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Death caused by Rash and Negligent Act – the nature of crime and punishment

By

S. Vishnu Ameya

18 LLB 090

Semester: 4th semester

Name of the Program: 5year B.A., LL.B.

Name of the Faculty: Prof. Bhavani Prasad Panda

DAMODARAM SANJIVAYYA NATIONAL LAW UNIVERSITY NYAYAPRASTHA,

SABBAVARAM, VISAKHAPATNAM-531035 ANDHRA PRADESH

Date of Submission:
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Acknowledgement

I would like to express my heartfelt gratitude to Dr. (Prof.) Bhavani Prasad Panda for alloting
me the topic ‘Death caused by Rash and Negligent Act – the nature of crime and
punishment’. Working on this topic fuelled my interest in understanding how section 304a
brings into the ambit death caused due to rash and negligent act.

I would also like to thank DSNLU Library for providing me with the resources.
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Table of cases

1. Malay Kumar Ganguly V. Sukumar Mukherjee, (2009) 9 SCC 221

2. State of Punjab V. Balwinder Singh, 2012(2) Scc 182: Air 2012sc 861.
3. Russel, Crime (11th Edn, 1908) 48
4. Dr. R.P. Dhanda V Bhurelal And Anr. [1987] Crilj 1316 (Mp)
5. Gaya Prasad, (1928) 51 All 465
6. Balwant Singh V. State of Punjab 1994 Scc (Cri) 844.
7. Tika Ram V. Rex [1950] Air 200 (All).
8. R. V. Khan And others (1990) 2all Er 783.
9. Shri Udham Singh V. The State of Himachal Pradesh [1980] Shimla Lc 246
10. Chamanlal V. State [1970] Air 1372 (Sc):[1970] Scr (3) 913
11. Shakila Khaker V. Nausher Gama, Air 1975 Sc 1324.
12. P.Rathinam Vs Union of India, 1994 Scc (3) 394.
13. In K.Perumal v. State, 1998 CriLJ 4436.
14. Mangilal v. State of Madhya Pradesh, 1998 CRILJ 2304.
15. United India Insurance Co. Ltd v. Kashi Ram, (2004) DLT 130.
16. Rita Devi v. New India Assurance Co. Ltd., (2000) 5 SCC 113.
17. Shankarayya v. United India Insurance Co. Ltd, AIR 1998 SC 2968.
18. Shakila Khader v. Nausher Gama, AIR 1975 SC 1324.
19. Golan Jilani Khan v. The State, 1982 SCC (1) 71.
20. The State of Punjab vs S. Rattan Singh 1964 AIR 1223.
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Table of contents

1. SYNOPSIS………………………………………………………………………….05

2. INTRODUCTION……………………………………….08

3. NEGLIGENCE: MEANING AND DEFINITION……………….10

4. RECKLESSNESS: MEANING………………………..11

5. DIFFERENCE BETWEEN NEGLIGENCE AND RECLESS ACTS………..13

6. LIABILITY UNDER IPC FOR NEGLIGENCE AND RECKLESS ACTS……14

7. PROOF OF NEGLIGENCE & CRIMINAL INJURY OR MURDER AS

ACCIDENT……….15

8. JUDICIAL APPLICATION OF THE CRIMINAL LAW IN THE MOTOR

ACCIDENT CASES RASH AND NEGLIGENT DRIVING…….17

9. CONCLUSION……………20

10. BIBLIOGRAPHY………………………21
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SYNOPSIS:

INTRODUCTION:

The meaning of the word negligence has not been described in a proper way but it is an act
recklessly done by a person resulting in foreseeable damages to the other. Negligence is an
offense under tort, IPC, Indian Contracts Act, Consumer Protection Act and many more.

This proposal will deal with Negligent and Recklessness as an offense under IPC. The term
negligence is not defined in the Code. The criminality lies in running the risk of doing such
an act with recklessness or indifference as to the consequences.

To describe recklessness in terms of ‘wanton indifference’ suggests that the accused has a
deliberate lack of concern regarding whether or not harmful or injurious consequences result
from his actions. This suggests that a known risk has been ignored thus is indicative of
subjective recklessness.

Negligence basically is the misconduct by one by not providing enough care resulting in
breach of their duties and harming the other people which are their consumers. A professional
is deemed to be an expert in that field at least; a consumer getting service under any
professional surely expects to get service and at least expects the service provider to be
careful while performing his duties.

The provision of this section apply to cases where the act which has been committed satisfies
all the ingredients, they are;

I. Death of a person

II. Death was caused by accused during any rash or negligent act.

III. Act does not amount to culpable homicide

And to prove negligence and rashness under Criminal law, the prosecution must prove:

I. The existence of duty

II. A breach of the duty causing death

III. The breach of the duty must be characterized as gross negligence.1

1
Malay Kumar Ganguly V. Sukumar Mukherjee, (2009) 9 SCC 221: AIR 2010 SC 1162.
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Although the level of risk is the same for both recklessness and negligence, the difference
between the two is that with recklessness, the actor must be aware of the risk involved with
her actions, whereas, for negligence, the actor is not aware of the risks but should have
known what those risks were.

This research proposal will focus on explaining negligence and recklessness under various
laws, with landmark as well as recent cases in India. It aims at providing information about
the topic to create as much awareness as possible.

Objectives of the study

1. To study the concept of Negligence and Recklessness.

2. To decide the liability under Negligence and Recklessness by taking examples of

different sections and case laws.

3. To put forth a clear demarcation between Negligence and Recklessness.

RESEARCH QUESTIONS:

The researcher will be conducting research on following research questions:

1. What is the provision under section 304A?

2. What are the factors that exempt section 299 and section 300 from section 304A of

Indian penal code?

3. What quantum of punishment would be given under section 304A?

Hypothesis

• Mere Negligence is not punishable under IPC.

• Reckless act resulting into a crime is punishable under IPC.

Research Methodology

As the research work for this topic is confined to the library and books and no field work has
been done. Hence, researcher in this research work has opted the doctrinal methodology of
research.
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For doing the research work various sources have been used. Researcher in the research work
has relied upon the sources like various books and online materials as a source for the
research.

Sources of Data

The researcher has used primary and secondary sources of data for the purpose of research.

Limitations of the Study

The present research has certain limitations. It is a study, which concentrates mainly on crime
done by negligence and recklessness in India. It has time and recourses boundaries. The study
remain confined to a research done at library. Books at library tells a lot about the law.

Scope of the study

The present research has enormous social relevance and utility. It offers an opportunity to
study

the crime in the country particularly, the when it is should be punished and when it should not
be.

The study will encourage the further research on backdrops of the Section and study of
rational issues raised by different courts.

2. INTRODUCTION
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Section 304A punishes death by an act of rash or negligence. It states that anyone who causes
the death of any person by doing either any rash act or any negligent act, and such rash or
negligent act does not amount to either guilty homicide amounting to murder or guilty
homicide not amounting to murder, shall be punished for a term of up to two years, or with a
fine, or with both, by simple or rigorous imprisonment. There was a provision in the Draft
Penal Code dealing with such a matter, but at the time of its enactment, the same could not be
found in the Indian Penal Code. Under Act XXVII of 1870, this section was added to the
Code. This section did not create a new offense, but was aimed at offenses outside the scope
of Sections 299 and 300 of the Indian Penal Code, 1860 (hereinafter referred to as I.P.C.)
where there is no intention or knowledge to cause death. A comparable crime is known as
manslaughter by negligence under English criminal law. Three other sections of the Indian
Penal Code, i.e. sections 229, 336, 337 and 338, also deal with rash or negligent acts, but they
are concerned with endangering others' lives or personal safety, causing hurt in such matters
and causing serious hurt in such matters. Section 304-A applies to cases where there is no
intention of causing death and there is no knowledge that the act is likely to cause death. The
Supreme Court has clarified that I.P.C. section 304-A applies only where death is caused by
the accused's rash and negligent act, which is an essential element in attracting that provision.
However a colossal group of legal scholars have always questioned whether this section
offers punishment without intention for manslaughter or is it a 'license to kill' disguised as a
rash and negligent act. It is very convincing that where the act is criminal in nature, this
section would not have any applicability. The validity of this section is invoked only by the
act performed negligently or rashly and it cannot be applicable to the outcome that surpasses
the act that could not have been anticipated. While the scope of this section is discussed as a
license to kill, the term 'rash' can be understood to classify the different events and acts in
road accidents, mishandling of dangerous materials or deadly weapons, etc., while the term
'negligent' can be associated with the acts of professionals such as medical professionals or
pharmacists, etc. But the applicability of this section has been defined and premeditated from
time to time by the different levels of the judiciary, ensuring that it does not create a
defensive ground for people to commit homicide. The Code did not define rashness and
negligence anywhere. However, it can be said that rashness is an overhasty act, opposed to a
deliberate one performed without due care and consideration, whereas negligence is an
absolute disregard for the life and safety of others. In order to impose criminal liability
pursuant to Section 304-A, it is necessary that the death should have been the direct result of
the accused's rash and negligent act and that the act must be a proximate and effective cause
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without the negligence of another. It must be causa causans1 (immediate or functional cause);
it is not sufficient for it to be causa sine qua non (a necessary or inevitable cause). That is to
say, there must be a direct link between the death of an individual and the accused's rash or
negligent action. The crime lies in running the risk of recklessness or indifference as to the
consequences of doing such an act. Criminal negligence is the gross and guilty neglect or
failure to exercise reasonable and proper care and precaution to protect against injury either
to the general public or to an individual in particular, which was the imperative duty of the
accused person to have adopted, taking into account all the circumstances from which the
charge arose. Culpable rashness acts with the awareness that it may follow the mischievous
and illegal consequences, but with the hope that they will not, and often with the conviction
that the actor has taken adequate precautions to prevent their occurrence. In spite of
awareness, imputability arises from acting. Without the awareness that the illegal and
mischievous effect will follow, culpable negligence acts, but in circumstances that show that
the actor has not exercised the caution that he has, and that if he had, he would have had the
awareness. The imputability arises from the disregard of the civic obligation of conditions. In
Section 304-A, the expression 'not counting as guilty homicide' indicates offenses outside the
scope of Sections 299 and 300, and obviously covers those cases in which neither intention
nor knowledge is involved. It indicates that violence intentionally inflicted, directly and
wilfully caused, is excluded from the implication of Section 304-A. In criminal cases, there
must be mens rea or guilty mind of a degree that can be described as criminal negligence, i.e.
rashness or guilty mind. The principle of avoidance of liability when there is no defense in
criminal law in the case of contributive negligence on the part of the injured person. Section
279 and 280 to 289, Section 304A, 336, 337 and 338 of Indian Penal code deal with the
accused's reckless and careless actions endangering the safety of others. The potential or
probability of injury as a result of the behavior of the accused is covered in all these sections.
There is a rash and negligent act involving one of the ingredients of the offence under all
these sections, and all these sections are therefore covered by rash or negligent driving or
riding on a public road. Sections 304A, 337 and 338, however are specific provisions relating
to cases in which rash or negligent driving or driving results in the death of another person or
in injury or serious injury to another person. According to Section 304-A, the penalty for
causing death by negligence is imprisonment with either a description for a term that may be
extended to two years or a fine, or both. Sentencing depends on the degree of carelessness
seen in the behavior of the defendant. This offence is recognizable and in the first instance,
warrants should usually be issued. It is bailable, but not compoundable, and is a First Class
 P a g e | 10

Magistrate's trial. The offenses under section 304A of the Indian Penal Code will be
addressed in this paper.

3. NEGLIGENCE: MEANING AND DEFINITION

Although with the advancement and growth in technology, the life span of people of the
world, in general, has increased, the number of deaths, crimes, and other injury has also
suffered a dramatically accentuation over the years. With the usage of new gadgets, even
slightest of negligence on the part of an individual may cause huge damage to others. India,
in the past decade has witnessed several landmark cases which deal with criminal negligence,
including the recently in news Dr. Kunal Saha case,2 in which an amount of 5.6 crores was
awarded to the widower. This case and many others raise the question of negligence as a
crime, also called criminal negligence. The rationality of criminal negligence has been a
subject of debate among the scholars since long, and though the law is much clear now, the
debate continues to stand that whether negligence ought to be culpable and whether it is a
form of mens rea.

S. 304A.3Causing 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.

Section 304A was inserted in the Penal Code by the Indian Penal Code (Amendment) Act of
1870

to cover those cases wherein a person cause 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.

The case should not be covered by Sections 299 and 300 only then it will cause death.4

The 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.5

2
MALAY KU. GANGULY V. SUKUMAR MUKHERJEE & ORS. [2009] SCC 221.
3
INS. BY ACT 27 OF 1870, S.12
4
Ratanlal And Dhirajlal, The Indian Penal Code (35th Edn. Lexis Nexis Butterworths, 2017)
5
State Of Punjab V. Balwinder Singh, 2012(2) Scc 182: Air 2012sc 861.
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“A person acts negligently if he or she departs from the conduct expected of a reasonably
prudent person acting under similar circumstances.” “The word 'negligence' denotes, and
should be used only to denote, such blameworthy inadvertence” so that the person who has
caused the injury through negligence/ inadvertence to another is legally obligated to
compensate the victim. The use of term “inadvertence by Glanville has been criticized by
Russel7 for being “misleadingly pleonastic”; as he believes that negligence is a subjective
state of mind. Negligence is never used as an independent term; it is always relative to the
circumstances present at the time of the act.6

The test for negligence is an objective one that is a reasonable man test. If under the
circumstances, a reasonable man would have acted differently than what the defendant did,
the defendant would be liable for negligence person acting under similar circumstances.”7

4. RECKLESSNESS: MEANING

The authors of the code have said, “ When a person engaged in the commission of an offence
causes death by rashness, or negligence, but without either intending to cause death or
thinking it likely that he shall cause death, we propose that he shall be liable to the
punishment of the offence which he was engaged in committing, superadded to the ordinary
punishment of involuntary culpable homicide.

“Reckless” is a word of condemnation. It normally involves conscious and unreasonable risk

taking, either as to the possibility that a particular undesirable circumstance exists or as to the
possibility that some evil will come to pass. The reckless person deliberately “takes a
chance.” The legal meaning of recklessness is that the term has been given several different
shades of meaning by the courts over the years. In the law of manslaughter, “reckless has
often been regarded as the most appropriate adjective to express the degree of negligence
(“gross”) needed for a conviction: in this sense, it means a high degree of carelessness. Some
crimes can be committed only intentionally. But nearly all crimes requiring mens rea now
recognize recklessness as an alternative to intention. This proposition holds for most common
law crimes; and of late years parliamentary draft men have begun to include it in their
formulations of offences, as by making it an offence to do something “knowingly and
recklessly.”

6
Russel, Crime (11th Edn, 1908) 48
7
Dr. R.P. Dhanda V Bhurelal And Anr. [1987] Crilj 1316 (Mp)
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The courts were slow to develop the concept of recklessness. In relation to the consequences
of conduct, they tended to think only in terms of intention, negligence and strict liability
departure from the standard of conduct of the prudent man. often the defendant will have
adverted to the risk, but he may not have, and he can be accounted grossly negligent whether
he adverted or not according to this objective view.

The tribunal affect (judge or magistrates) does not attempt to look into his mind, but simply
measures the degree of his departure from the proper standard. His precise mental attitude
will be of two kinds

I. he would prefer that the harmful result should not occur, or

II. he is indifferent as to whether it does or does not occur.

A reckless act is primarily an overhasty act and is opposed to deliberate act; even if it is
partly deliberate, it is done without due thought and causation. 8 Criminal recklessness is
hazarding a dangerous act with the knowledge that it is so and that it may cause an injury.
There is a breach of positive duty. Illegal omission is “act” under this section an may
constitute an offence if it is negligent and rash.

Professor Glanville Williams in his Textbook of Criminal Law (2nd ed. 1983) puts forward
the view that recklessness “normally involves conscious and unreasonable risk taking”. But
what of the person who gives no thought to the consequence of his actions or the person who
through blinders fails to wilful make any enquiry into the positively of risk ? Yet again what
of the person who gives some thought to the likely result of his actions but proceeds on the
basis that there is unlikely to be any harm or damage ensuring from his conduct. A reckless
man is one who while aiming at an end which he desire to attain, consciously takes the risk of
bringing about some other result also. In Cunningham 9 the courts adopted a different meaning
of recklessness in the content of recklessness in the content of mens rea, referring to D‟s
actual awareness of the risk of the prohibited consequence occurring which is called
“advertent recklessness”. Controversy was introduced into this area in the early 1980 s, when
the House of Lords purported to broaden the meaning of recklessness so as to include those
who failed to give thought to an obvious risk that the consequence would occur.

8
GAYA PRASAD, (1928) 51 ALL 465.
9
(1957) 2QB396
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Recklessness as to bodily harm will not support a charge of attempting to injure by wanton
driving. In order to sustain a charge of attempting to commit a crime, it must be shown that
the defendant anticipated committing the completed crime to which the charge relates.

5. DIFFERENCE BETWEEN NEGLIGENCE AND RECKLESS ACTS

A rash act is primarily an overhasty act.10 Negligence is the breach of a duty caused by
omission to do something, which a reasonable man guided by those considerations which
ordinarily regulate the conduct of human affairs would do.11 Most of the sections in IPC
related to criminal negligence, state the expression “rashly or negligently” in the exact or
similar fashion. A rash act, distinct from a negligent act, is the one without due deliberation.
“In terms of its blameworthiness, negligence is generally thought to fall somewhere between
rash (or reckless) conduct and strict liability.” 12Though it has been held that “negligence is a
genus, and rashness is a species” and that in certain cases, rashness may result if an act is
performed extremely negligently ; in Chintamani Sharma v State,13 the court has provided a
clear distinction between negligence and rashness: “Culpable rashness is acting with the
consciousness that dangerous consequences will follow, but with the hope that they will not
follow and with the belief that sufficient precautions to prevent the happening of such
consequences have been taken. Culpable negligence is acting without the consciousness that
dangerous consequences will follow but in the circumstances which show that the actor has
not exercised the caution that was incumbent on him.” Thus, if X is driving on the road,
exceeding the speed limit, and sees a pedestrian crossing the road, but does not slow down,
believing that the pedestrian would have crossed the road before he reaches; hits and injures
the pedestrian, X would be guilty of culpable rashness as he was acting with the
consciousness that dangerous consequences will follow. If, however, X is driving above the
speed limit on an empty road and does not notice a pedestrian crossing the road; hits and
injures the pedestrian, X would be guilty of culpable negligence, as a reasonable man would
have been attentive while driving at a high speed. In the case of a rash act, the criminality lies
in running the risk of doing such an act with recklessness or indifference as to the
consequences. Criminal Negligence is a gross and culpable neglect or failure to exercise that

10
Balwant Singh V. State Of Punjab 1994 Scc (Cri) 844.
11
Hari Singh Gour, Penal Law Of India, Vol 3, 11 Edn, Law Publishers, Allahabad, 1998, P 3028.
12
Victor V. Ramraj, ‘Criminal Negligence And The Standard Of Care’ (1999) Singapore Journal Of Legal
Studies 678.
13
Tika Ram V. Rex [1950] Air 200 (All).
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reasonable and proper care and precaution to guard against injury either to the public
generally.

6. LIABILITY UNDER IPC FOR NEGLIGENCE AND RECKLESS

ACTS

As negligence involves “low or unreasonable standard of conduct, is simply not as punishable

as conscious risk taking or recklessness”.14 Recklessness normally involves conscious and
unreasonable risk taking.15 To be liable for attempted rape a defendant need not actually
intend to have nonconsensual intercourse; mere recklessness towards the lack of consent is
enough.16 “There are degrees of negligence and rashness, and in order to amount to criminal
rashness or criminal negligence, one must find that the rashness has been of such degree that
injury was most likely to be occasioned thereby.”17 And rashness, and in order to amount to
criminal rashness or criminal negligence, one must find that the rashness has been of such
degree that injury was most likely to be occasioned thereby.”18

7. PROOF OF NEGLIGENCE & CRIMINAL INJURY OR MURDER AS

ACCIDENT

The degree of rashness or negligence on the part of the accused required to be proved in
criminal cases should be such a nature that an inference about the commission of crime may
safely made against him. In Criminal Law, it is necessary to prove beyond reasonable doubt
the negligent act of the accused under section 304A I.P.C. It is necessary that the death
should be direct result of the negligent act of the accused and that act must be proximate of
efficient cause without the intervention of another’s negligence. The main criterion for
deciding whether the driving which led to the accident was rash and negligent is not only the
speed but the width of the road, the density of the traffic and in going to the wrong side of the
road in an attempt to overtake the other vehicle and thus being responsible for the accident. In
Shakila Khaker v. Nausher Gama’s19 case it was held by the Supreme Court that even if the
accident takes place in the twinkling of an eye it is not difficult for an eye – witness to notice

14
Janet Loveless, Criminal Law: Text, Cases And Materials (3rd Edn, Oxford
University Press) 142.
15
R. V. Khan And Others (1990) 2all Er 783.
16
Fitzpatrick And Williams, ‘Carelessness, Indiffernce And Recklessness: Two Replies” (1962) 25 Mlr 49,57
17
Shri Udham Singh V. The State Of Himachal Pradesh [1980] Shimla Lc 246

18
Chamanlal V. State [1970] Air 1372 (Sc):[1970] Scr (3) 913
19
Shakila Khaker V. Nausher Gama, Air 1975 Sc 1324.
 P a g e | 15

a car overtaking other vehicle and going to the wrong side of the road and hitting a vehicle
traveling on the side of the road. In P. Rathinam Nagbhusan Patnik v. Union of India, 20 it was
held by the Supreme Court that in the way there is not distinction between crime and tort in
as much as a tort harms an individual where as a crime is supposed to harm a society. But
then, a society is made of individuals, harm to an individual is ultimately harm to the society.
Regarding the onus of the proof, it is generally on the prosecution to prove gross rash and
gross negligence on the part of the accused. This onus never shifts. Sometimes res ipsa
loquitur can be corroborative evidence. The circumstances may lead to inference against the
accused or vice – versa. This doctrine is corroborative as far as criminal law is concerned. In
a case of negligent driving there may be material evidence or witnesses namely a sketch
drawn was adduced, it was seen that the accident took place only on the left side of the road.
The vehicle was coming from East towards West. The sketch shows that there is sufficient
space about 40 feet available on the right side. Therefore, the petitioner ought to have
swerved to the right side and avoided the accident. So in addition to the deposition of witness,
the material relating to the rule of res ipsa loquitur is available in this case. In K.Perumal v.
State,21 case it was held that the driver running over the deceased without attempting to save
the deceased by swerving to other side when there was sufficient space, is liable to be
punished under section 304A I.P.C “A person driving a motor car is under a duty to control
that car, he is prima facies guilty of negligence if the car leaves the road and dashes into a
tree. It 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 that the car left the road is evidence of
negligence on the part of the driver.”

The question relating to scope and ambit of section 357 of the code of Criminal Procedure,
1973 and grant of compensation thereunder arose in Mangilal v. State of Madhya Pradesh, 22
wherein Supreme Court interpreted and analysed all the five sub sections of that section and
the same may usefully be extracted hereunder. Apart from construing its sub-sections with
precision, the point emphasized is that while resorting to this section for grant of
compensation, the accused must be given a hearing. In United India Insurance Co. Ltd v.
Kashi Ram case,23 where the driver of the truck was murdered by another driver, and the
truck was taken away and the goods therein stolen. All these events cannot be said to be
20
P.Rathinam Vs Union Of India, 1994 Scc (3) 394.
21
In K.Perumal v. State, 1998 CriLJ 4436.
22
Mangilal v. State of Madhya Pradesh, 1998 CRILJ 2304.
23
United India Insurance Co. Ltd v. Kashi Ram, (2004) DLT 130.
 P a g e | 16

unrelated. When there was no evidence to suggest that the dominant purpose of accused was
to kill the deceased and not to commit theft, murder of deceased during course of his
employment was held to amount to death in accident arising out of use of motor vehicle.
However, where a person on motorcycle was shot at due to personal animosity resulting iin
ihis ideath, imurder icannot ibe isaid ito ihave iarisen iout iof iuse iof imotor ivehicle isince

idominant iintention iof iaccused iwas ito icommit imurder iwhich iwas inot iaccidental imurder

ibut imurder isimpliciter i. ithat ithe iterm iaccident ifor ithe ipurpose iof ilaw irelating ito

icompensation iincludes iany iinjury inot idesigned iby ithe iinjured ihimself, iand iit iis iof ino

iconsequence ithat ithe iinjury iwas idesigned iand iintended iby ithe iperson iinflicting ithe isame.

The iquestion ibefore ithe iSupreme iCourt iin iRita iDevi iv. iNew iIndia iAssurance iCo. iLtd.,24
iwas: ican ia imurder ibe ian iaccident iin ia igiven icase? iThe ifacts iwere ithat ithe ideceased iwas
ithe idriver iof ian iauto-rickshaw. iSome iunknown ipersons ihired ithe iabove irickshaw ifrom ithe
irickshaw istand. iThe istand iauto-rickshaw iwas ireported istolen iand ithe idead ibody iof ithe
idriver iwas irecovered iby ithe ipolice ion ithe inext iday, ithough ithe iauto-rickshaw iwas inever
irecovered iand ithe iclaim iof ithe iowner ifor ithe iloss iof iauto-rickshaw iwas isatisfied iby ithe
iinsurance icompany. iThe itribunal ihad iallowed ithe iclaim ibut ithe iHigh iCourt iheld ithat
ithere iwas ino imotor iaccident ias icontemplated iunder ithe iMotor iVehicles iAct. iIn iappeal ito
ithe iSupreme iCourt, ithe iappellant irelied ion ithe idecision iin iShankarayya iv. iUnited iIndia
25
iInsurance iCo. iLtd, ito iwhich ithe irespondent icontended ithat ithe imeaning iascribed ito ithe
iword iaccident iin ithe iWorkmen’s iCompensation iAct iby ithe ijudicial ipronouncements
icannot ibe iapplied ito ithe iword iaccident ias icontemplated iunder ithe iMotor iVehicles iAct.
iThe iSupreme iCourt irelied iupon itwo ipasses, irespectively ifrom iChallis iv. iLondon i& iSouth
iWestern iRailway iCompany iand iNishet iv. iRayne iand iBurn i. iIn ithe icase iof iChallis i, ithe
iengine idriver iof ia itram iunder ia ibridge iwas ikilled iby ia istone iwillfully idropped ion ithe
itram iby ia iboy ifrom ithe ibridge. iRejecting ithe iargument ithat ithe isaid iaccident icannot ibe
itreated ias iaccident, iit iwas iheld:

“ The accident which befell the deceased was, as it appears…, one which was incidental to
his employment as an engine driver, in other words, it arose out of his employment. The
argument for the respondents really involves the reading in to the Act of a proviso to the
effect that an accident shall not be deemed to be within the Act, if it arose from the
mischievous act of a person not in the service of the employer. I see no reason to suppose that
the legislature intended so to limit the operation of the Act. The result is the same to the
engine driver, from whatever cause the accident happened; and it does not appear to me to be
any answer to the claim for indemnification under the Act to say that the accident was caused
by some person who acted mischievously”. In the other case of Nishet v. Rayne and Burn , a
cashier while travelling in a railway to a colliery with a large sum of money for the payment

iRita iDevi iv. iNew iIndia iAssurance iCo. iLtd., i(2000) i5 iSCC i113.
24

iShankarayya iv. iUnited iIndia iInsurance iCo. iLtd, iAIR i1998 iSC i2968.
25
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of his employer’s workmen, was robbed and murdered. The court of appeal held: “ That the
murder was an accident from the standpoint of the person who suffered from it and that it
arose out of an employment which involved more than the ordinary risk, and, consequently,
that the widow was entitled to compensation under the Workmen’s Compensation Act, 1906.

8. JUDICIAL APPLICATION OF THE CRIMINAL LAW IN THE

MOTOR ACCIDENT CASES RASH AND NEGLIGENT DRIVING

“In case of Ratnam v. Emperor the court held that a person driving a motor car is under a
duty to control that car; he is prima facie guilty of negligence if the car leaves the road and
crashes headlong into a tree and it is for the person driving the car to explain the
circumstances under which the car came to leave the road. Those circumstances may be
beyond 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. The accused was
found guilty under section 304-A. In this connection, the following observation regarding
facts speaking for themselves in Shakila Khader v. Nausher Gama, 26are as follows: “the facts
in the case speak eloquently about what should have happened. The main criterion for
deciding whether the driving which led to the accident was rash and negligent is not only the
speed but the width of the road, the density of the traffic and the attempt, as in this case, to
overtake the other vehicle resulting in going to the wrong side of the road and being
responsible for the accident.” In Sajjan Singh v. State of Punjab petition was convicted by
Judicial Magistrate under section 304A Indian Penal Code on appeal, his conviction and
sentences were upheld by Additional Session Judge. He has challenged his conviction
sentence by way of this appeal. The facts of the case are that an accident took place between
a Matador van and tractor trolley coming from opposite directions. The right side of the van
was ripped apart resulting in death of four passengers and injuries to many others. The
petitioner, the tractor driver was convicted of rash and negligent driving and sentenced. The
Matador driver ran away after the accident and the police were informed by the petitioner.
The petitioner controverted the prosecution and stated that the tractor was on the left side at
slow speed and the van driver swerved the van to his wrong side and struck against the
trolley; that the van driver was in a drunken condition and that the accident happened due “to
the rash and negligent driving of the van. The Matador was found on the wrong side of the
road and its driver not produced to explain how the van went to the other side of the road. It
was held by the Appellate Court that the version of the tractor driver more probable and that
26
Shakila Khader v. Nausher Gama, AIR 1975 SC 1324.
 P a g e | 18

it is not safe to maintain the conviction of the petitioner. He is given the benefit of doubt and
acquitted.

Thus viewed, it is fair to apply the rule of res ipsa loquitur, of course, with care conventional
defenses, except under compelling evidence, must break down before the pragmatic court and
must be given shift.” The question of evidentiary value of judgements of criminal cases in
civil action torts has held whether the fact that the defendant has been convicted or acquitted
in a criminal case would be relevant as to the fact of conviction or acquittal and it would be
totally irrelevant on the question; whether conjunction or acquittal was right. According to
the learned judge, if the conviction was held to be right, it would forever far an accused
person from defending an action in torts on the merit. one striking example would be that a
motor vehicle driver convicted of negligent driving in a criminal case would be unable to
deny that he was negligent in answer to the civil court.

In iGolan iJilani iKhan iv. iThe iState,27 ithe ipetitioner ia idriver ihad ibeen iconvicted iunder
isection i304A iand i337, iIndian iPenal iCode iand isentenced ito iundergo irigorous

iimprisonment ifor i6 imonths iunder ithe iformer icourt iwithout iany isentence ibeing ipassed

iunder ithe ilatter iand ithe isame ihas ibeen iconfirmed iin ifirst iappeal. iIn ithis icase ithe itruck

iran iinto ia istationary ibus. iIt iknocked idown ia ipedestrian iand iinjured iseveral ipersons iwhile

inegotiating ia icurve. iThe iHigh iCourt iof iorissa iheld ithat ithe ifacts ispoke ifor ithemselves

iand ithe idoctrine iof ires iipsa iloquitur iwas iapplicable. iIn ithis icase iK.B.Pande, iL iobserved

ithat ithe ievidence iis ithat ithe iaccused idid inot iblow ihorn. iThe imotor ivehicle iexpert isays

ithat ithere iwas ino imechanical idefect iand ithat iat ithe itime ihe itook itrial ithe ibrake iwas inot

ifunctioning. iIt iis ialso ievident ithat ithe itruck idashed iagainst ithe ibody iof ithe istanding ibus

iso iviolently ithat ithe imud-guard iof ithe itruck igot ibent iand itouched ithe ityre. iThis iis ionly

ipossible iafter ithe ifront ibumper ihas igot ibent. iA iportion iof ithe ibody iof ithe ibus icame iout

iand isome iinmates iof ithe ibus isustained iinjuries. iThat iapart, iJateswar iwho iwas isitting ion

ithe icarrier iof ithe icycle ifell idown iand iwas irun iover iwhere ias ithe irider iof ithe icycle

iBenudhar iDas ifell idown iand igot icertain iinjuries. iIt iwas icontended ithat ithe ivehicle iin

iquestion iwas imoving iat ia ispeed iof i15 imiles ior iso iper ihour. iIf ithat iwere iso, iby

iapplication iof ithe ibrakes iwith ithe iload ion, iit iwould ihave istopped iwithin i2 icubits iand

ithere icould inot ihave ibeen isuch ian iimpact iof ithe ibus iafter irunning iover ithe icyclist isitting

ion ithe icarrier. iWhen ithe iroad iwas itaking ia icurve iand ia ibust iwas istanding iand ia icyclist

ipassing, ithe ipetitioner ishould ihave ibeen imore icautious; ibut ias ithe ifacts ispeak ifor

iGolan iJilani iKhan iv. iThe iState, i1982 iSCC i(1) i71.
27
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ithemselves, ihe iwas iboth irash iand inegligent; iand ithe ideath iof ithe iman, iinjuries ito iothers

iand idashing iagainst ithe ibus iare ithe idirect iresult iof ihis irash iand inegligent iconduct, iin

idriving ithe itruck. iIf ithe itruck iwas iall iright iand ithere iwas ino imechanical idefect, ithe

ipetitioner iwas iobviously iguilty iof irashness iand inegligence iin inot iblowing ithe ihorn iand

inot iapplying ithe ibrakes iat ithe iright itime. iIn ithe ialternative, iif ithe ibrakes iwere idefective,

ihe ishould inot ihave idriven ithe itruck iwith ithat iload iresulting iin ithe ideath iof ione iand

iinjuries ito ithe iother iand idamages ito ithe ibus. iThis iis ia icase iwhere ithe iprinciple iof ires

iipsa iloquitur, iwhich imeans, i“facts ispeaks ifor ithemselves” iapplies.

In iRattan iSingh iv. iState iof iPunjab,28 ithe iSupreme iCourt irefused ito iinterfere iin ithe
isentence iimposed iby ithe itrial icourt. iIt iis iappropriate ito iextract ihere ithe iobservation iof

iJustice iKrishna iIyear iJ. iwho idelivered ijudgment. i“in iour icurrent iconditions, ithe ilaw iunder

isection i304A iI.P.C. iand iunder irubric iof inegligence, imust ihave idue iregard ito ithe ifatal

ifrequency iof irash idriving iof iheavy iduty ivehicle iand iof ispeeding imenaces.

9. CONCLUSION

“Section 279 I.P.C. states that whoever drives any vehicle or rides on any public way in
manner so rash and negligent as to endanger human life or to be likely to cause hurt or injury
to any other person shall be punished with imprisonment of either description for a term
which may extend to six months or with fine which may extend to one thousand rupees or
with both. Section 304A I.P.C. dealing with causing death by negligence, and states that
whoever causes the death of any person by doing any rash or negligent act not 349 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 bothh. ection 338 deals with cases causing
grievous hurt by acts endangering life or personal safety of others and states that whoever
causes grievous hurt to any person by doing any act so rashly or negligently as to endanger
human life, or the personal safety of others, shall be punished with imprisonment of either
description for a term which may extend to two years, or with fine which may extend to one
thousand rupees, or with both. While discussing the scope of a particular legislative text, one
has to study the intent of the legislature behind the articulation of that section or article. The
intent of the nineteenth century drafters of the section 304-A was not to create a license to kill
but in the present scenario due to lack of evidence and at times due to some magical
advocacy one can avail illegitimate benefits of this section. But such a situation is very much
iThe iState iOf iPunjab ivs iS. iRattan iSingh i1964 iAIR i1223.
28
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nominal and is rarely found. It has been said that in cases falling under this section it is
dangerous to attempt to distinguish between the approximate and ultimate cause of death. But
there is a negligible chance that the judiciary will get confused between section 304-A and
the sections 299 to 302 of the I.P.C. Thus it must be concluded that the said section doesn’t
endow a “License to kill” but is to protect the persons who had no intention to kill and due to
an act of negligence did become guilty of a homicide.”

BIBLIOGRAPHY

BOOKS

1. RATANLAL & DHIRAJLAL, INDIAN PENAL CoDE, 1860, 32ND edition (2017).

2. All India Reporter

3. Supreme Court Cases

4. Supreme Court Records

5. Gogia Law Agency, V.J Rao’s Major Criminal Acts

WEBLIOGRAPHY

1. ScconLine

2. manupatra
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