BIND BASNI PRASAD, J. - (1.) TUNDA , aged twenty -four years, a resident of village Jaoli, district Mathura, was sent up by the police under Section 304, Penal Code for having caused the death of one Munshi. Learned Sessions Judge, however, acquitted him of that charge but convicted him under Section 304A, Penal Code for having rashly caused the death of Munshi. The question is whether or not the appellant was guilty of a rash and negligent act within the meaning of Section 304A.
(2.) THE prosecution case was that the appellant and Munshi were fond of wrestling and on the morning of 13th May 1947, the appellant invited Munshi to the akhara in Kanhaiya's bagchi for a wrestling bout. They wrestled there. It is alleged that after sometime the deceased said that he would not wrestle any more and went to adjoining chabutra where he began to put on his dhoti. The prosecution goes on to say that the appellant then caught hold of him and threw him down on the hard ground with head downwards with the result that Munshi's skull was fractured and he died. There was an allegation of previous enmity between the appellant and Munshi.
(3.) LEARNED Sessions Judge has carefully analysed the evidence. He has held that there was no previous enmity between the parties. That is a correct conclusion. If there had been any such enmity, it is highly improbable that the deceased would have gone with the appellant to the akhara. There was a clear absence of intention on the part of the appellant to cause the death of Munshi. Mr. David holding the brief of the learned Government Advocate contends that if the appellant threw down Munshi on the hard chabutra, then certainly the appellant was guilty of a rash and negligent act within the meaning of Section 304A. I have looked into the evidence of the Investigating Officer. He does not state that he found any marks on the chabutra to indicate that the occurrence took place there. The eye -witnesses, Joti, Tula Ram, Lila and Bhup Singh, who were all chance witnesses, were disbelieved by the learned Sessions Judge on account of certain inconsistencies in their evidence and inherent improbabilities in their evidence. I agree with him that the eye -witnesses cannot be believed. There is thus no evidence before us that Munshi was thrown down by the appellant on the hard chabutra. It is improbable also and there was no reason for the appellant to throw down Munshi on the hard ground.;