This article is written by Pujari Dharani. The article exhaustively talks about the offence of criminal negligence which is embodied in Section 304A of the offence and how it is different from culpable homicide amounting to murder. The rashness or recklessness act and negligent act are in detail.

It has been published by Rachit Garg.

Introduction

Many people die because of negligence of someone such as motor vehicle accidents which occur due to rash driving, medical negligence by doctors, negligence of bus drivers and conductors. The victim not only can claim damages, as per the law of torts, in civil courts but also can initiate criminal action against the person or charge him/her under Section 304A of the Indian Penal Code, 1860 by lodging an FIR or complaint, if his negligence is gross.

What is criminal negligence?

The expression “criminal negligence” is not explained in the Indian Penal Code, 1860 (hereinafter mentioned as IPC). According to Justice Straight, criminal negligence is grave and culpable neglect, as defined in the case of Empress of India v. Idu Beg (1881), as the wrongdoer fails to perform a duty with reasonable and proper care and caution to avoid any kind of injury, either to the public at large or to a specific person. He further stated that the criminality of the wrong for negligence depends upon the factors like risk of doing such an act and its result. The Supreme Court also came forward to define this word, criminal negligence, in Mahadev Prasad Kaushik v. State of Uttar Pradesh & Anr. (2008), as an act of commission or omission, where a reasonable and prudent person, who follows the ordinary conduct of behaviour that was formulated by the state to guide us in a civilised society, would not commit such an act or mandatorily perform it respectively. That means the commission of an act is said to be negligence when a prudent person will never do it in such similar circumstances. Also, if a person omits to do something, which a reasonable man will do no matter what, such omission by him/her will constitute negligence. Besides this, negligence, as an essential ingredient of criminal negligence, has to be established by the prosecution and such negligence must be gross; only then, it amounts to criminal negligence. Mere error of judgment is not treated to be “negligence” in criminal law. Negligence should be high to make the accused punishable under criminal law, unlike a simple breach of duty amounting to civil liability.

Criminal negligence under the IPC

Section 304A deals with offences “causing death by negligence”, and, thus, indicates the offence of criminal negligence. This section was added to the draft of the IPC after 10 years of its enforcement i.e., in the year 1870 through the IPC (Amendment) Act, 1870 to include such acts, which caused someone’s death, committed by a person with no intention and knowledge of such a consequence. Those acts which do not fall under the purview of Sections 299 and 300, come under Section 304A of the IPC as it categorically states “not amounting to culpable homicide”.

Essential ingredients of Section 304A of the IPC

The following are the essential ingredients to be fulfilled to make a person punished under Section 304A of the IPC:

Death of an individual

Section 304A of the IPC comes into play only when the victim has died, unlike civil negligence where the plaintiff, who sustained injuries, can claim damages in civil courts. For inflicting criminal liability, the proof of death of the victim must be produced by the prosecution.

Such death was due to the result of a rash or negligent act by the accused

The death of an individual should be the direct and proximate result of a rash or negligent act of the accused. Here, such rash and negligent act of the accused is causa causans i.e., immediate cause. Whether it is causa sine qua non i.e., inevitable cause is not enough to be clarified as an immediate cause. There should not be any intervention of another person’s negligence.

The word “act” includes an illegal omission. Thus, illegal omission also amounts to an offence, if such omission is rash or negligent, as noted by the Calcutta High Court in the case of Captain D’Souza v. Pashupati Nath Sarkar (1967).

The act of the accused shall not amount to culpable homicide

The act of the accused does not fall under the category of culpable homicide i.e., Section 299 of the IPC and murder i.e., Section 300. Thus, the rash and negligent act should not have the element of intention and knowledge of causing the death of a person, as held by the Supreme Court in the case of Shankar Narayan Bhadolkar v. State of Maharashtra (2004).

In the case of Shankar Narayan, the accused used a loaded gun from close range. The intention or knowledge of the death of the victim is evident from the act of the accused. Hence, Section 304A was not attracted.

In Abdul Ise Suleman v. State of Gujarat (1994), the accused took a plea that his act of shooting at a fleeing person and hitting another person causing his death was an act of rashness or negligence. However, because of the presence of intention, the Court convicted the accused under Section 302 read with Section 301. Therefore, the presence of intention on the part of the accused will attract greater punishments under various other sections of the IPC, but not under Section 304A.

Mens rea

Mens rea or guilty mind is the state of mind which is required to invoke criminal liability on a person and, therefore, constitutes one of the essential elements of the crime. We know that the criminal negligence embodied in Section 304A does not include an element of intention. However, in the IPC, words like “intentionally”, “voluntarily”, “dishonestly”, “fraudulently”, “rashly”, and “negligently, among other words, indicate mens rea i.e., the state of mind of the accused. Every offence defined in the IPC has the element of mens rea in some or other form and the offence does not always contain the element of intention, which is the gravest form of mens rea; any other forms like negligence or recklessness can also be considered as mens rea. Hence, in the case of Section 304A, negligence, recklessness, indifference or any other callous attitude arising from a negligent and rash act in dispute is mens rea. Thus, the guilty mind, in case of culpable rash and negligent act, means rash or negligent mind, not intentional mind.

Coming to criminal negligence, the doctrine of mens rea applies. The Supreme Court decided in the case of P.B. Desai v. State of Maharashtra & Anr. (2013) that mens rea is deemed an essential ingredient to invoke the criminal liability of negligence on a person because the question in criminal law is whether the accused deserves to be punished with imprisonment or not. To answer this question, the court shall consider the existence of mens rea of any form, not only as the intention on the part of the accused. Additionally, the Court held that the act of subjecting another person to risk should exist in the mind of the accused person to make him punishable with criminal negligence, unlike, in the case of civil law and law of torts, no mens rea is necessary to constitute negligence. However, mens rea, in the case of criminal negligence, is not to kill another person, rather it is a deliberate willingness to subject a person to the risk of injury or death.

Illustrations

• A woman was standing on the footboard of a bus, instead of sitting in any of the seats. The bus driver knows about the fact that she was standing on the footboard. The driver informed her that there would be a sharp turn. That woman fell and died because the driver took a very sharp turn off the bus without slowing down. The bus driver will be punished under Section 304A of the IPC because he was negligent by not slowing down the bus when he was taking such a sharp turn.
• A passenger entered a bus, which was unaware to both the driver and conductor of that bus. The conductor whistled and the driver started to drive the bus at high speed because of which the passenger fell off and died as the rear wheel crushed her. In this case, the conductor and the driver have the duty to check whether any person entered the bus or not, which was not followed by them. Thus, their act is a rash and negligent act.

Nature of Section 304A of the IPC

The provision of Section 304A defines and prescribes punishment for homicide by negligence. The death of the deceased shall be caused by rash or negligent act of an offender, without negligence by any other person, and such cause may either be direct or in proximate, as observed by the Supreme Court in the case of Kurban Hussein Mohammedali Rangwalla v. State of Maharashtra (1964).

Types of acts covered within criminal negligence under IPC

Section 304A of the IPC consists of two acts, namely, rash act and negligent act. These acts consist of various offences under the IPC, viz., Section 279, 280, 283–289, 336, 337 and 338, apart from Section 304A. On the face, these two words may look similar. But, the words “rash” and “negligent are different from one another. Because one is exclusive of the other, the Code uses two distinct words. In this regard, the Supreme Court observed, in the State of Himachal Pradesh v. Shri Manohar Singh Thakur (1998), that one particular act cannot be both rash and negligent.

Rash acts

An act which has the element of rashness is called a “rash act”. An act contains an element of rashness or recklessness when such an act is said to be done hurriedly and quickly. 

A rash or reckless act consists of two aspects, viz., subjective and objective. In the subjective aspect, the offender does an act deliberately, that is associated with some kind of risk and he/she could also foresee the possibility of happening of such a risk as well as its consequence. Thus, the offender consciously takes the risk without any reason. In the objective aspect, the offender genuinely does not foresee the consequence of his/her act, even if he/she is obliged to have known such fact as a prudent and reasonable person. The objective aspect of a rash act is almost similar to negligence and, hence, recklessness is considered to be genus and negligence is species. In addition to this, rash acts are not deliberate acts, but over-hasty acts. However, if a part of a rash act is done deliberately, it should be done without care and caution to be called a rash act.

An offender while committing a culpable rash act consciously aware of its illegal and mischievous consequences, but, at the same time, genuinely hopes and believes that such a result may not happen as the accused believes that he has taken all-sufficient care and precautions in avoiding such a consequence. The accused acting rashly believes that he did the act with care, but, in reality, care and caution are lacking when he does that act because he is indifferent as to whether any harmful result happens or not. A person is said to do something rashly when he does it with a desire to achieve a legal consequence without realising that such an act has a probability of causing some other act, which causes the death of a person. Such indifference towards the consequences, which involve the rights of some person or persons, will present in rash acts.

Besides this, because of the phrase “not amounting to culpable homicide”, the consequence of the rash act shall not be caused intentionally, although the consequence of such an act is known by the accused. The same applies in the case of negligent acts.

Negligent act

A negligent act is an act where the prudent and reasonable man will never do it by applying reasonable care and precaution. An ‘act’ also includes ‘omission’ as well. In the culpable negligent act, the offender does an act without proper care and caution and is not aware of or has no reason to believe the illegal consequence of his act. Thus, the accused person shall not possess the intention to do such an act.

The Supreme Court, in Ravi Kapur v. State of Rajasthan (2012), stated that “it is difficult to state with precision any mathematically exact formula by which negligence or lack of it can be infallibly measured in a given case.” It depends upon the facts and circumstances of each case, as held by the Court

However, in a given situation, it is not possible to give any exact formula to assess that an act is a negligent one. An act should be negligent in one case may not be negligent in another case. Thus, there is no hard and fast rule. The court should take the facts and circumstances of a case to determine whether the course of conduct of the accused is negligent in that particular situation or not. Hence, the expression “negligence” is not an absolute term, but a relative and comparative term. In Ravi Kapur v, State of Rajasthan (2012), the Supreme Court stated that “in a given case, even not doing what one ought to do can constitute negligence.”

Presence of a legal duty

There should be a legal duty or obligation on the part of the accused and the absence of the same will not amount to a negligent act. Legal duty means the imposition of a duty on a person by law. For instance, a driver of a vehicle has a legal duty to drive the same on the public way carefully in such a way that the passengers, following vehicular users as well as pedestrians on the road are not harmed or injured due to driver’s act. The same duty will be more when the pedestrians or passengers are children. The drivers are not under legal obligation to protect the mentioned people, but ensure that their life is not endangered due to their negligent act. Therefore, a person while exercising his right should take sufficient care to prevent any danger to others.

The doctrine of reasonable care comes into the picture which is an important parameter to determine whether there is any negligence by the accused. This doctrine also applies to assess whether there is a presence of contributory negligence.

Breach of such duty

Breach of a legal duty imposed by law amounts to negligence in criminal law. Lack of care and precautions by a person where a reasonable and prudent man will take all due steps. Therefore, a person breaching a duty which he ought to do is one of the essential ingredients to constitute his act a negligent one.

Such breach is characterised as gross negligence and causes death

In Malay Kumar Ganguly v. Sukumar Mukherjee & Ors. (2009), the Supreme Court said that the negligence of the accused shall be high and intense to make him/her liable under Section 304A of the IPC. A mere lack of care and attention or error in judgment may be civil negligence, but it is no offence in criminal law because the act of the accused should contain gross negligence.

For example, in Akbar Ali v. State (1936) 12 Luck 336, a lorry driver ran over a woman which caused her death. In such cases, the way the driver used the road and how he drove does not contain any element of negligence or rashness and the act of the driver is the remote cause of the death of the deceased. Although the lorry brakes were not in good condition and had no horns, the Court acquitted the accused because of the lack of gross negligence.

The distinction between rash and negligent act

Basis of differentiation	Rash act	Negligent act
Meaning	Doing something with indifference as to its consequences.	Omission to perform the legal duty imposed by the law, or a commission of an act or omission of a duty which a reasonable and prudent person would not do or do respectively.
Knowledge of the consequences of the act	The person committing a rash act has knowledge or reason to believe the consequence of what he or she is doing.	The person committing a negligent act does not have full knowledge about its consequences while doing it.
Relationship	All rash acts cannot be negligent acts. In other words, the rash act is a genus and includes negligent acts as well.	All negligent acts can be rash acts. In other words, the negligent act is a species.
Nature of the act	A rash act is a wrong which is grave in nature.	A negligent act is comparatively less grave.

Medical negligence under Section 304A of the IPC

A medical practitioner by profession has a greater duty to take all reasonable care and cautions than an ordinary and prudent man takes. Because of the very nature of the medical profession, such doctors have much responsibility when compared to any other service provider. On the other side, the negligence should not be of minor one, rather it should be of a higher degree to invoke criminal liability on the doctor. In Bolam v. Friern Hospital Management Committee (1957), the test for determining medical negligence was laid down by the Queen’s Bench Division, England. This test is accepted and applied in many cases; one among them is Jacob Mathew v. State of Punjab & Anr. (2005).

Negligence must be gross to attract criminal liability

In India, mere negligence, lack of caution or error of judgment does not fasten criminal liability on the doctors. The Supreme Court, in the case of Dr. Suresh Gupta v. Govt. of NCT of Delhi & Anr. (2004), for the first time, ruled that doctors would be held guilty under Section 304A of the IPC only in case of gross negligence. Hence, every minor negligence on the part of a medical professional does not attract criminal liability, rather the negligence in question should be such gross that the death is the most probable consequence. Only then the case will fall under Section 304A and the doctor concerned will be punished accordingly. This principle was confirmed in the Jacob Mathew case (2005), stating that negligence other than gross or high-degree negligence where death is most likely to happen will fall under the law of Torts and furnish a ground for civil action, but not prosecution. The Supreme Court observed that the following negligent act by the medical professionals comes under the category of gross negligence:

• The medical professional is not skilled at all for that particular treatment, which a medical professional deemed to be skilled, and, still, he continues to perform such treatment.
• The medical professional is skilled for a particular treatment but he does a manifestly wrong treatment without reasonable skill which no doctor of a prudent mind would have performed such a thing. For example, performing surgery without anaesthesia.

Furthermore, the Supreme Court, in the Jacob Mathew case (2005), made a distinction between occupational negligence and professional negligence. If the treatment or surgical operation performed by the doctor is accepted practice on the day he has performed it, no criminal liability for the negligence would arise just because the prosecution protested that there is still much better treatment or operation. Thus, the test is whether a normal and skilled doctor using normal and reasonable skills does such treatment or operation or any act in the medical profession because the law cannot expect the expertise of a higher level from each doctor.

To know more about medical negligence, the test to determine it and its punishment under Section 304A of the IPC, click here and here.

Power of the police to arrest the accused doctor

The police officer or any other personnel, who is authorised to investigate, are not allowed to arrest the accused doctor in a regular manner solely on registered FIR because the doctor is a profession filled with reputation and faith from the public. However, the investigating officer, as held in the case of Jacob Mathew, has the power to arrest the medical practitioner, for any of the following legitimate reasons where the arrest is required:

1. To proceed with the investigation.
2. To gather evidence.
3. If the investigating officer has reason to believe that the accused doctor will not appear before the court for the trial proceedings unless he or she is arrested.

Private complaint

In the case of Jacob Mathew, the Court stated that the complainant cannot lodge a private complaint; however, he or she can submit prima facie evidence, along with reliable expert opinion given by a competent doctor, to prove that the accused doctor doing something rashly or negligently, such private complaint by the person is allowed. If no reliable expert opinion is placed, a criminal prosecution against the accused doctor, as ruled in the case of Sudesh v. State of Uttar Pradesh (2012) Cr LJ 1460 (All), will not be maintainable.

Liability of the doctor who delegates the duty

Sometimes, Section 304A of the IPC may attract even in cases where the doctor delegated his responsibility to another person. In M/s. Spring Meadows Hospital & Anr v. Harjol Ahluwalia through K.S. Ahluwalia & Anr. (1998), where the senior paediatrician delegated his duty to a junior and the senior doctor is aware that the junior has no capacity and sufficient skill to perform such duty properly, the senior doctor is said to be negligent by delegating his work to an incompetent person.

Harassing doctors with criminal cases

Many medical professionals are being harassed in criminal cases by patients and their relatives in order to get compensation from such doctors or hospitals in return for withdrawing malicious complaints. This causes a lot of damage to the reputation of a doctor or hospital which gains respect for successful practice. The Supreme Court, in the case of Kusum Sharma & Ors. v. Batra Hospital & Medical Research Centre & Ors. (2010), recognised such frivolous complaints and malicious proceedings and said that those complaints deserve to be discarded or dismissed.

The doctrine of res ipsa loquitur

The literal meaning of res ipsa loquitur is “the thing speaks for itself”. To understand the doctrine of res ipsa loquitur, we need to know a rule of evidence regarding the burden of proof of negligence, whether it is in civil or criminal court. The rule is that, at the beginning stage, the prosecution should prove the case of criminal negligence, or at least the prime facie of it, on the part of the accused person. Once the prosecution is proved as required by the law, the burden of disproving the criminal negligence or proving any defences is on the accused.

The doctrine of res ipsa loquitur provides an exception to the general rule. The doctrine does not mandate the prosecution to prove the existence of the negligence on the part of the accused and, indeed, the burden of proof shifts from the prosecution to the accused. In cases where the event itself provides the existence of the criminal negligence of the accused and the happening of such circumstances is completely under his or her control, the doctrine of res ipsa loquitur applies and the accused is allowed to disprove the same.

The object of the doctrine of res ipsa loquitur

The objects of the doctrine of res ipsa loquitur are:

1. To make proof of occurrence of the disputed event is prima facie evidence of criminal negligence.
2. To remove difficulties whether the prosecution could prove the death of the victim, but not how that death is caused.

Essential elements of the doctrine

The essential elements of the doctrine of res ipsa loquitur are as follows:

1. The disputed event would not have occurred if there had been no negligence or recklessness on the part of the offender as such happening of the event is exclusively under his control or management.
2. The evidence adduced by the prosecution to the court confirms that the event is not due to the victim or third party’s acts.
3. The offender owes a duty of care towards the victim and, hence, was negligent or rash while committing the offence.

Application of the doctrine in criminal law

The doctrine of res ipsa loquitur applies mostly in civil cases, especially in the law of torts. This doctrine has limited application in criminal cases, as held by the Supreme Court in the case of Jacob Mathew v. State of Punjab & Anr. (2005). In this case, the Court also stated, in its view, that merely because it appears on the fact of the circumstances that there is criminal negligence on the part of the accused does not make him or her punishable under Section 304A of the IPC by applying the doctrine of res ipsa loquitur.

Examples

• In Thakur Singh v. State of Punjab (2003), where 41 passengers of a bus died due to the driver’s rash and negligent driving because of which the vehicle fell into the nearby canal, the doctrine of res ipsa loquitur was applied.
• In State of Madhya Pradesh v. Jagdish s/o Jogilal Baloi (1991), the deceased, Jasodabai, was walking on the left side of the road and died from the rash and negligent driving of the accused who was driving at high speed. It was ruled that the doctrine of res ipsa loquitur is applicable.

Punishment for criminal negligence under IPC

The punishment prescribed under Section 304A of the IPC, if a person is declared to be dead, is either imprisonment for a period of up to two years or a fine or both. Even if there is no intention on the part of the offender, the court of justice will not show sympathy for them and will punish the offenders as a deterrence to the potential offenders that the negligence or recklessness, which are also forms of mens rea, of the convicts will not be excused; otherwise, it would be miscarriage of justice and reduces the confidence and faith of the general public in the justice delivery system of India. Also, the court ensures that the punishment will be directly proportional to the intensity of the crime committed by the accused person so that he or she is appropriately punished.

Community service and compensation to victims as punishment in criminal law

For the first time, in the case of State through P.S. Lodhi Colony, New Delhi v. Sanjeev Nanda, which is also known as the “BMW case”, the Supreme Court took a new method of punishing the convict by requiring him to serve the community which will beneficial for the society rather than sentencing them for imprisonment, as felt necessary by the court. Community service may not be a punishment in the true sense. However, the convict giving something to the society will be appreciated by the society. The convict will also come out of his guilt or regret by doing the same.

In the BMW case, the orders given by the court against the accused are:

1. Rs. 50 lakhs have to be paid by him to the central government within the period of six months. Such an amount is used by government agencies to compensate the victims of motor vehicle accidents, especially in hit-and-run cases where the offenders are not caught by the investigating officers. If the convict fails to pay the amount, he shall undergo the imprisonment of one year.
2. He has to do community service for a period of two years under the supervision of the Ministry of Social Justice and Empowerment and this has to be done within two months of this order. On default, the convict should be jailed for a simple imprisonment of two years.

Weak defences for criminal negligence

Mechanical failure is not a good defence

In the case of Guru Basavaraj @ Benne Settappa v. State of Karnataka (2012), the accused took the plea of mechanical defect, i.e., namely, due to non-functioning of the hydraulic system in a proper manner, as the cause of the accident and not due to his rash and negligent driving. The plea was rejected by the subordinate court as well as the Supreme Court, by careful examination of the evidence on record which conveys that the accused drove the tractor rashly and negligently at high speed.

In another case, Binoda Bihari Sharma v. State of Orissa (2011), the Orissa High Court rejected the defence taken by the accused that the accident was caused by mechanical failure i.e., bursting of the scooter’s tyre. The Court rejected the defence on the ground that such mechanical failure happened due to the poor maintenance of the scooter from which the accused’s negligence was established.

Slow speed is not a good defence

Whether the driver drove the vehicle at high speed or low speed is not the sole determining factor in deciding the presence of culpable rashness or negligence. Just because the evidence shows that the vehicle drove at high speed, the act does not constitute a negligent act. In Pradeep Kumar v. State of Haryana (2000), where the petitioner drove the tempo at a high speed, the Punjab-Haryana High Court stated that “mere driving at a high speed cannot be said to be negligent.” The same applies in the case of low speed. Just because the accused drove the vehicle at a low speed, it is not conclusive proof of the non-existence of negligence. In this regard, Ravi Kapur v. State of Rajasthan (2012) is one of the leading cases. In this case, the Court noted that even if a person rashly and negligently drives at a slow speed, it would still fall under the category of “rash and negligent act”. Furthermore, the Court held that the driver has a duty to drive safely and, if not done, he or she will be liable for his act. Regarding the speed of the vehicle, the Court stated that “It may not be always possible to determine with reference to the speed of a vehicle whether a person was driving rashly and negligently.” Therefore, the speed of the vehicle is not at all a criteria to prove the fact of rash and negligent act of the driver that caused injuries to the complainant.

Difference between negligence in tort and criminal negligence

Basis of differentiation	Negligence in tort	Criminal negligence
Existence of mens rea	The mental element or mens rea or intention is immaterial.	There should be an existence of mens rea on the part of the person who committed such an act or offence.
The intensity of the offence	Even if the wrong of negligence is, comparatively, lesser in degree or intensity, it can still stand as a ground for civil action.	The negligence in question shall be of a higher degree. Only then does it amount to criminal negligence, otherwise, there will be no case for prosecution.
Proving the extent of the negligence	The plaintiff should prove that the defendant owes a duty towards him and the same was breached due to his negligence. Simple negligence can also make the defendant liable to pay damages.	The negligence to be punishable in criminal law shall be more than what is required in a civil case. The negligence must be gross.
Determining the extent of liability	It depends upon how much injury or harm is caused to the plaintiff.	It depends upon the degree and amount of negligence.
Contributory negligence	It is a Common Law tort rule which prevents plaintiffs from claiming damages for the negligence of the defendant if they too were negligent, which is also one of the reasons for causing that harm.	It does not act as a defence to the criminal negligence of the accused. Hence, whether the deceased contributed to his death is immaterial.

Difference between Section 304 and Section 304A of the IPC

Basis of differentiation	Section 304	Section 304A
Deals with	Section 304 deals with punishment for culpable homicide not amounting to murder.	Section 304A deals with an offence of causing death by negligence.
Offence	Culpable homicide is altogether a new offence.	The offence is homicidal death by rash or negligent act. It is no new offence.
Nature of offence	More graver and more serious offence, when compared with Section 304A.	Less serious offence.
Cause of death of the victim	Acts of the offender that contain the element of intention or knowledge or both.	Rash or negligent acts of the offender.
Connection with Sections 299 and 300 of the IPC	Section 299 defines culpable homicide and Section 300 explains when culpable homicide does not amount to murder, for which the punishment is mentioned under this section.	There is no overlapping between Section 304A and Sections 299 and 300 of the IPC, where the former excludes the cases where the accused has intention or knowledge that was already covered under the latter sections.
Intention	Intention or knowledge is required to invoke punishment under Section 304 of the IPC.	The phrase “not amounting to culpable homicide” in Section 304A means that there is no element of intention as well as knowledge.
Extent of knowledge	In culpable homicide not amounting to murder, the offender knows about the result of his or her act.	In a culpable rash act, the offender knows the results of his or her act but hopes that the same will not happen.
Punishment	If the offender has the intention, the punishment is, along with the fine, life imprisonment or imprisonment, simple or rigorous, up to 10 years. If the offender has knowledge without intention, the punishment is imprisonment, simple or rigorous, for up to 10 years, or fine, or both.	The punishment is imprisonment, simple or rigorous, up to 2 years, or fine, or both.

Conclusion

In the end, there are a lot of differences between civil and criminal negligence, in terms of definitions, ingredients, liability, punishment and other intricacies. The prosecution should be in all the aspects involved in the criminal negligence as embodied under Section 304A of the IPC to prove the rash or negligent act on the part of the accused, which is the direct cause of death of the victim, and inflict criminal liability.

Frequently Asked Questions (FAQs)

What is the extent of the degree of care required by any person?

If a person took all reasonable care that an ordinary and prudent man takes in similar circumstances, then it is deemed that the person took care and caution while performing the disputed act. Regarding the degree of care, the Supreme Court, in Sushil Ansal v. State through CBI (2014), stated that “nature and degree of care are expected to be such as would ensure the safety of the visitors against all foreseeable dangers and harm. That is the essence of the duty that an occupier owes to the invitees whether contractual or otherwise. The nature of care that the occupier must, therefore, take would depend upon the fact of the situation in which duty to care arises.” The Court further observed that the duty to take care is not a one-time obligation, rather it is continuous.

How to make out whether negligence is civil or criminal in nature?

The main test is whether the negligence is simple or gross. In both civil as well as criminal negligence, there is a breach of duty and a lack of care. If the negligence is simple, it is civil negligence; if it is gross, then the accused will be liable for the criminal negligence. However, the parties alleging the wrong of civil negligence or offence of criminal negligence have an onus to prove and establish the negligence, whether civil or criminal, on the part of the defendant or the accused.

Whether contributory negligence is a valid defence for the accused charged with criminal negligence?

No, the contributory negligence of the deceased or victim is not considered a valid defence for the accused who is charged with criminal negligence. Even if the victim died partly due to the negligence of the deceased and partly by the accused’s negligence, the doctrine of contributory negligence cannot be invoked to escape criminal liability.

References

• “The Indian Penal Code” authored by Ratanlal and Dhirajlal.
• “Indian Penal Code” authored by R.N.Saxena.

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