Causing Death by Rash and Negligent Act
A rash or negligent act causing death or grievous hurt is a punishable offence under the Indian Penal Code (IPC). Section 304-A and Section 338 of the IPC deals with rash or negligent act leading to death or grievous hurt respectively. In order to convict a person under these provisions, it must be proved that the rash or negligent act was the direct or proximate cause of death or grievous hurt.
The expression rash or negligent has not been defined as such but has acquired a definite comprehendible meaning because of its frequent interpretations by the Courts of law.
S. 304A - “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.”
Section 304-A was added to the IPC by the Amendment Act, of 1870. This supplies an omission providing for the offence of manslaughter by negligence which was originally included in Draft Code, but omitted from the Code when it was finally enacted in 1860.
To impose criminal liability under Section 304-A, it is necessary that the death should have been the direct result of a rash and negligent act of the accused and that the act must be the proximate and efficient cause without the intervention of another’s negligence. It must be the causa causans (immediate or operating cause); it is not enough that it may have been the causa sine qua non (a necessary or inevitable cause). That is to say, there must be a direct nexus between the death of a person and rash or negligent act of the accused.
The provisions of Section 304-A apply to cases where there is no intention to cause death, and no knowledge that the act done in all probability would cause death. Section 304-A deals with homicide by negligence. It does not apply to a case in which there has been the voluntary commission of an offence against the person. The doing of a rash or negligent act, which causes death, is the essence of Section 304-A.
The distinction between a rash act and a negligent act
There is a distinction between a rash act and a negligent act. ‘Rashness’ means an act done with the consciousness of a risk that evil consequences will follow. (It is an act done with the knowledge that evil consequence will follow but with the hope that it will not). A rash act implies an act done by a person with recklessness or indifference as to its consequences.
The term ‘negligence’ means ‘breach of a legal duty to take care, which results in injury/damage undesired by the wrongdoer. The term ‘negligence’ as used in Section 304 A does not mean mere carelessness. A negligent act refers to an act done by a person without taking sufficient precaution or reasonable precautions to avoid its probable mischievous or illegal consequences. It implies an omission to do something, which a reasonable man, in the given circumstances, would not do.
Rashness is a higher degree of negligence. The rashness or negligence must be of such nature so as to be termed as a criminal act of negligence or rashness. Criminal rashness is hazarding a dangerous or wanton act with the knowledge that it is so, and that it may cause injury, but without intention to cause injury, or knowledge that it will probably be caused. The criminality lies in running the risk of doing such an act with recklessness or indifference as to the consequences. 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 has arisen, it was the imperative duty of the accused person to have adopted.
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 precaution 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 that, if he had, he would have had the consciousness. The imputability arises from the neglect of the civic duty of circumstances.
A rash act primarily is 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.
Not amounting to culpable homicide
The expression ‘not amounting to culpable homicide’ in Section 304-A indicates the offences outside the range of Sections 299 and 300, and obviously contemplates those cases into which neither intention nor knowledge enters. It indicates that intentionally on knowingly inflicted violence, directly and wilfully caused, is excluded from the implication of Section 304-A.
Section 304-A specifically deals with the rash or negligent acts which cause death but fall short of the culpable homicide of either description. Where A takes up a gun not knowing it is loaded, points in sport at В and pulls the trigger, В is shot dead. A would-be liable for causing the death negligently under Section 304-A.
Effect of Contributory negligence
Contributory negligence is no defence to a criminal charge i.e., where the death of a person is caused partly by the negligence of the accused and partly by his own negligence. If the accused is charged with contributing to the death of the deceased by his negligence it matters not whether the deceased was deaf, or drunk, or negligent, or in part contributed to his own death. In order to impose criminal liability under Section 304-A, it is essential to establish that death is the direct result of the rash or negligent act of the accused.
Generally, Section 304-A is taken into consideration in the cases of road accidents, accidents in factories, etc. It is the duty of the driver to drive the vehicle in a cautious way. Where a driver drives the vehicle in an abnormal manner and cause the death of persons, he is liable under Section 304-A. Where a factory owner neglects the maintenance of the machine, and causes the death of a person, he shall be held liable under Section 304-A.
However, Section 80 of the IPC provides, “nothing is an offence which is done by accident or misfortune and without any criminal knowledge or intention in the doing of a lawful act in a lawful manner by a lawful means and with proper care and caution’. It is absence of such proper care and caution, which is required of a reasonable man in doing an act, which is made punishable under Section 304-A. To render a person liable for neglect of duty it must be such a degree of culpability as to amount to gross negligence on his part. It is not every little slip or mistake that will make a man so liable.
In Shivder Singh v. State [(1995) 2 Cr.LJ 2142 (Del.)],; the passenger was standing on the foot-board of a bus to the knowledge of the driver and even so the driver negotiated a sharp turn without slowing down. The passenger fell off to his death. The driver was held to be guilty under Section 304-A.
In Akbar AH v. R [(1936) 12 Luck 336], the accused, a motor driver, ran over and killed a woman, but there was no rashness or negligence on the part of the driver so far as his use of the road or manner of driving was concerned, it was held that the accused could not be convicted under Section 304-A on the ground that the brakes of the lorry were not in perfect order and that the lorry carried no horn.
The immediate cause of death
The ‘rash or negligent act’ referred to in Section 304-A means the act which is the immediate cause of death and not any act or omission which can at most be said to be a remote cause of death.
In Tapti Prasad v. Emperor [15 ALJ 590], the accused was the Assistant Station Master on duty. There was a collision of a passenger train and goods train caused by the signalling of the accused. The collision claimed many lives and the accused were convicted under Section 304-A and Section 101 of the Railway Act.
In Ramava v. R [(1915) 17 Bom LR 217], the accused administered to her husband a deadly poison (arsenious oxide) believing it to be a love potion in order to stimulate his affection for her but the husband died. She was convicted under Section 304-A considering the act of the accused was rash and negligent.
In Batdevji v. State of Gujarat [AIR 1979 SC 13 27], 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 Section 304-A was upheld.
Cases of Medical Negligence
In medical field, a doctor is not criminally liable for a patient’s death, unless his negligence or incompetence passes beyond a mere matter of competence and shows such a disregard for life and safety, as to amount to a crime against the State.
In Juggan Khan v. State of Madhya Pradesh [AIR 1965 SC 831], the accused was a registered homoeopath who had administered to a patient suffering from guinea worm, 24 drops of stramonium and a leaf of dathura without properly studying its effect. The patient died as a result of the medicine given by the accused. The accused was convicted under Section 304-A as he has given poisonous medicine without being aware of its effects by his rash and negligent act.
In Jacob Mathew v. State of Punjab [(2005) 6 SCC 1], the Supreme Court formulated the following guidelines, which should govern the prosecution of doctors for offences of criminal rashness or criminal negligence:
Negligence becomes actionable on accident of injury resulting from the act or omission amounting to negligence attributable to that person sued. The essential components of negligence are three; ‘duty’, ‘breach’ and ‘resulting damage’;
A case of occupational negligence is different from one of professional negligence. simple lack of care, an error of judgment or an accident, is not proof of negligence on part of a medical professional. So long as a doctor follows a practice acceptable to the medical profession of that day, he cannot be held liable for negligence merely because a better alternative course or method of treatment is also available or simply because a more skilled doctor would not have chosen to follow or resort to that practice or procedure which the accused followed;
When the charge of negligence arises out of failure to use some particular equivalent, the charge would fail it the equipment were not generally available at the time (that is at the time of the incident) at which it is suggested it should have been used;
A professional may be held liable for negligence on one of the two findings, viz., either he was not possessed of the requisite skill which he professes to have possessed, or he did not exercise, with reasonable competence in the given case, which he did possess;
The standard to be applied for judging, whether the person charged had been negligent or not, would be that of an ordinary competent person exercising ordinary skill in that profession. It is not possible for every professional to possess the highest level of expertise or skills in that branch which he practices;
The jurisprudential concept of negligence differs in civil and criminal law. What may be negligence in civil law may not necessarily be negligence in criminal law. For negligence to amount to an offence, the element of mensrea must be shown to exist. The degree of negligence must be much higher, i.e., gross on of a very high degree in criminal negligence. Negligence, which is neither, gross nor of a very high degree may provide a ground for action in civil law but cannot be the basis for prosecution;
To prosecute a medical professional for negligence under criminal law it must be shown that the accused did something or failed to do something which in the given facts and circumstances no medical professional in his ordinary senses and prudence would have done or failed to do. The hazard taken by the accused doctor should be of such a nature that the injury that resulted was most imminent;
A private complaint may not be entertained against a doctor unless the complainant has produced prima facie evidence before the court in the form of a credible opinion given by another competent doctor to support the charge of rashness or negligence on the part of the accused doctor;
A doctor accused of rashness or negligence may not be arrested in a routine manner (simply because a charge has been levelled against him), unless the arrest is necessary for furthering the investigation or for collecting evidence;
Simply because a patient has not favourably responded to a treatment given by a physician or a surgery has failed, the doctor cannot be held liable per se by applying the doctrine of res ipsa loquitur (i.e., the thing speaks for itself).
The punishment for causing death by negligence under Section 304-A is imprisonment of either description for a term, which may extend to two years, or with fine, or with both. Sentence depends on the degree of carelessness seen in the conduct of the accused.
This offence is cognizable and warrant should ordinarily issue in the first instance. It is available, but not compoundable, and is triable by a Magistrate of the First Class.