LAW

Substantive Criminal Law

8- Negligent Homicide
 Negligent Homicide

Component I: Description of Module :

Description of Module
Subject Name Law
Paper Name Criminal Substantive Law
Module Name/Title Negligent Homicide
Module Id Module 8
Pre-requisites The module’s understanding is subject the knowledge
of meaning of the elements of crimes, both actusreus
and mens rea and different forms of mens rea. The
module also requires the knowledge distinction that
exists between negligence as is dealt with under civil
law and criminal law. The module also requires basic
understanding of the criminal law of the country,
especially IPC, in general.
Objectives The object of this module is to understand the
meaning and scope of terms, negligence and rashness.
It is also to understand the current law framework of
the country dealing with negligent homicide. It is also
to examine the scope of section 304A of IPC and
thereby assess and critique the extent of criminal
liability that can be imposed in cases of negligent
homicide.

Keywords Homicide, negligence, negligent homicide,

recklessness, rash, death, 304A, medical negligence

Introduction and Module Overview:

This module begins with the analysis of two important forms of mensrea, which is “recklessness” and
“negligence” and then moves to examine grounds of distinction that exists between these two. The
module overviews section 304A of IPC which deals with negligent homicide. As this provision deals
with both recklessness as well as negligence resulting in death, the module will cover both the issues,
without limiting to negligent homicide. The module examines the scope and limitation of the
provision by assessing applicable principles of laws such as reasonable man’s test, principle of causa
causans, res ipsaloquitor, etc. The module will then focus on the issue of liability for negligent
homicide which has come under serious criticism many times for being insufficient and
disproportionate in terms of the maximum extent of punishment it prescribes. The scope of this
module is limited to section 304A, IPC which in fact is the only provision of Indian Criminal law
which deals with negligent homicide. Wherever appropriate relevant cases, Indian as well as foreign
will be used to comprehend possible interpretations of the provisions.

The scope of the module is to examine both reckless as well as negligent homicide, though it is titled
as “Negligent Homicide”. The scope is widened to cover reckless homicide for the reason that the
provision which deals with it is the same as that of the one which deals with negligent homicide.

Learning Outcomes:

1. Understanding of the current law dealing with negligent homicide in India in general.
2. Understanding in specific, the scope and limitation of section 304A in terms of its
applicability for negligent homicide.
 3. Reviewing the extent and nature of liability imposed for negligent homicide

1. Introduction:

Negligence is both a crime as well as a tort. Criminalization of negligence however is limited to gross
negligent conduct. Indian Penal Code criminalizes negligent acts resulting in injury including causing
death. Negligence under criminal law is treated as aform mens rea. Negligent homicide is criminalised
under all criminal justice systems including that of India. The Indian law makes a distinction between
culpable homicide and negligent homicide. Courts have determined the tests to be applied in imposing
liability for negligent homicide.

There is a variation in the degree of culpability attached to reckless homicide and negligent homicide.
Tough it’s the same provision, that is, section 304A of IPC which deals with both, courts have
considered the two as distinct while imposing punishment, thereby considering reckless homicide as
more serious than the offence of negligent homicide. Similarly courts while dealing with cases of
medical negligence have emphasised upon the difference that exists between mere negligence [as
dealt with under civil law] and gross negligence dealt with under criminal law.

2. Offence of Negligent Homicide:

Deaths caused due to medical negligence, road accidents and other similar accidental deaths can be
subjected to criminal liability for being a form of homicide. However as they lack specific intention
and knowledge to cause death they cannot be covered under culpable homicide. Being a case of
negligently causing death, they are rather considered as a separate category of homicide, namely,
negligent homicide.

The offence of negligent homicide under Indian Penal Code is dealt with under section 304 A. This
provision is wider to cover both rash as well as negligent deaths under its ambit. Death caused here is
neither withthe intention nor with the knowledge of the accused. Hence the offence istreated as lesser
serious one, than in comparison to an offence of culpable homicide and murder. Section 304 A
provides for imprisonment up to 2 years or fine or both, as the punishment that can be imposed.
Hence, the liability imposed under the provision is also less including imposition of fine only in some
cases. Cases of road accidents and medical negligence resulting in deaths are often covered under this
provision.

3. Negligence and Rash Act – Conceptual Clarifications:

Under criminal law, negligence, rashness and recklessness refers to varied forms of mens rea, an
important element to be established under criminal law in order to impose liability. The term
“negligence” implies “omission to do something which a reasonable man, guided by those ordinary
considerations which ordinarily regulate human affairs, would do, or the doing of something which a
reasonable and prudent man would not do. Thus it refers to failure to use reasonable care. Negligence
includes the doing of some act which a person of ordinary prudence would not have done under
similar circumstances or failure to do what a person of ordinary prudence would have done under
similar circumstance. (Act or omission)

The mens rea required to impose liability under section 304A IPC, is either rashness or negligence.
The terms ‘rash’ and ‘negligence’ though sounds similar is different under law. Though both terms
are inter-related yetthey are different forms of the same phenomenon and both refer to acts done
without intention and knowledge.
The difference between rash act and negligent act was explained in the case of
BalachandraWamanPathev. State Of Maharastra1 which is summarized in the following chart:

RASH ACT: NEGLIGENT ACT:

Rash act is an overhasty act yet is not a Negligent act refers to breach of duty caused by
deliberate one omission to do something which a reasonable man
would do.
An act committed without due thought and It refers to breach of duty imposed by law.
caution.
An act done with consciousness of a risk and It refers to acts done without consciousness that
knowledge that an evil consequence will illegal mischievous effect will follow yet under
follow yet is done with the hope that they will circumstances which show that the actor has not
not. exercised the caution incumbent upon him.

CULPABLE RASHNESS: CULPABLE NEGLIGENCE:

Acting with consciousness that the
mischievous and illegal consequence may
follow, but with the hope that they will not
Criminality lies in running the risk of doing
such an act with recklessness or indifference
as to the consequences.
Hazarding a dangerous or wanton act with the
knowledge that it is so and that it may cause
injury, but without intention to cause injury or
knowledge that it will probably be caused.
It is gross and culpable neglect or failure to
exercise that reasonable and proper care and
precaution to guard against injury either to the
public generally or to an individual in particular,
which having regard to all the circumstances out
of which the charge has arisen, it was the
imperative duty of the accused person to have
adopted.
Criminality lies in taking the care legally expected
by such person.

In R. v. Lawrence, [1981] 1 All ER 974 (HL), Lord Diplock reiterating his opinion in R. v. Caldwell
1981(1) All ER 961 (HL) about the concept of recklessness as constituting mens rea in criminal law
said: "Recklessness on the part of the doer of an act does presuppose that there is something in the
circumstances that would have drawn the attention of an ordinary prudent individual to the possibility
that his act was capable of causing the kind of serious harmful consequences that the section which
creates the offence was intended to prevent, and that the risk of those harmful consequences occurring
was not so slight that an ordinary prudent individual would feel justified in treating them as
negligible. It is only when this is so that the doer of the act is acting 'recklessly' if, before doing the
act, he either fails to give any thought to the possibility of there being any such risk or, having
recognized that there was such risk, he nevertheless goes on to do it."

4. Indian Penal Code and Negligent Homicide:

4.1. Section 304A:

1
1968 SCD 198
“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.”

The provision refers to causing of death due to negligence or rashness. Death caused with intention or
knowledge does not come under this provision.2Actusreus required under the provision must indicate
presence of mens rea in form of either negligence or rashness on the part of the accused. The
provision applies only to such cases where there is neither intention to cause death nor knowledge that
the act done in all probability would cause death. Hence the provision does not apply to cases where
there has been the voluntary [intentional or with knowledge] commission of an offence against the
person.

4.2. Determining the requisite Mens Rea of Negligence

In order to determine the liability for negligent death and apply section 304 A of IPC the courts apply
the principle of “Reasonableness”. It is true that “the law of negligence is founded on
reasonable conduct or reasonable care under all circumstances of particular case”. Hence an accused
will be liable for negligent death provided it is proved that he has failed to take reasonable care
expected to be taken by a reasonable man in a similar situation. However it is important to note that
the degree of negligence required under civil and criminal are different.

The 42nd Report of Law Commission of India, 1971 clarified “negligence mentioned in the section is
not of the same type as in civil disputes and in civil cases the courts insist on a maximum standard of
care, while criminal courts require minimum care. If minimum care is taken, then the criminal courts
would acquit the accused.” In order to bring in clarity to the law, the commission suggested for
alteration to section 304A by adding the words “so as to indicate a want of due regard for human life”.

4.3. Applicability of section 304A:

To fasten liability in Criminal Law, the degree of negligence has to be higher than that of negligence
enough to fasten liability for damages in Civil Law. The essential ingredient of mens rea cannot be
excluded from consideration when the charge in a criminal court consists of criminal negligence.3

Every slip or mistake is not culpable under law. Rash and negligent act becomes punishable under
section 304A, provided it such rashness or negligence was the immediate cause of death, not being a
remote cause of death. Negligent homicide in order to be made punishable under this provision must
be proved to be the direct and proximate result of rashness or negligence. Death must be proved to be
causa causans and not just causa sine qua non. Similarly mere error of judgment by the accused is
also not enough to convict him.

Courts hence must consider facts of cases subjectively and determine the requisite mens rea.
Negligence must be established by the prosecution and cannot be presumed by the court. Hence a
mere fact that the vehicle was driven fast or beyond speed limit is also not enough to establish guilty
of the accused under this provision.

4.4. Contributory Negligence – Not a Defence to Negligent Homicide:

Unlike a case of tort, contributory negligence on the part of the victim cannot be a ground of defence
for the accused. As long as the mens rea in form of rashness or negligence is established by the
prosecution, liability under section 304A is possible.

4.5. Principle of “Res IpsaLoquitor” – Not applicable to Negligent Homicide:

2
Shankar Narayan Bhandolkar v. State of Maharastra, AIR 2004 SC 1966
3
Jacob Mathew v. State Of Punjab &Anr
Res ipsaloquitor, which is a rule of evidence applies in a case of tort and provides for assumption of
commission of tort in a case where the evidence by itself suggests or indicates negligence on the part
of the wrong doer. Hence liability in such case is established based on the circumstances of the case
itself.

However, in a criminal case it is essential to establish presence of both mens rea [rashness or
negligence] as well as actusreus in order establishes guilt. So is also the case under section 304A.
Being a criminal case, the burden of proof is upon the prosecution or complainant and it must be
established beyond reasonable doubt.4 Hence facts indicating negligence per se is not enough for
conviction, as the principle of “res ipsaloquitor” [according to which “things speaks itself] is not
applicable in a criminal case unlike a civil case.5 Hence proof of the elements of crime cannot be
based on this principle in a criminal case.

The primary reasons for non-application of res ipsa loquitur asan abstract doctrine to criminal
trials, are: firstly, in a criminal trial the burden of proving everything essential to the establishment of
the charge against the accused always rests on the prosecution; secondly, while in civil
proceedings a mere preponderance of probability is sufficient to establish a fact in issue, it
is not so in criminal proceedings wherein the presumption of guilt must amount to such a moral
certainty as convinces the mind of the court, as a reasonable man, beyond all reasonable doubt.
Where negligence is an essential ingredient of the offence, the negligence to be established by
the prosecution must be culpable or gross and not negligence merely based upon an error of
judgment.6

Criminal negligence also includes:

Medical negligence

And

Road accidents

5. Death Due To Medical Negligence and Criminal Liability:

In a case of medical negligence, it is essential to establish culpable negligence on the part of the erring
medical professional and also bring in the causal link between such medical negligence and the death
of the patient. Such link must be immediate and direct consequence of the alleged negligence.

Though medical negligence amounting to death can be covered under section 304A, yet the courts
have impliedly applied a different method of determining professional liability for negligence. Courts
in India have narrowed the scope of imposing criminal liability for medical negligence. While
narrowing down the application of this provision to cases of medical negligence [on proof of gross
negligence on the part of the accused], the Supreme Court of India in Suresh Gupta vs Govt. of N.C.T.
Of Delhi &Anr7 held “to convict a doctor, the prosecution has to come out with a case of high degree
of negligence on the part of the doctor. Mere lack of proper care, precaution and attention or
inadvertence might create civil liability but not a criminal one.” The court in this case made a
distinction between mere negligence and gross negligence on part of a doctor and confirmed that only

4
Syad Akbar v. State Of Karnataka, 1979 AIR [SC] 1848
5
Ibid
6
Moore v. R. Fox & Sons, [1956] 1 Q.B. 596
7
(2004) 6 SCC 422
gross negligence must be subject to criminal liability. The court clarified that: “for fixing criminal
liability on a doctor or surgeon, the standard of negligence required to be proved should be so high as
can be described as "gross negligence" or recklessness. It is not merely lack of necessary care,
attention and skill.” The court further said that: “Between civil and criminal liability of a doctor
causing death of his patient the court has a difficult task of weighing the degree of carelessness and
negligence alleged on the part of the doctor. For conviction of a doctor for alleged criminal offence,
the standard should be proof of recklessness and deliberate wrong doing i.e. a higher degree of
morally blameworthy conduct.”8

6. Road Accidents Resulting In Negligent Death and Liability:

According to the 234th Report on Legal Reforms to Combat Road Accidents of 2009, more than
100,000 Indians are dying every year in road accidents and more than a million are injured or
maimed. The same report says that “ driving recklessly/dangerously, non-observance of traffic rules,
like crossing speed limit, jumping red light, driving without driving licence, driving by
untrained/disqualified driver, driving by minor, driving under the influence of liquor, driving while
talking on mobile, driving without helmet, ill-health of vehicle and bad road infrastructure are
amongst the causes of road accidents.”

Thus most of the cases of road accidents are due to rash and negligent conduct of another, making it
possible to apply section 304A.

7. Liability for Negligent Death & Appropriateness of the Current Extent of Liability:

The liability imposed under section 304A, for rash and negligent death is:

 imprisonment of either description for a term which may extend to two years, or
 fine, or
 both

According to this the minimum punishment for negligent homicide shall be fine while maximum
punishment can be imprisonment extending up to two years with or without fine. Many criticize the
provision for being too lenient in terms of the extent of punishment prescribed and suggest for an
increase of the same.

The 42nd Report of Law Commission of India in 1971 had optioned “the present maximum
punishment for the offence is inadequate, and should be increased. This is desirable, in view of the
greater importance which this offence has assumed since the section was inserted due to the wide use
of fast moving mechanically propelled vehicles and the frequency in the commission of the offence,
accompanied by callousness of the offender towards the victim; often there are cases tried under this
section which are very near to culpable homicide and deserve a severe sentence.” The commission
further said “after taking into account our proposal to fix the maximum punishment for culpable
homicide not amounting to murder at ten years, we recommend that the maximum punishment for
causing death by negligence may be half that period, namely, five years.”

The Law Commission’s 234th Report on Legal Reforms to Combat Road Accidents of 2009 by
considering the current extent of criminal liability under section 304 A as inappropriate recommends
for increase in the liability. According to the law commission, section 304 A must be amended with
increase in the liability for the offence of rash and negligent with imprisonment extending up to ten
years, instead of two years as currently provided. It further recommended that causing death of any

8
Also see: Dr.Jacob Mathew Vs. State of Punjab &Anr, (2005) 6 SCC 1
person through driving under the influence of drink or drugs should be punishable with the minimum
term of imprisonment of two years.

The above views of the law commission hence make it clear that the liability for negligent death is
inappropriate and insufficient and needs a review and appropriate amendment.

Further similar is the view of Supreme Court of India which recently in Alister Anthony Pareira v.
State Of Maharashtra9, while referring to the road accidents resulting in death the court said: “World
Health Organization in the Global Status Report on Road Safety has pointed out that speeding and
drunk driving are the major contributing factors in road accidents. According to National Crime
Records Bureau (NCRB), the total number of deaths due to road accidents in India every year is now
over 1, 35,000. NCRB Report also states drunken driving as a major factor for road accidents. Our
country has a dubious distinction of registering maximum number of deaths in road accidents. It is
high time that law makers revisit the sentencing policy reflected in Section 304A IPC.”

Thus an increase in the extent and nature of punishment is required so as to being in proportionality of
sentence as per the nature of offence.

8. Summary:

Negligent homicide which lacks intention or knowledge of causing death is treated differently from
culpable homicide and murder under Indian Penal Code. It is dealt with under section 304A of Indian
Penal Code which infact is a lesser serious offence than culpable homicide or murder. The section
however requires proof of either rashness or negligence. Legally rashness and negligence are different
in term of degree of culpability that can be attached. While the first refers to such state of mind in
which an accused has knowledge about the risk involved and yet takes the risk, thereby causing death
of the victim. On the other hand, the later refers to breach of duty of due care and caution, thereby
resulting in death of the victim. The court after considering the nature of mens rea [rashness or
negligence] involved in an offence determines the extent of punishment. Additional remedy for
negligent homicide can also be sought under civil law. Hence negligent homicide can be an offence
both under civil as well as criminal law. However in order to result in criminal liability it is essential
to prove that the degree of negligence on the part of accused was not just simple but “gross”. Courts
have considered this requirement of grossness in the negligence of the accused as more essential in
cases of medical negligence resulting in death of the patient.

The applicability of Section 304A even for cases of road accidents resulting in death is clear through
case laws. However in all these cases in order to apply section 304A it is essential to establish that the
death caused was the proximate and direct result of rash or negligence on the part of the accused.

Further the provision has come under serious criticism for being the one which is punished with
inadequate punishment. Courts as well as Law Commission have in fact suggested for an increase of
the liability.

9. ADDITIONAL SOURCES FOR FURTHER READING

i. Kenny’s Outlines Of Criminal Law – By J.W. Cecil Turner, Cambridge University

Press. [For Understanding Of Mens Rea And Actus Reus Importance]
ii. Smith And Hogan Criminal Law – By David Ormerod, Oxford University Press.
iii. RusselOn Crime – By J.W. Cecil Turner, Universal Law Publishing Co Pvt., Ltd.
iv. Card, Cross And Jones – Criminal Law – By Richard Card, Butterworths.

9
(2012) 2 SCC 648
 v. Criminal Law, Sweet and Maxwell’s Textbook Series – By Alan Reed And Peter
Seago, Sweet And Maxwell, A Thomson Company.
vi. General Principles Of Criminal Law – By K.N. Chandrashekaran Pillai, Eastern Book
Company
vii. Criminal Law by P.S.A. Pillai, By V. Suresh And D. Nagasaila, Butterworths.