IMPORTANT POINT
Death of deceased, a heart patient, (Unknown to accused) as a result of push & pull by the accuse4 squarely falls u/s. 323 of I.P.C.

JUDGMENT

Padmanabhan, J. - Sole accused is the appellant. The police charge and court charge against him were under section 304 of the Indian Penal Code. But, he was convicted under section' 304A and 323 of the Indian Penal Code. Sentences awarded are Rigorous Imprisonment for one year and three months respectively.

2. Deceased, aged 75, and the appellant were owners of adjacent paddy fields. They had some boundary dispute, which is the motive alleged. The case is that on 23-10-1987, at about 6-30 a.m., while the deceased was in the varamba, he was forcibly pushed by the appellant resulting in the former falling into the paddy field and having an instantaneous death. It is also alleged that the deceased was a heart patient and this fact, known to the appellant, accelerated the death.

3. P.Ws 1 and 2 are occurrence witnesses., They are the son and daughter-in-law of the deceased. Their evidence regarding motive and the incident was accepted by the Trial Court. I have no reason to disagree. The fact that the deceased had an instantaneous death is also proved by their evidence and the medical evidence of P.W.5 supported by Ext. P4 postmortem certificate issued by him. Medical evidence is that cause of death is heart attack. The doctor did not support the prosecution case that the push and fall accelerated death or heart attack. So also, the prosecution failed in establishing that the deceased was a heart patient or it was known to the appellant.

4. There was no charge for murder. Therefore the question of intention of causing such bodily injury, as the offender knows to be likely to cause death of the person on account of his peculiar physical condition coming under the second clause of section 300 of the Indian Penal Code, docs not arise for consideration. The charge was only that culpable homicide not amounting to murder, defined in section 299 and made punishable under section 304, was committed Intention of causing death or such bodily injury, as is likely to cause death, does not arise under the circumstances of the case. Then the only question is whether death was caused by doing an act with the knowledge that he is likely by such act to cause death or not. If the appellant was unaware of the fact that the deceased was a heart patient (even if the prosecution case that the deceased was a heart patient is true) he cannot be fixed with the knowledge that the push and fall are likely to cause death. Therefore, conviction under section 304 of the Indian Penal Code is out of question. Rightly he was not convicted for that offence. Conviction was only under section 304A.

5. Section 304A penalises only causing of death by doing any rash or negligent act not amounting to culpable homicide. Criminal rashness is hazarding a dangerous or wantom act with the knowledge that it is so, but without the intention to cause injury or knowledge that injury will be caused. It is only breaking a positive duty to be careful. Criminality in the case of a rashness lies only in running the risk of doing an act with recklessness and indifference to consequences, a conduct which involves unjustified risk. A rash act is primarily an overhasty act and is opposed to a deliberate act. Negligence is the genus, of which rashness is the species. In rashness, there may be the consciousness that the mischievous or illegal consequences may follow, but the act is done with the hope that they will not. In negligence even that consciousness is absent. Negligence is acting without awareness that harmful or mischievous consequences will follow, but in circumstances which show that if the actor exercised caution incumbent upon him, he would have had the awareness of the consequences of the act. Negligence is conduct which wilfully falls below the standard for protection of others against unreasonable risk of harm. It is breach of I duty imposed by law.

6. Learned trial Judge has not properly understood the distinction between killing by rash or negligent act and culp