Modi, J.—These are three criminal matters arising out of the judgment of the learned Sessions Judge, Ajmer, dated the 16th April, 1957 by which he convicted the accused Baloo and Budha of an offence under sec. 342 I. P. C. and sentenced each of them to undergo rigorous imprisonment for one year and also to pay a fine of Rs. 200/- each, and in default to undergo further rigorous imprisonment for a period of two months, and acquitted the remaining accused Bhoma son of Deva, Goma son of Kana, Goma son of Amra, Dhanna son of Kajja, Heera son of Kalu and Lala son of Dula. All the accused were acquitted of charges under sections 302 read with sec. 34 and 120B I. P. C. Budha accused has filed appeal No. 63 of 1957 against his conviction and sentence under Sec. 342 I. P. C. Baloo has filed a similar appeal No. 66 of 1957. The State has also filed an appeal which is appeal No. 94 of 1957 against the acquittal of all the accused under sec.l21-B and 302 read with sec. 34 and also against the acquittal of all the accused except Baloo and Budha of an offence under sec. 342 I.P.C. We shall dispose of all these three matters by a single judgment. 2. The material facts leading up to these appeals may be shortly stated as follows. The deceased Chhoga aged about 25 years lived in village Borai which is at a distance of about three to four miles from Ajmer City towards the west. P.W. 1 Mst. Birji is Chhogas mother, and P. W. 8 Ratna is Chhogas step brother. The accused Baloo, Bhoma, Goma son of Kana, Goma son of Amra, Dhanna and Heera all lived in Barlia which is situate at a distance of about five to six miles from Ajmer on the east. Accused Budha lived in Parla, and the remaining accused Lala in Balipura. The deceased and the accused are all Rawats. 3. The case for the prosecution is that on the 26th June, 1956, Mst. Ghisi wife of Baloo accused left her Dhani Shakola situate in village Barlia for Ajmer to sell fire-wood but she failed to return home. Baloos suspicions, in the first instance fell on one Mangu Singh of Baldura. Mst. The deceased and the accused are all Rawats. 3. The case for the prosecution is that on the 26th June, 1956, Mst. Ghisi wife of Baloo accused left her Dhani Shakola situate in village Barlia for Ajmer to sell fire-wood but she failed to return home. Baloos suspicions, in the first instance fell on one Mangu Singh of Baldura. Mst. Ghisi was not found and so on the 3rd July, 1956, Baloo made a report at the police station, Shrinagar (Ex.P-23) at about 8 A.M. in which he stated that she had disappeared on the 26th June, 1956, and that he had come to know on the 2nd July, 1956, that she was living with one Mangu Singh Daroga, a watchman, who lived in Baldura. It was also stated in the report that she had taken away ornaments worth about Rs. 100/- with her. The police entertained the view that there appeared to be an old illicit intimacy between Mst. Ghisi and Mangu, and, therefore, directed Baloo to seek redress in a court of law. Thereafter, the case for the prosecution is that Baloo came to know that it was the deceased Chhoga of Boraj who had beta responsible for the disappearance of his wife, and so on the 5th July, 1956, all the eight accused are alleged to have gone to the house of Chhoga. They inquired from him where Mst. Ghisi was. Chhoga said that he did not know anything about the matter. Thereupon they asked Chhoga to accompany them to Ajmer where, they said, the matter would be placed before a caste Panchayat. Chhoga accompanied them. The story then is that the accused did not take Chhoga to appear before any Panchayat but instead they took him to Shakola. It is said that they had hired the taxi No. AJM 1088 of one Mohanlal P. W. 3 at Ajmer on their way to Shakola. The accused are then alleged to have taken Chhoga to the bar a (enclosure) of Goma (Son of Amra) accused and they tied his hands with a rope and hung him to a branch of a neem tree. This was obviously done in order to extract the necessary information from him as to the whereabouts of Mst. Ghisi. P. W. 4 Heera who was also a resident of Barlia happened to reach the place at that time. This was obviously done in order to extract the necessary information from him as to the whereabouts of Mst. Ghisi. P. W. 4 Heera who was also a resident of Barlia happened to reach the place at that time. It is said that Chhoga had disclosed that Ghisi was with P.W. Moti, a maternal uncle of Chhoga, who lived in village Magri. This village is situate at a short distance from Ajmer on the side of Nasirabad. 4. On Chhoga having disclosed the aforesaid information, he was released, and the story proceeds that the accused Budha then caught hold of Chhogas hands and took him to the house of Baloo and shut him in a room there so that meanwhile they could go to Moti and fetch the woman, and, if necessary, to confront Moti with Chhoga. Budha having put Chhoga in room, locked it up and took the key with himself. Thereafter, the entice party including Heera left for village Magri in the taxi of P. W. Mohanlal. Inquiries were made from Moti, and it is said that the latter told them that Chhoga had come to his house with Mst. Ghisi some six days back, stayed there for about two days ana then departed from there. Moti volunteered to accompany the accused persons to be confronted with Chhoga if necessary. So the accused and Heera and P.Ws. Dhanna and Nahara (who are also said to have joined the party on their trip to Magri) and Moti came back to Barli. It is said that it was raining throughout the journey. The party reached Barli when darkness had fallen. Budha opened the lock of the room in which Chhoga had been shut before they left for Magri. As it was all dark inside the room a match was lighted. Baloo and Budha entered the room, followed by the accused Dhanna. These persons including Heera found that though Chhogas body was slightly warm he had no pulse and no heart-beat, and so they declared that he was dead. Baloo and Budha bodily brought Chhoga out of the room and placed him on the ground. Heera is said to have suggested to the accused persons to report the matter at once to the police, but as they paid no heed to this, he immediately left the place and so also did P.Ws. Nahara and Dhanna. 5. Baloo and Budha bodily brought Chhoga out of the room and placed him on the ground. Heera is said to have suggested to the accused persons to report the matter at once to the police, but as they paid no heed to this, he immediately left the place and so also did P.Ws. Nahara and Dhanna. 5. Thereafter, the case for the prosecution is that the body of Chhoga was taken to a lime quarry which was at a distance of about three furlongs from Baloos house and it was buried in that pit, the quarry was about 9 to 10 feet deep. 6. In the meantime P.W.7 Moti, maternal uncle of Chhoga, (who had been brought from village Magri) as soon as he came to know as he says that Chhoga was "about to die", managed to leave the place from the side of the jungle. It is a pity that he did not report the matter to the police immediately even though he admits that he passed through Ajmer on his way to Boraj. Perhaps he was mortally afraid of what had happened to his relation and was only too anxious not to be involved in the matter. Moti reached his sister Mst. Birjis house at about 7 A. M. on the 6th July, 1956. The accused Baloo is also alleged to have gone to Birjis house that morning, on the pretext that he had come to inquire whether Chhoga had returned home or not. Baloo also told them that although Chhoga was with them, he had escaped from their company and so he had come to make the inquiry. When Baloo was at Mst. Birjis house, her son Ratna was of course there. P.W. 9 Ghisa, P.W. 10 Dhanna, P.W. 11 another Dhanna and P.W.12 Khaju also happened to come there at the time. They all pressed Baloo to disclose the truth. It is said that Baloo admitted to them that he and his companions had killed Chhoga on the night previous and had thrown his dead body into a lime quarry at a distance of three to four furlongs from his house. Mst. Birji and Moti then left to report the matter to the police at the Ajmer Civil Lines Police Station. Moti took her upto the police station and then left her alone. 7. The report (Ex. P. 9) was made by Mst. Mst. Birji and Moti then left to report the matter to the police at the Ajmer Civil Lines Police Station. Moti took her upto the police station and then left her alone. 7. The report (Ex. P. 9) was made by Mst. Birji at 12 noon and was to the effect that on the previous day, some 10 or 12 persons accompanied by some boys had come to her house and inquired from his son Chhoga as to whether he had with him Baloos wife. Chhoga replied in the negative. Thereupon, they asked Chhoga to accompany them and the latter went away with them.. Mst. Birji said that he suspected that if the woman should not have been found, the Barliawalas might have killed his son.. This report was recorded by P. W. 19 Ahman Kumar, a head constable at the Civil Lines Police Station," Ajmer. Thereupon Sub Inspector Ahisan Ali left the police station at 12-10 P. M. for village Barlia. He was met on the way by P.Ws. Ghisa, Dhanna, Khaju and Ratna in Gunj Mohalla and the accused Baloo was also with them. These persons informed the Sub-Inspector that Baloo had told them that he and his associates had brought Chhoga to Barlia in connection with the disappearance of Baloos wife Mst. Ghisi and that they had killed him in the night and buried his dead body in a lime quarry at a distance of three to four furlongs from Baloos house. 8. As the occurrence related to the jurisdiction of police station Shrinagar, Sub Inspector Ahisan Ali made the report Ex. P. 10 to the Station House Officer, Shrinagar, police station, P. W. 24 Todar Singh at 2 P. M. The accused Baloo having already been arrested by Sub Inspector Ahisan Ali was made over to the Sub Inspector Todar Singh. The accused Baloo told Sub Inspector Todar Singh that he would point out the place where Chhogas dead body was buried fey him. P.Ws. Nanda and Narain were taken as motbirs from Shakola which was on the road-side, and Baloos statement relating to the discovery that he wished to make was recorded (Ex.P.1). Thereafter the accused led the Sub Inspector and the witnesses to the quarry. Baloo entered into the quarry and then some other persons also, and the body of Chhoga was dug out. Thereafter the accused led the Sub Inspector and the witnesses to the quarry. Baloo entered into the quarry and then some other persons also, and the body of Chhoga was dug out. P.W. Ratna identified it to be that of his brother Chhoga deceased. The hands and feet of the deceased were found tied with a turban (See Ex. P. 2 in this connection). 9. The dead body was then sent for post-mortem examination to the medical officer in charge of the Victoria Hospital, Ajmer. The post-mortem report is Ex. P. 11. According to doctor Kunj Beharilal, the death of Chhoga was caused by suffocation. Both the lungs of the deceased were deeply congested and there were multiple haemorrhage in the lungs. The trachea and the bronchi were deeply congested, and thick sandy fluid was found in plenty in the trachea, larynx and bronchi. The doctor also said that the body was decomposed and, therefore, no wounds or bruises could be seen as blisters had appeared all over the body. 10. Apart from the accused Baloo who was arrested on the 6th July, 1956, all the other accused were arrested on the 9th July, 1956. 11. All the accused pleaded not guilty and disclaimed all connection with the crime. Three of the accused, namely Bhoma son of Deva, Goma son of Kana and Goma son of Amra admitted this much that they had gone to village Magri at the instance of Heera to search for Mst. Ghisi and further stated that it was Heera who had paid the hire of the taxi in which they had gone there. The accused Bhoma also gave out the story that when they returned from Magri it was P.W. Heera who gave the key of Baloos room to P.Ws. Nahara and Dhanna, and that thereafter these persons unlocked the room, and as it was all darkness inside, they shortly afterwards declared that Chhoga had hung himself and committed suicide. 12. The prosecution produced 24 witnesses in support of its story. But before we deal with the evidence of the relevant witnesses, we should like to briefly summarise the findings of the learned Sessions Judge. 13. 12. The prosecution produced 24 witnesses in support of its story. But before we deal with the evidence of the relevant witnesses, we should like to briefly summarise the findings of the learned Sessions Judge. 13. The learned Judge found in the first place that it was proved that all the accused persons except Lala and Budha had gone to Boraj and brought the deceased Chhoga from his house saying that he would be taken to the Panchayat and asked to make his statement before it about the disappearance of Mst. Ghisi and that he was instead taken to Dhani Shakola in Barlia. In the second place, the learned Judge found that the story of the prosecution that the deceased was tied with a rope by his hands and hung up to the branch of a neem tree was deposed to by P.W. Heera alone although other persons were undoubtedly there and could have been produced by the prosecution to support it. Apart from that, according to the learned Judge, that story was not supported by the testimony of the medical witness Dr. Kunj Beharilal (Ex. P. 24) inasmuch as he clearly stated that he did not find any mark of ligature on the body of the deceased. The learned Judge was, therefore, not prepared to accept the uncorroborated testimony of P.W. Heera that the accused had tied Chhogas hands by a rope and hung him to a tree. In the third place, the learned Judge found that it was proved that Chhoga was locked in Baloos room, but his further finding was that the only two persons who were responsible for this were Baloo and Budha accused, and that it was not proved beyond all reasonable doubt that Goma and the other five accused were a party to the act of locking Chhoga in the room. In the fourth place, the learned Judge came to the conclusion that when the accused and some of the prosecution witnesses notably P.Ws. Heera, Dhanna, and Nahara saw the deceased when he was brought out of the room, they did not find any pulse or heart beat in the deceased, and therefore, they took him to be dead. In the fourth place, the learned Judge came to the conclusion that when the accused and some of the prosecution witnesses notably P.Ws. Heera, Dhanna, and Nahara saw the deceased when he was brought out of the room, they did not find any pulse or heart beat in the deceased, and therefore, they took him to be dead. As regards the cause of the death of Chhoga, the finding of the learned Judge, however is that Chhoga was buried in the quarry when he was still alive, and that he died subsequently on account of suffocation, and this finding is based on the evidence of the medical witness that a good deal of sandy fluid was found in the trachea, larynx and bronchi of the deceased, and that such particles could find place in the respiratory cracks only if a person was buried alive. On these facts, the learned Judge came to the conclusion that the accused Baloo and Budha were guilty of an offence under sec. 342 I.P.C. only, and that there was no evidence whatsoever against these and the other accused that they had conspired to murder Chhoga. As for the argument that a case under sec. 304 I.P.C. was established at least against Baloo who was responsible for throwing the body of the deceased Chhoga into the quarry, the learned Judge relying on In re Palani Goundan (1)—F.B. held that an offence under that section was not established as the accused had bona fide believed that Chhoga had died before he was buried in the quarry As already stated above, according to the learned Judge, the only persons responsible to locking Chhoga in the room were Baloo and Budha, and the remaining accused were not a party to it and so he convicted these accused under sec. 342 I. P. C. and acquitted the remaining accused altogether. 14. The accused Baloo and Budha and the State have filed appeals against the aforesaid judgment, and we purpose to take up the appeal of the State first. 15. The contention of the learned Assistant Government Advocate for the State, succinctly put, is that even though a case of conspiracy was not proved against the accused, there was ample material on this record for the learned trial Judge to have held all the accused guilty under sec. 342 read with sec. 15. The contention of the learned Assistant Government Advocate for the State, succinctly put, is that even though a case of conspiracy was not proved against the accused, there was ample material on this record for the learned trial Judge to have held all the accused guilty under sec. 342 read with sec. 34, and further, that so far as the accused Baloo was concerned, he should have been held guilty at least under sec. 304 I.P.C. 16. We may point out at the very outset certain facts which are clear enough and about which there cannot be any serious dispute. There is no doubt that Mst. Ghisi had disappeared from her husbands home. The accused Baloo was, therefore, naturally anxious to find out where his wife had gone. He suspected Chhogas complicity in the matter. In Baloos endeavour to bring back his wife, he naturally had the sympathy of certain persons in his own village particularly those belonging to his own community. We can, therefore, quite understand if Baloo, accompanied by certain other persons including some boys, having got a clue that Chhoga was connected with the disappearance of his wife, should have gone to the latters house in Boraj. So far, we see nothing criminal about this adventure. Chhoga said that he did not know anything about the missing woman and was prepared to accompany them to say this to the caste Panchayat. It also admits of no doubt that instead of being made to appear before a Panchayat Chhoga was then taken to Dhani Shakola where Baloo and most of the accused lived. 17. A very important part of the case for the prosecution then is that Chhoga was taken to Gomas enclosure and his hands were tied with a rope and he was hung to a neem tree in order to force Chhoga to disclose the whereabouts of Mst. Ghisi. Is this story true ? The only evidence on this point, as stated by the learned Sessions Judge is that of P. W. Heera and the learned Judge has not believed him on this point. Ghisi. Is this story true ? The only evidence on this point, as stated by the learned Sessions Judge is that of P. W. Heera and the learned Judge has not believed him on this point. It has been strenuously contended before us on behalf of the defence that Heera was playing a a rather crooked part in this entire drama, that although he had gone to Boraj himself initially with the party, he had concealed that fact; and, in any case, Heera was undoubtedly present at the place where Chhoga is said to have been hung up to a tree and also when the latter is said to have been subsequently locked up in Baloos house, and, further, he admittedly was with the entire party when they went to Motis village Magri and yet Heera was shewed enough to exculpate himself when he came dangerously near the trouble-spots and behaved as if he was a passive and detached spectator of all that had happened in his presence. On his own admission, Heera was a Patel of his own village (though there were two or three other also) and he had certainly not reported this incident to the police after he had left Barlia on the night of the occurrence. If Heera, who by no means appears to us to be a simpleton, had reported the matter to the police at Ajmer, which was at a very short distance from Barlia, perhaps the life of Chhoga would have been saved. The contention of learned counsel for the accused was that Heera was nothing but an accomplice in this entire affair and that his evidence was not worthy of belief and we should discard it altogether. 18. We have anxiously considered the entire position, and although we are not prepared to go so far as to say that Heera was an accomplice in this crime, we are clearly of opinion that we should apply due caution to his testimony, and it would not be safe for us to take his testimony at its face value, and that we should accept his evidence only on such part of the case for which ft is possible for us to 6nd corroboration elsewhere. As the learned Sessions Judge who had the advantage of seeing and hearing Heera was not prepared to believe him so far as the tying of the deceased to the neem tree is concerned and as there is no independent corroboration of that story, whether direct or circumstantial, we are not prepared to hold in disagreement with the learned trial Judge that this particular part of the entire incident stands proved on the record beyond doubt. 19. Thi6 brings us to that part of the prosecution story according to which the deceased was locked in Baloos room. We have no doubt that Chhoga deceased was locked in Baloos room. On this point there is not only the testimony of P. W. Heera, but this part of the story is accepted, though not directly, by three of the accused themselves, namely, Bhoma son of Deva and Goma son of Kana and another accused Goma son of Amra. We also have the evidence of P.W. 5 Nahara, P.W. 6 Dhanna and P.W. 7 Moti in this connection. We see no reason, therefore, to doubt that Chhoga was put into a room in Baloos house, and the room was then locked and thereafter the party left for the village Magri to contact P. W. Moti. 20. The question with respect to this part of the prosecution story is whether all the accused were party to this locking affair or only some of them. According to the learned Judge, it is only Baloo and Budha who did this, and the others were not responsible. On this part of the case, we have the evidence of P. W. Heera who has deposed that Budha had caught hold of Chhogas hand and then he took him to Baloos house saying that he would lock Chhoga there and would then bring the woman and thereafter Budha put Chhoga in the room and locked the same. Heera also said that only Baloo add Budha had taken Chhoga to that loom and locked him there and that Baloo was following Budha and after Chhoga had been locked, Budha had kept the key with himself. The learned Sessions Judge was disposed to accept this evidence as correct, and we are, on the whole, in agreement with him. There is no other positive evidence on this point showing that the other accused were also party to this, directly or constructively. The learned Sessions Judge was disposed to accept this evidence as correct, and we are, on the whole, in agreement with him. There is no other positive evidence on this point showing that the other accused were also party to this, directly or constructively. In this connection we desire to point out that the prosecution should have led evidence to show how far was the bara of Goma to which place the deceased Chhoga was first taken in Dhani Shakola from the house of Baloo where he was locked. Unfortunately there is not a particle of evidence on this point available to us. The plan Ex. P. 20 is entirely silent on this point, and it does not show whether it was possible for the persons who were in the enclosure of Goma, to have seen what was happening in the house of Baloo. We confess, we have a feeling that some of the other accused who had gone to Chhogas house earlier and who had subsequently gone to village Magri might have been a party to the locking in of the deceased Chhoga; but the position is not free from a certain amount of doubt, and the benefit of such doubt helps the accused and not the. prosecution. 21. The next and the intriguing part of the whole case is whether Chhoga was alive or dead when he was taken out of the room after the party had returned with Mod from the village Magri. The finding of the learned Sessions Judge on this aspect of the case is that although Chhoga was really not dead at that time, every body present had taken him for dead and this belief was entertained even by the prosecution witnesses. The finding of the learned Sessions Judge that Chhoga was not-dead by that time obviously rests on the medical testimony of Dr. Kunj Beharilal, according to whom, a good deal of sandy matter was found in the respiratory organ of the deceased, and this would be only possible if the deceased Chhoga was alive at the time he was buried in the quarry. Kunj Beharilal, according to whom, a good deal of sandy matter was found in the respiratory organ of the deceased, and this would be only possible if the deceased Chhoga was alive at the time he was buried in the quarry. The contention of learned counsel for the defence on this part of the case was that in reality Chhoga had strangulated himself to death with the help of a rope which was eventually found in the room and which had been tied to a Kara in the roof of the room. On the other hand, the contention on the side of the prosecution which was pressed before us was that the room had no other ventilation except through the door which had been locked and that thereby the accused had been suffocated to death for want of air. We have carefully examined both these hypotheses and find it difficult to accept either of them. 22. So far as the hanging of the deceased by tying himself with a rope which in turn was fastened to a kara in the roof of the room is concerned we have no hesitation in saying that, if that was the true story, the rope should have been found on the neck of the deceased and also hanging from the Kara, There is not the slightest evidence to show this and no cross-examination whatsoever appears to have been directed against the prosecution witnesses to bring these circumstances out in evidence. We therefore, reject this story as wrong. 23. As for the theory that the deceased died in the room because of suffocation, as there was no opening therein for the air to go into the room, we are not at all satisfied that this was the real cause of the deceaseds death. For one thing, no questions were put to the doctor on this aspect of the matter. So far as the dimensions of this room are concerned, we have it from Sub-Inspector Todar Singh that the room in question was about 13 to 14 feet long by 5 to 6 feet wide and 8 or 9 feet high, and its walls were plastered with clay and the roof was of stone slabs and the room had no other opening except the door which was locked. Assuming all that to be so, there is nothing on this record to show that the deceased who had been shut into this room, say from about 5 P.M. till 8 P.M. could have been suffocated to death merely because he had been locked in. We are, therefore, not prepared to accept this story also. 24. The question which then arises for answer is, was the deceased really taken to have been dead when he was brought out of the room ? The evidence on this point consists of the statements of P.W. 4 Heera, P.W. 5 Nahara, P. W. 6 Dhanna and P.W.7 Moti. According to Heera, Baloo and Budha had bodily brought out Chhoga and placed him on the ground. What he then says is this: "We all found that Chhoga had died and his pulse was gone and there was no heart-beat, though the body was slightly warm" P.W. 5 Nahars evidence in this connection is as follows: "Shortly after Chhoga was brought out by Budha, Dhanna and Baloo. They were saying that Chhoga was cold and he was not alive. These three accused persons placed Chhoga on the ground outside the room. Heera Patel tried to feel the pulse of Chhoga but it was not found." A little later, this witness said that he did not hear anyone saying that Chhoga had died by hanging himself. According to Dhanna P. W. 6, Goma and Bhoma and Heera Patel tried to feel Chhogas pulse but it was missing. They said that though Chhoga was warm he had died. P. W. 7 Motis statement is slightly different because he says that Heera Patel felt the pulse of Chhoga and then said that he was "about to die", although this witness admitted that when Bhoma put water into Chhogas month, it came out. We have already pointed out what Heera himself had thought, namely that according to his observation Chhoga had died. 25. Having regard to all this evidence on the side of the prosecution, we are not prepared to disagree with the finding of the learned Sessions Judge that in all probability the accused took Chhoga to be dead, although, it may be that, as a matter of fact, he had not died at that time, as the medical evidence would go to show, and had really died later, after he had been buried into the quarry. 26. 26. As to who had buried the deceased Chhoga into the quarry pit, there is no evidence upon which we could rely so far as any other accused than Baloo is concerned. Everybody including P.Ws. Heera, Nahara and Dhanna had left as soon as it was declared that Chhoga had died. The only evidence in this connection is against Baloo accused, and the most important piece of evidence incriminating him is that it was at his instance that the dead body of Chhoga was recovered from the quarry. This recovery is fully proved by the evidence of P.Ws. Narain and Nande who are the witnesses of recovery, and the police officials P. W. 22 Mangliprasad, head constable, Anasagar outpost, and P. W. 23 Ahisan Ali, Station House Officer of the Civil Lines Police Station, and P. W. 24 Todar Singh, Station House Officer of the Shrinagar Police Station, 27. Exs.P-l and P-2 are the relevant memoranda prepared by the police in this connection. Leaving aside the clearly inadmissible portions therein, which amount to confession and cannot be said to have led to the discovery of the corpse, the question is whether they are otherwise admissible. Now Ex.P-l is the memorandum of the statement of the accused Baloo wherein he said that the dead body of Chhoga had been buried in a lime-quarry three or four furlongs in the north from his house near a place called "Jhadiwali Batli" Ex. P-2 is the memorandum of the actual discovery of the corpse of Chhoga. The learned Sessions Judge has held that as Baloo had already said earlier to Sub-InspectorAhisanali and Sub Inspector Todarsingh that the corpse of Chhoga had been buried in a quarry, the subsequent information given on the same point was not admissible in evidence u/s. 27 of the Evidence Act. The Sessions Judge has not said anything definitely about the admissibility of Ex. P-2 although he has fully believed the evidence of the witnesses in whose presence the dead body was discovered by the accused Baloo. Now what we desire to say is that Ex.P-l and Ex.2-2 (of course leaving aside the objectionable portions) are both admissible in evidence. The Sessions Judge has not said anything definitely about the admissibility of Ex. P-2 although he has fully believed the evidence of the witnesses in whose presence the dead body was discovered by the accused Baloo. Now what we desire to say is that Ex.P-l and Ex.2-2 (of course leaving aside the objectionable portions) are both admissible in evidence. The information which was earlier given orally by the accused was indeed very vague and general and it would have hardly led to the discovery of Chhogas dead body unless the accused had led the police officials and the motbirs to the actual place and entered into the particular quarry and pointed out where the corpse was. In these circumstances, the mere circumstance that the accused had vouchsafed some vague information earlier would, in our opinion, not be enough to rule out Ex.P-l and Ex. 2-2 as inadmissible and we hold accordingly. Reference may be made in support of this view to the ruling of the Supreme Court in Lachhman Singh vs. The State (2). This recovery is not without considerable significance. One would not easily know where the dead body of Chhoga was unless he had something to do with it, and the place where it was found was by no means usual, and, again, there was no reason why it should have been found buried because usually one would expect the dead body to be cremated and not buried, according to what was admitted before us was the custom in the community to which the parties belonged. This recovery is also corroborated by the extrajudicial confession said to have been made by the accused Baloo in the presence of a number of prosecution witnesses when the latter went to Chhogas house at village Boraj on the morning following the night of the occurrence. These witnesses are P. W. 8 Ratna, P.W. 9 Gheesa, P.W. 10 Dhanna son of Bhoma, P.W. 11 Dhanna S/o Lakha and P. W. 12 Khaju and their evidence clearly implicates this particular accused. This extra-judicial confession is also contained in Ex.P-10 which was the report made by the Sub-Inspector Ahisan Ali of the Civil Lines police station Ajmer to the Sub-Inspector of the police station Shrinagar, namely, Todar Singh. A contention was raised before us that this particular document was inadmissible as investigation had already started on the submission of the report Ex. This extra-judicial confession is also contained in Ex.P-10 which was the report made by the Sub-Inspector Ahisan Ali of the Civil Lines police station Ajmer to the Sub-Inspector of the police station Shrinagar, namely, Todar Singh. A contention was raised before us that this particular document was inadmissible as investigation had already started on the submission of the report Ex. P-9 by Mst. Birji. The learned Sessions Judge was also inclined to accept this submission. We consider it unnecessary to enter into this controversy because we find that the various prosecution witnesses, namely, P. W. Ratna, Gheesa and the two Dhannas and Khaju have all stated in their evidence in court that Baloo had informed them that the body of Chhoga deceased had been buried in a quarry at a short distance from the Dhani. It is true that the accused Baloo, according to these witnesses, had also named certain other persons as having been involved in the affair, but we are of opinion that the evidentiary value of this extra-judicial confession, is next to nothing in all the circumstances of the case. We are, therefore, satisfied that it is established beyond all manner of doubt that Baloo was certainly the person who was. responsible for the putting of Chhoga into the quarry believing that he had already died, and the case against the other accused in this connection is not free from a certain amount of reasonable doubt. 28. On these findings of fact, the question arises as to the offences of which the accused should be found guilty. We agree with the learned Session Judge, and indeed it was not pressed before us, that a case of conspiracy to kill against any of the accused can be held to be established, and, therefore, the accused were rightly acquitted under sec. 120-B I.P.C. All the accused have, in our opinion also been rightly acquitted under sec. 302 read with sec. 34 I.P.C. There is nothing to show on this record that it was the intention of the accused to kill the deceased either when they had gone to interrogate Chhoga to his house or when they brought him to Barlia or even when some of them locked him in Baloos room. 302 read with sec. 34 I.P.C. There is nothing to show on this record that it was the intention of the accused to kill the deceased either when they had gone to interrogate Chhoga to his house or when they brought him to Barlia or even when some of them locked him in Baloos room. The common intention of the accused was to trace the whereabouts of the wife of Baloo and to exercise pressure on Chhoga, (as they had serious suspicions of his complicity in the disappearance of this woman) to disclose her whereabouts. But from this by no means can it be concluded that any of the accused intended to kill the deceased or to cause injury to him which should have caused his death. We have also found above that the evidence against the accused other than Baloo and Budha in so far as the locking of the deceased Chhoga into Baloos room is concerned is not free from a certain amount of doubt, and therefore we would not be justified in this appeal from their acquittal to convict them unless we find compelling circumstances to do so. We are, therefore, of opinion that the acquittal of all the accused other than Baloo and Budha does not call for any interference from us in this appeal and we uphold their acquittal. 29. This brings us to the question whether the accused Baloo can properly be convicted under sec. 304 I.P.C. on our finding in agreement with that of the learned Sessions Judge that Baloo had buried Chhoga taking him to be dead at that time. The question is both interesting and intricate. It is contended on behalf of the State that even on the facts which have been found by the learned Sessions Judge, and indeed which finding has been upheld by us, the accused Baloo should have been convicted under sec. 304 Part II I.P.C, as he must be deemed to have the knowledge that, by burying Chhoga in the manner he did, he was likely to cause his death, even though it may be accepted that he did so without any intention to cause his death or without any intention to cause him such bodily injury as would be likely to cause his death. 30. 30. This confronts us with the question as to the meaning of the phrase "with the knowledge that he is likely by such act to cause death" occurring in sec. 299 or sec. 304 of the I.P.C. Cases of severe beating resulting in a persons death where the assailant does not intend to cause the death of the victim or intend to cause him such bodily injury as would be likely to cause his death easily come to ones mind as falling under this clause. Thus where the accused breaks into a dwelling house at night and, in order to evade arrest, strikes wildly with a dangerous weapon, regardless of the effect of his blows, and by so doing actually causes the death of a person, he can be properly held guilty of culpable homicide not amounting to murder, notwithstanding that he never intended or knew himself to be likely to cause the death of such person or for the matter of that, any other person. The point, however, is whether, of a case like the present, it can be rightly predicated that as the deceased had really not died when he had been taken out of the room in which he was locked, but had died subsequently as a result of suffocation from having been buried in the quarry, he should be credited with the knowledge that he was likely by such act to have caused the death within the meaning of sec. 299 or sec. 304 I.P.C. 31. The opposing considerations, broadly speaking, may be formulated somewhat as follows. On the one hand, if merely because the accused in sheer haste or with utter recklessness thinks that the victim had died as a result of some injuries caused to him by the accused and he disposes of his body later in a manner owing to which he really gets killed subsequently and not on account of the earlier injuries, and the correct view to take be that the accused can in no case be credited with the knowledge that by so doing he is likely to cause death, a wide door would be left open to the accused to escape the consequences of his act of murder or culpable homicide not amounting to murder, as the case may be. On the other hand, it is not free from real difficulty to say that when the accused undoubtedly guilty of some lesser crime towards his victim really took him to have been dead, and, then, he hung the latter up or burnt him in order to remove evidence of his earlier crime of a lesser character, he must necessarily be credited with the requisite knowledge that he was likely by such act to cause his death, because in such a case the accused could not have the knowledge that he was likely by such act to cause death, the victim having already been considered by him to be dead and his subsequent act was merely committed with a view to remove evidence of a lesser crime. 32. We shall now refer to a few decided cases. 33. The first case to which we may refer is In re Gour Gobindo Thakoor (5). There one G struck the deceased D a blow which knocked him down, and then he and others without inquiry as to whether he was dead or not, in haste, hung him up to a tree so as to make it appear that he had committed suicide. The accused were all convicted of hurt, but the High Court quashed the proceedings and directed the accused to be re-tried on charges of murder, culpable homicide not amounting to murder and hurt. One of the learned Judges who remanded the case for re-trial observed that if the deceased was not actually killed by the suspension, then G himself and also all the other accused who took part in hanging him up to the tree, would be clearly liable to a charge of culpable homicide amounting to murder, because they had not ascertained that he was actually dead, and had acted under the impression that he was only stunned and so they must have done the act with the intention of causing death, or bodily injury likely to cause death; or, in the alternative, they might have been committed for culpable homicide not amounting to murder. The other learned Judge was of opinion that as the accused had no intention of killing the deceased but finding the latter insensible and without inquiry as to whether be was dead or alive or giving him time to recover, hung him to the tree under the impassion that he was dead and thereby killed him, they might all have been put on their trial under sec. 304 for culpable homicide not amounting to murder, and a Jury might fairly presume against them that they must have known that they were likely by that act to cause death. The case is, however, not very helpful, as the learned Judges did not decide the point and remanded the case for a retrial pointing out the possibility of the alternative hypotheses, and we do not know what findings of fact were arrived at later and how the law was applied to them. 34. In Queen Empress vs. Khandu (4), the facts were that the accused struck the deceased three blows on the bead with a stick with the intention of killing aim. The accused, believing him to be dead, set fire to the hut in which the deceased was lying with a view to remove all evidence of the crime. The medical evidence showed that the blows were not likely to cause death and did not cause death, and that death was really caused by injuries from burning. The accused was held guilty of murder by the learned trial Judge. One of the learned Judges of the bench before which the case came was of opinion that as the accused had thought when he set fire to the house that the deceased had already died, the act of setting fire to the shed by which the death was really caused, could not be said to be with such intent or knowledge as is contemplated in sec. 299 of the Indian Penal Code. The learned Judge was, therefore, inclined to alter the conviction to one under sec. 307 I.P.C. The other learned Judge was inclined to think that it was a case of murder inasmuch as the finding was that the accused had the deliberate intention of causing the death of the deceased by giving three blows on his head and thereafter he set fire to the hut in which the dead body was. 307 I.P.C. The other learned Judge was inclined to think that it was a case of murder inasmuch as the finding was that the accused had the deliberate intention of causing the death of the deceased by giving three blows on his head and thereafter he set fire to the hut in which the dead body was. The learned Judge was inclined to hold that the accused was actuated throughout by one and the same intention, namely, to cause death, and although there were two acts committed by him which together had caused death, these acts were so intimately connected with each other that they could not be separated from each other and so these must be ascribed to the original intention which prompted the commission of these acts, and in that view, the learned Judge was inclined to hold that the accused was guilty of murder. Owing to this difference of opinion, the case was placed before Sargent C. J. who held that as the accused undoubtedly believed that he had killed his victim, there would be a difficulty in regarding what occurred from first to last as one continuous act done with the intention of killing the deceased, and, therefore, the offence should be held to have been only the attempt to murder. With great respect, we find it difficult to accept this decision as correct on the finding that the original intention of the accused was to kill the deceased. 35. The next case to which we should like to refer is the Full Bench decision of the Madras High Court in In re Palani Goundan (1). The facts in this case were that the accused struck his wife a blow on the head with a ploughshare which rendered her senseless. The accused believed her to be dead, and in order to make it appear that she had committed suicide by hanging, he proceeded to hang her from a beam with a rope and this resulted in her death by asphyxiation. The accused was convicted of murder by the Sessions Judge. But on appeal to the High Court, a difference of opinion arose, one of the learned Judges inclining to the view that the offence of murder had been established, and the other that it was not. The accused was convicted of murder by the Sessions Judge. But on appeal to the High Court, a difference of opinion arose, one of the learned Judges inclining to the view that the offence of murder had been established, and the other that it was not. Although the Public Prosecutor had intimated to the Full Bench that the facts as found would not support a conviction for the crime of murder or of culpable homicide not amounting to murder, the learned Judges thought proper to state their grounds for the opinion to which they came as considerable doubts had been entertained as to the real position in a case like this. The learned Judges then observed that in India every offence is defined, both as to what must be done, and with what intention it must be done, and that general exceptions bad also been laid down, but the case did not fall under any of them. It was then pointed out that it was not necessary that an intention should exist with regard to the particular person whose death was caused, and that it would still amount to murder if, as for example, a shot aimed at one person killed another, or a poison intended for one was taken by another, and thereby he was killed. The learned Judges then held that the knowledge referred to in sec. 299 or 304 must have reference to the particular circumstances in which the accused was placed and further that the intention or the knowledge of the accused must be judged not in the light of the actual circumstances but in the light of what he supposed to be the circumstances. In this view of the matter, it was held that as the intention of the accused was directed only to what he had believed to be a lifeless body, he could not be held guilty of culpable homicide. In this view of the matter, it was held that as the intention of the accused was directed only to what he had believed to be a lifeless body, he could not be held guilty of culpable homicide. The two earlier cases referred to above, namely, In re Gour Gobinda Thakoor (3), and Queen Empress vs. Khandu (4) were distinguished and though it was recognized that complications might arise where the two acts of the accused should be treated as really one transaction or when the facts suggest that there may be imputed to the accused a reckless indifference and ignorance as to whether the body he handled was alive or dead it was held that the facts in this particular case eliminated both these possibilities and, therefore, it was held that the accused could not be held to be guilty either of murder or of culpable homicide not amounting to murder. 36. A similar case arose in Emperor vs. Dalu Sardar (3) in which the accused assaulted his wife as a result of which she became unconscious and was taken to be dead. Thereafter the accused, in order to create an appearance that she had committed suicide, took up her unconscious body and hung it up by a tope thinking it to be a dead body, but the medical evidence showed that most probably she had died of hanging. The learned Judges came to the conclusion that the accused was not guilty of murder or of culpable homicide not amounting to murder but they convicted the accused with reference to what had happened at the earlier stage of the case, and on that basis held that he was guilty under sec. 325 only as the kicks had been given below the naval which was dangerous and it was specially dangerous to kick a woman in that part of the body. With all respect, the case does not contain any reasoning and is therefore not of much assistance. 37. In Emperor vs. Gajjan Singh (6) the facts were these. The accused struck the deceased two or three times with a piece of wood on the head and the latter fell and became unconscious, and was possibly dead. The accused then threw him into a shallow pool of water face downwards and left him there. 37. In Emperor vs. Gajjan Singh (6) the facts were these. The accused struck the deceased two or three times with a piece of wood on the head and the latter fell and became unconscious, and was possibly dead. The accused then threw him into a shallow pool of water face downwards and left him there. Thereafter the accused with the help of his companion carried the body to a canal and threw it in the same. The learned Sessions Judge held that the offence of murder had not been established and convicted the accused under Sec. 325 I. P. C. in so far as the injuries to the deceased were concerned. On appeal to the High Court, it was held that there was no break in the chain of events and that the two incidents had run into each other and it was impossible to resolve them into two wholly separate actions, inspired by different motives and committed for different reasons, and so the accused must be deemed to have done a single act with the intention of causing death and as having succeeded in carrying out this object and must therefore be held to be guilty of murder. It may also be pointed out that the learned Judges also held that there was no reason to believe that the accused had thought that victim was dead. The accused was on this view convicted under Sec. 302 I.P.C. and sentenced to death. 38. In re Thavanani (7), the facts were that two persons attacked a woman with the intention of killing her. They thought that the woman was dead while in fact she was not, and they threw the body of the woman into a well, and according to the doctor the injuries on the body of the deceased were sufficient to cause death. In these circumstances, it was held that even if it be true that when the woman was thrown into the well, she was alive, and the accused then thought her to be dead, he would be guilty of murder because there was at the very beginning of the incident an intention to cause death. The Full Bench case of In re. The Full Bench case of In re. Palani Goundan (1) was distinguished on the ground that in that case there was at no time an intention to cause the death of the deceased, and the original intention was only to cause injury, and that the subsequent intention was no more than to dispose of a supposedly dead body with a view to remove the evidence of the crime previously committed. 39. The last case on the point to which reference may be made is King Emperor vs. Sree Narayan{8). The facts in this case were these. Accused No. 1 struck the deceased on the forehead with a piece of firewood, as a result of which the deceased fell down and blood came out of her nose and forehead. Accused No. 2 who was the mother of the first accused sprinkled water on the face of the deceased. When the deceased did not regain her senses, the accused No. 1 thinking that the deceased was dead, collected firewood and placed the body of the deceased on a pyre and poured ghee thereon and set lire to it. The medical evidence was that the burns were ante-mortem. The Sessions Judge convicted both accused of murder. On appeal to the High Court it was held that the accused had no intention to cause the death of the deceased and so they ware not guilty of murder but were guilty under sec. 304 Part II only. It was observed that in burning the deceased the appellants, though they did not intend her death, were not performing a prima facie innocent act, and that they were perpetrating a wrongful act if not a crime, for they were deliberately causing the disappearance of evidence of their previous crime and so they could not take advantage of the plea of a mistake of fact, Further reference was made in this case to Queen Empress vs. Kangla (9) and Emperor vs. Duridya (10) for the doctrine that when an act is done with gross negligence the law imputes to the offender the necessary knowledge. In Kanglas case, the accused struck with a lathi and killed a man being under the bona fide belief that the object at which he struck was not a human being but something supernatural, and through terror, the accused did not rake steps to satisfy himself that it was not a human being. In Kanglas case, the accused struck with a lathi and killed a man being under the bona fide belief that the object at which he struck was not a human being but something supernatural, and through terror, the accused did not rake steps to satisfy himself that it was not a human being. It was held that the accused was liable for the offence of culpable homicide not amounting to murder. In Dumdyas case (10), the accused in thinking that a woman had bewitched another, gave the former a severe beating and branded her at several places as a result of which she died. The Magistrate convicted them under sec. 323 I. P. C. but on appeal, by an extremely short order, the High Court ordered the accused to be committed for trial on a charge of culpable homicide. The case contains no reasoning whatever and can therefore be of very little assistance to us. Relying on these cases, the learned Judges held that as the accused were criminally negligent as they had not really satisfied themselves whether the victim was dead, and impelled by panic, they had hastily set fire to the body of the deceased they must be deemed to have known that their act was likely to cause death, and in this view of the matter the accused were held guilty of an offence under Sec. 304 Part II of the Penal Code. 40. From the aforesaid review of cases, we think that the correct legal position may be summed up somewhat as follows. 41. Generally speaking, in order to bring home the offence of culpable homicide not amounting to murder under the third clause of see. 299, namely, that the accused had caused the death of a person by doing an act with the knowledge that he was likely by such act to cause death, it must be established that the accused must have known that he was dealing with a person who was alive, because it is only such a person with reference to whom it could be said that the accused was likely to cause his death. If the accused knew that the victim was already dead, it could not ordinarily be said with reference to what he may have done thereafter with him that he was likely by such act to cause his death. If the accused knew that the victim was already dead, it could not ordinarily be said with reference to what he may have done thereafter with him that he was likely by such act to cause his death. It may be pointed out, however, that those cases wherein the accused wanted to cause the death of another by doing an act with the intention of causing death or with the intention of causing bodily injury as would be likely to cause death, no difficulty should really arise because the dominant intention at the very inception of things was to cause such injury which would be likely to cause death, and in such cases a conviction for murder or culpable homicide not amounting to murder would be a proper result according to the facts of a given case. This result may also be arrived at on the principle that the entire transaction in such cases is one and the same and cannot be split up into separate parts, perpetrated with separate intentions, and so it is in truth and fact a single and indivisible act. It may also be pointed out in this connection that knowledge is a strong word and that as used in this context it means the personal knowledge of the person who does the act and not the knowledge of a third person. Difficulties and complications do, however, arise in those cases where the accused has acted with such utter rashness or reckless indifference that it cannot really be said that the accused had at all acted with such lack of knowledge. Thus where the accused without at all caring to know whether a person was dead or alive deals with him in an objectionable manner and thereby causes his death, the decided cases establish that the accused can still be held to have the knowledge that he was likely by such act to cause death. This finding as to utter recklessness or rashness is for the jury to give where a case is tried by a judge with the help of jury ; but where it is tried only by the judge without the help of a jury, it is the finding of the trial court which should be given due consideration. We think that most of the cases to which we have referred above can be reconciled on the views formulated by us above. We think that most of the cases to which we have referred above can be reconciled on the views formulated by us above. To these propositions we should, on our part, like to add that where the subsequent act of the accused does not amount to that degree of rashness from which an irresistible inference of knowledge may be drawn, it may still be possible in a proper case to convict the accused under sec. 304-A of the Penal Code where death has been caused by a rash or negligent act, though, broadly speaking, it is well-settled that this section cannot be allowed to apply in those cases where direct violence or hurt was intended to be caused to the deceased, and in such cases the accused must properly be convicted of an appropriate offence under that bead. 42. How do the aforesaid principles apply to the present case ? It has been found by the learned Sessions Judge, and in this finding we have agreed, that there was no intention whatsoever on the part of the accused in this case to cause the death of the deceased Chhoga, or for that matter, of any other person. All that they intended to get from him was the whereabouts of the accused Baloos wife, and it was with this intention that they went to him and they brought him to Barlia, and it was with no other intention than this that they detained him at Baloos house until they brought Moti over there and if necessary to confront the one with the other. The learned Sessions Judge has then found that the accused when they brought out Chhoga from the room really thought that he was dead. The most important witness of the prosecution, namely, P.W. 4 Heera, as well as P.Ws. Nahara and Dhanna have said that Heera himself had felt the pulse and the heart of Chhoga, and he found that both had stopped and they all thought he was really dead. Moti gives a slightly different version when buried in the quarry rashness that, on the irresistible he says that Chhoga was stated to be about to die but we see no adequate reasons to prefer his evidence to that of the other witnesses. Moti gives a slightly different version when buried in the quarry rashness that, on the irresistible he says that Chhoga was stated to be about to die but we see no adequate reasons to prefer his evidence to that of the other witnesses. The learned Judge has, therefore, come to the conclusion that the accused really took the deceased to be dead, although, as a matter of fact, ho has also come to the conclusion on the basis of the medical evidence that Chhoga had in all probability died as a result of suffocation after he had been buried in the quarry. The question is whether this can amount to a finding of such utter rashness that, on the principles we have enunciated above, this can be equated with an irresistible presumption of knowledge that the accused was by such act not likely to cause the death or Chhoga. We are of opinion that we would not be justified in doing so on the basis of the evidence led by the prosecution itself in this connection. Nor can we possibly hold on the finding of fact as to the first chapter of this whole drama that the second one was in fact a continuation of it so that the entire transaction could be said to be one and the same permeated by a dominant intention on the part of the accused to kill the deceased. In this view of the matter, we are constrained to come to the conclusion that the accused cannot be held guilty of having committed culpable homicide not amounting to murder, let alone the offence of murder itself. 43. The question still remains whether the act of the accused doss not fall under sec. 304 A I.P.C. This section provides that whoever causes the death of any person by doing any rash or negligent act not amounting to culpable homicide shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both. Now, a rash act, generally speaking, is an act with the knowledge that it is so, and that it may cause injury, but without* intention to cause it or without knowledge that it would probably be caused. The criminality consists in running the risk of doing an act which should not have been done. Now, a rash act, generally speaking, is an act with the knowledge that it is so, and that it may cause injury, but without* intention to cause it or without knowledge that it would probably be caused. The criminality consists in running the risk of doing an act which should not have been done. Again, negligence is the omission to do something which a reasonable person, guided upon those considerations which should ordinarily regulate the conduct of human affairs would do, or the doing of something which a prudent and reasonable man would not do. The scheme of the section clearly shows that rash or negligent acts may be of two categories. Such acts may involve a very high degree of risk or reckless indifference and where that is so, as we have already pointed above, an irresistible presumption of knowledge may arise and they may amount to culpable homicide. But there is a second category of rash and negligent acts, which stands on a lower footing, and neither intention nor knowledge of undesirable consequences enters in the commission thereof, and it is in such cases that the offending act will not amount to culpable homicide but will still fall within the mischief of the present section; Thus where a medical man without due care administers a patient a poisonous medicine without any intent of doing any bodily harm but with an intent to prevent or cure a disease and it kills a patient, he may be guilty of an offence under sec. 304-A. But where a surgeon, while performing an operation, gets himself heavily drunk and neglects his duty and the patients life is thereby sacrificed, there would be culpable negligence of a very grave kind, for, though it may not be given to everyone to be a skilful surgeon, it is certainly the duty of everyone to keep sober when such a duty has to be performed, and the surgeon in such a case would be guilty of culpable homicide not amounting to murder. Bearing this distinction in mind, we are not disposed to hold in all the circumstances of this case that the act of Baloo was rash to such a high degree that it should be held to amount to culpable homicide not amounting to murder. Bearing this distinction in mind, we are not disposed to hold in all the circumstances of this case that the act of Baloo was rash to such a high degree that it should be held to amount to culpable homicide not amounting to murder. Even so, it clearly seems to us, granting that Baloo thought that Chhoga had died, that he had no business to bury him in the quarry in the manner he did. A little thought or care on his part should have indicated to him that what he was doing was improper and even dangerous, and that this, in itself, might result in the death of the person thrown into the quarry, if he was not already dead. As already adverted to above, sec. 304-A cannot be invoked to apply to cases where direct violence is wilfully inflicted on another, and death results from such an act, for it would be a misnomer to call such an act a rash or negligent act. See Empress of India vs. Idu Beg (11), Queen-Empress vs. Hasan (12) and Fatteh vs. The Empress[13). But cases are not inconceivable and may indeed occur where no direct violence or the intention to cause the same is proved and the accused still has dealt with the deceased in a rash or negligent way (as in the present case) and his death may have been caused directly owing to such a negligent or rash act into which, let it be remembered, the elements of intention to cause death or to cause such bodily injury as is likely to cause death or even the knowledge that by such act death is likely to be caused do not properly enter; and as to such cases we see no reason why the accused should not properly fall to be convicted under this section, even though he cannot be convicted under any other section falling under the class of offences relating to hurt. 44. In Chunilal vs. The Empress (14), the accused and the deceased were standing on the parapet of a deep well. A quarrel arose between them. The accused struck the deceased with a lathi. The latter lost his balance and fell into the well and was drowned. 44. In Chunilal vs. The Empress (14), the accused and the deceased were standing on the parapet of a deep well. A quarrel arose between them. The accused struck the deceased with a lathi. The latter lost his balance and fell into the well and was drowned. It was held that the accused did not cause death while doing an act with the knowledge that he was likely by such act to cause death, but that he was guilty of a rash and negligent act which caused death and should, therefore, be held guilty under sec, 304-A. The following observations of the learned Judge who decided the case are apposite and may be reproduced here with advantage. "We are well aware of the numerous cases which decide that this section does not apply to cases when death is caused by wilful or direct violence exerted against the person killed, and we do not intend to touch upon the authority of these cases in any respect* Here the accused used but a slight degree of violence which caused but slight injury and would not have resulted in fatal consequence, but for the circumstance that the deceased was on the edge of a very deep well, and as it happened, fell without any design on the part of the accused into the well and was drowned......... To strike the deceased while on the edge of the well was a rash act and it caused the death of the deceased though not so as to amount to culpable homicide......... Here the danger was visible, the accused with his eyes open to risk, took the chance when he struck the deceased, of his falling into the well. It was the circumstance of incurring a patent risk which brings him within the section and distinguishes the present case from those cited." We are of opinion that the principle of this case with which we respectfully agree fully applies to this case. Here the deceased Chhoga to whom according to the proved facts no bodily injury had been caused or was intended to be caused was suddenly found to be dead and his pulse had failed and heart-beat stopped. The accused Baloo taking Chhoga to be dead, as indeed did the prosecution witnesses themselves carried him to a quarry and buried him there. This was undoubtedly an over hasty act. The accused Baloo taking Chhoga to be dead, as indeed did the prosecution witnesses themselves carried him to a quarry and buried him there. This was undoubtedly an over hasty act. It might have well occurred to the accused that he should have waited for some time, shown him to some medical man, and at any rate he might have waited for some time, so as to allow him to regain consciousness if he could. He did not do anything of the kind and instead buried him in the quarry ; and as the medical evidence shows, he died as a result of suffocation which was obviously caused after he was buried in the quarry. The act of the accused was, to our mind, a rash act—and although the accused had no guilty intention or knowledge within the meaning of sec. 299 I. P. C, we do not see any valid reason why his act should not still fall under sec. 304-A in the peculiar circumstances of this case. We think it does. 45. We are, therefore, satisfied that the act of the accused in this case can properly be said to fail within the four wall of sec. 304-A I.P.C. and we hold him guilty under that section. As the accused was charged with sec. 302 read with sec. 34 I.P.C. which is a major offence, there can be no objection to our convicting him under sec. 304-A I.P.S., and we order accordingly. This disposes of the appeal of tire State. 46. Coming to the appeals of Baloo and Budha, these need not detain us long, and it is sufficient to say to dispose of them that the accused have been rightly held guilty under sec. 342 I. P. C. on the facts found by us above in agreement with the learned Sessions Judge. Their appeals consequently deserve to be dismissed. 47. The result is that we dismiss the appeals of the accused Baloo and Budha and uphold their conviction under sec. 342 I.P.S. and maintain the sentences imposed on them by the learned Sessions Judge. We, further, partly allow the appeal of the State and convict the accused Baloo under sec. 304-A I.P.S. and sentence him to two years rigorous imprisonment, the two sentences to run consecutively. 342 I.P.S. and maintain the sentences imposed on them by the learned Sessions Judge. We, further, partly allow the appeal of the State and convict the accused Baloo under sec. 304-A I.P.S. and sentence him to two years rigorous imprisonment, the two sentences to run consecutively. The appeal of the State against all other accused is dismissed as we see no compelling reasons to set aside their acquittal and convict them. The District Magistrate will take the necessary steps to arrest the accused Baloo and send him to jail to serve out the further sentence which we have imposed upon him.