Author: Asmita Chakraborty | Featured-Pic Credit: Shashwat Ashiya
Introduction
Section 304A of the Indian Penal Code, 1860 states that: ‘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.”[1]
The offence under section 304A is a Bailable, cognizable and non-compoundable offence and can be tried by the Judicial Magistrate of First Class. This section deals with homicide by rash and negligent act. Under the original English law this is termed as manslaughter by negligence. This section was not included in the Act of 1860 at its outset but was further added by an amendment to the act in the year of 1870.
Essential Ingredients
The essential ingredients of the section 304A are:
- There must be a homicide and the person in question is dead.
- The accused must have cause the death
- That such act causing death must be a rash and negligent act
- Such act should also not amount to culpable homicide.
A direct nexus between the between the death of the person and the rash or negligent act has to be established. It should be carefully contrasted that section 304A is an ‘or’ provision and not an ‘and’ and hence presence of either rash actions or negligent actions are sufficient to attract the section and its punishment. The said act must be causa causans and not causa sine qua non[2].
Criminal negligence has been defined adequately as gross and culpable neglect or failure to exercise that reasonable and proper care and precaution to guard against injury either to public generally or to a particular individual which having regard to all circumstances out of which the charges have arisen, it was the imperative duty of the accused person to have adopted.[3] Negligence also includes within its ambit cases of medical negligence which is said to attract the provisions of Section 304A. In a case where medicinal fluids were administered by a homoeopath doctor without having knowledge of such administration leading to the death of the patient was considered as medical negligence and the doctor was penalised under Section 304A.[4]
A rash act is primarily an overhasty act and is opposed to a deliberate act; even if it is partly deliberate, it is done without due thought and action. An illegal “omission” if negligent, may come under this section. Negligence, on the other hand, is a breach of duty imposed by law. Contributory negligence is however excluded from criminal liability. It has been observed by the Supreme Court in the Case of Idu Beg V. Emperor[5]. It has been said by the Supreme Court in a case[6] that failure to exercise the required care and caution expected to be taken by a driver in a circumstance, in which he was driving would constitute a negligent driving.
Medical Negligence
The Supreme Court in the case of Jacob Mathew V. State of Punjab[7] formulated the following guidelines which should govern the prosecution of doctors for offences of criminal rashness or criminal negligence:
- 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’;
- 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;
- 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;
- 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;
- 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;
- 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 mens rea must be shown to exist. The degree of negligence must be much higher, i.e., gross one 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;
- 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;
- 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;
- 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;
- 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).
Burden of Proof
The burden of proof lies on the prosecution. Merely because a death has been caused by an accident does not mean that a presumption against the accused must be drawn and he must be asked as to why he should not be held guilty.
Difference between Causing Death by Negligence and Culpable homicide
Culpable homicide has been described under Section 299 of the Indian Penal Code, 1860.The major differences between Death by Negligence and Culpable Homicide are:
| Culpable Homicide | Death by Negligence |
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· The offence is a non bailable offence and is triable by court of sessions |
· The offence is a bailable offence and triable by court of first class judicial magistrate. |
Difference between Murder and Death by Negligence.
| Murder | Death by Negligence |
| · It is defined under Section 300 of the Indian Penal Code, 1860 | · It is defined under Section 304A of the Indian Penal Code, 1860 |
| · Presence of intention to cause death or knowledge regarding the nature of the act causing death is necessary. | · Presence of Intention or knowledge is not necessary |
| · Presence of negligence or rash is not covered by this section | · Presence of negligent act is necessary. |
| · Punishment for murder is mentioned inn section 302 and is Death or Life Imprisonment with fine. | · Punishment for Negligent Act Causing Death is mentioned under the section itself and is upto 2 years with fine or without fine. |
| · Murder is a non bailable offence triable by Court of Sessions. | · Death by negligence is a bailable offene triable by the court of Judicial Magistarte First Class. |
Punishment for death caused by negligence
The punishment under this section is for imprisonment 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 Sharif V. State of Haryana[8] wherein a bench comprising of Justice Depak Mishra and Justice Nagappan were of the view that the punishment under 304A is inadequate and needs to be amended to increase it to a higher amount of punishment. The Supreme Court in this case also cited the same observations by the Supreme Court in a previous case of State of Punjab V. Saurabh Bakshi[9] and it was observed as below:
“Before parting with the case we are compelled to observe that India has a disreputable record of road accidents. There is a nonchalant attitude among the drivers. They feel that they are the “Emperors of all they survey”. Drunkenness contributes to careless driving where the other people become their prey. The poor feel that their lives are not safe, the pedestrians think of uncertainty and the civilized persons drive in constant fear but still apprehensive about the obnoxious attitude of the people who project themselves as “larger than life”. In such obtaining circumstances, we are bound to observe that the lawmakers should scrutinise, relook and revisit the sentencing policy in Section 304-A IPC. We say so with immense anguish.”
Judicial Decision
In the case of Shivder Singh v. State[10] a passenger was standing on the foot-board of a bus to the knowledge of the driver and even so the driver negotiated a sharp turn without slowing down. The passenger fell off to his death. The driver was held to be guilty under Section 304-A.
Again in the case of Ramava v. R[11], 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.
Also, in the case of Batdevji v. State of Gujarat[12], the accused had run over the deceased while the deceased was trying to cross over the road. The accused did not attempt to save the deceased by swerving to the other side, when there was sufficient space. This was a result of his rash and negligent driving. His conviction under Section 304-A was upheld.
Again in the case of Suresh Gupta v. Govt. of NCT of Delhi[13], the accused medical doctor operated a young man, who had no history of heart ailment, for nasal deformity which was not so complicated or serious. The patient died. The cause of death is stated to be ‘not introducing a cuffed endo-tracheal tube of proper size as to prevent aspiration of blood from the wound on the respiratory passage.
Conclusion
Death due to negligence has been described under section 304A of the Indian Penal Code, 1860. Initially, the code didn’t have any provision which related to the rash and negligent act leading to the death of the person. This left a very big gap in administering justice as due to lack of clear and express provision punishing any such rash and negligent act causing death, a number of people were let off the hook. However, after the amendment brought in 1870, rash and negligent act was made punishable. What is Negligent and rash Act has been decided by the Supreme Court in a number of cases. Medical Negligence has also been interpreted to attract section 304A. The Supreme Court in landmark cases has laid down the guidelines which would be necessary to attract section 304A if there is medical negligence. The Punishment for offence under Section 304A has been defined in the section as well. However, in the opinion of the Supreme 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.
[1]The Indian Penal Code, 1860, No. 45, Acts of Parliament, 1860 (India).
[2]Kurban Hussein v. State, [1965] 2 S.C.R. 622.
[3]Bala Chandra v. State of Maharashtra, A.I.R. 1968 SC 1319.
[4]Juggan Khan v. State of Madhya Pradesh, A.I.R. 1965 SC 831.
[5]Idu Beg V. Emperor, (1881) 3 All 776.
[6] Ravi Kapur V. State of Rajasthan, (2012) 9 S.C.C. 284.
[7]Jacob Mathew V. State of Punjab,(2005) 6 S.C.C. 1.
[8]Abdul Sharif V. State of Haryana,2016 S.C.C.OnLine SC 865.
[9]State of Punjab V. Saurabh Bakshi,(2015) 5 S.C.C. 182.
[10]Shivder Singh v. State, (1995) 2 Cr.LJ 2142 Del.
[11]Ramava v. R.,(1915) 17 Bom LR 217.
[12]Batdevji v. State of Gujarat,A.I.R. 1979 SC 13 27.
[13]Suresh Gupta v. Govt. of NCT of Delhi, A.I.R. 2004 SC 4091.
About the Author: Asmita is a third-year student at Chanakya National Law Universit, Patna.
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