The Original Penal Code had no provision for punishment in those cases where a person causes death of another by negligence. That is to say, liability for causing death was limited only to cases of murder and culpable homicide not amounting to murder. To fill this gap, section 304A was inserted in the Penal Code by the Indian Penal Code (Amendment) Act 27 of 1870 to cover those cases wherein a person causes the death of another by such acts as are rash or negligent but there is no intention to cause death and no knowledge that the act will cause death. Section 304A, I.P.C. deals with homicide by rash and negligent act.
Section 304A, I.P.C. reads:
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.
To bring a case of homicide under section 304A, I.P.C. the following conditions must exist, viz.:
(i) There must be death of the person in question;
(ii) The accused must have caused such death; and
(iii) That such act of the accused was rash and negligent and that it did not amount to culpable homicide.
This section applies where there is a direct nexus between the death of a person and the rash or negligent act. The act must be the causa causans, it is not enough that it may have been the causa sine qua non.
Criminal rashness is hazarding a dangerous or wanton act with the knowledge that it is so, 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 its consequences i.e. without belief in the result of such doing.
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 a particular individual, which having regard to all
Explain the terms negligence and rashness under IPC
the circumstances out of which the charge has arisen, it was the imperative duty of the accused person to have adopted; Bala Chandra v. State of Maharashtra, MANU/SC/0042/1968 : AIR 1968 SC 1319.
A rash act is primarily an overhasty act and is opposed to a deliberate act, even if it is partly deliberate act; it is done without due thought and action. An illegal "omission" if negligent, may come under this section.
The doctrine of contributory negligence does not apply to the criminal liability. Where there is ample proof that the accused had brought about the accident by his own negligence and rashness, it does not matter whether the deceased was deaf, or drunk, or in part contributed to his own death.
However, this section does not apply to the following cases:
(i) death is caused with any intention or knowledge (voluntary commission of offence),
(ii) in. other words, the act must not amount to culpable homicide,
(iii) death has arisen from any other supervening act or intervention which could not have been anticipated.
(iv) in other words, death was not the direct or proximate result of the rash or negligent act,
(v) death occurred due to an accident e.g., where an accused on dark night believing a man to be a ghost killed him; Waryam Singh v. Emperor, AIR 1926 Lah 554.
In Juggan Khan v. State of Madhya Pradesh, MANU/SC/0078/1964 : AIR 1965 SC 831 it was held by the Supreme Court that, a great care should be taken before imputing criminal negligence to a professional man acting in the course of his profession. A doctor is not criminally responsible for a patient's death unless his negligence shows such disregard for life and safety as to amount to a crime against the State. Where the accused, who was registered as a Homeopath, administered to the patient suffering from guinea worm, 24 drops of Stramonium and a leaf of Dhatura without studying its effect and the patient died of poisoning. It was held that the accused was guilty under section 304A.
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.
Negligence is the omission to do something which a reasonable man, guided by those considerations which ordinarily regulate the conduct of human affairs, would do, or doing something which a prudent and reasonable man would not do; Blyth v. Birmingham Waterworks Company, (1856) 11 Ex Ch 781.
A person driving a motor car is under a duty to control the car; he is prima facie guilty of negligence if the car leaves the road and dashes into a tree. It is for the person driving the car to explain the circumstances under which the car came to leave the road. Those circumstances may have been beyond his control and may exculpate him, but in the absence of such circumstances the fact thatthe car left the road is evidence of negligence on the part of the driver. But, it the driver is not rash, he is not liable for the death of a person who, while suddenly crossing the road, comes under the wheels of his vehicle.
The mere fact that a fatal motor run-over accident took place would not by itself be enough to make the driver liable under section 304A. 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; State v. Hari Singh, MANU/RH/0018/1969 : AIR 1969 Raj 86. Some of the major criteria for deciding rashness or negligence are: width of the road, the density of the traffic and the attempt to overtake other vehicles and the going on the wrong side; Shakila Khader v. Nausher Gama, MANU/SC/0168/1975 : AIR 1975 SC 1324. An error of judgment on the part of the driver would not make him liable under section 304A. While driving a bus at a moderate speed its driver suddenly noticed a child attempting to cross the road. The driver swerved the bus to extreme right to dodge the child but it was hit by the bus and died. The fact that the driver tried to dodge the child indicated that the accident happened due to an error of judgment and not negligence; Syed Akbar v. State of Karnataka, 1979 Cr LJ 1375.
Similarly, the Supreme Court in Mohd. Aynuddin v. State of Andhra Pradesh, 2000 Cr LJ 3508 held that merely because a passenger fell down from the bus while boarding it and died, presumption of negligence cannot be drawn against the bus driver.
The death must be the direct result of the rash or negligent act of the accused and the act must be sufficient cause. A person entering the land of an other is a trespasser but it does not entitle the owner or the occupier to inflict upon him personal injury by direct violence. The same principle governs the infliction of injury by indirectly doing something on the land, the effect of which he must know was likely to cause serious injury to the trespasser. The court observed that the naked live wire in the present case in truth was like "an arrangement to shoot a man without personally firing the shot". Though the trespasser enters the property at his own risk, the occupier is not entitled to do wilfully acts such as set a trap or set a naked wire.
In Mohd. Aynuddin v. State of Andhra Pradesh, 2000 Cr LJ 3508: MANU/SC/0455/2000 : (2000) 7 SCC 72 the fact was, a passenger, while boarding a bus fell down therefrom as the vehicle moved forward. The driver of the bus was found guilty of culpable negligence. All the three courts the trial Court, the Session Court and the High Court convicted him under section 304A.
Issue:
What is the Culpable negligence on the part of the driver in the above accident?
Decision:
The apex Court observed and held that, rash act is primarily an overhasty act. It is opposed to a deliberate act Still a rash act can be a deliberate act in the sense that it was done without due care and caution. Culpable rashness lies in running the risk of doing an act with recklessness and with indifference as to the consequences. Criminal negligence is the failure to exercise duty with reasonable and proper care and precaution guarding against injury to the public generally or to any individual in particular. It is the imperative duty of the driver of a vehicle to adopt such reasonable and proper care and precaution.
In the present case, the possible explanation of the driver is that he was unaware of even the possibility of the accident which happened. It could be so. When he moved the vehicle forward his focus normally would have been towards what was ahead of the vehicle. He is not expected to move the vehicle forward when passengers are in the process of boarding the vehicle. But when he gets a signal from the conductor that the bus can proceed he is expected to start moving the vehicle. Here no witness has said, including the conductor, that the driver moved the vehicle before getting a signal to move forward. The evidence in this case is too scanty to fasten him with criminal negligence. Some further evidence is indispensably needed to presume that the passenger fell down due to the negligence of the driver of the bus. Such further evidence is lacking in this case. Therefore, the court is disabled from concluding that the victim fell down only because of the negligent driving of the bus. The corollary thereof is that the conviction of the appellant of the offence is unsustainable.
In Cherubin Gregory v. State of Bihar, MANU/SC/0080/1963 : AIR 1964 SC 205 the fact of the case was that the deceased was residing near the house of accused. The wall of the latrine of the house of the deceased had fallen down and so the deceased along with others started using the latrine of the deceased. The accused protested against their coming there. The oral warnings, however, proved ineffective and so he fixed up a naked live electric wire in the passage to latrine so that no trespasser may come and use the latrine. There was no warning that the wire was live. A trespasser who manages to enter the latrine without touching the wire, happens to receive a shock while coming out and dies soon. The trial and the appellate court convicted and sentenced the appellant under section 304A.
Issue:
Whether the appellant is guilty of rash and negligent act under section 304A, I.P.C. or not?
Decision:
On behalf of the appellant it was contended that the deceased was a trespasser and that there was no duty owned by the appellant towards the trespasser and, therefore, he could not be said have committed the crime. Repelling this contention the Supreme Court held that the act of the accused was an actionable wrong. The mere fact that the person entering a land is a trespasser does not entitle the owner or occupier to inflict on him personal injury by direct violence or indirectly by doing something on the land, the effect of which he must know was likely to cause serious injury to the trespasser.
It is, no doubt, true that the trespasser, enters the property at his own risk and the occupier owes no duty to take any reasonable care for his protection, but at the same time the occupier is not entitled to do wilfully acts as set a trap or set a naked live wire with the deliberate intention of causing harm to trespasser or in reckless disregard of the presence of the trespassers. It was further held that the voltage of the current fed into the wire precluded any contention that it was merely a reasonable precaution for the protection of private property, it was a rash act. The court observed that the naked live wire was like "an arrangement to shoot a man without personally firing a shot".
X, a notorious smuggler, built a strong house for himself away from the city. The house was fortified by high compound wall around the house and live electric wire ran on the upper edges of the compound wall which used to be activated during the night, Well-lit warning boards with danger signs of high voltage were placed all around. V, a thief, in order to commit theft attempted to scale the wall in the night, came in contract with the wire and was electrocuted. X is charged under section 304A for causing the death of V. How will you decide?
The appeal of the appellant was dismissed and his conviction under section 304A upheld.
In Jagdish Chani v. State (Delhi), (1974) 1 SCR 204 the fact of the case was without noticing the flow of the traffic on a highway and without giving any signal the accused, an autorickshaw, driver, abruptly took a turn. The rear of his vehicle was hit by a truck coming from the opposite direction and the autorickshaw was thrown some distance away from the road. A lady standing at the bus stop with a baby in her arms was hit by the autorickshaw. The mother and child received injuries but eventually the child died.
Decision:
The courts below came to the conclusion that the entire occurrence was the result of rash or negligent driving of the accused, he was convicted under section 304A.
Before the Supreme Court the argument was that the death of child could on no rational or logical reasoning be considered to be the direct and natural result of the collision between the truck and the autorickshaw, that it was not the proximate and immediate cause of the death and, therefore, the accused was not liable to be convicted.
The Supreme Court upheld the conviction. But said that the police investigation of the case was far from satisfactory in that it did not record the tyre marks of the two vehicles on the road to judge the approximate speed at which both the vehicles were moving. Eyewitness in these cases have to be examined carefully because such witnesses observe accidents after their attention is drawn to the impact resulting from the collision. Their statements are often influenced by what they imagine must have happened.
In this case it could have been argued that the death of the child was a remote and indirect result of the rash or negligent driving of the accused and not the immediate direct, natural and proximate consequence.
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