1. The prisoners in this case were acquitted by the jury of culpable homicide, and convicted under Section 304a of the Indian Penal Code of causing the death of one Alim Koregar by a rash act not amounting to culpable homicide.
2. The evidence showed that the deceased had had an enlarged spleen for several years; that his death was caused by rupture of the spleen; and that the rupture was occasioned by blows of the hands inflicted by the prisoners upon the trunk of the deceased's body whilst he was alive.
3. The Judge charged the jury with reference to Section 304a in the following terms: 'If you do not think that the act amounted to culpable homicide, but that the circumstances of this district in respect of the prevalence of disease of the spleen are such as to render any beating on the trunk of the body an act of criminal rashness, you will be justified in convicting the accused under Section 304a.'
4. It appears to us that the Judge has not put the matter before the jury with sufficient precision. The mere circumstance of the prevalence of the disease of spleen in the district in which the deceased resided is not sufficient to warrant a conviction under this section. The jury should further have been told that they must be satisfied that the accused was aware of the prevalence in the district of such diseases, and also aware of the risk to life involved in the striking on the trunk of the body a person who might be suffering from disease of the spleen.
5. As the prisoners, however, were upon the evidence clearly guilty of voluntarily causing hurt, and the sentence is such as might have been passed for such an offence, it is unnecessary for us to interfere with the conviction.