of which he was convicted under the influence of drink cannot in the least degree mitigate his guilt. The facts material to the case appear to be these:--On the evening of the 2nd September 1879, the accused O'Brien and a companion named Shading were dining at the house of a friend in Agra within the Rajputana State Railway lines, and about midnight they sallied forth walking towards the Fort. O'Brien perceived a ghari which they wished to hire, but the driver, a man named Wazir, a witness in the case, refused to give it unless the fare was prepaid. O'Brien and Sharling then walked on to a place where an ekka was standing, and presuming that it belonged to a man who was sleeping on a charpoy close by roused him and told him to let them have the ekka. This man was Nathu the deceased, Nathu explained that the ekka did not belong to him and remarked at the same time that he was ill. Hereupon O'Brien got irritated and committed the assault on the person of Nathu which caused his death. He pulled the charpoy about, causing the deceased to fall out of it, kicked him, and struck him on the side or on the ribs with a stick, and of the injuries the deceased thus received he died very soon after. The Civil Surgeon in his postmarten examination states that the deceased's spleen had been ruptured in four places in its outer surface, one of which ruptures was very deep, extending to the inner surface of that organ. It would thus appear that the assault by the accused on Nathu was of a very serious nature, rendering a fatal result inevitable. The Magistrate committed O'Brien under Sections 323 and 325 of the Indian Penal Code, but the Judge amended the charge by substituting Section 304A, Indian Penal Code, for Sections 323 and 325. The case was clearly not one of culpable homicide, and Section 304A provides that 'whoever causes the death of any person by doing any rash or negligent Act, not amounting to culpable homicide, shall be punished with imprisonment of either description for a term which may extend to two years or with fine or with both,' and a plausible argument might be maintained to show that the assault by O'Brien on the deceased was within the meaning of that section. But I think it safer to convict O'Brien under Section 325, because I consider that Section 304A has in view utter indifference as to the possibly or probably fatal consequences of his act, on the part of an offender under it and Section 325 in my opinion more fairly and accurately satisfies the requirements of the evidence. I would, therefore, set aside the conviction under Section 304A and convict O'Brien under Section 325 of the Indian Penal Code. As to the sentence I consider that passed by the Judge inappropriate and inadequate, and such sentence I would therefore set aside, and in lieu thereof I would sentence the accused G.W. O'Brien to one year's rigorous imprisonment and to pay a fine of Rs. 100, or in default of payment of such fine to suffer a further period of three months rigorous imprisonment. Of course so much of the fine of Rs. 300 awarded by the Judge as has been paid and exceeds the fine now imposed will be returned to the accused.
2. The facts found are not disputed. We had issued notice to the accused to show cause why his sentence should not be revised but he has not appeared. He has been convicted of having assaulted without any provocation an old man sleeping outside his house, and having beaten him with a stick on the sides. The blow ruptured the man's spleen and caused his almost immediate death. The Magistrate who conducted the preliminary inquiry committed the accused under Sections 323 and 325 of the Indian Penal Code. But the Sessions Judge altered the charge into one of Section 304A of the Code and sentenced the accused to pay a fine of Rs. 300, or in default to suffer rigorous imprisonment for six months. The attention of the Court was drawn to the case, and the record was sent for.
3. Section 304A appears to be wholly inapplicable to the facts as found by the Sessions Judge. The circumstance that the medical evidence established death by rupture of the spleen did not reduce the accused's act to one of culpable rashness or culpable negligence. It has been laid down that '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 imputability arises from acting despite the consciousness. Culpable negligence is acting without the consciousness that the illegal and mischievous 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 ' (Nidamarti Nagabhushanam 7 Mad. H.C.R. 119).
4. There is no reason to doubt that the act was not done with the intention of causing death, or of causing such bodily injury as the accused knew was likely to cause the death of the old man, nor was the act done with the intention of causing bodily injury to the man, nor was the bodily injury intended to be inflicted sufficient in the ordinary course of nature to cause death, nor did the accused, when striking the man, know that his act was so imminently dangerous that it must in all probability cause death or such bodily injury as is likely to cause death. The offence, therefore, of culpable homicide was not committed. But I think that there can be no doubt that the accused committed the offence of Voluntarily causing grievous hurt. He struck deceased on the ribs with a stick and inflicted a hurt which not only endangered his life but actually caused his death, and which he must have known was likely to break a rib if it did no worse injury. The fact that he was intoxicated at the time cannot alter the nature of the act committed by the accused. Section 86 of the Penal Code applies strictly to this case.
5. I would set aside the conviction under Section 304A and convict accused under Section 325 of the Penal Code. Considering the unprovoked character of the attack and the circumstances attending it, it appears to me one which is not sufficiently punished by a fine. I would sentence the accused G.W. O'Brien to one year's rigorous imprisonment, and to a fine of Rs. 100, or a further period of three months' rigorous imprisonment. So much of the fine, if paid, that exceeds the fine proposed, should be returned to the accused.