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Rash or Negligent Act (IPC)

Updated: May 12


Rash or Negligent Act (IPC)
Rash or Negligent Act (IPC)

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Sec. 304-A: Causing Death (Homicide) 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 burden of proof lies on the prosecution. Merely because a death has been caused by an accident does not mean that a presumption against the accused must be drawn and he must be asked as to why he should not be held guilty. 


This section does not apply to the following cases:


  • death is caused with any intention or knowledge (voluntary commission of offence) i.e. the act must not amount to culpable homicide,


  • death has arisen from any other supervening act or intervention which could not have been anticipated i.e. death was not the direct or proximate result of the rash or negligent act,


  • death occurred due to an accident 

 
 

Distinction between Criminal Rashness and Criminal Negligence


In criminal law, there are distinctions between rashness and negligence. Rashness, also termed "advertent negligence," involves knowingly engaging in a dangerous act without intending harm but with recklessness towards its potential consequences.



It entails a conscious decision to act despite the risks involved. Conversely, negligence, or "inadvertent negligence," is the failure to exercise reasonable care, either to the public or to individuals, as expected under the circumstances. 



Negligence, though not explicitly defined in the IPC, is generally understood as the failure to act as a reasonable and prudent person would under similar circumstances. It involves either omitting to do what a reasonable person would or doing something unreasonable.



The term "gross negligence" is crucial in criminal law, indicating a high degree of negligence or recklessness. While not explicitly stated in Sec. 304-A of the IPC, negligence is considered gross when it surpasses a certain threshold. 



Determining whether an act is rash or negligent depends on the specific facts of each case. Mere accidents or injuries do not automatically imply rash or negligent behaviour.


Negligence is assessed based on the level of care expected in a given situation. It's important to note that rashness and negligence are distinct.


Rashness involves acting with indifference to potential consequences, while negligence is the failure to take reasonable precautions. Rashness represents a higher degree of negligence.



"Culpable rashness" occurs when someone acts with awareness of potential harm but fails to take precautions to prevent it, hoping the harm won't materialise.


"Culpable negligence," on the other hand, involves acting without consciousness of potential harm but failing to exercise the caution expected. In legal cases, such as Bala Chandra v State of Maharashtra, the Supreme Court clarified these distinctions.


In this instance, the accused wasn't driving recklessly but was negligent in failing to notice a pedestrian while distracted, leading to a fatal accident. Thus, he was convicted under Sec. 304-A for negligent driving.



Direct Nexus between Rash/Negligent Act and Death


Section 304A of the Indian Penal Code applies when there is a direct connection between a person's death and a rash or negligent act.


The act must be the immediate cause of death, not just a contributing factor. It's not sufficient to show that the act was a necessary cause; it must be the immediate and efficient cause, without the intervention of another's negligence.



In the case of Kurban Hussain v State of Maharashtra, workers died in a factory fire allegedly caused by the manager's negligence.


However, it was found that the real cause was the negligent act of a worker, not the manager's actions. Therefore, the death was not directly caused by the manager's rash or negligent act.



A "rash or negligent act" refers to the immediate cause of death, not a remote cause. In a case where a boy drowned in a swimming pool, the failure to have a lifeguard or warning signs was not considered the immediate cause of death.



Similarly, in Abdul Ise Suleman v State of Gujarat, firing toward fleeing individuals resulted in a child's death, leading to a murder conviction under Section 300 instead of Section 304A.



While the victim's negligence doesn't absolve the accused, it can be relevant in determining whether the accused's negligence was the direct cause of death.


In Sheo Kumar v State of M.P., the victim's failure to follow road rules absolved the truck driver of guilt.


Similarly, if a deceased person's actions, such as climbing onto a moving truck, contribute to their death, the accused driver may not be convicted under Section 304A.

 
 

Illegal Omission 


In Supadi Lukadu v Emperor (AIR 1925 Bom 310), a 17-year-old girl, ill-treated by her husband, jumped into a well with her baby tied to her back.


Although she survived, the baby died. Despite her unawareness of the baby on her back, her act constituted a negligent omission for not placing the child down before jumping. Consequently, she was convicted under Section 304A.



Similarly, in Raj Karan Singh v State of U.P. [2000 Cr.L.J. 555 All.], a police constable's gun discharged while he was loading it, resulting in a person's death.


The trigger was activated due to the positive act of moving the belt of the gun. The constable's failure to secure the safety catch in the back position was deemed an illegal omission.



Poison administered as love potion causing death


Merely administering a substance believed to be beneficial but turns out to be life-threatening isn't inherently an offence. However, carelessly administering poison without due caution or inquiry can lead to guilt under Sec. 304-A.



In King v Ramava [(1915) 17 Bom LR 217], a wife who unknowingly administered deadly poison to her husband, believing it to be a sex-stimulating drug, was held guilty.


Similarly, in Empress v Bhakhan [1887 PR 60 (Cr.)], a wife who accepted poison from her paramour to charm her husband was found guilty.


As the substance came from her paramour and was meant to act as a charm, she had a duty to ensure its harmlessness before administration, lacking the necessary caution and circumspection.



Criminal Negligence of a Professional Man


Great caution must be exercised before attributing criminal negligence to a professional acting within their field. A doctor isn't criminally responsible for a patient's death unless their negligence shows such disregard for life and safety as to constitute a crime against the State.



In Juggan Khan v State of M.P., AIR 1965 SC 831, a Homeopath administering medication without studying its effects, resulting in the patient's death, was held guilty under Sec. 304-A.


Similarly, in Katcherla Venkata Sunil v Dr. Vanguri Seshumamba  (2008) Cr.L.J. 853, a doctor's non-negligent actions leading to a patient's death did not warrant criminal liability.



While lack of reasonable care may lead to civil liability, criminal liability requires gross negligence amounting to recklessness (Martin F D D'Souza v Mohd. Ishfaq AIR 2009 SC 2049).


Negligent acts by professionals may attract tort liability but not necessarily criminal liability (Suresh Gupta (Dr.) v Govt, of NCT of Delhi AIR 2004 SC 4091).



Civil versus Criminal Negligence 


In criminal cases, negligence must be gross and culpable, not merely based on error of judgement, requiring a high degree of negligence to be established. Additionally, contributory negligence by the injured party does not absolve the accused of criminal liability.



The principle of Res ipsa Loquitur, commonly applied in civil cases, cannot independently determine negligence in criminal law, as criminality is not presumed solely based on this principle.



Rash and Negligent Driving


In cases of fatal motor accidents, mere occurrence of the accident is not sufficient to establish liability under Sec. 304-A.


It must be proven that the collision was primarily due to the driver's rashness or negligence. Criteria such as road width, traffic density, and overtaking attempts are considered.



An error of judgement, mechanical defects, or unforeseeable pedestrian actions may absolve the driver of liability. However, failing to exercise due care in known risky situations, such as sharp turns or overloaded vehicles, can result in criminal liability.


Negligence is determined by the circumstances, such as failure to heed warnings or recklessly driving to evade authorities, leading to fatal accidents.



  • State v Hari Singh (AIR 1969 Raj. 86): Mere fast driving isn't enough for criminal liability under Sec. 304-A. Rashness or negligence must be proven.


  • Shakila Khader v State (AIR 1975 SC 1324): Criteria for determining negligence include road width, traffic density, and overtaking attempts.


  • Syad Akbar v State of Karnataka (1979 CrLJ 1375): A driver's attempt to avoid hitting a child indicated an error of judgement, not negligence.


  • Mahadeo Hari v State (AIR 1972 SC 221):Unpredictable pedestrian actions may absolve drivers of negligence.


  • Duli Chand v Delhi Administration (AIR 1975 SC I960): Failing to look both ways at a crossroad, leading to a pedestrian's death, can result in Sec. 304-A conviction.


  • Jagdish Chander v State (1974) 1 SCR 204): A driver's sudden turn without proper caution resulted in a Sec. 304-A conviction


  • Abdul Qayyum (1940) 21 Lah 646): Driving under conditions of total visibility obstruction can lead to Sec. 304-A conviction.


  • Gurdev Singh (1941) 24 Lah 50): Reckless driving, such as speeding to evade authorities, resulting in a fatal accident, can lead to Sec. 304-A conviction.



Distinction Between Sec. 304 and Sec, 304-A


Sec. 304-A deals with death caused by rash or negligent acts, distinct from Sec. 304's culpable homicide. It covers cases lacking intention or knowledge as required by Secs. 299 and 300. Punishments under Sec. 304-A are milder compared to Secs. 302/304 Part II.



It excludes elements of Secs. 299 and 300, applying to acts without intent or knowledge of probable death. Sec. 304-A applies to rash or negligent acts directly causing death (Mahadev Prasad Kaushik v State of U.P. AIR 2009 SC 125).


Illustratively, in Girish Singh v State of Uttaranchal (AIR 2008 SC 3136), where the accused's push led to death, Sec. 304, Part II was applied due to the likelihood of death, not Sec. 304-A.

 
 

Leading Case Laws


CHERUBIN GREGORY v STATE OF BIHAR  (AIR 1964 SC 205): In this case, the accused placed a live electric wire in the passage to his latrine to deter trespassers, resulting in the death of one. The Supreme Court upheld his conviction under Sec. 304-A, stating that the mere trespassing did not justify inflicting harm. The accused's deliberate act of setting up the wire, knowing its potential danger, was deemed rash and negligent. The court likened it to setting a trap, dismissing the defence of private property protection. This ruling underscores that even trespassers should not be subjected to intentional harm. Similarly, in Kalaji v State of Gujarat, a similar scenario led to a child's death, resulting in a conviction under Sec. 304-A for negligence.



S.N. HUSSAIN v STATE OF A.P (AIR 1972 SC 685): In this case, a bus driver was convicted under Sec. 304A after a collision with a goods train resulted in fatalities and injuries. However, the Supreme Court overturned the conviction, ruling that the driver's actions did not constitute rashness or negligence. The driver crossed an open level crossing gate, believing it was safe as there were no indications of an approaching train. The court found no evidence of recklessness or indifference on the driver's part. Additionally, the presence of a gateman at the crossing implied safety, relieving the driver of the duty to stop and check for approaching trains. The accident was attributed to the negligence of the gateman, exonerating the driver. This case underscores that the degree of negligence is crucial in determining culpability under Sec. 304A.



MOHD. AYNUDDIN v STATE OF A.P. [(2000) 7 SCC 72]: In this case, the issue was whether the bus driver could be held liable under Sec. 304-A for negligence after a passenger fell while boarding the bus. The court emphasized that negligence cannot be presumed solely from the accident. To hold the driver liable, evidence must show that he acted recklessly or failed to exercise reasonable care. The court defined "culpable rashness" as acting recklessly with indifference to consequences, while "criminal negligence" is failing to exercise proper care. In this instance, there was insufficient evidence to prove the driver's negligence, as no witness testified that he moved the bus without receiving a signal. Therefore, the driver was not found criminally negligent.



Drunken Driving Cases 


The Supreme Court of India has expressed serious concern over the rise in cases of drunken driving, citing it as a menace to society leading to accidents and loss of lives.


In the case of Alister Anthony Pareira v State of Maharashtra, the accused, driving under the influence, recklessly caused the death of seven persons and injured eight others sleeping on a footpath.



The court clarified that Section 304-A applies when death results from negligence or rashness without further intent. However, if the act is done with prior knowledge of its lethal consequences, Section 304 Part II applies.


The court emphasized that knowledge implies foresight of consequences.



Reckless driving on public roads with awareness of its dangerous nature and probable outcome can constitute culpable homicide not amounting to murder under Section 299.


In cases of drunk driving, where the driver is aware that their actions may result in death, Section 304 Part II is applicable.



The "BMW case" involving Sanjeev Nanda affirmed this principle, highlighting that although there may be no intent to cause death, knowledge of the potential harm caused by reckless driving under the influence warrants legal consequences.

 
 

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