Deatu By NEGLIGENCE Section 304A. 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. ‘The original IPC had no provision providing punishment for causing death by negligence Section 304A was inserted in the Code in 1870 by the Indian Penal Code (Amendment) Act 1870. It does not create a new offence. This section is directed at offences, which fall outside the range of ss 299 and 300, where neither intention nor knowledge to cause death is present. This section deals with homicide by negligence and covers that class of offences, where death is caused neither intentionally nor with the knowledge that the act of the offender is likely to cause death, but because of the rash and negligent act of the offender. This clause limits itself to rash and negligent acts which cause death, but falls short of culpable homicide of either description. When any of these two elements, namely, intention or knowledge, is present, s 304A has no application. In fact, if this section is also taken into consideration, there are three types of homicides which are punishable under the IPC, namely, (i) culpable homicide amounting to murder; (i) calpable homicide not amounting to murder, and (iii) homicide by negligence. Rast or Necuicenr Act Section 304A deals with ‘death’ caused by a ‘rash’ or ‘negligent’ act.'’ However, in both the cases, the death caused should not amount to culpable homicide.** The doing of a rash or negligent act, which causes death, is the essence of s 304A. There is a distinction between a rash act and a negligent act. ‘Rashness’ conveys the idea of recklessness or doing of an act without due consideration and ‘negligence’ connotes want of proper care.®” A rash act implies an act done by a person with recklessness or indifference as to its consequences. The doer being conscious of the mischievous or illegal consequences, does the act knowing that his act may bring some undesirable or illegal results but without hoping or intending them to occut.** A negligent act, on the other hand, refers to an act done by a person without raking sufficient precautions or reasonable precautions to avoid its probable mischievous or illesi consequences. it implies an omission to do something, which a reasonable man, in che given circumstances, would not do.” 83. Raghunath Babesa v State of Orissa (1968) Cr LJ 851 (Ori); State of Gujarat v Haidarali AIR. 1976 SC 1012. 84. Shankar Narayan Bhadotkar v State of Maharashtra AIR 2004 SC 1966, (2005) 9 SCC 71; Prabhakanen ile (2007) 14 SCC 269, AIR 2007 SC 2378; Kuldeep Singh v State of Himachal Pradesh AUR 200! Mahadev Prasad Kaushik v State of Usiar Pradesh (2008) 14 SCC 479, AIR 2009 SC 1 85. By virtue of s 32, IPC, the rerm ‘act’ also includes an ‘illegal omission’. Therefore d ‘omission resulting from negligence comes within the purview of s 304A. S Sarkar (1968) Cr L} 405 (Cal), 86 State of Gujarat v Haiderali AIR 1976 SC 1012, 87 Emperor v Abdul Latif AVR 1944 Lah 163, 88 See Pitala Yadagiri v State of Andina Pradesh (1991) 2 Cris Cr LJ 2142 (Del). See Re JC May AIR 1960 Mad 50; Padmacharan v State of Orissa (1982) Cr LJ (NOC) 192 (Ori); Mahadew Prasad Kaushik v State of Uttar Pradesh (2008) 14 SCC 479, AIR 2009 SC 125. nes 359 (AP); Shiv Dev Singh v State (Delbi) (1995) 89 588 Scanned with CamScannFromiciae The term ‘negligence’ as used in this section does not mean mere aon or negligence must be of such nature so a5 (0 be termed as a criminal act of vachness, Section 80 of the IPC provides ‘nothing is an offence which is done by wrfortune and without any criminal knowledge or intention in the doing of a las a lawfal manner by a lawful means and with proper care and caution’, It is absent proper care and caution, which is required of a reasonable man in doing an act, which punishable under this action. Ieis the degree of negligence that really determines whether a particular act would amor coa rash and negligent act as defined under this section. I is only when the rash and negligent act is of such a degree that the risk run by the doer of the act is very high or is done with such recklessness and with total disregard and indifference to the consequences of this act, the act can be constituted as a rash and negligent act under this section. Negligence is the grass and culpable neglect or failure to exercise reasonable and proper care, and precaution £0 guard against injury, either to the public generally or to an individual in particular, which a reasonable man would have adopted.” In Cherubin Gregory v State of Bihar?" the deceased was an inmate of a house near that of the accused. The wall of the latrine of the house of the deceased had fallen down a week prior to the day of occurrence, with the result that his latrine had become exposed to public view, Consequently, the deceased, among others, started using the latrine of the accused. The accused resented this and made it clear to them that they did not have his permission to use it and protested against their coming there. The oral warnings, however, proved ineffective. Therefore, the accused fixed a naked arid uninsulated live wire of high voltage in the passage to the latrine, to make entry into his latrine dangerous to intruders. There was no warning put up that the wire was live. The deceased managed to_pass into the latrine without contacting the wire, but as she came out, her hand happened to touch it, she got « shock and died because of. Tc was contended on behalf of the accused that he had a right of private defence of property and death was caused in the course of the exercise of thar right, as the deceased was a trespasser. The Supreme Court rejected the contention stating thar the mere fact that the person entering sland is 2 trespasser does not entitle the owner or occupier to inflict on him personal injury by direct violence. The court observed that it is no doubt true that the trespasser enters the property at his own tisk and the occupier owes no duty to take any reasonable care for his protection, but at the same time, the occupier is not entitled ro wilfally do any act, such as setting a trap of naked live wire of high voltage, with the deliberate intention of causing harm to trespassers or in reckless disregard of the presence ofthe trespasser. Ie was held thar since the trespasser died soon after the shock, the owner who set up the trap was guilty under s 304A, IPC. The Supreme Court upheld the conviction of the accused, “An assistant station master gave a ‘line clear’ signal to a passenger train with the knowledge that a goods train was standing, at a particular point, where the train might collide, hoping to remove the goods train before the arrival of the passenger train, ‘The goods train was not removed in time and a collision occurred which was attended with loss of life, The assistant Jn act punishable under this section.’ station master was held guilty of ar 90 SN Husain v State of AP AIR 1972 SC 685; State of Himachal Pradesh v Mobinder Singh (1989) 2 Crimes 159% Rayan v State of AP (1994) Cx L} 78 (AP): Surender Kumar v Stae of Urear Pradesh (1996) Ce 13 94 (All). 91 AIR 1964 SC 205, (1964) Cr L] 138 (SC). 99 amp rove All 470 scanned witn Gamscannasl SED SRLS Sa 8 ogg ee 2 /ABSENCE OF INTENTIONAL ‘VIOLENCE / 1 he ees aaa isha the act which has resulted in the death ofa person, should not bape ee tention of causing cleath, Voluntary and intentional acts either wich ae neo ae death or the knowledge that the at is likely to cause death, will meune In Sarabjeet Singh v State of Uttar Pradesh the accused was part of an unlawful assembly and attacked the opposite party. He had come to attack the father of the deceased (who we a small child of about four years). With a view of causing some harm and raking vengeance on the father of the young child, he threw the innocent child on the ground. The Supreme Court held that the act of throwing the child on the ground could not be called as rash with the meaning of s 304A, as he had knowledge that his act was likely to cause death. Under the circumstances, it would amount to culpable homicide under s 299 and punishable under + 304, Pr Il, IPC. DearH Most Be THE Direct REsutt In order to impose criminal liability under this section, itis essential to establish that death is the direct result of the rash and negligent act of the accused. It must be cause causans—the immediate cause, and it is not enough that it may be causa sine qua non—the proximate cause.95 In Suleman Rahiman Mulam v State of Maharashtra, the accused, who was driving 2 jeep struck the deceased, as a result of which he sustained serious injuries. The accused put the injured person in the jeep for medical treatment, but he died. Thereafter, the accused cremated the body. The accused was charged under ss 304A and 201, IPC. As per s 304A, there must be a direct nexus between the death of a person and rash and negligent act of the accused that caused the death of the deceased. It was the case of the prosecution that the accused had possessed only a learner’ licence and hence, was guilty of causing the death of the deceased. ‘The Supreme Court held that there was no presumption in law that a person who possesses only a learner's licence or possesses no licence at all does not know driving. A person could, for various reasons, including sheer indifference, might not have taken a regular licence. There was evidence to show that the accused had driven the jeep to various places on the previous day of the occurrence. So, before the accused is convicted under s 304A, there must be proof that the accused drove in a rash and negligent manner and the death was a direct consequence of such rash and negligent driving, In the instant case, there was absolutely no evidence chat the accused had driven in a rash and negligent manner. In the absence of such evidence, no offence under s 304A was made out. The accused was acquitted of the charges In Ambalal D Bhatt v State of Gujarat,” the accused was a chemist in charge of the injection department of Sanitax Chemical industries Limited, Baroda, The company prepared glucose in normal saline, a solution containing dextrose, distilled water and sodium chloride. The sodium 93 AIR 1983 8C 529, 94 Kurban Husain v State of Maharashtra (1965) 2 SCR 622; Satya Prakash Choudhary v State of Madhya Pradeb (1990) Cr LJ (NOC) 132 (MP). 95. Ma Rangawalla v State of Maharashtra AIR 1965 SC 1616. 96 AIR 1968 SC 829, (1968) Cr LJ 1013 (sc). 97 AIR 1972 SC 1150, scanned witn Gamscannchloride sometimes contained quantities of lead nitrate, the permissible limit for lead nitrate being five parts in one million. The saline solution, which was supplied by the company, was found to have lead nitrate higher than the permissible limits and hence was dangerous to human life. The bottles, which were sold by the company, were purchased by different hospitals and nursing homes and were administered to several patients of whom 12 patients died, As per the Drugs Act 1940, and the rules framed thereunder, a chemist of a chemical company has to give a batch number to every lot to bottles containing preparation of glucose in normal saline. The accused, who was responsible for giving the batch numbers, failed to do so. He gave asingle batch number to four lots of saline. Ic was the contention of the prosecution that had the appellant given separate batch numbers to each lot as requited under the rules, the chief- analyst would have separately analysed each lot and would have certainly discovered the heavy deposits of lead nitrate in the sodium chloride and the lot which contained lead would have been rejected, As the accused had been negligent in conforming to the rules, the deaths were the direct consequence of the negligence. The Supreme Court held that for an offence under 8304A, the mere fact that an accused contravened certain rules or regulations in the doing of an act which caused death of another, does not establish that the death was the result of a rash or negligent act or that any such act was a proximate and sufficient cause of the death. It was established in evidence that it was the general practice prevalent in the company of giving one batch number to different lots manufactured in one day. This practice was to the knowledge of the drug inspector and to the production superintendent, The coust held that the drug inspector himself knew fully well chat this was the practice, but did not lifta finger to prohibie the practice and instead turned his blind eye(to a serious contravention of the drug rules. To hold the accused responsible for the contravention of the rule would be to make an attempt to | somehow find the scapegoat for the deaths of the 12 persons. Accordingly, the conviction of | theaccused under s 304A was set aside.” i { | | Difference Between Rashness and Negligence Arash act is primarily an overhasty act.” Negligence is a breach of a duty caused by omission to do something, which a reasonable man guided, by those considerations which ordinarily regulate the conduct of human affairs would do.' In Bhalachandra Waman Pathe v State of Maharashtra," the Supreme Court explained che distinction between a rash and a negligent act in the following manner: There is a distinction between a rash act and a negligent act. In the case of a rash act, the criminality lies in running the tisk of doing such an act with recklessness or indifference as to the consequence Criminal negligence is the gross and culpable neglect or failure to exercise that reasonable and proper care and precaution to guard against injury either to the public generally or to an individual in particular, which, having regard to all the circumstances out of which the charge his arisen, it was the imperative duty of the accused person to have aclopeed. Negligence is an omission co do something which a reasonable man, guided upon those considerations which ordinarily regulate the conduct of human affairs would do, or doing something which a prudent and reasonable man 98 See also Baijnath Singh v State of Bihar AIR 1972 SC 1485. 99. Balwant Singh v State of Punjab 1994 SCC (Cri) 84, 100 Hi: igh Gour, Penal Law of India, vol 3, 11th edn, Law Publishers, Allahabad, 1998, p 3028. 101 (1968) 71 Bom LR 634 (SC), (1968) SCD 198, Scanned with CamScannewould not do. A culpable rashness is acting with the consciousness that the mischievous and illegal consequences may follow, but with the hope that they will not, and often with the belief that the actor has taken sufficient precautions to prevent their happening, The imputability arises from acting despite the consciousness, Culpable negligence is acting without the consciousness that the illegal and mischievous effect will follow, but in circumstances which show that the actor has not exercised the caution incumbent upon him and if he had, he would have had the consciousness, ‘The imputability arises from the neglect of the civic duty of circumspection, nes In the instant case, the appellant was drivin, ¢ g his car at a speed of 35 miles an hour, the speed permiss le under the rules. No other circumstance was pointed out to show that he was drivin ina teckless manner. Therefore, he cannot be said to have been running the risk of doing an act wich recklessness or indifference as to the consequences. However, he was undoubtedly guilty of negligence. He had a duty to look ahead and see whether there was any pedestrian in the Pedestrian crossing, Its likely chat while driving the car, he was engrossed in talking with the Person who was sitting by his side. By doing so, he failed to exercise the caution incumbent upon him. His culpable negligence and failure to exercise that reasonable and proper care and caution required of him resulted in the occurrence. He was therefore held guilty of the offence punishable under s 304A. Rast AND Necuicenr Act in Driving ALonG 4 Pusuic Hichway Generally, a person who is driving a motor vehicle is expected to always be in control of the vehicle in such a manner as to enable him to prevent hitting against any other vehicle or running over any pedesttian, who may be on the road. In Baldeyji v State of Gujarat,” the accused had run over the deceased while the deceased was trying to cross over the road, The accused did not attempt to save the deceased by swerving to the other side, when there was sufficient space. This was a result of his rash and negligent driving. His conviction under 304A, IPC, was upheld. In Dui Chand v Dethi Administration,!® the accused was driving a public transport bus, and he had reached a crossroad. At that time, although he was not going at a great speed, he failed to look co his right and thus did not see the deceased, who was coming from his right and was crossing the toad, The main road was 42 feet wide and had the accused been reasonably alert and careful, he would have seen the deceased coming from his right trying to cross the road, and in that event he could have immediately, applied the brake and brought the bus to a grinding hale. The act of the accused in failing to look to his right, although he was approaching a crossroad, amounted to culpable homicide on his part and hence, he was convicted under s 304A, IPC.! In Thakur Singh v State of Punjab," the Supreme Court held the driver of a bus, carrying 41 passengers, while crossing a bridge, fell into a nearby canal resulting death ofall che passengers, guilty of rash and negligent driving. Refuting his plea that the prosecution failed to prove negligence on his part, the court invoked the doctrine of res ipsa loguitur to shift che onus of proof to him to prove that the accident did not happen due to his negligence. In view of the 102 103 ALR 1975 Si 104 Bur see State v lus (2003) 9 S 1327. 1960. fohammad Yusuf (2001) Cr LJ 5 (SC). 208, scanned witn Famscannerrno aalloping trend in road accidents in India and the devastating consequences thereof ond a ioc ead their families, the apex court refused to give benefits of benevolent provisions 0 ys bation of Offenders Act 1958. Ic also stressed the need to impose deterrent punishment ai aaite and callous drivers of automobiles to make them careful drivers and thereby ‘dents. bring down the high rate of motor accidents." = ip Nano Girt» State of Madhya Pradesh wherein death and injury caused to passengers wen the bus driver attempted to cross a unmanned railway ctossing and hit by a passing «ain, the Supreme Court altered the charges from s 304 to 304A on the ground that his gross negligence, Rast on NEGLIGENT ACT IN MEDICAL TREATMENT Courts have repeatedly held that great care should be taken before impuiting criminal rashness or negligence to a professional man acting in the course of his professional duties. A doctor is not criminally liable for a patient's death, unless his negligence or incompetence passes beyond amere matter of competence and shows such a disregard for life and safety, as to amount to a atime against the state. In Jobn Oni Akerele’ case," a medical: practitioner had administered a medical dose of serbtal injection to a child, because of which the child died: The doctor was charged under s 5044, IPC. The contention of the accused doctor was thac the child was peculiarly susceptible to the medicine and therefore unexpectedly succumbed to a dose which would have been barmless in case of a normal child. The Privy Council held that the doctor was guilty of criminal negligence. In Juggan Khan v State of Madhya Pradesh the accused was a registered homeopath who had administered co a patient suffering from guinea worm, 24 drops of stramonium and a leet of dashura without properly studying its effect. The patient died as a result of the medicine given by the accused. Stramonium and dathuna ate poisonous. So, giving the same withous being aware of its effects was held to be a rash and negligent act. The accused was conviceed under s 304A, IPC, and sentenced to two years rigorous imprisonment. When a hakim gave a procaine penicillin injection to a patient because of which he died, it was held that the hakim was guilty under s 304A. In Ram Niwas v State of Uttar Pradesh" the accused, an unqualified doctor, treated a five-year old boy who was suffering from fever. He administered an injection to the boy upon which the boy turned blue and his condition worsened. Thereaeet, the boy died, Accorling to the evidence, the accused did not administer the injection after giving any test dose to the boy. In view of the fac that the accused was not a qualified medical practioner who had given an injection to the boy without giving any test dose, the coure held that he hacl acted wich tashness, recklessness, negligence and indifference to the consequences, Icamounted to taking hazard of such degree that the injury was most likely to be occasioned thereby. ‘The court held 106 See also Murari v State of Madhya Pradesh (2001) Cr LJ 2968 ( SCC 82; Suyambu w State (2001) Cr LJ 1577 (SC). 107 AIR 2007 SC 7104, 2007 (13) SCALE 7 108 AIR 1943 PC 72, (1944) Cr LJ 569 (PC). 109 AIR 1965 SC 831 M0 (1998) Cr L} 635 (AID, Dalbir Singh v State of Haryana (2000) 3 8 scannea witn Camscanntthat it was amply established that the accused catised . , sect ca the death of , said rash and. negligent act which did not amount to culpable ee ost yy ding fe accused was guilty under s 304A, IPC, cide and held that the However, during the recent past the Sup ae : ; ipteme Court has attributed a diffe Heahietes when it on to a professional, particularly, a medical prcticioner | “andi in Suresh Gupta (Dr) v Gout of NCT of Delhi & Anon! ; ce ees rei of ior," the Supreme Court held that for t the standard of negligence should not merely be lack of necessary care, attention and skill. The standard of negligence required to be proved should be so high as can be described as ‘gross negligence’ or ‘recklessness. With this perception, the court observed: ---[W]hen a patient agrees to go for medical treatment or surgical operation, every careless act of the medical man cannot be termed as ‘criminal’. It can be termed ‘criminal’ only when the medical man exhibits a gross lack of competence or inaction and wanton indifference to his patient’ safety and which is found to have arisen from gross ignorance oF gross negligence. Where a patient’ death results merely from error of judgment or an accident, no criminal liability should be attached to it Mere inadvertence or some degree of want of adequate care and caution might create civil liability but would not suffice to hold him criminally liable." ... [T]he act complained against the doctor must show negligence or rashness of such a higher degree as to indicate a mental state which can be described as totally apathetic towards the patient. Such gross negligence alone is punishable." In Jacob Mathew v State of Punjab & Anor!'* the Supreme Court not only approved the principle laid down in the Dr Gupta case but also opined that ‘negligence in the context of medical profession necessarily calls for a treatment with a difference...a case of occupational nepligence is different from one of professional negligence.’ Delving into liabilicy of a doctor for his rash or negligent act leading to death of his patient, it ruled that: .. (A] professional may be held liable for negligence on one of the two findings: cither he was not possessed of the requisite skill which he professed to have possessed, or, he did nor exercise, with reasonable competence in the given case, the skill which he did possess. The standard co be applied for judging, whether the person charged has been negligent or not, would be that of an ordinary competent person exercising ordinary skill in that profession."'> Recently, in Martin F D'Souza v Mohd, Ishfag,™® the Supreme Court, after making a suey of thitherto judicial pronouncements on medical negligence, reiterated, with approval, chat the Jacob Mathew dictum holds good in handling cases of medical negligence. It endorsed the concept of gross negligence delved in Jacob Mathew and stressed that the degree of negligence sufficient to fasten criminal liability for medical negligence has to be higher than that requited to fasten civil liability. For holding a medical practitioner guilty under se 304A, gross negligence on his part amounting to recklessness needs to be proved, For judicial determination of such negligence, the court has to rely upon evidence of medical professionals, 111 AIR. 2004 SC 4091, (2004) 6 SCC 422, Followed in Karcherala Venkata Sunil v Dr. Vanguri Seshumamba (2008) Cr Ly 853 (AP), 112 Ibid, para 20, 113 Ibid, para 25. 114 (2005) 6 SCC 1, 115. Ibid, para 53. 116 (2009) 3 SCC 1, AIR 2009 SC 2049. scanned witn FamscannPUNISHMENT The punishment prescribed under this section is simple or rigorous imprisonment fora t up to two years, or with fine, or with both, Sentence in cases arising under this section is a matter of discretion of the trial court.'"” Sentence depends on the degree of carelessness seen in the conduct of the accused,'"* Though, contributory negligence is not a factor, which can be taken into consideration on the question of the guilt of the accused," it can be a factor for consideration in determination of sentence. Scanned with CamScann«