Causing Death by Negligence: Section 304A IPC
This Article is written by Advocate Satish Khandal, practicing before the Rajasthan High Court at Jaipur Bench touching various aspects of death caused by rash and negligent acts. He has also remained Gen. Secretary Rajasthan High Court.
Object- The Code as it originally stood contained no adequate provision for the punishment of what the English law called manslaughter by negligence. In the draft Code, there was a section that punished this offence, but by some accident, it had been omitted from the Code when it was passed into law.
Scope- The provisions of this section seem to apply to cases where there is no intention to cause death and no knowledge that the act done in all probability will cause death. It only applies to such acts as are rash or negligent and are directly the cause of death of another person. It must be read along with ss. 336, 337 and 338. All these sections are confined in their operation to acts done without any criminal intent, apart from rashness or negligence which is their essential ingredient. The rash or negligent act mentioned in this section means the act which is the immediate cause of death and not any act or omission which can, at the most, be said to be a remote cause of death. In order that a person may be guilty under this section, the rash or negligent act must be the direct or proximate cause of the death. For conviction under this section, proof of rashness or negligence is essential.
This provision does not apply to a case in which there has been the voluntary commission of an offence against the person. If a man intentionally commits such an offence, and consequences beyond his immediate purpose result, it is for the Court to determine how far he can be held to have the knowledge that he was likely by such act to cause the actual result. If such knowledge can be imputed, the result is not to be attributed to mere rashness; if it cannot be imputed, still the wilful offence does not take the character of rashness, because its consequences have been unfortunate. Acts, probably or possibly, involving danger to others, but which in themselves are not offences, may be offences under ss. 336, 337, 338 or 304A, if done without due care to guard against the dangerous consequences. Acts which are offences in themselves must be judged with regard to the knowledge, or means of knowledge, of the offender, and placed in their appropriate place in the class of offences of the same character. In other words, violence inflicted intentionally or knowingly or caused directly and willingly is excluded from the ambit of s. 304A.
This section does not apply to cases where the death has arisen, not from the negligent or rash mode of doing the act, but from some result supervening upon the act which could not have been anticipated.
Rash or negligent act- A rash act is primarily an overhasty act, and is not supposed to be a deliberate act, but it also includes an act which, though it may be said to be deliberate, is yet done without due care and caution. Illegal omission is an 'act' under this section and may constitute an offence if it is negligent. Criminal rashness "is hazarding a dangerous or wanton act with the knowledge that 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. Negligence is the omission to do something which 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 would not do. The Supreme Court has observed to the same effect. In order to establish a criminal liability the facts must be such that the negligence of the accused goes beyond a mere matter of compensation between citizens and shows such disregard for the life and safety of others as to amount to a crime against the State and conduct deserving punishment.
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 (luxuria). 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 circumspection. It is manifest that personal injury, consciously and intentionally caused, cannot fall within either of these categories, which are wholly inapplicable to the case of an act or series of acts, themselves intended, which are the direct producers of death. To say that because, in the opinion of the operator, the sufferer could have borne a little more without death following, the act amounts, merely to rashness, because he has carried the experiment too far, results from an obvious and dangerous misconception. It is clear, however, that if the words 'not amounting to culpable homicide' are a part of the definition, the offence defined by this section consists of the rash or negligent act not falling under that category, as much as of its fulfilling the positive requirement of being the cause of death. Negligence is the genus of which rashness is a species.
Rashness and negligence are not the same things- Mere negligence cannot be construed to mean rashness. There are degrees of negligence and rashness and in order to amount to criminal rashness or criminal negligence one must find that the rashness has been of such a degree as to amount to taking hazard knowing that the hazard was of such a degree that injury was most likely to be occasioned thereby. The criminality lies in running the risk or doing such an act with recklessness and indifference to the consequences. The words "rashly and negligently" are distinguishable and one is exclusive of the other. The same act cannot be rash as well as negligent.
The question whether the accused's conduct amounted to culpable rashness or negligence depends directly on the question as to what is the amount of care and a circumspection which a prudent and reasonable man would consider it to be sufficient considering all the circumstances of the case. Moreover, in applying the above criterion it is necessary to avoid being influenced by the prejudice arising out of the loss of a life which is so dominant a factor in accident cases. The distinction between the negligence which is sufficient ground for a civil action and the higher degree which necessary in criminal proceedings is sharply insisted on in several cases. In criminal cases, the amount and degree of negligence are the determining factors. There must be mens rea in the criminal negligence also. In order to establish criminal liability the facts must be such that the negligence of the accused sent the case beyond a mere matter of compensation and showed such disregard for the life and safety of others as to amount to a crime. Simple lack of care such as will constitute civil liability is not enough.
A person driving a motor car is under a duty to control that car; he is prima facie guilty of negligence if the car leaves the road and dashes into a tree and it is for the person driving the car to explain the circumstances under which the car came to leave the road. Those circumstances may be beyond his control, and may exculpate him, but in the absence of such circumstances, the fact that the car left the road is evidence of negligence on the part of the driver. But in a case before the Mysore Court, it has been held that simply because the vehicle goes out of the road, there is no presumption that it was due to the rash or negligent driving of the accused. A vehicle may leave the road or collide against some fixed structure under a variety of circumstances. There can be no burden on an accused to prove that he was not driving the vehicle in a rash or negligent manner. Merely because the prosecution proves that the vehicle left the road, it does not follow that the accused drove the vehicle rashly or negligently. There may be innumerable circumstances, such as defect in the mechanism which might have resulted in the vehicle going out of the road, If the driver of a motor vehicle does not blow the horn because the prevailing traffic rules prohibit him from doing so, he cannot be said to be negligent. The mere velocity of a vehicle is not the only criterion of rash and negligent driving, which may also consist in talking while driving, risks which by the exercise of a little diligence could be avoided. Driving a car recklessly until it comes so close to a pedestrian that it becomes impossible to save the collision cannot but be characterised as rash and negligent driving. As between a pedestrian and a driver of a motor vehicle, the responsibility of the latter is greater as the duty to use care increases in proportion to the danger involved in dealing with the instrument that a person brings for his own purpose in close proximity to others. Ordinarily, pedestrians using the road are not exempt from the duty to take care of themselves, but negligence, if any, on the part of a pedestrian cannot excuse negligence on the part of the driver of a motor car. If a person suddenly crosses the road, without taking note of the approaching bus, the bus driver, however slowly he might be driving may not being a position to save the accident. Therefore, it will not be possible to hold that the bus driver was negligent. Where, according to the prosecution, the deceased had crossed half the width of the 50 feet wide road and had then become stationary in order to let the vehicular traffic pass before he crossed the road and he was then suddenly hit by the motorcycle which the respondent was riding while the latter was trying to overtake a bus and the result of the impact was such that the deceased was dashed to the ground and was run over by the bus between which and the deceased there was only a distance of to 5 feet, and the respondent was convicted under s. 304A by the trial court, but on appeal, the High Court found from the evidence on record that the deceased had suddenly taken a step backward as a result of which the fatal impact with the respondent's motorcycle came about and so, holding that the respondent was not to be blamed as he could have easily bypassed both the bus and the deceased, had not the deceased taken the erratic step backward, the High Court had taken a very well reasoned view of the evidence in holding that no rash or negligent act had been brought home to the respondent and so the State appeal was dismissed. A person who is driving a motor car owes a duty to the members of the public to keep a look-out on the road and more so when approaching a pedestrian crossing where he would normally expect a pedestrian to cross the road. He should be able to stop the car when it reaches the crossing, if necessary; in other words, he must not continue the normally high speed when nearing a crossing. The driving of a double bullock cart by letting loose the reins of the bullocks and racing with another double bullock cart at a time of the day when the road was likely to be used frequently by others, amounts not only to rashness but also to negligence on the part of the driver. In the course of such driving a child came under the wheel and died due to a basal fracture of the skull. Death was directly attributable to the act of the driver. The driver was held guilty under this section.
It is the duty of the driver to drive his vehicle at a speed which will not imperil the safety of others using the roads. In order to impose criminal liability on the accused, it must be found as a fact that a collision was entirely or at least mainly due to rashness or negligence on the part of the driver. It is not sufficient if it is only found that the accused was driving the vehicle at a fast speed. A motor vehicle is intended to be driven in speed. The relationship between speed and rashness or negligence depends upon the place and time. On a straight wide road, where obstructions from other vehicles or pedestrians are not there, it cannot be said that driving in speed or absence of sounding horn by themselves will amount to rashness or negligence. The speed may be moderate but still the accident may be the result of rash and negligent act. It is the duty of everyman who drives a vehicle on public highway to drive it with care and caution and to avoid as far as possible any injury to any person. The condition of the road and the nature of the traffic are also circumstances to be considered in order to arrive at a conclusion as to whether the accident was the result of rash or negligent driving of the vehicle by the driver. The driver of a vehicle will be guilty, if it is proved that he drove the vehicle at an excessive speed over a wet and zigzag road deviating from right side of the road to the wrong side, not keeping a proper look-out and putting himself in such a position as not to be able to apply the brake in time.
Supreme Court has held in catena of judgments that the important criteria for deciding whether the driving which led to the accident was rash or negligent would include not only the speed of the vehicle but also the width of the road, the density of the traffic and the attempt, if any.to overtake other vehicles, resulting in coming to the wrong side of the road and being responsible for the accident. Where the evidence showed that it was the accused respondent who came over to the wrong side of the road in his car while over taking other vehicles and was responsible for knocking down a scooterist fatally and the car driven by him then travelled another 45 feet, hit against the parapet wall on the wrong side and overturned, killing one of the occupants of the car, it was held that on these facts, his conviction under s. 304A and other sections as found by the trial court must be restored.
Death must result from rash or negligent act- "Death should have been the direct result of a rash and negligent act of the accused and that act must have been the proximate and efficient cause without the intervention of another's negligence. It must have been the causa causans; it is not enough that it may have been causa sine qua non. This view has been approved by the Supreme Court. Merely because a person contravenes some rules and regulations he does not make himself liable for rashness or negligence. Carrying human beings in a truck meant for carrying goods cannot be said to be the causa causans of the accident. The rash or negligent act 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 one case an accused was driving a motor cycle with the deceased sitting on the back seat. A bus in front of the motor cycle struck an electric pole as a result of which electric wire passing over the road broke down. The accused seeing the electric wire bowed down his neck but the said electric wire struck against the neck of the deceased as a result of which he fell down and was electrocuted. It was held that the death had occurred on account of the direct act of the driver of the bus for which the accused could not be held guilty. Where the accused-appellant, a chemist in the department of injections of a chemical industry, was charged along with five others under s. 304A for rashly or negligently manufacturing a solution of glucose in normal saline, which contained more than the permitted quantity of lead nitrate as result of which 13 persons to whom it was administered died, and it was alleged that the accused-appellant was responsible for the giving of a single batch number for all the five lots of solution manufactured on a particular day, but for which the defect in the solution would have been discovered, the Supreme Court held that the Court must determine whether the appellant's act was the causa causans or whether there had been a causa intervenient which had broken the chain of causation so as to make his act, though a negligent one, not the immediate cause. After a re-appreciation of the evidence on record, the Court held that even though one batch number was given to the several lots prepared by the appellant on the same day, as the evidence disclosed that such was the practice uniformly followed in the established concern, the appellant alone could not be held liable. It was the duty of the analyst to test the materials before they were issued to the injection department. If the materials and the prepared solution had been properly tested, lead nitrate would have been detected. Where there had been a total dereliction of duty by the Chief Analyst, non-compliance with the rules forgiving batch numbers to every lot would not make the act of the accused the causa causans of the death of the persons who were injected with the glucose solution prepared by him. To hold the appellant alone responsible for the contravention of the rules would be to somehow find a scapegoat for the deaths. His conviction under s.304A was therefore, set aside? (In such cases of structural offences, the company itself as a legal entity should have been made criminally liable under this section and made to pay a heavy fine and/or compensation ordered to be paid to the victims' dependents).
Not amounting to culpable homicide- Section 304A is directed at offences outside the range of ss. 299 and 300, and obviously contemplates those cases into which neither intention nor knowledge enters. For the rash or negligent act which is declared to be a crime is one 'not amounting to culpable homicide,' and it must therefore be taken that intentionally or knowingly inflicted violence, directly and wilfully caused, is excluded. Section 304A does not say every unjustifiable or inexcusable act of killing not hereinbefore mentioned shall be punishable under the provisions of this section, but it specifically and in terms limits itself to those rash or negligent acts which cause death but fall short of culpable homicide of either description. According to English law, offences of this kind would come within the category of manslaughter, but the authors of our Penal Code appear to have thought it more convenient to give them a separate status in a section to themselves, with a narrower range of punishment proportioned to their culpability. It appears to me impossible to hold that cases of direct violence, wilfully inflicted, can be regarded as either rash or negligent acts. There may be in the act an absence of intention to kill, tocause such bodily injury as is likely to cause death, or of knowledge that death will be the most probable result, or even of intention to cause grievous hurt, or of knowledge that grievous hurt is likely to be caused. But the inference seems irresistible that hurt at the very least must be presumed to have been intended; or to have been known to be likely to be caused. If such intention or knowledge is present, it is a misapplication of terms to say that the act itself, which is the real test of the criminality, amounts to no more than rashness or negligence.
Death caused by person practising surgery or medicine- Where a person practising medicine or surgery, whether licensed or unlicensed, is guilty of gross negligence, or criminal inattention, in the course of his employment, and inconsequence of such negligence or inattention death ensues, it is manslaughter, but if there is no gross negligence it is not. Where a person acting as a medical man, whether licensed or unlicensed, administers to a patient a poisonous medicine without any intent of doing any bodily harm but with an intent to prevent or cure a disease and it kills the patient, he is guilty of an offence under this section." The fact that a person totally ignorant of the science of medicine or practice of surgery undertakes treatment or performs an operation is very material in showing his gross ignorance from which an inference about his gross rashness and negligence in undertaking the treatment can be inferred.
Contributory negligence- The doctrine of contributory negligence does not apply to criminal liability where the death of a person is caused partly by the negligence of the accused and partly by his own negligence. The doctrine of contributory negligence has no place in an indictment of criminal negligence. Where a person is charged with the offence of causing loss of life by a negligent omission it is not open to him to rely on the plea of contributory negligence which is distinctly recognized in the law of torts but finds no place in an indictment for criminal negligence. In such a case the question is what was the proximate cause of the accident. 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. A driver cannot absolve himself from the consequences of rash driving by merely showing that the person to whom or to whose property he has caused injury was himself negligent.9 If the negligent act or omission of a motor driver was the proximate and efficient cause of death, the fact that the deceased was himself negligent and so contributed to the accident or other circumstances by which the death was occasioned, does not afford therefore a defence to a charges under this section.
Res ipsa loquitur- The Supreme Court has observed that the rule of res ipsa loquitur in reality belonged to the law of torts. Where negligence was in issue, the peculiar circumstances constituting the event or accident, in particular case might themselves proclaim in concordant, clear and unambiguous voices the negligence of somebody as the cause of the event or accident. If the cause of the accident was unknown and no reasonable explanation as to its cause was coming forth from the defendant, in such cases the maxim res ipsa loquitur might apply. The event or accident must be of a kind which did not happen in the ordinary course of thing if those who had the management and control of the thing had exercised due care. Further, the event which caused the accident must be within the defendant's control.
In India, the rules of evidence were governed by the Indian Evidence Act, 1872, under which the general rule was that the burden of proving negligence as to the cause of that accident lay on the party who alleged it but that party could take advantage of presumptions, which might be available to him to lighten the burden. They are (i) permissive presumptions or presumptions of fact; (ii) rebuttable presumptions law; and (iii) irrebuttable presumptions of law. Presumptions of fact were inferences of certain fact patterns drawn from the experience and observation of the common course of nature, the constitution of the human mind, the springs of human action and the usages and habits of society and ordinary course of human affairs. Section 114, Evidence Act, was general section dealing with presumptions of that kind. The court had discretion on the facts of each case to draw such presumptions of fact. There was no such discretion in case of presumptions of law. In criminal cases, because of the rules of burden of proof, presumption of innocence and proof beyond reasonable doubt, the maxim res ipsa loquitur could only create an aid in the evaluation of evidence, "an application of the general method of inferring one or more facts in issue from circumstances proved in evidence". In this view, the maxim did not require the raising of any presumption of law which must shift the burden on the defendant. It only, when applied properly, allowed the drawing of a permissive inference of fact, as distinguished from mandatory presumption, properly so called, having regard to the totality of the circumstances and probabilities of the case. The maxim was only a means of estimating logical probability from the circumstances of the accident.
Rash or negligent act- Where a railway official, after being instructed to move some trucks down an incline uncoupled and singly, disobeyed the instruction and lost control over them, and a coolie in trying to stop the trucks fell under the wheels and was killed; where a train collision had occurred owing to the driver ignoring the first signal and following the second; where an engine-driver failed to sound his whistle before starting the engine, and the engine having been put in motion caused a boy, who was painting a wagon, on the line, injury, which resulted in his death; where there was collision between two passenger trains resulting in the death of some people and damage to railway property, the accused, an Assistant Station Master, was held guilty mere direction to subordinate staff for making due arrangement for arrival was not sufficient. It was the duty of the accused to see that arrangements were made according to his direction and requirement of situation.
Mistake of fact- Where a person believing in good faith that the object of his assault was not a human being but a ghost, caused fatal injuries on another which resulted in the death of the latter, it was held that in view of the provisions of s. 79 of the Penal Code, the accused was not guilty of an offence under this section. Where the accused entertained a belief that a stooping child whom he caught sight of in the early gloaming was a spirit or demon, the child being in a place which the accused and his fellow villagers deemed to be haunted, and acting on this belief caused the death of the child by blows he inflicted before he discovered his mistake, it was held that the accused was guilty under this section.