The said section reads as follows:

304A. 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.
The provisions of this section apply to cases where there is no intention to cause death, and no
knowledge that the act done in all probability would cause death. The Supreme Court has
clarified that the section 304-A of I.P.C. is applicable only when death is caused due to rash and
negligent act of the accused, which is an essential element to attract said provision. But a
colossal group of legal scholars have always questioned whether this section provides
punishment for manslaughter without intention or is it a 'license to kill' in disguise of a rash and
negligent act.

Essential Ingredients

It relates to cases where the homicide is caused by negligence. It does not apply to cases where
the death has arisen, not from the negligent or rash mode of doing the act, but from some result
supervening upon the act which could not have been anticipated. Under this section rash or
negligent act must be the direct or proximate cause of death. The two essential elements are:

1) Rash or negligent act,

2) Not amounting to culpable homicide.

Scope of section 304-A:

In order to impose criminal liability on the accused, it must be found as a fact that collusion was
entirely or mainly due to the rashness or negligence.1

1
Munile Sao v. State of Bihar, (1997) 3 Crimes 200 (Pat).
Rash or negligent act

If the death results from injury intentionally inflicted this section does not apply. Death should
have been the direct result of the rash and negligent act and that act must be the proximate and
efficient cause without the intervention of another's negligence.

Criminal rashness is hazarding a dangerous or wanton act with the knowledge that it is so, and
that it may cause injury, or knowledge that injury will probably be caused.

Criminal negligence is acting without the consciousness that the illegal and mischievous effect
will follow but in circumstances, which show that the actor has not exercised the caution
incumbent upon him and that if he had he would have had the consciousness.

It is very much convincing that this section would have no applicability where the act is in its
nature criminal. Only the act done negligently or rashly invokes the validity of this section and it
cannot be applicable to result, which supervenes upon the act which could not have been
anticipated. While discussing the scope of this section as a license to kill, one may conceive that
the term 'rash' classifies the various events and acts in road accidents, mishandling of hazardous
materials or lethal weapons etc. while the term 'negligent' can be associated with the acts of
professionals like medical practitioners or pharmacists etc. But the different levels of judiciary
have from time to time defined and premeditated the applicability of this section ensuring it
doesn't create a defensive ground for people to commit homicide.

This section deals with homicide by negligence and covers that class of offences, where death is
caused neither intentionally nor with the knowledge that the act of the offender is likely to cause
death, but because of the rash and negligent act of the offender. This clause limits itself to rash
and negligent acts which cause death, but falls short of culpable homicide of either description.
When any of the two elements, namely, intention or knowledge, is present this section has no
application. Intentional shooting at a fleeing person and hitting someone else to death comes
under the section 300 read with section 301 of the I.P.C. It is not a negligent act so as to come
under section 304-A. This section applies to rash and negligence acts and does not apply to cases
where death has been voluntarily caused. This makes it clear that there can be no circumstances
when one's act can be read into this particular section in order to avail him the benefit of not
being charged under section 299 to 302 of the I.P.C.

Thus it's clear that the facts which must be proven in order to invoke the applicability of this
section are essentially three folds:
(1) Death of a human being;
(2) The accused caused the death;
(3) The death was caused by the doing of a rash and negligent act, though it did not amount to
culpable homicide.

The 'rash or negligent act' referred to in this section means the act which is the immediate cause
of death, and not any act or omission, which can utmost be said to be a remote cause of death. If
an act is intended to hurt and injure a specific person or object, the perpetrator of the act must be
imputed with an intentional act done with consideration and cannot amount to a 'rash' and
'negligent' act. It is imperative to note that there is difference between rashness and negligence. A
rash act is primarily an overhasty act. Negligence is a breach of duty caused by omission to do
something, which a reasonable guided, by those considerations which ordinarily regulate the
conduct of human affairs would do.

At this point it is necessary to have a close perusal of the words of this section which it reads as
"rash or negligent act not amounting to culpable homicide". The very words of this section
indicate that the intent of the legislature was to apply this provision to the acts where a homicide
was not culpable, i.e. where there was no intention to kill. The requirement of section 304-A of
I.P.C. is that; death of any person must have been caused by the accused doing any rash or
negligent act. In other words, there must be proof that the rash and negligent act of the accused
was the proximate cause of death.

There must be a direct nexus between the death of a person and the rash or negligent act of the
accused, a remote nexus is not enough. To impose criminal liability u/s 304-A of IPC it is
necessary that the death should have been the direct result of the rash and negligent act of the
accused, and that act must be proximate and efficient cause without the intervention of another's
negligence, and it must be a causa causans, and not causa sine-quo-non.

To see the other side of the same coin in ​Satnam Singh v. State of Rajasthan2 it could not be
proved that the truck driver deliberately crushed the man on the scooter, thus the conviction was
made under section 304-A of I.P.C. Again in Murari v. State of M.P.3 it was critically observed
that truck driver knew that the passengers were sitting on the slabs he was carrying. But still he
drove negligently and despite the protest by passengers caused an accident, leading to the death
of a woman and two children.

While in ​Kanaiyalal Arjandas v. Tribhuvandas4, the prosecution was unable to prove that the
accused was driving the vehicle. Another connotation regarding the applicability of this section
is that if the driver of a motor vehicle does not blow the horn because of the prevailing traffic
rules prohibit him in doing so, it can neither be said that he failed to exercise reasonable and
proper care nor that the duty to blow the horn was imperative upon him, so as to hold him guilty
of negligence under this section. Further the Supreme Court has laid down that, to render a
person liable for neglect of duty there must be such a degree of culpability as to amount to gross
negligence on his part. It is not every little slip or mistake that will make a man so liable. So it
can be observed that at times this section creates such conditions, whereby one can use it as a

2
Satnam Singh v. State of Rajasthan​, (​2001) Cr LJ 564.
3
Murari vs State Of M.P. , (2001) Cr LJ 2968, 2001 (2) MPHT 129.

4
​Kanaiyalal Arjandas vs Tribhovandas Devsibhai Pandit,(1998) Cr LJ 3482(Guj.).
defensive and protective measure in order to escape from the clutches of culpable homicide
amounting to murder.

The very best and clear example of this section can be drawn from ​State of Karnataka v.
Mohd. Ismail5, where a 28 year old motor-cyclist pushed from behind an old man of 85 years
who sustained head injuries and died on the spot, the death was held to be the result of rash and
negligent conduct. In another classic example the petitioner was convicted under the same
section, where the petitioner constructed a water tank for the use of village people. The tank
when filled with water collapsed killing seven villagers. The tank collapsed because the material
used in the construction was of low quality.

The question here, is that can someone kill a person in the disguise of a rash or negligence act.
The very best example which strikes everyone's mind is that of automobile accidents. In this
regard the investigation and the role of witnesses are of great importance. Coming to the question
of whether there was any rash and negligence involved, the evidence of the RTO is relevant.

In ​Rathnashalvan v. State of Karnataka6 it was clearly stated that the accident did not occur on
account of mechanical defects. The evidence of eye witnesses showed that the vehicle was being
driven at a very high speed and that the road was quite wide and there was no traffic at the time
of accident. The evidence of witnesses showed that the vehicle dashed against the tree and the
branches of the tree fell on it. As per evidence though it was rainy season but there was no rain at
the relevant point of time, thus the accused was held guilty under this section. The principle of
'res ispa loquitur' is the only rule of evidence to determine the onus of proof in actions relating to
negligence. The said principle has application only when the nature of the accident and the
attending circumstances would reasonably lead to the belief that in the absence of negligence the
accident would not have occurred and that the thing which caused injury is shown to have been
under the management and the control of the alleged wrong-doer. In an another event the
petitioner was himself driving the bus over the bridge when it fell into a canal thus it was

5
​ ​ State of Karnataka v. Mohd. Ismail, ​1988 (3) Kar LJ 14.
6
​Rathnashalvan v. State of Karnataka, (2007) Cr LJ 5542 SC.
concluded that in such a situation the doctrine of 'res ispa loquitur' comes to play and the burden
of proof shifts to the person in control of the motor vehicle to show that the accident did not
happened on account of his negligence. He was unable to show that there was any other reason
of the accident rather than his negligence.

While considering the quantum of sentence, to be imposed for the offence of causing death by
rash or negligent driving of automobiles, one of the most important consideration should be
deterrence. A professional driver pedals the accelerator of an automobile almost throughout his
working hours. He must constantly inform himself that he cannot afford to have a single moment
of laxity or inattentiveness when his leg is one the pedal of a vehicle in locomotion. He cannot
and should not take a chance thinking that a rash driving need not necessarily cause any accident;
or even if an accident occurs, it need not necessarily result in the death of any human being; or
even such death ensures that he might not be convicted of the offence and lastly that even if he is
convicted he would be dealt with leniently by the Court. He must always keep in his mind the
fear psyche that if he is convicted of the offence for causing death of human beings due to his
callous driving of vehicle he cannot escape from jail sentence. This is the role which the court
can play, particularly at the level of trail courts for lessening the high rate of motor-accidents due
to callous driving of automobiles.

Though it might be a difficult issue to determine that whether there was negligence on the part of
the accused or the act was done intentionally and the degree of punishment the convict deserves.
But very instance of driving without due care and attention is a crime and it can scarcely be a law
that every such case would be manslaughter if the driving happened to cause death. But if a
driver is not rash, he is not liable for the death of a person who suddenly comes before his
vehicle.

For instance in ​M. H. Lokre v. State of Maharastra7, the appellant who was not driving rashly
was not held guilty under this section for causing the death of the person who, while suddenly

7
​M. H. Lokre v. State of Maharastra, AIR 1972 SC 221, 1972 Cr LJ 49, (1972) 4 SCC 758, 1972 (4) UJ 250 SC.
crossing the road, came under the wheels of his vehicle. However vigilant and slowly a man
might be driving, he cannot avert an accident if a person suddenly crosses the road.

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 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.

Not amounting to culpable homicide

The rash or negligent act which is declared to be a crime is one not amounting to culpable
homicide, and it must be therefore be taken that intentionally or knowingly inflicted violence,
directly and willfully caused, is excluded.

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.

Important cases on causing death by negligence

In ​Prabhakaran v. State of Kerala8, 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 Anr9 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 S​omabhai Mangalbhai Dabhi v. State of Gujarat10, the session judge passed an order of
conviction against Petitioner for an offence punishable under 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

8
​Prabhakaran v. State of Kerala, AIR (2007) SC 2376.
9
​Suresh Gupta v. Govt. of N.C.T. of Delhi and Anr,AIR (2004) SC 4091.
10
​Somabhai Mangalbhai Dabhi v. State of Gujarat, (1989) Cr LJ 1945, (1988) 2 GLR 199.
and there was no mitigating circumstance and hence, a benefit of probation could not be
extended to Petitioner.

Punishment

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.

What defence can we take for causing death by 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. Forrester11, 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 proves the same in the court. In
Nichols v. Marsland12, 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

11
​Butterfield v. Forrester,​ ​(1809) 103 E.R. 926.​Butterfield V Forrester (1809) 103 E.R. 926
Butterfield V Forrester (1809) 103 E.Butterfield V Forrester (1809) 103 E.R. 92
12
Nichols v. Marsland​, ​(​1875) LR 10 Ex 255​.
 person has taken an ordinary care, caution and skill that has resulted in the death or
injury of a person. In ​Brown v. Kendal13, 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.

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.

13
​Brown v. Kendal,​ (1850)​ ​60 ( Mass.) 292.
 JAMIA MILLIA ISLAMIA

FACULTY OF LAW

PROJECT

Death Caused by Rash and Negligent Act

LAW OF CRIMES I

Submitted To:

Samia Khan

Submitted By:

Madiah Shahjar

B.A.LL.B.(REGULAR) IIIrd Sem.

Batch:- 2018-2023