In this article, Shubham Prakash discusses the penal provision for Causing death by negligence.

Introduction

In law, ‘Negligence’ is defined as an act of carelessness which damages the property of a person. The negligence is caused when a person has acted illegally or carelessly. There are four basic elements that the plaintiff (the person who has been injured) has to prove against the defendant (the person who has caused the injury) to show that he acted negligently.

• Duty: In order to assess an act is negligent or not it is necessary to see that the defendant has taken the legal duty of care towards plaintiff.
• Breach of Duty: The next thing that a court sees is that whether the defendant has acted like a ‘reasonable prudent person’ in the given circumstances. It means that the person never had the knowledge about the outcome of his actions and there was a breach of duty from his or her part.
• Causation: In order to prove negligence, it is important for the plaintiff to prove that the defendant has caused an injury. It simply means that the action or inaction of the defendant has caused injury to the plaintiff or his property.
• Damages: If there is an act of negligence from defendant which has resulted in the injury of plaintiff then the court is liable to compensate the plaintiff.

When Indian Penal Code, 1860 came into existence there was no provision which gave punishment for causing death by negligence. The causing of negligence was nowhere defined in IPC but fall outside the offences ranging from Section 299 and 300 of IPC. But in the year 1870, an amendment was made in IPC which inserted a new provision Section 304A. It states that:

Causing death by negligence

“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.”

In order to apply Section 304A of IPC, it is necessary to prove that there was no intention on the part of the defendant and the act done would result in causing death to the plaintiff. In Ravi Kapur v. State of Rajasthan[1], the SC held that in an order to attract the provision of Section 304A it is important to see that the death of a person is caused due to rash and negligent act of the accused. In this particular case, the appellant was charged with an offence under section 304A for causing the death of ‘M’ by a contact with an electrically charged copper wire. It was held that the voltage of current passing through the naked wire being high enough to be lethal, there could be no dispute that charging it with current of that voltage was a rash act done in reckless disregard of the serious consequences to people coming into contact with it for which the accused is solely responsible under Section 304A. It is important to know the difference between rash and negligence in order to decide a particular case.

Difference between rash and negligent act

Whether causing death by negligence is a criminal act or not?

The act of negligence can be civil and criminal. In civil negligence, if the act of defendant resulted in the injury of the plaintiff, the defendant is liable to compensate. But what happens when a person has acted negligently which has resulted in a death of a person. Let us take a case of a doctor who has acted negligently which has resulted in a death of a person. It is a case of medical negligence which is defined as any act or omission by a doctor or a physician which has resulted in a bad injury or death of a person. Medical negligence can be of civil or criminal nature. But during the treatment of a patient it is the duty of the doctor take reasonable care and if they do not follow the accepted norm practices then it would result in a death of a person. The doctor will be criminally liable.

Other cases of criminal negligence

• If a person is drinking and driving and kills someone on the road, then the person is criminally liable and can be sued. They are criminally liable because the death of a person is a crime so driving and drinking will also be a crime.
• If a nurse forgets to feed the patient on time which has resulted in the death, then the nurse is criminally liable because he or she has killed a person.
• A doctor who prescribes an addictive drug to a patient knowing that he is allergic and which has resulted in a death of a person, then the doctor is criminally liable.
• A person who drives a car at above 40 miles per hour (i.e. above the speed limit) which has resulted in a death of a person, the person is criminally liable.

What defence can we take for causing death by negligence?

If the action of a person has resulted in a death of a person, then the defence that can be taken as:

• Contributory negligence: It is based on the doctrine of common law which states that if a person is injured due to his or her negligence, then the injured party is not entitled to collect any damages from another party. This is because in law it will be considered as to be the author of his own wrong. In Butterfield v. Forrester[2], the defendant put a pole across the public place although he was not authorized to do so. The plaintiff was riding in the evening and got stuck with the pole. The court held that plaintiff cannot claim for damages because the light was visible and he was negligent.
• An act of God: If there is injury or death of a person caused due to any natural disaster, then the person will not be liable if he or she proofs the same in the court. In Nichols v. Marsland[3], the defendant had series of artificial lakes on his land in the construction or maintenance of which there had been no negligence. Due to the heavy rain, some of the reservoirs burst and carried away four country bridges. The court held that the defendant was not liable as the water escaped by the act of God.
• Inevitable Accident: If the death or injury of the person has been done inevitably then the person can take a defence of negligence. Inevitable accident means that the person has taken an ordinary care, caution and skill that has resulted in the death or injury of a person. In Brown v. Kendal[4], the plaintiff’s and defendant dogs were fighting. As the defendant was trying to remove them separately, he accidentally hit the plaintiff in his eye. The injury of the plaintiff was held to result in an inevitable accident.

Can a doctor take the plea for causing death by negligence?

A doctor can take a plea for causing death by negligence on the ground that they have taken reasonable care (duty of care) while treating the patient. They will not be vicariously liable for the act of his junior doctor or nurse. It means if they have not worked in accordance with a proper instruction of the doctor, then the doctor will not be liable. The burden of the proof lies on the doctor to prove that he has acted reasonably and there was a breach of duty.

Important cases on causing death by negligence

In Prabhakaran v. State of Kerala[5], the court held that Section 304A IPC applies in case of rash and negligent acts and does not apply to cases where death has been voluntarily caused. Section 304A IPC applies to cases where there is no intention to cause death and no knowledge that the act done in all probability will cause death.

In Dr. Suresh Gupta v. Govt. of N.C.T. of Delhi and Anr.[6], the court quashed the proceedings for medical negligence for fixing criminal liability on a doctor or surgeon, the standard of negligence required to be proved to be as high as can be described as “gross negligence” or recklessness. The doctor did not take reasonable care due to which the patient died. As per medical opinion produced by prosecution cause of death is because of not introducing a cuffed endotracheal tube of proper size as to prevent aspiration of blood from the wound in respiratory passage. This act attributed to a doctor, even if accepted as true, can be described as negligent act as there was lack of due care and precaution, for which he may be liable in tort. The court held that the said act cannot be described as so grossly negligent or reckless as to make him criminally liable under section 340A of IPC.

In Somabhai Mangalbhai Dabhi v. State of Gujarat[7], the session judge passed an order of conviction against Petitioner for an offence punishable under a section of 304A of IPC for causing the death of a 10-year-old girl by rash and negligent act of driving a motor bus. The issue before the court was whether there was any negligence or rashness on part of a driver. It was held that it was not possible that benefit of probation was required to be given to accused. The driver was driving a vehicle at uncontrollable speed and he went to utter the wrong side of a road and dashed against an innocent girl of 10 years. The negligence and rashness were of grave category and there was no mitigating circumstance and hence, a benefit of probation could not be extended to Petitioner.

Where to file a complaint in case of criminal negligence?

If there is the death of a person, then a family member or friend or any person can file a complaint by following the procedure Code of Criminal Procedure, 1973 (hereinafter referred as CrPC).

• FIR (First information report): An FIR will be filed under section 154 of CrPC with police at the police station. The officer-in-charge of police station will reduce the statement of an informant in writing that will be signed by an informant. The copy of FIR will be provided to the informant at free of cost provided by the State Government.
• Vakalatnama: An informant who has filed an FIR will file a Vakalatnama where he or she will authorize an advocate to represent them in front of a court.
• Investigation: The police will start its investigation under section 156 of CrPC, where they will collect all the evidence and will seal the place where the crime has been committed. It is their duties to take investigate on every matter that is related to a case.
• Charge sheet: When an investigation is over the police will file a charge sheet under section 173 of CrPC which will include- the names of the parties, the nature of the information, the names of the persons who appear to be acquainted with the circumstances of the case, whether any offence appears to have been committed and if so by whom, whether the accused has been arrested, whether he has been released on his bond and if so whether with or without sureties, whether he has been forwarded in custody under section 170. The police will also frame charges before submitting the charge sheet to court.
• Inquiry: Inquiry is something that is defined under section 2(g) of CrPC which other than trial. It will commence in front of a Magistrate or Court. The main motive of inquiry is to determine whether an innocent is guilty or not. While the inquiry is going to the statement will be recorded under section 164 of CrPC, where the accused will be required to say whether he feels he is guilty or not and he can admit guilty.
• Trial: When the inquiry is over the trial process will starts. The trial is something that has not been explicitly defined under CrPC. Trail means judicial proceedings where evidence are allowed to be proved or disapproved, and guilty of a person is adjudged leading to acquittal or conviction.
• Arguments: Both the lawyers put both the lawyers put forth their arguments for the determination of the guilt of the accused.
• Judgment: After hearing both sides’ arguments and after the examination of witness the court decides whether the person has caused the death negligently or not.

Punishment

If a person has been proven guilty by the court for causing death by negligence, then the person will be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both.

Proving negligence in Motor Accident Cases

If there is a death of a person due to the collision of the motor vehicle, then the defendant can have to prove that the accident was incidental and there was no intention involved. For example, that a truck driver cuts off the driver and as a result the driver dies. The plaintiff has to prove that there was no duty of care by the defendant has taken while driving the car which resulted in the death of a person. The duty of care plays a major role in proving the negligence in case of a motor accident.

Conclusion

When a death is caused by a minor then the victim should not be punished for an offence because he or she never had the knowledge about it. Section 304A of IPC should be considered as non-bailable offence or at least compensation should be paid if the person has been injured. If there is an unexpected accident happening, then the court should see the merit of the case before giving a judgment.

References

[1] AIR 2012 SC 2986

[2] (1809) 11 East 60

[3] (1875) LR 10 Ex 255

[4] (1859) 6 Cussing 292

[5] AIR 2007 SC 2376

[6] AIR 2004 SC 4091

[7] 1989 CriLJ 1945