CENTRAL UNIVERSITY OF SOUTH BIHAR

SCHOOL OF LAW AND GOVERNANCE

PROJECT ON TOPIC CAUSING DEATH BY
NEGLIGENCE

SUBMITTED BY- PRERAK RAJ SUBMITTED TO- DR. P. K. MISHRA

B.A.LLB HEAD AND DEAN

E. No.-: CUSB1813125067 SCHOOL OF LAW AND GOVERNANCE

ACKNOWLEDGEMENT

You are most welcome in my project work on the topic “Causing death by negligence”.

This project is given by our honorable subject professor “Dr. P. K. Mishra Sir” and I would like to thank him
for giving me such opportunity to work on this specified topic.

I would like to express thank to my seniors who reviewed my paper for rendering constructive and valuable
suggestions and comments that have helped a lot in improving the quality and content of this paper.

I would like to thank all the Library staffs who helped me to find all the desired books regarding the topic as
the whole project revolves around the doctrinal methodology of research.

Last but not the least I would like to thank all who directly or indirectly helped me in completion of this project.
I have made this project with great care and tried to put each and every necessary information regarding the
topic. So at the beginning I hope that if once you will come inside this project you will be surely glad.

-Prerak Raj
ABBREVIATIONS

AIR All India Reporter

CONS. Constitution

ART. Article

UOI Union of India

GOVT. Government

SC Supreme Court

F.R. Fundamental Rights

Vs. Versus

Sec. Section

SCC Supreme Court Cases

E.D. Edition

L.R Load to Register

LT Long Term

ILR Indian Law Report

FCR First Call Resolution

FC Forward Control

PC Privy Council

SCR Supreme Court Record

TABLE OF CONTENTS

S. No. CHAPTERS PAGE No.

(1) CHAPTER 1- INTRODUCTION 6-7
-RESEARCH METHODOLOGY
-RESEARCH QUESTION
-RESEARCH HYPOTHESIS
(2) CHAPTER 2- RASH AND NEGLIGENT ACT 8
(3) CHAPTER 3- NEGLIGENT ACT NOT AMOUNTING TO 9
CULPABLE HOMICIDE
(4) CHAPTER 4- TYPES OF NEGLIGENCE
-CONTRIBUTORY NEGLIGENCE
-CORPORATE NEGLIGENCE 9-11
-MOTOR VEHICLE ACCIDENTS
-MEDICAL NEGLIGENCE
(5) CHAPTER 5- LEADING AND RECENT CASE LAWS 12-14
(6) CHAPTER 6- CONCLUSION AND SUGGESTION 15
(7) CHAPTER 7- BIBLIOGRAPHY 16
TABLE OF CASES

S.No. CASES
(1) Empress of India v. Idu Beg
(2) Akbar AH v. R
(3) Juggan Khan v. State of Madhya Pradesh
(4) Jacob Mathew v. State of Punjab
(5) Ramava v. R
(6) Bhimabhai Kalabhai v. State of Gujrat
(7) Cherubin Grgory v. State of Bihar
(8) Ranjan v. Joseph and Ors
(9) Salman Khan Hit and Run Case
(10) Emperor v. Supadi Lukadu
INTRODUCTION
The original Indian Penal Code, 1860 had no provision providing punishment for causing death by negligence.
Section 304-A was inserted in the Code in 1870 by the Indian Penal Code (Amendment) Act, 1870. This section
did not create a new offence but was directed towards the offences which fall outside the range of section 299
and 300 of the Indian Penal Code, 1860 (herein after referred as I.P.C.) when neither intention nor knowledge to
cause death is present.

The said section reads as follows:

S. 304-A. Causing death by negligence --- Whosoever causes 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.

COMMENT

For the application of this section it is necessary that death is caused by doing a rash or negligent act and such
act must not amount to culpable homicide. Thus this section shall apply where there is neither any intention to
cause death nor knowledge that the act would in all probability cause death. To impose criminal liability under
this section it is necessary that the death should have been the direct result of a rash or negligent act of the
accused, and that act must be the proximate and efficient cause without the intervention of another's negligence.
It must be the causa causans1; it is not enough that it may have been the causa sine qua non2. Culpable rashness
is acting with consciousness that the mischievous and the illegal consequence 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.
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 required of him, and that if he had he
would have had the consciousness. Where a chemist gives expired date medicine to a patient and the patient
dies, the chemist would be liable for causing death by negligence because he has failed to exercise due caution
to ascertain whether the medicine that he was giving was expired date or not.

Any act under Section 304(a) is a bailable offence under the IPC. In such a case, the Court allows the defendant
to make bail by paying a surety amount along with a bail bond at the police station. This offence is also
compoundable which means that the plaintiff and the defendant can reach an agreement between themselves
through their counsel and avoid trial. This often occurs in cases involving powerful Companies who would
settle instead of going through a public trial.

1
The immediate cause
2
A necessary cause or condition
Essential Ingredients – To bring a case of homicide under section 304A, IPC the following conditions must
exits,

(1) There must be death of the person in question.

(2) The accused must have caused such death; and

(3) That such act of the accused was rash or negligent and that it did not amount to culpable homicide.

Research Methodology

Here the researcher has used Doctrine methodology by library, internet and articles. Qualitative method is used
in this assignment. For this project on “Causing death by negligence” multimethod is focused, involving an
interpretive, naturalistic method with the help of observations, questionnaires and document analysis

Aims:- To do an in depth analysis about Section 304A.

Objective:- To understand the purpose behind inserting Section 304A.

Sources of Data:- This whole project is being created with the use of secondary source. The following
secondary sources of data have been used in the project:

• Books

• Websites

Mode of Citation:- The researcher has followed a uniform mode of citation throughout the course of this project
paper.

Type of Study:- For this topic, the researcher has opted for Descriptive and Explanatory type of study as in this
topic, the researcher is providing the descriptions of the existing facts.

Research hypothesis

The hypothesis of the researcher is that causing death by negligence was not initially inserted in IPC. It was
amended later on. It is very difficult to prove the crime which falls under this section. It is totally based on the
act which is rash or negligent or not at the time of the commission of the offence.

Research Question
 What is the need of the Sec.304A?
 State the meaning, types and pertinent terms related to this section.
RASH AND NEGLIGENT ACT

A rash act is primarily an over hasty act. It is opposed to a deliberate act. The term “rash act” denotes the want
of proper care and caution. It connotes an overt act. In other words, rashness means doing an act with the
consequences of a risk that evil consequences will follow but with the hope that they will not happen.
Negligence, on the other hand, is a breach of duty imposed by law. Negligence may be either civil or criminal
negligence depending upon the nature and gravity of the negligence. In criminal cases, the amount and the
degree of negligence are the determining factors. There must be mens rea3 in criminal negligence also. That is
to say, in order to establish criminal responsibility the fact must be such that the negligence of the accused went
beyond a mere matter of comprehension and showed such disregard for the life and safety of the other as to
amount to a crime.
Rashness and negligence are not the same things. Mere negligence cannot be construed to mere rashness.
Negligence is the genus to which rashness is the species. The words “rashly and negligently” are distinguishable
and one is exclusive of another. The same act cannot be rash as well as negligent. 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 case relating to rash driving it is the duty of the driver to drive his vehicle at a speed which will not imperil
the safety of others using his road. In order to hold a driver criminally liable it must be proved that a collision
was entirely or at least mainly due to rashness or negligence on the part of the driver. It would not be sufficient
if it was only found that the accused was driving the vehicle at a very high speed. A person driving a car is
under the duty to control the car, he is prima facie guilty of negligence if the vehicle leaves the road and dashes
into a tree and it is for the driver to explain the circumstances under which the car had left 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.
When due to collision of a vehicle injury or death is caused, it cannot be taken granted that the driver of the
vehicle involved in the accident was guilty of the crime. There may be exceptional cases where the rule of res
ipsa loquitor 4applies. Ordinarily it is for the prosecution to establish the guilt of the accused beyond reasonable
doubt.9 Speed alone is not the criterion for deciding rashness or negligence on the part of the driver. A motor
vehicle is intended to be driven in speed. The relationship between speed and rashness or negligence depends
upon the place and time. In a straight wide road where obstruction from other vehicles or pedestrians are not
there, it cannot be said that driving in speed or absence of sounding horn by itself will amount to rashness or
negligence.

3
Guilty mind
4
The matter speaks for itself
NEGLIGENT ACT NOT AMOUNTING TO CULPABLE HOMICIDE

It was observed by the Allahabad High Court in Idu Beg5, that “section 304-A is directed at offences outside the
range of Section 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
willfully caused, is excluded. Section 304-A does not say that 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 of either description.” For example, where A takes up a gun not knowing it is loaded,
points in sport of B and pulls the trigger, ‘B’ is shot dead, A would be liable for causing the death negligently
under this section.

TYPES OF NEGLIGENCE
Contributory Negligence

Contributory negligence means contribution to the negligence by the other party also. The doctrine of
contributory negligence has no place in the indictment of criminal negligence. Merely by showing that the
person who has been wronged was himself negligent does not absolve the accused from the consequences of his
rash or negligent act. In other words, such negligence on the part of the deceased or the injured which resulted
in his own death or grievous hurt, will not be available as a valid defence to the accused if the accused himself
had done some act or omission which was rash or negligent and which contributed towards the death or the
causing of grievous hurt. Contributory negligence is no defence to a criminal charge i.e., where the death of a
person is caused partly by the negligence of the accused and partly by his own negligence. 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. In order to impose criminal liability
under Section 304-A, it is essential to establish that death is the direct result of the rash or negligent act of the
accused.

Generally, Section 304-A is taken into consideration in the cases of road accidents, accidents in factories, etc. It
is the duty of the driver to drive the vehicle in a cautious way. Where a driver drives the vehicle in an abnormal
manner and cause the death of persons, he is liable under Section 304-A. Where a factory owner neglects the
maintenance of the machine, and causes the death of a person, he shall be held liable under Section 304-A.

However, Section 80 of the IPC provides, “nothing is an offence which is done by accident or misfortune and
without any criminal knowledge or intention in the doing of a lawful act in a lawful manner by a lawful means
and with proper care and caution’. It is absence of such proper care and caution, which is required of a

5
(1881) 3 All. 776
reasonable man in doing an act, which is made punishable under Section 304-A. To render a person liable for
neglect of duty it must be such a degree of culpability as to amount to gross negligence on his part. It is not
every little slip or mistake that will make a man so liable.

Corporate Negligence

In matters of corporate negligence, a Company is liable under Section 304(a) if it takes any action that injures
their consumers, creates an unsafe environment for their employees or cheats their shareholders.

Some of the crimes that come under corporate negligence cases are:

(1) air and water pollution caused by industries;

(2) adulteration of food by food companies;

(3) involving themselves in different lobbies for their own profit by exchanging money with political parties;

(4) releasing confidential information without permission;

(5) recording personal conversations and breaching privacy;

(6) harming or cheating the shareholders’ out of their profit.

Motor Vehicle Accidents

The incident of a motor vehicle crash leading to the death of people will not be enough to charge someone
under Section 304A for negligent driving. The charge of criminally negligent driving requires the driver to be
solely or entirely responsible for the accident because of their negligence or rashness. This, however, requires
interpretation on part of the court; taking into account the level of rashness and deliberation in an action that led
to an accident. The court has to take into account that if one decides to drive under influence, they are aware of
the consequences of their decision. The court also has to take into account the degree of damage done by
undertaking that reckless decision.

In Akbar AH v. R6, the accused, a motor driver, ran over and killed a woman, but there was no rashness or
negligence on the part of the driver so far as his use of the road or manner of driving was concerned, it was held
that the accused could not be convicted under Section 304-A on the ground that the brakes of the lorry were not
in perfect order and that the lorry carried no horn.

6
(1936) 12 Luck 336
Medical Negligence

Medical negligence is a breach of duty on the part of the defendant who has a legal as well as a moral duty to
look after his/her patient. The act of “Negligence” is open to interpretation based on the actions of the defendant
in each case. A medical practitioner is liable for negligence if he/she deviates from “the standard treatment”
recommended for taking care of his/her patient causing death or injury of the patient. A medical practitioner can
be a doctor as well as a nurse. Medical negligence cases can be civil as well if the hospital as a whole is held
accountable for malpractice. For instance, using faulty equipment or expired medicines in the hospital.

A doctor or a medical practitioner when attends to his patients, owes him the following duties of care:

(1) A duty of care in deciding whether to undertake the case;

(2) A duty of care in deciding what treatment to give; and

(3) A duty of care in the administration of the treatment.

A breach of duty gives a cause of action against the doctor both under law of Torts, Consumer Protection Act,
1986 and civil and criminal law for negligence. In case of civil wrong action for damages may lie either in
( i) Law of Torts, or (ii) Consumer Protection Act, 1986.

A doctor can be held liable under the Penal Code for punishment in case of criminal negligence, for:

(1) causing death by rash and negligent act under section 304A, IPC (punishment imprisonment for 2 years, or
fine or with both);

(2) causing grievous hurt endangering life under section 338, IPC (punishment imprisonment for 2 years, or fine
upto Rs.1000 or with both);

(3) causing hurt endangering life under section 337, IPC (punishment imprisonment for 6 months, or fine upto
Rs.500 or with both);

Since the natures of civil and criminal proceedings are different the commencement or pendency of criminal
trial would not be a bar to parallel civil proceedings. Both the proceedings under civil as well as under criminal
law might go simultaneously as laid down by the Supreme Court in Union Carbide Corporation. The two types
of proceedings are quite different in nature, content, scope, and import. The remedy for one lie in a civil court,
while for the other in a criminal court.
LEADING AND RECENT CASE LAWS
1. Juggan Khan v. State of Madhya Pradesh7

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. The accused was convicted under Section 304-A as he has given poisonous
medicine without being aware of its effects by his rash and negligent act.

2. Jacob Mathew v. State of Punjab8

The Supreme Court formulated the following guidelines, which should govern the prosecution of doctors for
offences of criminal rashness or criminal negligence:

(i) Negligence becomes actionable on accident of injury resulting from the act or omission amounting to
negligence attributable to that person sued. The essential components of negligence are three; ‘duty’, ‘breach’
and ‘resulting damage’;

(ii) A case of occupational negligence is different from one of professional negligence. A simple lack of care, an
error of judgment or an accident, is not proof of negligence on part of a medical professional. So long as a
doctor follows a practice acceptable to the medical profession of that day, he cannot be held liable for
negligence merely because a better alternative course or method of treatment is also available or simply because
a more skilled doctor would not have chosen to follow or resort to that practice or procedure which the accused
followed;

(iii) When the charge of negligence arises out of failure to use some particular equivalent, the charge would fail
it the equipment were not generally available at the time (that is at the time of the incident) at which it is
suggested it should have been used;

(iv) A professional may be held liable for negligence on one of the two findings, viz., either he was not
possessed of the requisite skill which he professes to have possessed, or he did not exercise, with reasonable
competence in the given case, which he did possess;

(v) The standard to be applied for judging, whether the person charged had been negligent or not, would be that
of an ordinary competent person exercising ordinary skill in that profession. It is not possible for every
professional to possess the highest level of expertise or skills in that branch which he practices;

(vi) The jurisprudential concept of negligence differs in civil and criminal law. What may be negligence in civil
law may not necessarily be negligence in criminal law. For negligence to amount to an offence, the element of
7
AIR 1965 SC 831
8
(2005) 6 SCC 1
mens rea must be shown to exist. The degree of negligence must be much higher, i.e., gross on of a very high
degree in criminal negligence. Negligence, which is neither, gross nor of a very high degree may provide a
ground for action in civil law but cannot be the basis for prosecution.

(vii) To prosecute a medical professional for negligence under criminal law it must be shown that the accused
did something or failed to do something which in the given facts and circumstances no medical professional in
his ordinary senses and prudence would have done or failed to do. The hazard taken by the accused doctor
should be of such a nature that the injury that resulted was most imminent;

(viii) A private complaint may not be entertained against a doctor unless the complainant has produced prima
facie evidence before the court in the form of a credible opinion given by another competent doctor to support
the charge of rashness or negligence on the part of the accused doctor;

(ix) A doctor accused of rashness or negligence may not be arrested in a routine manner (simply because a
charge has been levelled against him), unless the arrest is necessary for furthering the investigation or for
collecting evidence;
(x) Simply because a patient has not favourably responded to a treatment given by a physician or a surgery has
failed, the doctor cannot be held liable per se by applying the doctrine of res ipsa loquitur (i.e., the thing speaks
for itself).

3. Ramava v. R9

The accused administered to her husband a deadly poison (arsenious oxide) believing it to be a love potion in
order to stimulate his affection for her but the husband died. She was convicted under Section 304-A
considering the act of the accused was rash and negligent.

4. Bhimabhai Kalabhai v. State of Gujrat10

The petitioner constructed a water tank for the convenience of the village people. The tank was filled with water
but it collapsed causing death of seven persons and injuries to eight persons. The tank collapsed because it
could not bear the pressure of the water. The material used in construction was of low quality and below the
prescribed standard. The lower convicted the accused under Sections 304-A and 338 of Indian Penal Code and a
revision application was filed before the High Court requesting reduction of sentence. It was held that the High
Court cannot reappreciate the evidence in Revision Application and interfere with the conviction. The sentence
awarded also cannot be reduced simply on the ground of lapse of seven years from the date of incident because
that would be an injustice to the victims who lost their lives.

9
(1915) 17 Bom LR 217
10
1992 Cr.L.J. 2585 (Guj.)
5. Cherubin Grgory v. State of Bihar11

The appellant was charged under s. 304-A of Indian Penal Code for causing the death of a woman. The
deceased was residing near the house of the accused. The wall of the toilet of the house of the deceased had
fallen down about a week prior to the day of occurrence and so the deceased along with others started using the
toilet of the accused. The accused protested against their coming there. The oral warnings however, proved
ineffective and so he fixed up a naked copper wire across the passage leading up to his toilet and that wire
carried current from the electrical wiring of his home to which it was connected. On the day of the occurrence,
the deceased went to the toilet of the appellant and there she touched the aforesaid fixed wire as a result of
which she died soon after. Hon'ble Supreme Court of India observed as " The appellant was charged with an
offence under S. 304A of the Indian Penal Code for causing the death of one Mst. Madilen by contact with an
electrically charged naked copper wire which he had fixed up at the back of his house with a view to prevent the
entry of intruders into his toilet.

6. Ranjan v. Joseph and Ors12

In this case, the deceased (Ammini) who was working as maid servant died due to electric shock sustained by
her while working on washing machine in the house of the accused (respondent) on April 15, 2005. The
husband of the deceased filed complaint before the JMFC and the Magistrate took cognizance of the offence
under Section 304-A of IPC and issued summons to the accused. The accused (respondent) approached the
High Court, praying tor quashing the criminal case pending before the JMFC on the ground that it was on
accidental death and there was no possibility of current leakage in washing machine as certified by the
Electrical Inspector. The High Court accepted the plea of the respondent and quashed proceedings initiated by
JMFC against him. The husband of the deceased (appellant) thereupon moved in appeal before the Supreme
Court alleging rashness and negligence on the part of the accused the Supreme Court ordered a compensation of
one lakh rupees to be paid to the appellant though it held that there was no negligence or rashnese on the part of
respondent.

7. Salman Khan Hit and Run Case13

In film-actor Salman Khan's case (2015) since the FIR stated that the actor was drunk and driving at 100 km/h
from Juhu to his house Bandra in Mumbai, the trial Court held him guilty of offence under Section 304, Part II
holding that like the Peresia's case, he had knowledge that bakery workers slept on pavement outside the bakery
on Hill Road, near his house, coupled with the knowledge that driving drunk in fast speed late in the night could
result in car crash. He was convicted under Section 304, Part II and sentenced to five years imprisonment for

11
AIR 1965 SCR 205
12
AIR 2015 SC 2359
13
SC2015
killing one person who was crushed to death by his Court's order before the Bombay High Court praying that
his case fell under Section 279 and not under Section 304, Part II. He was, however, released on bail pending
the appeal.

8. Emperor v. Supadi Lukadu14

In this case, a girl aged 17 years was carrying her infant baby tied on her back. She have been exasperated at an
altercation which she had with her husband, attempted to commit suicide by jumping into a well. She was found
alive but her child was dead. It was held that the girl was liable for causing death of the child by negligent
omission and for attempting to commit suicide inasmuch as she has failed to put the child down before jumping
into the well.

CONCLUSION AND SUGGESTION

The original Penal Code had no provision for punishment in those cases where a person causes death of another
person by negligence. That is to say, the liability for causing death was limited only to cases of murder and
culpable homicide not amounting to murder. To fill in the gap, section 304-A 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 death. Section 304-A, Indian Penal Code, deals with homicide by
rash and negligent act. It provides punishment for those cases which under English Law are termed
manslaughter by negligence.

The impugned section provides punishment of either description for a term which may extend to two years, or
fine, or both in case of homicide by rash or negligent act. The Law Commission of India in 1971 on the basis of
a strong demand for the increase in punishment for offences under this section recommended for enhancement
of the sentence of imprisonment up to five years. But it was not implemented. It is high time that the
recommendation of Law Commission be implemented in order to make the law deterrent. Severe punishment
will go a long way in making a people vigilant while driving vehicles on road. As at present people hardly take
due precaution while automobiles, because of very light punishment.

14
(1925) 27 Bom L.R. 604
BIBLIOGRAPHY

BOOKS:-

1) K.D.GAUR

2) CRIMINAL MAJOR ACTS

3) S.N.MISHRA

4) RATANLAL AND DHIRAJLAL

WEBSITE:-

1) www.wikipedia.org

2) www.Lawctopus.com

3) www.Manupatra.com

4) www.Indiankanoon.org

6) www.Livelaw.in

7) www.Justice.gc.ca