JUDGMENT 1. The Petitioner before us was tried for having committed an offence under sec. 280, I. P. C. He was convicted under that section and sentenced to the maximum punishment of six months' rigorous imprisonment. On an appeal to the Sessions Judge the conviction was affirmed, but the term of sentence was reduced to four months. The Petitioner, Kamdar Ali, then moved this Court and obtained a rule on the 1st, 2nd, 3rd and 5th grounds taken in his petition, namely:-1. That the findings of facts do not warrant any conviction under sec. 280, I. P. C.; 2. That the trying Magistrate had found over-confidence in his (Petitioner's) skill, but not negligence on his part, while the Sessions Judge had not indicated any ground for holding rashness and gross negligence such as would warrant a conviction; 3. That the learned Sessions Judge having found that the country boats were anchored in the channel which the Scotland had to follow and were carrying no light, and that the Scotland carried no search light, neither rashness nor negligence on the part of the accused was established; 5. That the evidence not being complete, the accused should either have been acquitted or a new trial directed. 2. The facts of the case are that on the 12th January last, at about 8 P.M., a number of country boats laden with pilgrims for the Ganga-Sagor Fair, lay anchored in the River Hughly at some distance from a place known as Tengrachur. At that hour, a steam launch, named the Scotland, in charge of the Petitioner, coming up the river collided with two of the country boa's with the result that these boa's sank almost immediately. It is alleged that a large number of passengers were drowned. After this, the Scotland came to a standstill at a short distance from the scene of the collision and the Petitioner sent a jolly boat to rescue the drowning passengers of whom 37 were thus rescued and brought on board the steamer. There is no clear evidence that any passenger lost his life. No corpse appear to have been recovered from the river, although some of the passengers are said to have disappeared. 3. There is no clear evidence that any passenger lost his life. No corpse appear to have been recovered from the river, although some of the passengers are said to have disappeared. 3. The defence of the accused was that the boats lay in the track of the steamer; that, when the accused saw them, he warned the boats by repeated whistles and shouts and that finding that the boats did not move, he stopped the steamer but too late to avoid the collision. 4. The only point for determination is whether the collision took place owing to rash or negligent navigation on the part of the accused. 5. To support this conviction, there must be proof of rashness or negligence which endangers human life or is likely to cause hurt or injury to any other person. The immediate cause of the accident should be rashness or negligence on the part of navigator. In considering the question of degree, the question of contributory negligence has also to be taken into account, not as a defence to the indictment, but for the purpose of determining causation and fixing a measure of the liability of the Petitioner. 6. On the findings of the lower Courts it is clear that the boatmen had selected a wrong place for anchoring their boats. The accused had, at the time, no reason to suppose that the boats (which had no lights) were stationery. On seeing the boats ahead it was, no doubt, the duty of the accused to give necessary warning by whistling. The question is whether he did so or not. The first Court found that he gave no such warning. We have gone through the evidence in the case, and we find that the passenger witnesses did not hear any whistle. These witnesses may not have heard the whistle, as they were otherwise engaged, but there is the positive evidence of Abdar Rahman (P. W. 3) that he heard a whistle and noticed the steamer stopping. In the case of Rex v. Green 7 C. & P. 156 (1835), Park, J., observed :-" You must show some act done. These witnesses may not have heard the whistle, as they were otherwise engaged, but there is the positive evidence of Abdar Rahman (P. W. 3) that he heard a whistle and noticed the steamer stopping. In the case of Rex v. Green 7 C. & P. 156 (1835), Park, J., observed :-" You must show some act done. You rather state it as if a mere omission on the part of the prisoner, in not doing the whole of his duty, would be enough; and we are of opinion that it is not sufficient." So it was held (we quote the head-note) that, " to make the Captain of a steam vessel guilty of manslaughter, in causing a person to be drowned by running down a boat, the prosecutor must show some act done by the Captain; a mere omission on his part in not doing the whole of his duty is not sufficient. But if there be sufficient light and the Captain is either at the helm, or in a situation to be giving the command, and does that which causes the injury, he is guilty of manslaughter." We have, therefore, to see whether the accused did any act which caused the accident, or whether he did all he could to save the situation but could not avoid the collision. In the latter case, he would not be guilty. 7. The finding of the first Court is, as already observed, that the accused gave no warning as alleged by him. It appears, however, from the evidence of Abdar Rahman (P. W. 3), who was the serang of the flat which was being towed by the steamer, that a whistle was given and that the steamer stopped. There is no finding, nor is there any evidence, as to the rate of speed at which the steamer was going at the time. Behind the steamer was the long flat attached to it, and any sudden stoppage of the steamer would, no doubt, have caused the flat to collide with the tug; and, in order to stop the steamer, it was necessary to wheel round a little in order to prevent the flat coming in contact with the steamer. Moreover, the flood tide was then running strongly and the steamer's speed must have exceeded the velocity of the flood in order to allow of steaming. 8. Moreover, the flood tide was then running strongly and the steamer's speed must have exceeded the velocity of the flood in order to allow of steaming. 8. From the findings of the lower Courts, it appears that the country boats were anchored in deep water and it seems to us that the boatmen selected this place to be able to float down the river, when the tide began to ebb. No doubt, the night was moonlight (the 12th January was the 10th day of the lunar month), but during the winter months a mist settles down on the surface of the water. Although there is no evidence that the surface of the river had become obscure owing to the mist, it is only natural to suppose that the mist had affected the outlook. 9. From the evidence of the Marine Superintendent (P. W. 7) it appears that the accused had been in service for 20 years and done good work. In all the circumstances of this case, we are of opinion that the accused, seeing the boats in the steamer track, thought they were moving boats and not stationery, and he did all he could to avoid them, but could not prevent an accident, and that, after the accident, he did all he could to save the lives of the drowning people. His conduct, afterwards, in not reporting the accident to his employers may have been due to the fear of being reprimanded, or otherwise punished, but this failure cannot go to prove any rash or negligent navigation on his part. In short, the accused must have been under the impression that the boats were moving, and it was justifiable on his part to make that assumption, seeing that the boats were then in deep water and in the fair way of the river. We are of opinion that the accused is not guilty of any rashness or negligence, as contemplated by the section, and we therefore set aside the conviction and sentence and against him. He is discharged from his bail. The rule is made absolute.