This article is written by Aniket Tiwari, a first-year student pursuing B.A. LL.B. from Law School, BHU. In this, there is a detailed explanation of Section 304A of the Indian Penal Code which talks about “Death by Negligence”.
Table of Contents
Introduction
Whenever, I go through any newspaper they majorly cover the news on various topics. One of them is related to the murder of any person. In this article, we will cover the death of a person due to someone’s negligence.
Whenever, I heard some sophisticated terms like murder, death, homicide, culpable homicide, etc I am often confused about the difference between these terms. Recently I got a chance to clear all my doubts related to this by meeting my Uncle. He told me that under IPC all these terms are defined and all of them are somehow different from each other.
The term culpable homicide is discussed in Section 299 of the Indian Penal Code. According to this section, a person commits the offense of culpable homicide if he/she does an act with the intent of causing the death of another person, or with the intent to cause such bodily injury that it is likely to cause death, or with the knowledge that he/she is likely to cause death by doing such acts.
Section 300 of IPC has discussed the term murder and the different aspects related to murder are also mentioned here. According to this, every culpable homicide is murder but the same does not apply vice- versa. The main difference between culpable homicide and murder is the difference in the degree of the offense not the form of offense. Basically they differ in gravity or intensity. The intensity of murder is quite higher than the intensity of culpable homicide.
The difference between murder and culpable homicide can be further explained through certain examples. Let’s take a situation where a person’s head was struck by a baseball bat then there is very little possibility that he/she may survive after that head injury. Here there are still some chances for the survival of that person. In this case, if the persons die than the other person who had hit him/her would be liable for culpable homicide.
Let’s take another example where a person is shot by a gun in his forehead. Here there are no chances that this person will survive from this blow on his head. It is an example of murder. From both of these examples, we can clearly distinguish the terms culpable homicide and murder.
Culpable homicide is further divided into two categories:
- Culpable homicide amounting to murder: It can be simply called as murder.
- Culpable homicide not amounting to murder: There is knowledge or criminal intention in both cases. The only difference which amounts to causing the culpable homicide amounting to murder is the degree of the criminality of the act. In IPC it has been termed as culpable homicide.
This concept of culpable homicide not amounting to murder is further discussed in Section 304 of the Indian Penal Code. Here in this article, we will discuss the concept of one part of culpable homicide. Section 304A of the Indian Penal Code talks about the death caused by the negligence. This Section was not there in the Indian Penal Code in 1860 but was inserted later in the year 1870. It does not make any new offense but covers the offense which falls outside the Sections 299 and Sections 300. Here there is no intention or knowledge to cause death.
Let us understand the difference between culpable homicide and death by negligence (Section 304A of IPC) through examples. For instance where a person drives a car in a street that is crowded with a speed of 90 km/hr. Here he has the knowledge/ intention that if he hit any person with that car then that person would die. It is a case of culpable homicide as there intention/ knowledge of the crime is involved. Let’s take another instance where a mother of a child leaves the child in a street in such a way that the child was visible to the audience coming in the street. Here the motive of the woman is that her child could be taken by someone by seeing it. But if the child kept there dies due to starvation then its mother would be liable for causing death by negligence. It is because in the second case there is no intention to kill someone.
Rash or Negligent act
Section 304A of the Indian Penal Code talks about causing death by negligence or rash act. This Section mentions that if a person causes the death of another person by doing a negligent or rash act which does not amount to culpable homicide shall be punished with imprisonment for a term of a maximum of two years, or with fine, or with both. For understanding the whole concept given in Section 304A we need to understand the term negligent act. It became important to have proper knowledge regarding this term. In the legal field ‘ negligence’ can be defined as an act or omission that causes damages to the property of another person. Here in this Section of the Indian Penal Code the term rash or negligent act can be defined as an act that is the immediate cause of death. There is a difference between these terms( rash and negligent) also. By ‘rash act’ we mean any act which is done restlessly. By the term ‘negligent act’ we mean a breach of duty due to omission to do something, which a reasonable man will do.
There are four basic elements that a person has to fulfill in order to do a negligent act. These elements are as follows:
- Duty: For committing a negligent act, there must be some duty on the part of the defendant. Here it is important to understand whether the defendant has taken legal duty of care towards the plaintiff.
- Breach of Duty: After fulfilling the first criteria the plaintiff must prove that the defendant has breached the legal duty imposed on him/her. It talks about the breach of duty on the part of the defendant which he/ she is expected to do as he/ she has some legal duty towards the plaintiff.
- The action of causing something: It means that the damage caused to the plaintiff is due to the act of the defendant. Here the defendant may do an act which is not expected from him/her or the defendant may be negligent in not doing an act which was expected from him/ her.
- Damages: At last what matters is, there must be some damage/injury that is caused to the plaintiff and this damages should be the direct consequence of the defendant’s act.
To apply Section 304A it becomes very important to show that there is no intention on the part of the defendant to commit a crime. For understanding the ‘rash act’ one should understand that it is an act which is done hastily and is opposed to any intentional act. A rash act is done without any deliberation or with caution. It depends on the level/degree of recklessness.
Cherubin Gregory v. State of Bihar, 1964
The definition of the rash or negligent act can be understood by the famous case of Cherubin Gregory v. State of Bihar. In this case, the Supreme Court stated the difference between the rash or negligent act. Here, in this case, the appellant was charged under Section 304A of IPC for causing the death of a woman who stayed near the house of the appellant. Here the deceased was using the latrine/ toilet of the accused for about a week. The accused gave the oral warnings related to it to the deceased but the deceased continue to use the latrine of the accused. As he (accused) finds his oral warnings to be insufficient so he put a naked copper wire carrying electricity on the passage leading to the latrine. On the day of the occurrence of the incident, the woman went to the latrine of the appellant and there she touched the fixed wire and she died because of this. There were several issues raised in this case. Here the Court held that the mere fact that the person entering is a trespasser does not entitle the owner of the land to inflict personal injury upon the trespasser. The same principle also applies to the fact that the owner inflicted the injury by indirect ways of doing something. The owner should know that it may cause a serious injury to the trespasser.
Here the Apex Court also held that in this case, the appellant would be liable for his rash act (as the act was considered to be reckless) and the accused was held liable under Section 304A of the Indian Penal Code.
Absence of Intentional Violence
As mentioned earlier that the Section 304A of the Indian Penal Code applies in cases where there is nothing to do with the intention of a person to cause the death of another person. Here there is no role of knowledge of the person that if the act is committed it will lead to the death of a person. The elements under Section 304A makes death by negligence outside the range of Sections 299 and Sections 300 of IPC. It can be clearly understand that the two basic elements of Section 304A are negligence and rashness. This Section allows the criminality of a matter in spite of the absence of mens rea. It is important to remember that in such cases there can be no motive or intention of a person still due to his/ her negligence or rashness the person may cause the death of another person.
Let’s take another example to understand the concept that the intention of a person does not matter under Section 304A of the IPC. For instance, if a building is built by a corporation that is busy in the business of construction. After all the inspection this building gets the Building Use certificate and all the safety measures related to electricity and fire were taken by the Corporation. Here if any fire breaks out due to an electrical short circuit. And due to this, the people living in that building starts to jump outside the building in order to save their lives and there is negligence on the part of the corporation. Here if any person dies after falling from the building then the corporation would be liable for its negligent act under Section 304A of IPC although there is no intention or knowledge on the part of the corporation about the same.
Sarabjeet Singh And Ors. v. State of Uttar Pradesh, 1983
In the very famous case of Sarabjeet Singh And Ors. v. State of Uttar Pradesh, the intention of a person during the commission of a crime was questioned. Here the major question raised by the counsel of the accused was related to the intention of the person during committing a death of a person. In this case, the Appellant Sarabjeet Singh and 17 other peoples were put on a trial for having committed the crime of murder of infant Radhey Shyam. Here the accused (Sarabjeet Singh) lifted the child and thrown him on the ground and later it was founded that this resulted in the death of the child. It was found that there was no intention on the part of the accused towards the infant. It was also found that Sarabjeet has no grievances towards Radhey Shyam and therefore it was held that there is a lack of intention in this case. Now the next question which was put forward was about the knowledge of the wrong. Here, in this case, the accused may not have intended to kill the infant but he had all the knowledge that if the child is thrown from such height then the child will die ultimately. So the Court held the accused liable under Section 299 as all the conditions under this section get fulfilled. Now the counsel from the appellant side argued that this is the case of death by negligence and must come under Section 304A of the IPC. He argued that this is because this case includes the rash act of the appellant but as there is knowledge about the crime on the part of the accused so the court held that this case can’t come under Section 304A of IPC rather it will be covered by the second part of Section 304( it talks about knowledge of the person during committing any crime).
Death must be the Direct Result
Section 304A talks about a situation where the death of a person must be the direct result/ consequence of the act of the defendant. Here it is important to remember one point that whether the alleged act of the defendant is the direct result of the rashness or the negligence of the defendant. Here the act of the defendant must become the ultimate reason for the death without any intervention from another person. For instance take an example where the School Administration failed to take care of the safety of the students as they (administrators) allowed the use of a defective bus to take the students to their houses. Here if any accident will happen then the liability of the School Administration will depend on the fact that whether the accident was the direct result of the negligent act of the administration or not.
Here the principle of causa causans will apply. This principle talks about the immediate cause of any act. It may be defined as the last link in the chain of the action of causing something. It talks about the action of the person must bring immediate cause and no remote causes of such action would be relevant in the context where this principle applied. Here it is difficult to determine what is the immediate cause and what is the remote cause of action. It can be determined on the basis of reasonability of the prudent person. The immediate cause of action includes the act which a prudent man can see.
To impose the liability under Section 304A of the Indian Penal Code it is necessary to apply the principle of causa causans and see whether the death of a person is caused by the negligent act or rash act of the defendant.
Suleman Rehiman Mulani & Anr v. the State of Maharashtra, 1968
In the case of Suleman Rehiman Mulani & Anr v. the State of Maharashtra, the Supreme also applied the same concept which is already discussed above. In this the appellant was driving a jeep and he has learners license to drive the same and no one was sitting with him who has a proper driving license. Here the appellant on his way struck a person named Bapu Babaji Bhiwarkar by his jeep. In order to protect the injured person he put him inside the jeep and went to a doctor who refused to give medical aid to an injured person and the doctor directed them to go Medical Dispensary and the appellant instead of going their went somewhere else as a result injured person died. Here appellant was found negligent as he doesn’t have proper documents related to driving a jeep. But the major question which was put before the court was whether the death of the person was caused due to the direct consequence of the appellant negligent act. The Supreme Court held that the death of the person does not the amount due to the direct consequence of the appellant therefore he can not be liable under Section 304A of the IPC. The Apex Court does not find any evidence which shows that the negligent or rash act of the appellant was the proximate cause of damage.
However, in this case, the appellant was held liable according to the provisions of the Motor Vehicles Act,1988.
Ambalal D. Bhatt v. State of Gujarat, 1972
In the very famous case of Ambalal D. Bhatt v. State of Gujarat the Supreme Court again explained the concept that a person is liable under Section 304A of the Indian Penal Code only if the principle of causa causans is fulfilled. Here this case is about medical negligence. Here the appellant who was Chemist Incharge in a chemical industry along with five other members were charged under Section 304A of the IPC. They were found to be negligent in manufacturing the solution of glucose which was later consumed by the patients of different hospitals and 13 patients died by the injection of the solution. It was found that the solution contains more lead nitrate than what was permitted. Here the Prabhakaran was the Chief Analyst of the Testing Laboratory. He was found negligent in his part as he did not prepare the solution according to the Drug Control Act. Here the Supreme Court held that the appellant ( Prabhakaran) can not be liable alone. The court further stated that the appellant was not only negligent, here it was also the duty of several other persons to maintain the quality of the solution. Under the principle of the causa causans there is the causal chain that consists of many links(acts), it talks about the act which ultimately contributes to the consequence. Here the action of the appellant was found to be the only one of the causes of all causes. In other words, it can be explained that the appellant action was one of the causes of death and it was found to be insufficient to be the ultimate cause of the death of the 13 persons.
Difference between Rashness and Negligence
The two most frequently used terms while applying Section 304A of the Indian Penal Code are rashness and negligence. There are several judgements of the Supreme Court which talk about the difference between these two terms. For a layman, these two terms may appear to be the same but there is a huge difference between the meanings of both these terms. Coming to the technicalities, by negligence we understand a state of mind of no foresees of the consequence of the act of a person. However, by term rash act we understand a state of mind that can foresee the consequence of the act but still ignored it. Both can not be present in a person simultaneously. Let’s take an example to illustrate the difference between these two terms. When a person throws a stone from the third floor without thinking whether there may be someone on the ground. Here the person is negligent in his act. Let’s take another instance where a person throws the stone by thinking about the fact that his act can cause injury to someone. Here the person will be liable for his rash act.
Bhalachandra Waman Pathe v. State of Maharashtra, 1968
In the case of Bhalachandra Waman Pathe v. State of Maharashtra, the appellant was charged under Section 304A of the Indian Penal Code for causing the death of a 21-year woman by driving his car rashly and negligently in the road. In this case, the appellant questioned his conviction which was brought out by the High Court through the suo moto proceedings. Here the Court tried to establish the difference between rash and negligent act. According to this case, there were two sisters who were crossing the road through the pedestrian crossings (in order to go to a beach) knocked down by a car of the appellant. As a result, the elder sister died due to a development of hemorrhage. The question that was asked by the Court was regarding the rash and negligent driving of the car by the appellant. Here, the High Court found that there was definitely negligence on the part of the appellant as his conduct was not as reasonable or prudent man would have. It was found that the appellant failed to discharge the duty imposed by law on him. Here the duty was imposed to take care of the pedestrian in pedestrian crossings. However, the appellant was not found to drive his car rashly. It is because of the fact that the prescribed limit of the speed of that in the street was found to be 35 km/hr and here, in this case, the car was found to be driven within the speed prescribed by law. Also, the time at which accident took place was in the morning and as a result, the driver does not need to take extra care regarding the speed of the car.
Rash and Negligent Act in Driving Along a Public Highway
Section 304A of the Indian Penal Code is applicable in the cases related to the rash and negligent act in driving any vehicle along a public highway. Due to this negligent and rash act of one person the other person suffers. Here the death of a person will result in the legal proceedings against the defendant. Here all the elements of Section 304A need to be checked. According to this Section, the person who is driving the vehicle must be either negligent or does the act rashly. The person must not have any intention or knowledge related to the fact that this act of his/ her will lead to the death of any person. And at last, there must be the death of a person due to this rash/ negligent act of the defendant. In these cases the principle of Res Ipsa Loquitur is also applied.
Duli Chand v. Delhi Administration, 1975
The famous case of Duli Chand v. Delhi Administration is a classic example of doing a negligent act in driving along a public highway. In this case, the appellant (driving a bus) struck the deceased person who was coming/riding a bicycle. Here it was questioned that the speed of the bus was excessive which resulted in the death of the other person because of the negligent and rash act of the appellant. However, the Supreme Court found that there was negligence on the part of appellant because the appellant did not look at his right even though he was approaching a crossroad and failed to notice the deceased who was coming from his right was crossing the road. The Supreme Court thus held that the driver of the bus is grossly negligent but the act of the driver was not found to be rash. It was because during the time of the accident, the speed of the bus was found to be 20 miles per hour which can not be considered as an excessive speed in any of the Public Highway and thus the act of driver was not rash. Therefore the Supreme Court held the appellant liable for his breach of duty.
Mohammed Aynuddin@Miyam v. State of Andhra Pradesh, 2000
The case of Mohammed Aynuddin @ Miyam v. State of Andhra Pradesh is another example where driving in a rashly or negligently manner was questioned. In this case, the appellant appealed against previous decision to the Supreme Court of India. The major question, in this case, was whether the driver of the bus was really negligent in driving? Here the driver was driving a bus of the Andhra Pradesh Road Corporation. A passenger named Agamma boarded the bus and she fell down from the bus as the bus moved forward. And as the rear wheel of the bus ran over her the women suffered from many injuries and due to these injuries, she died ultimately. According to a witness as the woman fell down the bus stopped after traveling some distance as the appellant heard the voice to stop the bus.
Here, in this case, the various elements of Section 304A of the Indian Penal Code were again cross-checked. Here the Supreme Court held that it is wrong to presume the negligence on the part of the driver in any motor accident negligence. It was further held that in an accident like this, it becomes important for the driver to prove that he/she is not negligent. The Supreme Court also talked about the principle of Res Ipsa Loquitur. The Apex Court said that this principle can not be applied everywhere and its application depends on the situation.
In the present case, the Supreme Court found that there can be negligence on the part of the passenger, there can be negligence on the part of the driver as well as there is the possibility that it is an accident. In this case, the Supreme Court found that the driver was unaware of the fact that there is even a possibility of an accident. The evidence, in this case, was found to be too scanty to fasten the driver with criminal negligence.
Doctrine of Res Ipsa Loquitur
The term Res Ipsa Loquitur comes from the Latin language and it means that ‘the things itself speaks’. In common language, it can be understood by the phrase “ the things speaks for itself”. It is applied where it is difficult to find who is negligent in the case. But it is well established (prima facie) that someone must be negligent in the case. When any train crashes, a bridge collapses or when any automobile is found inside the hotel lobby then it is very certain that it must be due to someone’s negligence. But when we do not have any conclusive evidence regarding who was actually negligent then the doctrine of Res Ipsa Loquitur is applied. Here in the above cases, the crash of the train must be due to the conductor who fell asleep during the journey of the train. It is decided by the fact that who is the person/ authority etc. in control at the time of the accident.
The principle of res ipsa loquitur is a rule of evidence to determine the responsibility/onus of proof in actions related to negligence. This principle is applicable only when the nature of the accident and the circumstances related to the case would lead to the belief that in the absence of negligence the accident would not have occurred and the thing which caused the injury must be under the management and control of the wrongdoer.
Ravi Kapur v. State of Rajasthan, 2012
In the very famous case of Ravi Kapur v. State of Rajasthan the principle/doctrine of res ipsa loquitur was discussed in detail. This is the case of an appeal against the judgment of the High Court of Jaipur Bench. The facts of the case were as follows:
“Sukhdeep Singh was going to attend the marriage of his brother along with his family. They were going in two jeeps and a Maruti car. On their way, they met with an accident with a bus that was coming from the opposite direction at a very high speed. Due to this eight-person died on the spot. According to one of the witnesses, the bus was driven by the accused Ravi Kapur and after the accident, he ran away from the spot. The trial court held that the prosecution was not able to prove the liability of Ram Kapur and hence he was acquitted by the trial court. However, the decision of the High Court comes against the trial court and its decision was backed by the reasoning which includes the principle of res ipsa loquitur, negligence, reasonable care.”
The principle of res ipsa loquitur serves two purposes – it establishes the negligence on the part of the accused party and secondly, it is applied in the cases where the claimant is able to prove that there is an accident but is not able to prove how the accident occurred. The High Court by applying the principle of res ipsa loquitur found Ram Kapur liable under Section 304A of the IPC. The same case when went to the Supreme Court the court held that the decision of the High Court was right and the appellant was held liable ultimately.
Rash or Negligent Act in Medical Treatment
In our country doctors are said to be the second God as they give second life to people by treating them or by giving medical aid to the ill people. Nowadays it has become very common to hear the cases where due to the negligence of these doctors or the medical staff their patients suffer. There are even some cases where due to negligence in medical treatment person died. Here it becomes very important to look after the negligence which is done by the medical team. To cope with this issue there are certain laws and regulations made by our country.
Medical negligence is covered under Consumer Law, Criminal Law and also under Tort Law. It attracts civil liability under Consumer Law and Torts while under Criminal Law it attracts punishment (imprisonment, as well as fine, can be imposed). We have to understand that in Criminal Law it is determined by the state of mind of the person. However, there are some exceptions to it like in offence of Strict Liability and in offence of negligence the state of mind of the person does not matter.
In the Indian Penal Code, there is a provision that covers the rash or negligent act in medical treatment. Section 304A of IPC also talks about the same and the negligent or rash act of the medical staff is covered in this Section only. The terms like a rash and negligence also create a doubt in the minds of people in the cases related to medical treatment. Here, in my opinion, Section 304A of the Indian Penal Code that deals with rash or negligent act cannot be applied for charging doctors for medical negligence, but they can be charged for negligence only. It is because by the meaning of the rash act as discussed earlier we understand that an act which is performed by the person even if they can foresee the consequence and yet they go-ahead to perform the same act and due to this act someone dies. So we can not apply this meaning to the rash act for the doctors also. Let us understand this whole concept through an example if this concept of “rash act” is applied in the case of doctors, it will mean that if a doctor can ever foresee the death of the patient would happen if he/ she operates and then also doctor proceeds to operate the patient and if a patient dies as a result, then here, in this case, the doctor should be held liable for his/ her rash act. But as these types of uncertainties about the result are very common in the treatment of a person and due to this only the hospital authorities get the consent of the patients or their relatives before the treatment of the patients or before performing any operations.
Also, I think there are several reasons for which this Section can not be applied in the cases related to medical treatment. This Section can not be applied at all to the doctors who have opted for a particular method of treatment. The “reasonable man concept” will also create a problem in the case of the doctor. What a reasonable doctor will do in a particular situation is a big question. For example, if a person having a heart problem approaches a general physician and if he/she treats that person then his method of treatment would be totally different from the methods of treatment of cardio specialist. How can a general physician be held liable if the patient dies due to the treatment of the doctor as here, in this case, the doctor cannot foresee the consequences of his lack of expertise?
But we can not neglect a situation where a doctor forgets a scissor inside the body of the patients during the operating the patient. We can also not neglect a situation where a doctor operates the lift limb of the patient instead of the right limb. Are these are not examples of medical negligence? The answer to this question is very easy it is not about the medical negligence these are clear cases of negligence. There is a difference between medical negligence and negligence. Because even an ordinary can say that there is negligence and it does not require any special medical knowledge. By medical negligence we mean a situation where only a medical practitioner can say that whether there was negligence or not.
But, as said before such negligence or rashness can not be covered by Section 304A of the IPC on the basis of the special nature of the profession or occupation. If any professional driver drives a car rashly or negligently and as a result of this any person dies then he should be liable as it is a case of negligence. The case of the medical profession is different because it involves the life of patients very often. Patients often come to the doctor when they are on the verge of death. Operations or injection can work differently on different persons, despite the due care taken by the doctor. The doctors can be foreseeing the death of the patient but then also he chooses the best option. So here the mental state of the doctor as a negligent or rash is out of the question. So, Section 304A of IPC cannot be used for dealing with cases of medical negligence.
Punishment
After proving the person liability under Section 304A of the Indian Penal Code it becomes very important to punish those offenders. The punishment for death which is caused due to the negligent or rash act of the accused is prescriber under Section 304 A of the IPC itself. According to this Section, a person who is held liable for causing the death by negligence can be punished for the two-year jail or can be fined for the same or can be punished by both. The term of imprisonment depends on the gravity of the crime and imprisonment can be rigorous in nature or can be simple in nature. Its nature is also defined by the gravity of the crime and it varies from situation to situation as it depends on the situation. It is a cognizable offense and has been put in the category of a heinous crime. Here the police officer can arrest the accused without a warrant. It is a bailable offense and a bail can be granted by the police and the court.
Conclusion
Now, I would like to conclude this article by giving the opinions/recommendations which can be implemented for more effective use of Section 304A of Indian Penal Code. There are certain loopholes related to Section 304A which need to be covered by bringing certain changes. Here through our article, we can easily find that Section 304A can not be effectively applied in cases related to medical negligence. There it needs certain reforms for its effective usage. Also, the punishment prescribed under Section 304A is also found to be insufficient. On several occasions there has been a demand for increasing the imprisonment period from two years to five years. The same was found by the Supreme Court judges.
Talking about the positive side of Section 304A of IPC is it helps to distinguish a crime where the defendant/ accused has no intention or has no knowledge about the crime.
References
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