ORDER S.D. Khare, J. - This is an application in revision by Prabhoo Dayal, Mata Din and Gurdayal, who have been convicted of an offence punishable u/s 304A IPC and each sentenced to nine months' R.I. They preferred an appeal before the Sessions Judge of Orai, but it was dismissed on 5.9.1963. 2. The prosecution case briefly stated was that on the 7th of March, 1962 at about 2 p.m. all the three applicants had loaded passengers and luggage at Pal Ghat in a boat for crossing river Jamuna. The boat was badly leaking and was not fit for navigation, but the applicants, so it is said, acted in a rash and negligent manner by attempting to take luggage and passengers on the boat and sailed it towards the other bank with the result that the boat due to the aforesaid leakage could not be controlled in the mid-stream and several people were drowned. 3. The defence was that Mata Din and Prabhu Dayal applicants were not in the boat and that Gur Dayal alone was taking that boat to the other side with passengers and the luggage when the bullocks which were also being carried shied and disturbed the balance resulting in an accident in which the boat got capsized and the people were drowned. 4. Both the courts below have held that all the three applicants were responsible for taking the passengers and goods on that boat inside the river for taking them to the other bank and that their action in doing so was both rash and negligent. 5. The prosecution case was mainly supported by the statement made by Gajendra Singh (P.W. 5), who had lodged the first information report. He was also in the boat at the time the occurrence took place. According to this witness, 25 to 30 passengers, four bullock carts, eight bullocks and some luggage was loaded in the boat and thereafter it left Pal Ghat for crossing river Jamuna. The witness had, according to his statement, noticed the leakage immediately on entering into the boat and had seen that water was gashing into the boat. He stated that he asked the applicants either to stop the inflow of water or not to take the boat in the river. However, all the three applicants assured him that the boat had always remained in that condition and there was no danger. He stated that he asked the applicants either to stop the inflow of water or not to take the boat in the river. However, all the three applicants assured him that the boat had always remained in that condition and there was no danger. The same witness continued that after the boat had covered a distance of 15 or 20 cubits from the bank, there was increase in the flow and quantity of the water which accumulated inside the boat. The passengers asked the three applicants not to take the boat towards the mid stream but to take it back to the bank from which they had started, but they did not pay any head to their request. All that they did was to make the bullocks jump into the river so that the load on the boat might be reduced. The witness further deposed that the boat proceeded further and more water entered into the boat which began to sink and thereafter the three applicants jumped into the river and swam away leaving the passengers to their fate. 6. Both the courts have fully believed the statement made by this witness and have, therefore, convicted and sentenced the applicants as aforesaid. The defence had also examined two witnesses: Sri Ram Nath Dwivedi (D.W. 1) an engineer, was examined to prove that he had inspected the boat in the month of January, 1962, that is to say, about two months before the occurrence and at that time the boat was in order and fit for navigation. Raghunath Prasad (D.W. 2) deposed that he bad crossed river Jamuna in the same boat on that very day in the morning and the boat was perfectly in order. The courts below did not disbelieve any of these witnesses. However, their testimony was rejected on the ground that the engineer who had inspected the boat about two months before the occurrence could know nothing about the condition of the boat at the time of the occurrence and the statement made by Raghunath Prasad (D.W. 2) also could not help the defence because in the morning trip there might be less load and for that reason no mishap might have taken place. 7. It has come in evidence that the boat belonged to District Board Ferry Service and had been in constant use till the time of the occurrence. 7. It has come in evidence that the boat belonged to District Board Ferry Service and had been in constant use till the time of the occurrence. It must have been salvaged after the occurrence. However, there is no evidence on the record to show whether or not it was salvaged and what defects if any, were noticed in it after it had been salvaged. 8. The case, therefore rested mainly on the evidence of Gajendra Singh (P.W. 5), who apparently did not notice the extent of leakage in the boat. All that he could say was that it was very much leaking, but that expression cannot be said to be of much value. Had the boatmen or the passengers been certain at the time the boat left the ghat that there was so much leakage in the boat that it was bound to go down in the river, it is difficult to think that the applicants would have sailed the boat for taking it to the other side of the bank of the river and the passengers would have permitted them to do so. There might have been some minor leakage in the boat resulting in some accumulation of water in the bottom portion of the boat, but that by itself would be no evidence of the fact that the boat was not fit for sail. The presence of some water at the bottom of the boat would have also prevented the applicants and others from seeing the nature and the extent of the leakage. It follows that no one could have reasonably thought at the time the boat left Pal Ghat that it could not have safely crossed the river. The observation made by Gajendra Singh (P.W. 5) in the very beginning must have been as a result of abundant caution and in the nature of a casual observation. The reply given by the applicants must have been based on what they had noticed in the earlier trips. 9. Even according to the prosecution case, an attempt was made by the applicants to relieve the boat of some of its load by making the bullocks to jump into the river. That shows that the applicants tried their best to avert the incident. 9. Even according to the prosecution case, an attempt was made by the applicants to relieve the boat of some of its load by making the bullocks to jump into the river. That shows that the applicants tried their best to avert the incident. The prosecution evidence is that the portion of the river where the bullocks were made to jump was not very deep, the water being only waist deep. It the boatmen and the passengers had even at that stage thought that the boat could not be safely taken to the other side of the river, there appears to be no reason why it should have been taken towards the mid-stream where it capsized soon after the bullocks had jumped, into river. 10. The fact that the bullocks had jumped down from the boat into the river is not disputed. The defence case was that the bullocks were not made to jump down, but they shied and jumped down into the river and while doing so it disturbed the balance of the boat. The circumstances of the case are such that the probability of the defence version being to some extent correct cannot altogether be ruled out. It maybe that there was some short interval between the jumping down of the bullocks and the capsizing of the boat and it, therefore, remained a matter of conjecture whether or not to connect the capsizing of the boat with jumping down of bullocks into the river. 11. The charge framed against the applicants was that they had rowed a tattered and overloaded boat rashly and negligently. No evidence was led to show that it was a "tattered boat. On the other hand, evidence was led by the defence clearly indicating that the boat had been examined about two months before the occurrence and was river worthy. Again there is no evidence to show that it was over-loaded. No evidence has been led by the prosecution to reveal how much load could be safely put on that boat. It is not the prosecution case that the load of four bullock-carts, eight bullocks and 25 to 30 passengers was in excess of the permissible load for the boat. In my opinion, the prosecution evidence was not sufficient to bring home the charge to the applicants. 12. It is not the prosecution case that the load of four bullock-carts, eight bullocks and 25 to 30 passengers was in excess of the permissible load for the boat. In my opinion, the prosecution evidence was not sufficient to bring home the charge to the applicants. 12. A negligent act is an act done without doing something which a reasonable man, guided upon those considerations which ordinarily regulate the conduct of human affairs, would do, or an act which a prudent or reasonable man would not do in the circumstances attending it. A rash act is a negligent act done precipitately. Negligence is the genus of which rashness is the species. 13. The principles of liability governing civil actions based on negligence differ from those governing criminal liability in two important particulars. Negligence in a criminal case must be culpable and gross and not the negligence which is merely based upon an error of judgment, or arises because of defect of intelligence. It is true that the principle of the avoidance of liability when there is contributory negligence by the persons who lost their lives is no defence in criminal law. But at the same time in order to find out whether there was negligence at all, or whether the negligence was so gross as to make the accused criminally liable the court will take into consideration all the attending circumstances. In the present case taking all the attending circumstances into consideration all that appears is that the unfortunate incident took place because of an error of judgment on the part of the applicants but their act could not be said to be rash or negligent. The case of Tika Ram v. Rex (1) ( 1950 AWR 23 ) will support the above view taken by me. 14. In my opinion all the three applicants were entitled to benefit of doubt and to acquittal. The application in revision is allowed. The conviction and sentence passed against all the applicants are set aside and they are acquitted of the charge u/s 304A, Indian Penal Code. They are on bail. They need not surrender. Their bail bonds are discharged.