Death by Negligence - Meaning, Essentials, Difference & Punishment

Death by Negligence – Meaning, Essentials, Difference & Punishment | Overview

• Meaning: ‘Death by Negligence’
• Essentials of Death By Negligence
• Act must be Rash or Negligent
• Difference between Rash and Negligent Act
• Punishment and Discretion of Court

This article on ‘Death by Negligence’ discusses the meaning, essentials of that section, the difference between being rash and being negligent. It also discusses whether few acts can be covered by this section like acts of driving rashly or negligently. It has dealt with the nexus between medical negligence and this section.

Further what can be the punishment, and what discretion a court has with respect to sentencing under this section is provided in brief. There is brief information as to what cannot be a case of death caused by negligence.

I. Meaning: ‘Death by Negligence’

Out of many kinds of homicide, this is a kind which talks about death caused by negligence. This is different from what is provided under section 299 and 300^[1], which require intention and/or knowledge which is not required in this category.

This section focuses on death caused due to rash and negligent act done by the accused^[2], but when it is observed that there is intention or knowledge, it would fall under the purview of section 299 or section 300 and not under section 304A^[3].

“Section 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.”

This section was introduced later on in the code, i.e., by the “Indian Penal Code (Amendment) Act 1870”.^[4] This is not a new offence but is varied from other crimes in the category of ‘OF OFFENCES AFFECTING THE HUMAN BODY’.^[5]

II. Essentials of Death By Negligence

1. First and foremost – “Death must be caused”
2. It must be “due to an act i.e., rash or negligent”
3. It must not render to culpable homicide i.e., “without any intention or knowledge”

Death must be caused

For any person to be convicted under this section, there must be death caused. If the accused has not caused the death of that person, even though there has been a negligent or rash act, this section would not apply.

Further, the death must be the cause due to the act of the accused and not by another reason. The ultimate reason for the act done by the accused must be death.^[6] It must be “causa causans – the immediate cause”, and it is not enough that it may be “causa sine qua non – the proximate cause”.^[7]

In the case of Ambala D Bhatt v. State of Gujarat (AIR 1972 SC 1150), the contention of the prosecution was that a chemist was negligent in doing his duty. Due to this, the company sold the saline bottles and few patients died due to excess lead nitrate which is beyond the permissible limit. They contended that these deaths were the direct consequence of negligence.

The court rejected and said that the act must be proximate and sufficient cause of the death. it must not be a mere contravention of his duties under the Drugs Act 1940, which was too remote to be a cause of the death of patients. And hence the conviction of the accused was set aside.^[8]

III. Act must be Rash or Negligent

Second and most important is that the act must not be any act but a rash or negligent act.^[9] The act of being rash is different from the act of being negligent. To be rash denotes the act of being reckless and doing without paying heed to the consequences.

So, the person who acts rashly tends to know what can result or what can be the consequences, although, the accused may not have imagined the consequences to lead to the death of another.^[10]And the act of being negligent denotes the absence of proper care and caution.^[11]

The act was done without proper precautions to avoid any illegal consequences, which may include omission to do something. To understand this, the test from a reasonable man’s perspective is required to judge the circumstances as to reasonable care and precautions would have led to these consequences or not?^[12]

The degree of such rashness and negligence must be very high and gross as to run a risk of causing deadly injury to others.^[13] Here, the act of rashness or negligence must be of a criminal nature and not falling under section 80, which is a protection against this section.^[14]

“80. Accident in doing a lawful act.—Nothing is an offence which is done by accident or misfortune, and without any criminal intention or knowledge in the doing of a lawful act in a lawful manner by lawful means and with proper care and caution”.

So, if something is done with proper care and caution but still leads to the death of another, then the accused may not be held criminally liable under section 304A.

In the case of Cherubin Gregory v. State of Bihar, (AIR 1964 SC 205), the accused had a bathroom which was exposed to the public view and people nearby trespassed and used it without permission.

The accused who was the owner asked the trespasser not to do so, although in vain. Then the accused insulated a live wire which passes high voltage. It was invisible to the naked eye and was kept without any warning signboard. A woman who used the bathroom caught the shock and died.

The accused contended that it was in regard to protecting his property and pleaded the defence of private defence. However, the court observed that – it is a known fact whoever trespasses is trespassing at their own risk and the occupier has no responsibility to the consequences occurring therefrom.

But the act of insulating a live wire which was very dangerous and being reckless as to not even putting a warning sign was considered to be illegal. Thus, the accused was punished under the section 304A of IPC for acting rashly.^[15]

Driving – Can it be a Rash And/Or Negligent act

There are a lot of cases with relation to deaths caused while driving, this is due to rash and negligent driving of the accused one. Like, when there is a person crossing the road, then the accused seeing that a person is crossing does not do take any care or caution save that person from being dashed by the motor vehicle of the accused does amount to homicide as per section 304A.^[16]

In the case of Duli Chand v. Delhi Administration, (AIR 1975 SC 1960), a public transport driver who while driving fails to notice that there are a crossroad and a pedestrian is crossing at his right and drives along causing death to that person.

The court declared that the act of the driver is to look carefully while driving near a crossroad and the act of driver to look at his right when approaching a crossroad amounts to a homicide under section 304A as he failed to take proper care and caution and has acted rashly and negligently. this act was the direct cause of his death, hence liable.^[17]

Act of Professionals- Rash And/Or Negligent

There can be a chance of rash and negligent acts being done by professions like medicine practitioners. While providing medical treatment, great care and caution must be taken by professionals as they are discharging their professional duties.

No doctor is made liable for a patient’s death unless and until it is proved that the act done by the doctor which is rash and negligent rendered this result. As the doctors, who deal with the life of every patient, must not disregard the safety of their life.

In the case of John Oni Akerele v. The King, (AIR 1943 PC 72), the doctor gave a child sorbitol injection due to which the child died was held to be an act of criminal negligence. The contention that the child itself was susceptible to that medicine, and the same would not have resulted similarly in case of a normal child was rejected by the court.

The court stated that being a doctor means to exercise greatest care and caution and the same was not done. hence liable under section 304A of IPC.^[18]

In another case of Juggan Khan v State of Madhya Pradesh, (AIR 1965 SC 831) the accused being a registered homoeopath, provided a patient suffering from guinea worm with Stramonium and a leaf of datura which are poisonous in nature. Due to which the patient died.

This was also held to be a rash and negligent act as the accused should have studied the ill-effects of the medicine he is administering before any application of the same.^[19]

Standard of Negligence

The act of negligence is set to different standards when it comes to professionals like medical practitioners. It should not be merely lack of necessary care and/or attention and/or skill but is set so high by the supreme court.^[20]

In the case of Suresh Gupta (Dr) v. Govt of NCT of Delhi & Anr, AIR 2004 SC 4091, the court decided that the standard of negligence be of gross negligence or recklessness but not less. As not all acts of being careless are rendered criminal.^[21]

“It can be termed ‘criminal’ only when the medical practitioner exhibits a gross lack of competence or inaction and wanton indifference to his patient’s safety and which is found to have arisen from gross ignorance or gross negligence.

Where a patient’s death results merely from error of judgment or an accident, no criminal liability should be attached to it. Mere inadvertence or some degree of want of adequate care and caution might create civil liability but would not suffice to hold him criminally liable”^[22]

And further said that – “…act complained against the doctor must show negligence or rashness of such a higher degree as to indicate a mental state which can be described as totally apathetic towards the patient. Such gross negligence alone is punishable”^[23](Ibid, para 25)

And the case of Jacob Mathew v. State of Punjab, (2005) 6 SCC 1, is specifically to deal with cases involving medical practitioners and the medical profession. Because professional negligence requires different standards when compared to any other negligence. And must be judged from a perspective of an ordinary skilled person in that profession.^[24]

It stated that – “…professional may be held liable for negligence on one of the two findings: either he was not possessed of the requisite skill which he professed to have possessed, or, he did not exercise, with reasonable competence in the given case, the skill which he did possess”^[25]

The same has been affirmed by the supreme court in the case of Martin F. D’Souza v. Mohd. Ishfaq, (2009) 3 SCC 1, where the Jacod Mathew case dictum was considered to hold good while dealing with cases of medical negligence. Hence, the case of medical negligence requires a high standard of negligence to be held criminally liable under section 304A of IPC.^[26]

The act must not be Intentional

The act of the accused must not be intentional or pre-planned for conviction under this section. the moment it is proved that it is an intentional act, the case would be falling under the purview of section 299 or section 300. there must be an absence of intention as well as knowledge and the act leading to death must be totally involuntary.

In the case of Sarabjeet Singh v. State of Uttar Pradesh (AIR 1983 SC 529), the accused who in order to take revenge on a person, threw his young child on the ground, was not considered as an act of rashness but was considered to be intentional and having knowledge that this act was likely to cause death to that young child. hence was made liable under section 299 and punishable under section 304 of IPC.^[29]

IV. Difference between Rash and Negligent Act:

As the section itself provides for “rash or negligent act”, it is observed that both these acts are not similar. They both are different types of acts. one being reckless and being haste while the other requires a breach of duty by omission, which any reasonable man in the given circumstances would not do so.

The difference between the two has been elaborately explained in the case of Bhalachandra Waman Pathe v. State of Maharashtra, (1968) 71 Bom LR 634(SC), as the case was required to identify whether the act done by the accused was rash or negligent.^[27] It states that-

“There is a distinction between a rash act and a negligent act. 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 consequence.

Criminal negligence is the 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.

Negligence is an omission to do something which a reasonable man, guided upon those considerations which ordinarily regulate the conduct of human affairs would do, or doing something which a prudent and reasonable man would not do.

A culpable rashness is acting with the consciousness that the mischievous and illegal consequences may follow, but with the hope that they will not, and often with the belief that the act or has taken sufficient precautions to prevent their happening. The imputability arises from acting despite the consciousness.

Culpable 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 if he had, he would have had the consciousness. The imputability arises from the neglect of the civic duty of circumspection”^[28]

V. Punishment and Discretion of Court

The punishment under this section prescribing sentence is considered as a matter of discretion of the trial court as it varies from case to case.^[30] It wholly depends upon the degree of negligence and rashness of an act done by the accused, so the court studies the facts and circumstances of each case carefully while prescribing sentence to the convict.^[31]

Further, the court can also take into consideration contributory negligence in order to determine the sentence, as far as the conviction of the accused is finalised.^[32]

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^[1] s 299 & 300, Indian Penal Code 1860

^[2] s 304A, Indian Penal Code 1860

^[3] Mahadev Prasad Kaushik v. State of Uttar Pradesh, (2008) 14 SCC 479

^[4] s 12, Indian Penal Code (Amendment) Act 1870

^[5] Chapter XVI, Indian Penal Code 1860

^[6] Kurban Hussain v. State of Maharashtra, [1965] 2 SCR 622

^[7] Md Rangawalla v. State of Maharashtra, AIR 1965 SC 1616

^[8] Ambala D Bhatt v. State of Gujarat, AIR 1972 SC 1150

^[9] D’Souza v. Pashupati Nath Sarkar, (1968) CrLJ 405(Cal)

^[10] Pitala Yadagiri v. State of Andhra Pradesh, (1991) 2 Crimes 359(AP)

^[11] Emperor v. Abdul Latif, AIR 1944 Lah 163

^[12] Mahadev Prasad Kaushik v. State of Uttar Pradesh, (2008) 14 SCC 479

^[13] SN Hussain v. State of AP, AIR 1972 SC 685

^[14] s 80, Indian Penal Code 1860

^[15] Cherubin Gregory v. State of Bihar, AIR 1964 SC 205

^[16] Baldevji v. State of Gujarat, AIR 1979 SC 1327

^[17] Duli Chand v. Delhi Administration, AIR 1975 SC 1960

^[18] John Oni Akerele v. The King, AIR 1943 PC 72

^[19] Juggan Khan v. State of Madhya Pradesh, AIR 1965 SC 831

^[20] Katcherala Venkata Sunil v. Dr. Vanguri Seshumamba, (2008) Cr LJ 853(AP)

^[21] Suresh Gupta (Dr) v. Govt of NCT of Delhi & Anr, AIR 2004 SC 4091

^[22] ibid, para 20

^[23] ibid, para 25

^[24] Jacob Mathew v. State of Punjab, (2005) 6 SCC 1

^[25] ibid, para 53

^[26] Martin F. D’Souza v. Mohd. Ishfaq, (2009) 3 SCC 1

^[27] Bhalachandra Waman Pathe v. State of Maharashtra, (1968) 71 Bom LR 634(SC)

^[28] ibid, para 11

^[29] Sarabjeet Singh v. State of Uttar Pradesh AIR 1983 SC 529

^[30] State of Karnataka v. A Joseph, (1988) 3 Crimes 452(Kant)

^[31] Emperor v. Khan Mohammed Shermahomed, (1938) Cr LJ 660(Bom)

^[32] Padmolochan v. State of Orissa, (1982) Cr LJ 192(Ori) (NOC)

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