JAMIA MILLIA ISLAMIA

FACULTY OF LAW

PROJECT

DEATH CAUSED BY AND NEGLIGENT ACT.

IPC SECTION 304A

SUBMITTED BY-

MAAMOOR AHMAD

BA LLB HONS. (regular)

BATCH 2018-23
 Introduction
In law, ‘Negligence’ is defined as an act of carelessness which damages the property
of a person. The negligence is caused when a person has acted illegally or carelessly.
There are four basic elements that the plaintiff (the person who has been injured) has
to prove against the defendant (the person who has caused the injury) to show that
he acted negligently.

 Duty: In order to assess an act is negligent or not it is necessary to see that the
defendant has taken the legal duty of care towards plaintiff.
 Breach of Duty: The next thing that a court sees is that whether the defendant has
acted like a ‘reasonable prudent person’ in the given circumstances. It means that the
person never had the knowledge about the outcome of his actions and there was a
breach of duty from his or her part.
 Causation: In order to prove negligence, it is important for the plaintiff to prove that
the defendant has caused an injury. It simply means that the action or inaction of the
defendant has caused injury to the plaintiff or his property.
 Damages: If there is an act of negligence from defendant which has resulted in the
injury of plaintiff then the court is liable to compensate the plaintiff.

When Indian Penal Code, 1860 came into existence there was no provision which
gave punishment for causing death by negligence. The causing of negligence was
nowhere defined in IPC but fall outside the offences ranging from Section 299 and
300 of IPC. But in the year 1870, an amendment was made in IPC which inserted a
new provision Section 304A.

Criminal negligence is the gross and culpable neglect failures to exercise that
reasonable and proper care and precaution to guard against the injury either to the
public generally or to a particular individual. Which having regard to all the
circumstancesout of which the charges have arisen, it was the imperative duty of the
accussed person to have adopted (Bala Chandra vs state of MH, AIR 1868 SC
1319)
RASH ACT

A rash act is primarily an overhasty act and is opposed to a deliberate act; even if it
is partlt deliberate, it is done without due thought an action. An illegal “omission” if
negligent ,may come under this section. Negligence , on the other hand , is a breach
of duty imposed by law.

MEDICAL NEGLIGENCE

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
the patient’s death unless he is negligent for life and safety as to amount to a crime
against criminal liability.

Where the accused who was a homeopath, administered to the patient suffering from
guinea worm, 24 drops of mother tincture stramonium ansd a leaf of Dharta without
studying its effects and the patient died with poisoning . It was held that the accused
was guilty under section 304A (Juggan Khan vs State of Maharashtra)

ESSENTIAL INGREDIENTS – TO BRING A CASE OF HOMICIDE UNDER

SECTION 304A, IPC THE FOLLOWING CONDITIONS MUST EXISTS

-There must be death of person in question ;

-The accused must have caused such death ; and

- That such act of accused was rash or negligent and that it did not amount to
culpable homicicde .

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.

In order to apply Section 304A of IPC, it is necessary to prove that there was no
intention on the part of the defendant and the act done would result in causing death
to the plaintiff. In Ravi Kapur v. State of Rajasthan[1], the SC held that in an order
to attract the provision of Section 304A it is important to see that the death of a
person is caused due to rash and negligent act of the accused. In this particular case,
the appellant was charged with an offence under section 304A for causing the death
of ‘M’ by a contact with an electrically charged copper wire. It was held that the
voltage of current passing through the naked wire being high enough to be lethal,
there could be no dispute that charging it with current of that voltage was a rash act
done in reckless disregard of the serious consequences to people coming into contact
with it for which the accused is solely responsible under Section 304A. It is
important to know the difference between rash and negligence in order to decide a
particular case.

Difference between rash and negligent act

Serial

Rash Negligent Act

No.

A rash is a hasty act

Negligence is a breach of duty
1. which is opposed to an
which is not done intentionally.
intentional act.
2. Rashness is done In negligence, defendant has
without deliberation and caused injury to the plaintiff or his
caution. property.
  

The act of rashness is

The act of negligence can be civil
generally a criminal act
3. or criminal depending on the
depending upon the
nature and gravity of the offence.
recklessness.

Whether causing death by negligence is a

criminal act or not?
The act of negligence can be civil and criminal. In civil negligence, if the act of
defendant resulted in the injury of the plaintiff, the defendant is liable to
compensate. But what happens when a person has acted negligently which has
resulted in a death of a person. Let us take a case of a doctor who has acted
negligently which has resulted in a death of a person. It is a case of medical
negligence which is defined as any act or omission by a doctor or a physician which
has resulted in a bad injury or death of a person. Medical negligence can be of civil
or criminal nature. But during the treatment of a patient it is the duty of the doctor
take reasonable care and if they do not follow the accepted norm practices then it
would result in a death of a person. The doctor will be criminally liable.

Other cases of criminal negligence

 If a person is drinking and driving and kills someone on the road, then the person is
criminally liable and can be sued. They are criminally liable because the death of a
person is a crime so driving and drinking will also be a crime.
 If a nurse forgets to feed the patient on time which has resulted in the death, then the
nurse is criminally liable because he or she has killed a person.
 A doctor who prescribes an addictive drug to a patient knowing that he is allergic and
which has resulted in a death of a person, then the doctor is criminally liable.
 A person who drives a car at above 40 miles per hour (i.e. above the speed limit)
which has resulted in a death of a person, the person is criminally liable.
 Defence for Negligence
If the action of a person has resulted in a death of a person, then the defence that can
be taken as:

 Contributory negligence: It is based on the doctrine of common law which states

that if a person is injured due to his or her negligence, then the injured party is not
entitled to collect any damages from another party. This is because in law it will be
considered as to be the author of his own wrong. In Butterfield v. Forrester[2], the
defendant put a pole across the public place although he was not authorized to do so.
The plaintiff was riding in the evening and got stuck with the pole. The court held
that plaintiff cannot claim for damages because the light was visible and he was
negligent.
 An act of God: If there is injury or death of a person caused due to any natural
disaster, then the person will not be liable if he or she proofs the same in the court.
In Nichols v. Marsland[3], the defendant had series of artificial lakes on his land in
the construction or maintenance of which there had been no negligence. Due to the
heavy rain, some of the reservoirs burst and carried away four country bridges. The
court held that the defendant was not liable as the water escaped by the act of God.
 Inevitable Accident: If the death or injury of the person has been done inevitably
then the person can take a defence of negligence. Inevitable accident means that the
person has taken an ordinary care, caution and skill that has resulted in the death or
injury of a person. In Brown v. Kendal[4], the plaintiff’s and defendant dogs were
fighting. As the defendant was trying to remove them separately, he accidentally hit
the plaintiff in his eye. The injury of the plaintiff was held to result in an inevitable
accident.

A doctor can take a plea for causing death by negligence on the ground
that they have taken reasonable care (duty of care) while treating the patient. They
will not be vicariously liable for the act of his junior doctor or nurse. It means if they
have not worked in accordance with a proper instruction of the doctor, then the
doctor will not be liable. The burden of the proof lies on the doctor to prove that he
has acted reasonably and there was a breach of duty.
 Important Cases

In Prabhakaran v. State of Kerala[5], the court held that Section 304A IPC applies
in case of rash and negligent acts and does not apply to cases where death has been
voluntarily caused. Section 304A IPC applies to cases where there is no intention to
cause death and no knowledge that the act done in all probability will cause death.

In Dr.  Suresh Gupta v. Govt. of N.C.T. of Delhi and Anr.[6], the court quashed the
proceedings for medical negligence for fixing criminal liability on a doctor or
surgeon, the standard of negligence required to be proved to be as high as can be
described as “gross negligence” or recklessness. The doctor did not take reasonable
care due to which the patient died. As per medical opinion produced by prosecution
cause of death is because of not introducing a cuffed endotracheal tube of proper
size as to prevent aspiration of blood from the wound in respiratory passage. This act
attributed to a doctor, even if accepted as true, can be described as negligent act as
there was lack of due care and precaution, for which he may be liable in tort. The
court held that the said act cannot be described as so grossly negligent or reckless as
to make him criminally liable under section 340A of IPC.

In Somabhai Mangalbhai Dabhi v. State of Gujarat[7], the session judge passed an

order of conviction against Petitioner for an offence punishable under a section of
304A of IPC for causing the death of a 10-year-old girl by rash and negligent act of
driving a motor bus. The issue before the court was whether there was any
negligence or rashness on part of a driver. It was held that it was not possible that
benefit of probation was required to be given to accused. The driver was driving a
vehicle at uncontrollable speed and he went to utter the wrong side of a road and
dashed against an innocent girl of 10 years. The negligence and rashness were of
grave category and there was no mitigating circumstance and hence, a benefit of
probation could not be extended to Petitioner.

Where to file a complaint in case of criminal

negligence?
 If there is the death of a person, then a family member or friend or any person can
file a complaint by following the procedure Code of Criminal Procedure, 1973
(hereinafter referred as CrPC).

 FIR (First information report): An FIR will be filed under section 154 of CrPC
with police at the police station. The officer-in-charge of police station will reduce
the statement of an informant in writing that will be signed by an informant. The
copy of FIR will be provided to the informant at free of cost provided by the State
Government.
 Vakalatnama: An informant who has filed an FIR will file a Vakalatnama where he
or she will authorize an advocate to represent them in front of a court.
 Investigation: The police will start its investigation under section 156 of CrPC,
where they will collect all the evidence and will seal the place where the crime has
been committed. It is their duties to take investigate on every matter that is related to
a case.
 Charge sheet: When an investigation is over the police will file a charge sheet under
section 173 of CrPC which will include- the names of the parties, the nature of the
information, the names of the persons who appear to be acquainted with the
circumstances of the case, whether any offence appears to have been committed and
if so by whom, whether the accused has been arrested, whether he has been released
on his bond and if so whether with or without sureties, whether he has been
forwarded in custody under section 170. The police will also frame charges before
submitting the charge sheet to court.
 Inquiry: Inquiry is something that is defined under section 2(g) of CrPC which other
than trial. It will commence in front of a Magistrate or Court. The main motive of
inquiry is to determine whether an innocent is guilty or not. While the inquiry is
going to the statement will be recorded under section 164 of CrPC, where the
accused will be required to say whether he feels he is guilty or not and he can admit
guilty.
 Trial: When the inquiry is over the trial process will starts. The trial is something that
has not been explicitly defined under CrPC. Trail means judicial proceedings where
evidence are allowed to be proved or disapproved, and guilty of a person is adjudged
leading to acquittal or conviction.
 Arguments: Both the lawyers put both the lawyers put forth their arguments for the
determination of the guilt of the accused.
 Judgment: After hearing both sides’ arguments and after the examination of witness
the court decides whether the person has caused the death negligently or not.

Punishment
The punishment under this section is for imprisionment upto two years or fine or
both. However keeping in consideration the nature of injury, which is death caused
in order to attract this section the punishment seems to be inadequate. this has been
reiterated by the supreme court in the case of Abdul Shareef vs State of Haryana,
where a bench comprising of judge Deepak Sharma and justice Nagappanwere of the
view that the punishment under 304A is in adequate and needs to be amended to
increase it to a higher amount of punishment. This supreme court in this case also
cited the same observation by supreme court in previous case.

If a person has been proven guilty by the court for causing death by negligence, then
the person will be punished with imprisonment of either description for a term which
may extend to two years, or with fine, or with both.

Proving negligence in Motor Accident Cases

If there is a death of a person due to the collision of the motor vehicle, then the
defendant can have to prove that the accident was incidental and there was no
intention involved. For example, that a truck driver cuts off the driver and as a result
the driver dies. The plaintiff has to prove that there was no duty of care by the
defendant has taken while driving the car which resulted in the death of a person.
The duty of care plays a major role in proving the negligence in case of a motor
accident.
 Conclusion
When a death is caused by a minor then the victim should not be punished for an
offence because he or she never had the knowledge about it. Section 304A of IPC
should be considered as non-bailable offence or at least compensation should be paid
if the person has been injured. If there is an unexpected accident happening, then the
court should see the merit of the case before giving a judgment.

The supreme court in landmark cases has laid down the guidelines which would
have been necassaryy attracted to section 304A if there is medical negligence. The
punishment for offnce under sec. 302A has been defined in this section as well.
However, in the opinion of the court, it has been held that the punishment under
304A is inadequate. It indeed seems Inadequate to punish an offence which results in
death with just 2 years of imprisonment.

References

1. Indian Penal Code, 1865, No. 45,Acts of Parliament 1860

2. Kurban Hussain vs State (1965) 2 scr 622.

3. Bala Chandra vs State of Maharashtra, AIR 1968 SC 1319

4. Juggan Khan vs State of MP, AIR 1965 SC 831

5. Ravi kapoor vs State of Rajasthan, (2012) 9 scc 284