Death By Negligence

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The offence of death by negligence is an offence which is punishable by Section 304A of the Indian Penal Code, 1860. Inserted by the IPC (Amendment) Act, 1870, the offence falls under the category of offences which causes the death of an individual. However, the distinctive feature of this offence is the absence of intention or knowledge on the part of the offender to cause the death of the deceased. When the death of a person is caused because of the rash or negligent act of the accused, devoid of any intention or knowledge on his part to cause the death, the accused person shall be liable for the offence of causing death by negligence and shall be punishable under Section 304A of the IPC. It is the rash and the negligent act of the accused which must cause the death of the person. In case there is a presence of either intention to cause the death of the deceased or the knowledge that death may be caused because of the act of the accused, in that case, the offence shall not be punishable under this Section 304A of the IPC[1]. Three essential requirements must be fulfilled in order to prosecute the person for an offence under Section 304A:

  1. Commission of Rash and Negligent Act
  2. Absence of intention or knowledge on the part of the accused person
  3. A direct link between the act of the accused and the death of the victim

These three requirements are explained in detail below:

Rash And Negligent Act: Meaning

To prosecute a person for an offence under Section 304A of the Indian Penal Code, 1860, it must be shown that the death was caused either by the rash or negligent act of the accused person[2]. However, there is a distinction between a rash act and a negligent act. A rash act is an act which is done recklessly and without due consideration[3]. A person who does a rash act is completely indifferent towards the consequences which may ensue as a result of his recklessness. There is a consciousness on the part of the doer that the act may result in an illegal result, however he hopes that it does not happen[4].

On the other hand, if a person does an act without taking reasonable precautions which any reasonable man in similar circumstances would take, he is said to have committed a negligent act[5]. However, what is being contemplated by Section 304A of the Indian Penal Code, 1860 is not negligence simpliciter but negligence or rashness of such a nature that the act may be termed as criminally negligent or rash. It refers to a high degree of negligence or rashness with total disregard to the consequences/result of the act. However, no mathematical formula or strait jacket situations can be laid down to say that a particular act is negligent or not. The presence of rashness or negligence has to be judged on the facts and circumstances of each case[6]

.

Absence Of Intention Or Knowledge

An indispensable feature of this Section is that the act must not be committed with the intention to cause the death or the knowledge that the death will thereby be caused. The present section applies to only those cases where there is neither knowledge nor an intention to cause the death of the deceased[7].

Death Must Be Causa Causans The Act

Another essential requirement of the present provision is that the death must be the direct result of the rash or negligent act committed by the accused person. In case the death is not caused because of the negligent act of the accused but because of any supervening circumstances, in that case, the accused person cannot be held liable for death by negligence under Section 304A of the IPC. Therefore, the death must be the causa causans[8] and not the causa sine qua non[9] of the act committed by the accused person[10].

Death By Negligence On Public Highways

The death caused on the public highways because of the rash and negligent driving on the part of the drivers of the vehicle is also made punishable by Section 304A of the Indian Penal Code, 1860. It is generally assumed that the person who is driving a vehicle on the road is attentive and in total control of the vehicle he is driving. Therefore, any accident which is caused by the lack of attention on the part of the driver shall be punished under Section 304A[11]. Therefore attempt of crossing an unmanned railway crossing resulting into an accident[12] or falling of a bus into a canal[13] are a few examples where the driver were held liable under Section 304A of the Indian Penal Code, 1860. The Judiciary has time and again stressed that the cases of negligence on a public highway must be dealt with strictly by the courts so as to reduce the rising cases of accidents taking place on the public highway[14]. Thus, the courts have warned against taking a linient view in the cases of deaths on public highway[15].

Medical Negligence

One of the settled principles of law is that great care and caution must be exercised before holding a professional person liable for the offence of death by negligence. A doctor must not be held criminally liable for the death of the patient unless his negligence is so high as can be described as ‘gross negligence’[16]

. Mere carelessness or lack of necessary attention or care on the part of the doctor shall not make him liable for a criminally, although a civil suit may be instituted against him. The rationale behind fixing such a high level of negligence in respect of doctors is to allow them to perform their duties without any fear of prosecution or criminal suit against them[17]. Therefore, the negligent or rash act must be of a higher degree in order to institute a criminal proceeding against a medical professional[18]. It must be a ‘gross’ or ‘culpable’ negligence or rashness.

Therefore, administering a medicine without being aware of its effect[19] or administration of allopathic medicines by a hakim are held to be cases of medical negligence. Two fold test needs to be satisfied in order to prosecute a medical professional for criminal negligence have been laid down by the Hon’ble Supreme Court of India in the case of Jacob Mathews vs. State of Punjab[20]which are as follows:

  • The doctor possessed the requisite skills to treat the patient; and
  • Reasonable skill and competence was exercised by him in treating the patient.

Absence of any condition from the above test shall make the doctor liable for the offence of medical negligence. However, the doctor shall not be liable for merely undertaking a medical treatment which involves a higher element of risk or which is not approved of by other doctors[21]. Therefore, a doctor has complete liberty to choose that method of treatment as per his own judgment which according to him is the most suitable in a given situation.

Conclusion

Section 304A of the Indian Penal Code, 1860 has been enacted to cover within its ambit those offences which would have resulted in the death of an individual but because of the absence of an intention or mens rea on the part of the accused could not be made punishable under Section 299 or 300 of the Indian Penal Code. It is pertinent to note that mere carelessness or lack of attention will not make a person liable under Section 304A. What is required is that the negligence or rashness must be so high so as to be termed as criminal rashness or negligence.

(Author: Manik Mahajan, pursuing LLB from Department of Laws, Panjab University, Chandigarh.)


[1] Shankar Narayan Bhadolkar vs. State of Maharashtra., AIR 2004 SC 1966.

[2] Captain D’Souza vs. Pashupati Nath Sarkar., (1968) Cr LJ 405 (Cal).

[3] Emperor vs. Abdul Latif., AIR 1944 Lah 163.

[4] Pitala Yadagiri vs. State of Andhra Pradesh., (1991) 2 Crimes 359 (AP).

[5] Padmacharan vs. State of Orissa., (1982) Cr LJ (NOC) 192.

[6] Ravi Kapur vs. State of Rajasthan., AIR 2012 SC 2986.

[7] Sarabjeet Singh vs. State of Uttar Pradesh., AIR 1983 SC 529.

[8] The immediate cause.

[9] The proximate cause.

[10] Md. Rangawalla vs. State of Maharashtra., AIR 1965 SC 1616.

[11] Baldevji vs. State of Gujarat., AIR 1979 SC 1327.

[12] Naresh Giri vs. State of Madhya Pradesh., AIR 2007 SC 7104.

[13] Thakur Singh vs. State of Punjab., (2003) 9 SCC 208.

[14] Murari vs. State of Madhya Pradesh., (2001) Cr LJ 2968 (SC).

[15] Dalbir Singh vs. State of Haryana., (2000) 5 SCC 82.

[16] Suresh Gupta (Dr) vs. Government of National Capital Territory of Delhi., AIR 2004 SC 4091.

[17] Martin F D’Souza vs. Mohd Ishfaq., (2009) 3 SCC 1.

[18] Dr. PB Desai vs. State of Maharashtra., 2013 (11) SCALE 429.

[19] Juggan Khan vs. State of Madhya Pradesh., AIR 1965 SC 831.

[20] Jacob Mathews vs. State of Punjab., (2005) 6 SCC 1.

[21] Kusum Sharma vs. Batra Hospital and Medical Research Center., (2010) 3 SCC 480.