JUDGMENT Yorke, J. - This is an appeal by one Babu Ram who has been convicted by the Additional Sessions Judge of Cawnpore of an offence under S. 304A, Penal Code, on the charge that he on or about 2nd July 1941 at village Dharmangadpur at 1 A.M. caused the death of one Babu Faqir by handling his gun rashly or negligently. The facts are, subject to certain considerations which I shall point out later, free from doubt. On the night between 1st and 2nd July 1941 after 11 P.M., a village theatrical company is said to have been playing the piece called Sultana Dacoit on a chabutra in front of the house of one Anant Ram Sonar in village Dharmangadpur as part of the celebrations in connection with the wedding of the daughter of Anant Ram. Babu Ram appellant who is the mukhia of the village came on the scene carrying with him his gun and wearing a belt with cartridges. It has been shown in evidence that the appellant was at this date not unreasonably in fear of being attacked by certain dacoits who had recently been released from jail and this is the reason why he was carrying a gun with him. In these circumstances, it cannot be doubted that he was fully justified in carrying his gun with him and in having it loaded. A man who is in some fear of attack is not entitled to presume that an assailant would give him time to load his gun. The appellant quite naturally took his stand on a corner of the chabutra or on one side of the chabutra to watch the performance. While he was doing so, one of the actors by name Babu Faqir who was playing the part of a drunken dacoit thought it would be an amusing addition to the play to make an apparent assault on the mukhia. He approached the mukhia who was standing holding his gun and grappled with him (lipat gaya) and there was something in the nature of a struggle or wrestling and in the course of this struggle the gun went off and Babu Faqir received shots in his head from which he died within 15 or 20 minutes. I may now touch on the doubtful points in the case. I may now touch on the doubtful points in the case. It is first of all said by the prosecution witnesses in cross-examination that when Babu Faqir grappled with the appellant, the appellant shouted to Babu Faqir to let him alone because his gun was loaded, meaning that there was a danger of an accident. The learned Sessions Judge thought that the witnesses had made this statement in cross-examination with the idea of helping the appellant and it may well be that that is the truth. 2. The second doubt which arises at this stage and about which there is no certain evidence is whether the gun, which is an ordinary double barrel breach loading twelve bore hammer gun, was only loaded or both loaded and cocked, that is the hammers had been cocked. The learned Sessions Judge has arrived at the conclusion that the gun was cocked. About the alternative he thought it was not easy to conceive that the hammer should receive just such a kick or push as would raise it not to its full pitch and yet to more than three-fourths of it and let the hammer spring back and fire the gun. I have had the gun before me and examined it and I should perhaps say that I have handled and used many twelve bore hammer guns for the last 40 years or more. It is true that the main spring actuating the right hammer is slightly weaker than that which actuates the left. It follows from this that it would be slightly easier by catching it in clothing during the struggle to pull this hammer back accidentally than it would be so to pull back the left-hand hammer. It is of course conceivable that in a struggle the hammer might be drawn back half way or three-fourths of the way towards what is called full cock, and then if the hammer which was pulled back slipped free from what was holding it, it would spring back and if the spring had been sufficiently compressed, the gun would fire. It is of course. I think quite free from doubt that if this had been the manner in which the gun was fired on this occasion, no charge could possibly have been sustained under S. 304A against the appellant. It is of course. I think quite free from doubt that if this had been the manner in which the gun was fired on this occasion, no charge could possibly have been sustained under S. 304A against the appellant. There is nothing either rash or negligent in carrying a loaded gun at night and standing quietly in a corner and watching a dramatic performance. 3. The learned Sessions Judge was of opinion that the hammer was at full cock and on the whole I am inclined to agree with him in that finding of fact. We have then to consider whether, by having in his hands a loaded gun with at any rate one hammer at full cock and watching a dramatic performance, the appellant was committing a rash or negligent act. Now I can conceive that had the appellant can to the scene of occurrence carrying his gun at full cock and had he then had, for example, to step up into a chabutra or step across a drain or other obstacle on the road and had he in so doing tripped or fallen and thereby discharged the gun and wounded somebody, it might have been said that he had caused death by a negligent act. I find it, however, very difficult to say that by merely standing quietly in a corner and looking at a performance while holding a gun which is loaded and cocked and thereby creating a situation in which a third person might come to his death by making an unprovoked assault upon the appellant, the appellant was guilty of a negligent act or could be held guilty of causing death by a negligent act. There is no reported case precisely parallel with the present case but it has been held (I am quoting from Ratanlal's Law of Crimes, Edn. 15) that: Manslaughter by negligence occurs when a person is doing anything dangerous in itself, or has charge of anything dangerous in itself, and conducts himself in regard to it in such a careless manner that the jury feel that he is guilty of culpable negligence, and ought to be punished. 4. Similarly, in another case, it has been held that: Death should have been the direct result of a rash and negligent act of the accused and that act must have been the proximate and efficient cause without the intervention of another's negligence. 4. Similarly, in another case, it has been held that: Death should have been the direct result of a rash and negligent act of the accused and that act must have been the proximate and efficient cause without the intervention of another's negligence. It must have been the causa causans; it is not enough that it may have been the causa sine qua non. 5. Similarly, it has been said that: "The rash and negligent act means the act which is the immediate cause of death and not any act or omission which can at most be said to be a remote cause of death." It seems to me that one can find an analogous case (though I recognise that arguments from analogy are by no means free from danger) by comparing two cases of death caused, for example, by a motor lorry. There is no doubt in my mind that a motor lorry or motor car is in a sense a highly dangerous weapon, but I cannot conceive that if A is driving along a road and B suddenly springs out from behind a tree and comes in front of the car or lorry and is knocked down and killed, it could possibly be said that a charge under S. 304A was sustainable against A, the driver of the car or lorry. On the other hand, if A is driving a lorry along a road and sees B in front of him walking in the same direction quietly and along the left hand margin of the road, and A sounds his horn and drives on as if it would be the inevitable result of the warning having been given that B would step out of the road but B being deaf did not step out of the road and was knocked down and killed, in that case A would in my judgment have committed an offence under S. 304A because there is in such a case a culpable negligence. A is not entitled to assume that B has heard him and he is not entitled to assume that even if B has heard him B will think it necessary to step off the smooth portion of the road of which he is occupying no more than is necessary for him and to travel by the rough portion at the side. So also, in the present case, the appellant is in the position of a person who is not endangering anybody's life at all as long as he stands where he is, whether the gun be loaded only or whether it be both loaded and cocked. No doubt the appellant is the cause "sine qua non," but in my judgment, it was the intervention of the deceased Babu Faqir which brought about the situation of danger and that was not an intervention which the appellant could by any means be able to foresee. In these circumstances, in my opinion, the appellant has been wrongly convicted of an offence under S. 304A, Penal Code. The learned Sessions Judge says: The accused's loaded gun having gone off while in his hand and killed Babu Faqir, the on as lay on him to show that he had taken all care and caution with his loaded gun to safeguard others' lives and that, by an agency beyond his control, the gun went off. 6. So far as that proposition goes, I am not in disagreement with the learned Sessions Judge but when he goes on to say that this onus has not been discharged, I am unable to agree with him. It may be that the appellant did not himself lead any evidence with a view to discharging the onus but the onus was already discharged by the prosecution evidence which shows that the appellant was standing perfectly quietly on one side of the chabutra carrying his gun in a way not calculated to endanger the life of others and it was due to the assault of Babu Faqir, an agency beyond the control of the appellant, that the gun went off. I have no hesitation in holding that the appellant has been wrongly convicted of an offence under S. 304A, Penal Code. I set aside the conviction and sentence and direct that the appellant's bail bonds be discharged.