- I. INTRODUCTION
- II. ESSENTIAL INGREDIENTS
- III. RELATED CONCEPTS VIS-A-VIS S. 304-A
- 1. Rash & Negligent driving –
- 2. Rashness & Criminal negligence –
- 3. Death must be the direct result & from rash or negligent act –
- 4. Not amounting to culpable homicide –
- 5. Negligence by professionals –
- 6. Death caused by person practicing surgery or medicine –
- 7. Contributory Negligence –
- 8. Res ipsa Loquitur –
- 9. Procedure –
S. 304-A deals with death by negligence. In English Law it is known as manslaughter by negligence. It deals with cases where death has been caused without intention or knowledge.
II. ESSENTIAL INGREDIENTS
In order to apply this section the following essentials must be satisfied :-
- Death of any person must have been caused;
- It must have been caused by rash or negligent act; and
- Such act must not amount to culpable homicide.
Rash or Negligent Act – It is an act that is not done intentionally or designedly. However, rashness and negligence are not the same things. Both are exclusive of each other. Negligence is the genus of which rashness is the species. A rash act is primarily an over-hasty act whereas negligence is the breach of duty caused by omission to do something which a reasonable man in the given circumstances would do or doing of something which a prudent and reasonable man would not do. The extend of reasonableness will always depend upon the circumstances of the case. Criminal rashness is hazarding a dangerous act with the knowledge that it may cause injury but without the intention to cause injury. Criminal negligence is the gross and culpable neglect or failure to exercise reasonable and proper care.
Punishment – A person who is convicted under this section will be liable to punishment with imprisonment which may extend to 2 years or with fine or with both.
III. RELATED CONCEPTS VIS-A-VIS S. 304-A
1. Rash & Negligent driving –
In S. Khader v. N. Gama, the Supreme court held that the he important criteria for deciding as to whether the driver who caused the accident was rash or negligent would depend upon some of the following factors :-
- Speed of the vehicle (It is only one of the several factors in determining rashness or negligence);
- Width of the road;
- Density of the traffic; and
- Attempt, if any to overtake the vehicles.
Negligence is the absence of care and caution whereas culpable rashness results from lack of circumspection. Merely because the truck is being driven at a high speed it would bespeak of either negligence or rashness. High speed is a relative term and would be examined in the light of the facts & circumstances of the case.
Presumption – For every motor accident negligence of the driver cannot be presumed. It can only be done so when the accident is of such a nature that it cannot be accounted to anything other than the negligence of the driver of the vehicle. In such a case, the driver has to explain how the accident happened without negligence on his part.
Here, it is pertinent to mention about S. 279 of IPC, 1860 which punishes a person who drives a vehicle on a public way in a rash or negligent manner so as to endanger human life which likely to cause hurt or injury to another.
2. Rashness & Criminal negligence –
The amount and degree of negligence sufficient to fasten liability u/s 304-A is higher than that required to fasten liability in civil proceedings. It was held in Tika Ram’s case that in order to establish criminal liability the facts must be such that the negligence of the accused goes beyond a mere matter of compensation between citizens and shows disregard for the life and safety of others so as to amount to a crime against the state and conduct deserving punishment.
3. Death must be the direct result & from rash or negligent act –
This section requires that the death should be the outcome of the rash or negligent act and the death must be the direct or proximate result of the act. It must be proved that the rash or negligent act of the accused was causa causans(immediate cause) and not causa sin qua non. There must be a nexus b/w death and rash or negligent of the accused.
Case Law :- State of Karnataka v. Mohd. Ismail
Held :- The accused was held guilty under this section for rash and negligent conduct as death had been caused only because the 28 year old motor cyclist had pushed an old man of 85 years from behind as a result of which he died on spot.
4. Not amounting to culpable homicide –
S. 304-A carves out an offence where death is caused by the R&N act and that act does not amount to culpable homicide not amounting to murder u/s 299 or murder u/s 300.
5. Negligence by professionals –
The Supreme Court has observed that any reasonable man entering into a profession which requires a particular level of learning to be called a professional of that branch, is impliedly said to posses the skill which he professes to possess and the same skill should be exercised with a reasonable degree of care and caution. Judged by this standard, a professional can be held liable for negligence on any one of the following ground :-
- Either he does not possess the requisite skill which he professed to possess or
- He did not exercise with reasonable competence the skill which he did possess.
The standard to be applied in judging the whether the professional was negligent or not is that of an ordinary person exercising ordinary skill in that profession.
6. Death caused by person practicing surgery or medicine –
The legal position has been firmly established inasmuch as this field is concerned. The doctor would be liable for criminal negligence u/s 304-A only if the negligence is so gross and his act is so reckless so as to endanger the life of the patient. If the above standard of negligence is not met, the doctor can be made liable only to pay compensation or damages, as the case may be. It is not merely lack of necessary care, attention and skill. The standard has been kept high because otherwise the doctors would be more concerned about their own safety than providing best treatment to their patients. The Doctor is to use fair and reasonable standard of care and competence.
Case Law :- K. Pamandas v. State of MP
Held :- The accused Hakim had no knowledge of the injection that he had infused in the body of the patient who later died, keeping the same in view, he was held guilty under this section.
7. Contributory Negligence –
The doctrine of criminal liability does not apply to criminal liability where the death of a person caused partly by the negligence of the accused and partly by his own negligence. This doctrine has no place in an indictment of criminal negligence.
8. Res ipsa Loquitur –
It means the thing speaks for itself. This principle basically belongs to the law of torts but it has been held that where the cause of the accident is unknown and no reasonable explanation comes forth from the defendant, in such cases this maxim may apply. Therefore, it has limited application in trial on a charge of criminal negligence. However, it has to be applied with extreme care and caution to the cases of professional negligence and in particular to the doctor fraternity.
Case Law :- Jacob Mathew v. State of Punjab
Held :- Simply because a patient does not favourably respond to a treatment given by a physician or a surgery has failed, does not make the doctor liable per se by applying this doctrine.
9. Procedure –
It is cognizable, bailable, non-compoundable offence triable by magistrate of the first class.