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 for causing death by negligence. Section 304A was inserted in the Code by the Indian Penal Code (Amendment) Act 1870 but it doesn’t create a new offence. It is merely directed at offences, which fall outside the range of section 299 and section 300, where neither intention nor knowledge to cause death is present. This section deals with homicide by negligence and covers those offences where neither intention nor knowledge is present but because death is still caused due to rash and negligent act of the offender. Thus, when the element of intention or knowledge is present, section 304A would have no application.

Rash or negligent act

This section deals with death caused by a rash or negligent act but both the terms- rash act and negligent act- have a distinct meaning. Rashness implies doing something without due consideration or in simple terms, being reckless. Negligence connotes want of proper care. A rash act is an act done by a person with indifference as to its consequences i.e. the doer, knowing the mischievous or illegal consequence of the act, still does it but without intending the undesirable or illegal results to occur. On the hand, a negligent act refers to an act done by a person without taking the reasonable precautions to avoid its probable mischievous or illegal consequences.

The rashness or negligence must be of such nature so as to be termed as a criminal act of negligence or rashness. This depends upon the degree of negligence. It 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 the act, the act can be constitutes as a rash and negligent act under this section.

In Cherubin Gregory v State of Bihar[1], the deceased lived near the house of the accused. The wall of the latrine of the house of the deceased had fallen down a week prior to her death which exposed it to the public view so she, along with others, started using the latrine of the accused despite his resentment, protests and warnings. Subsequently, the accused fixed a naked and uninsulated wire of high voltage in the passage to the latrine, to make the intruders’ entry dangerous but he did not put up any warning sign for the same. The deceased managed to pass into the latrine safely but on her way back, she happened to touch the wire and died because of the shock. The accused contended that since she was a trespasser, he was merely exercising his right to private defense in respect to his property. The court held that that the occupier is not entitled to do any act, like the one in this case, with the deliberate intention of causing harm to the trespassers or in reckless disregard of the presence of the trespasser. The accused was held guilty under this section.

Absence of intentional violence

Voluntary and intentional acts either with the intention to cause death or the knowledge that the act is likely to cause death will not be covered under this section and would amount to culpable homicide.

In Sarabjeet Singh v State of Uttar Pradesh[2], the accused was part of an unlawful assembly and attacked the opposing party. He had come to attack the father of the deceased (who was a small 4 year old child). With a view of taking vengeance, the accused threw the innocent child on the ground. The Supreme Court held that this could not be called a rash or negligent act as the accused knew it was likely to cause death.

Death must be the direct result 

It is essential to establish that death is the direct result of the rash and negligent act of the accused. In Suleman Rahiman Mulam v State of Mahrashtra[3], the accused, who was driving a jeep struck the deceased, as a result of which he sustained serious injuries. The accused took him for medical treatment but he died. The prosecution’s case was that the accused only had a learner’s license and hence was guilty of causing the death. The Supreme Court however held that it cannot be presumed that he did not know how to drive or that he was driving in a rash or negligent manner just because he only had a learner’s license. It was also shown that he drove the jeep to various places on the previous day of the occurrence. Hence, the accused was acquitted of the charges under section 304A.

Rash or negligent act in medical treatment

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 a disregard for life and safety, as to amount to a crime against the state.

In John Oni Akerele’s Case[4], a medical practitioner had administered a medical dose of sorbital injection to a child, because of which the child died. His contention was that the child was peculiarly susceptible to the medicine and therefore unexpectedly succumbed to a dose which would have been harmless in case of a normal child. The doctor was still held guilty for criminal negligence.

In Juggan Khan v State of Madhya Pradesh[5], the accused was a registered homeopath 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. Stramonium and dathura are poisonous and giving the same without being aware of its effects was held to be a rash and negligent act. The accused was thus held liable under this section and sentenced to two years of rigorous imprisonment.

In Suresh Gupta (Dr) v Govt of NCT & Anor[6], the Supreme Court held that for fixing criminal liability of a doctor, 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’.

Punishment

The punishment prescribed under this section is simple or rigorous imprisonment for a term up to two years, or with fine, or with both. Sentence depends on the degree of carelessness in the act of the accused.

[1] AIR 1964 SC 205

[2] AIR 1983 SC 529

[3] AIR 1968 SC 829

[4] AIR 1943 PC 72

[5] AIR 1965 SC 831

[6] AIR 2004 SC 4091

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