THE REQUIREMENTS OF FILING CRIMINAL LIABILITY OF A PERSON
FOR CAUSING DEATH BY NEGLIGENCE UNDER SECTION 304A OF INDIAN PENAL CODE IPC – 1860
Initially, the penal Code had no provision for punishment in cases where person caused death of another by negligence. Thus Section 304-A was inserted by the lndian penal Code (Amendment) Act 27 of 1870 to cover cases in which person caused death of other person by acts which were rash and negligent but there was absence of elements of intention and knowledge. There are many cases still where charged of culpable homicide amounting to murder are levied against the accused by the police while instead the consequence was an outcome of rash and negligent act – in such cases one needs a criminal lawyer who has an in-depth knowledge of the intricacies and has the required skillset, genius and tactfulness to establish a distinction between 302 and 304 in front of the court. It becomes vital in such cases to establish that mens rea (intention) – viz-a-viz murder is absent. In many cases even when the accused has acted with diligence, a wrong case of 304 is made out against the accused by the police to extort and drop charges at later stage. The reason that police invariably is found quoting is that “we are only doing our duty, sir”. In such cases, where police is bent upon to ‘do its duty’, a person really needs a good criminal lawyer to save from any false case put against him. Also a person must keep in mind that they should not succumb under pressure tactics played by the police and should not give in statement or sign in any document without consulting a good lawyer. It is also important to note if an incident occurs out of ignorance which is natural and not willful – for example – your car runs over a man sleeping on the middle of a road at night wearing a black blanket – is not a case of rash and negligent act on the part of driver. But in such cases it is always the genius of a lawyer that comes into play to decide the fate of accused. That is why it is recommended that right from the beginning one should choose a good criminal defense lawyer so that facts are appropriately established in front of the court and no scope of contradiction is left out.
Through this article we shall discuss NEGLIGENCE, its meaning, scope and effect – as seen by Laws in India.
Section 304 A:
Whoever, causes the death of any person by doing any rash and 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 a fine, or with both.
In case of R V Admando the House of Lords dismissed appeal against conviction of an anesthetist for gross negligence, who during an eye operation had failed to notice that supply of oxygen had been discontinued, resulting in death of patient. It was held to establish negligence the general principles of law stated below shall apply:
a. Whether or not the defendant was in breach of a duty of care owed to the victim who died.
b. Whether that the breach of the duty caused the death of the victim. If so, should that breach of duty be categorized as gross negligence?
c. The seriousness of breach committed by defendant when the breach occurred.
d. Is it permissible for gross negligence manslaughter to be established without necessity to enquire into defendant’s state of mind.
Thus the section provides punishment both in case of rash and negligent act. It provides punishment for cases which under English Law are termed as manslaughter by negligence.
The requirements of S 304 – A are that the death of a person must have been caused by rash and negligent act. Such act must be the causa causans (the immediate cause); it is not enough that it may have been the causa sine qua non (necessary or inevitable cause). Of the death of a person is not a direct result of negligent act the section does not apply.
THE INGREDIENTS OF THIS SECTION ARE:
1. There must be death of a person in question – The first ingredient is that there must be death of a person. This person can be any person of any age and even unborn.
In case of Blyth v. Birmingham Waterworks Company, The accused kicked the woman in advanced stage of pregnancy, which led to the death of the child in womb. It was held accused is guilty under Section 304-A of the I.P.C.
2. The accused must have caused such death – The death must have been caused by the act of the accused. There must be direct nexus between the death and the rash and negligent act of the accused. Case Law: In case of Kurban Hussain Mohammedelli Bangwalla Vs. State of Maharashtra, the accused allowed the manufacture of wet paints in same room where varnish and turpentine were stored. Fire broke out due to proximity of burners to varnish. This resulted in seven deaths. Hatim, another person had probably not allowed resin to cool sufficiently and poured the turpentine too quickly. Therefore, the deaths were not a direct result of the act of the accused. There was another person also involved thus there was no proximity between the deaths and the acts of the accused. So the accused was acquitted of the offence under Section 304-A of the I.P.C.
3. That such act of the accused was rash and negligent and that it did not amount to culpable homicide – The death must have been caused by rash and negligent act. It should not amount to culpable homicide. There is difference between rash and negligent. The term rash denotes something done on haste which requires caution. Rashness basically means doing an act with a risk that some bad or evil consequences will follow but with a hope that they will not happen again. Criminal rashness is hazarding a dangerous act with knowledge that it may cause injury but it is without the intention or knowledge that it “will” cause injury.
Negligence means breach of duty imposed by law. It is omission to do something that a reasonable man, guided by those considerations which regulate human conduct would do.
In case of Cherubin Gregory VS. State of Bihar the appellant was charged with an offence under 304 – A for causing death of a person by contact with an electrically charged copper wire which he had fixed up at the back of his house to prevent entry of intruders. The deceased, who was accused’s neighbor started using the latrine of the accused and then the incident occurred. The accused had fixed up naked wire across the passage leading to his latrine that too without any warning.
Therefore, accused was held liable under Section 304-A of the Code.
If the person is working with due caution and is not rash, he can’t be held liable under this section. In case of M.H. Lokre VS. State of Maharashtra, the appellant was not driving rashly was held not guilty under Section 304-A of the I.P.C for causing death of a person who, while crossing the road, came under the wheels of the vehicle.
Similarly, in case Mohammed Aynuddin VS. State of Andhra Pradesh the apex court held that merely because a passenger fell down from the bus while boarding it and died, presumption of negligence cannot be drawn against the driver.
Negligence may be civil or criminal depending upon the nature and gravity. Criminal negligence is gross failure to exercise with proper care and caution. There must be a mens rea also in criminal negligence. Negligence is doing something which a prudent man would not do. A doctor can be held liable for civil or criminal negligence.
In case of Lakshman Balkrishan Joshi v. Dr. Trimbak Godbole it was observed that doctor owes some duties to the patient:
a) A duty of care in deciding whether to undertake the case;
b) A duty of care in deciding what treatment to give;
c) A duty of care in administering the treatment.
A breach of duty gives cause of action against the doctor in law of Tort, Consumer Protection Act 1986 and civil and criminal law for negligence.
In famous case of Indian Medical Association VS. V.P Shantha it was held in civil wrong action for damages may lie in:
i. Law of Tort
ii. Consumer Protection Act 1986
In this case Supreme Court defined parameters of rights and obligations of professionals of allopathic and homeopathic systems of medicine. It further held that a person who is a “consumer” under Consumer Protection Act 1986 has to be awarded compensation for loss or injury suffered by him due to negligence of doctor.
There are several cases of medical negligence and the liability has been established depending on the facts of the cases.
Even fetus was taken to be as a consumer as in case of Kanta Mohanlal Vs. United India Insurance co. ltd. In this case a husband and his pregnant wife died in a car accident. So the fetus was considered a separate entity for purpose of insurance claims.
Even there is no fixed compensation. In case of Sau Madhuri Vs. Dr. Rajendrase the court held that there are no standard criteria for determining the amount of compensation. Factors such as period of discomfort, agony are taken in consideration while determining the amount of compensation”
In several cases the state has taken the responsibility based on the principle of vicarious liability. In case of Achutrao Khodwa Vs. State of Maharashtra the Apex Court held that the State as an employer would be liable to pay for the negligence of the doctor. In this case the doctor had left the towel in abdomen of the patient.
But in a recent case it was held that State is not liable for a failed sterilization operation. In case of State of Punjab VS. Shiv Ram, the woman having undergone sterilization operation became pregnant. It was observed that there was no negligence on part of the operating surgeon; the failure was due to natural causes for which no damages could be provided.
CONTRIBUTORY NEGLIGENCE
The doctrine of contributory negligence does not apply to criminal liability i.e. where the death of a person is caused partly by the negligence of the accused and partly by his own negligence.
In cases where criminal liability has to be established the burden of proof on prosecution is much higher as compared to that in civil cases. There must be a direct nexus between the death of the patient and act of negligence of the doctor. In case of Juggan Khan Vs. State of Madhya Pradesh, a registered homeopath administered 24 drops of tincture stramonium and a leaf of dhatura to a 20 years old person who was suffering from guinea worm for six weeks. After taking medicine she felt restless and ultimately died. Through the chemical investigation no poison was discovered in the stomach but her uncle alleged that death was due to irritant and that could have been dhatura. The apex court held that the act of doctor was rash and negligent as dhatura leaf is never administered as such. Thus he was convicted under Section 304-A, I.P.C.
Again in case of Ram Niwas v. State of Uttar Pradesh, the accused was an unqualified doctor who administered injection leading to death of the patient. He was held liable under Section 304-A, I.P.C. for causing death due to rash and negligent act. But in case a qualified doctor performs operation according to the recognized methods, with due care and in good faith it will not amount to negligence. In case of Emperor VS. Suraj Bali, the doctor operated upon the patient with consent and in good faith according to the recognized methods but the patient lost his sight. The doctor was not held guilty under Section 304-4, I.P.C.
It can be very well illustrated from another case of Jacob Mathew v. State Of Punjab. The facts of the case are that the deceased jawaan was admitted in hospital and he felt difficulty in breathing. An oxygen cylinder was brought and connected to the mouth of the patient but breathing problem further increased as the cylinder was found to be empty. No other cylinder was available. Then a cylinder was brought from the adjoining room, however, by that time patient died. The Supreme Court held that the non-availability of cylinder or for keeping an empty cylinder the hospital was liable but the accused could not be liable as he performed his duty with care and caution.
In another case of M. Shafi Goroo Vs. State, the accused golf player missed the ball and instead struck the caddie to his death. The court felt that the accident could have been due to accidental hit, therefore, the charge under Section 304-A, I.P.C. was quashed.
Thus the punishment for act of negligence is imprisonment of either description for a term which may extend to two years or with a fine, or with both.
TEST:
X, a notorious smuggler, built a strong house for himself away from the city. The house was fortified by high compound wall around the house and Iive electric wire ran on the upper edges of the compound wall which used to be activated during the night. Well-lit warning boards with danger signs of high voltage were placed aII around. Y, a thief, in order to commit theft attempted to scale the wall in the night, came in contact with the wire and was electrocuted.
The question arises as to whether X is liable under Sec. 304 A for causing death of Y?
To determine the validity of such charge one must first examine the essential ingredients to bring a case of homicide under section 304-A, I.P.C.;
1. Death of a person in question;
2. Accused must have caused such death;
3. That such act of the accused was rash or negligent and it did not amount to culpable homicide.
In the present case, it cannot be construed that the act of the house owner was rash and negligent as there were warning boards with danger signs of high voltage placed all around. Thus X will not be liable for causing the death of Y.
TEST 2:
A’s paramour gave poison to A for her to administer to her husband as a charm. A administered it and it resulted in the death of her husband. A did not know that the substance given to her was poisonous until she saw its effects. Discuss A’s liability under Section 304 – A, IPC.
There is a case Q.E. Vs. Musammat Bhakhan in which the facts were that the accused having an intrigue with a paramour, received poison from her paramour to administer to her husband as a charm, and administered it with the result that death ensued; that the death of the husband was caused by the substance administered to him, the substance being arsenic; but that the accused did not know the substance given to her to be noxious till she had seen its effect. It was held in that case that the offence committed by the accused was that punishable under Section 304 – A of the Penal. In the present situation, all the essential requirements to cover this case under negligence are fulfilled. Hence A is held guilty of criminal rashness or negligence under section 304 A.
TEST 3
A driver was driving his pretty old car the brakes of which had become dysfunctional (not working properly) at a speed of 80 km per hour near a primary school in the metropolis where the speed limit was notified to be only 30 km per hour. Suddenly a school child tried to cross the street and the driver couldn’t stop the car, as brakes did not work at the crucial time. The child was run over and killed.
The above proposition falls under section 304 A. The requirement of section 304 A, IPC is the death of the person must have been caused by doing rash or negligent act, and that there must be a direct nexus between the death of a person and the rash and of the accused negligent act. A rash act is primarily an over hasty act. lt is opposed to a deliberate act. The term rash act denotes the want of proper care and caution. It connotes an over act. In other words, rashness means doing an act with the consequences of a risk that evil consequences will follow but with the hope that they will not happen.
A is guilty of criminal rashness and negligence. Running a defective car, driving at a high speed near a primary school, disregarding the specified speed limit.
In a case, the accident caused on a national highway in front of a school, resulting in killing of a minor girl. The accused was driving a vehicle at high speed. It was held that it is expected for a driver to be cautious and slow down the vehicle, when nearby an educational institution. The driver is to be held guilty of rash and negligent driving under section 304 A.
X was driving a tourist bus at a fast speed. When he was 100 yards away from a traffic crossing he saw a green signal. In a bid to cross the road he enhanced the speed but before he could cross the road the green signal turned red, but X continued to drive on and hit C, a school child, on the zebra-crossing.
The above proposition again falls under section 304 – In case Dalbir singh v. State of Haryana, the appellant was driving a bus which belonged to Haryana roadways. It was that the cyclist was knocked down in front of the main gate of the board of the secondary school education. The cyclist was just going out of the office of board where he was working. The bus, after hitting him down, dragged him for some distance. He was crushed to death. The driver was convicted under section 304-A, IPC. In the present proposition, x is guilty under section 304 A of IPC as he was driving the bus rashly and negligently.
The residents of the adjoining slums were persistently using the park for defecation. On the order of the D.D.A. Chairman, the park was fenced and electric current was run on the wires on the top. A trespassing slum, dweller touched a live wire and was electrocuted.
Can the Chairman be held guilty for an offence under Sec.304 A?
The above proposition falls under section 304 A
The case facts and ordered made by the Hon’ble Court in Cherubin Gregory v. State of Bihar shall be read as of great precedent value here, as the nature of the act remains the same irrespective of who conducts it – an individual or a government employee. In the said case, the appellant was charged with an offence under section 304 A of the Indian penal code for causing the death of M by contact with the electrically charged chopper wire which he had fixed up at the back of his house with a view to prevent the entry of intruders into his latrine. It was held that the voltage of the current passing through the naked wire being high enough to be lethal, there could be no dispute that charging it with current of that voltage was a rash act done in reckless disregard of the serious consequence to people coming in contact with it for which the accused is solely responsible under section 304-A. ln the given proposition the DDA chairman will be liable. There should be warning in some form about the electric fencing of the park. This is more so because the sham dweller were in the habit of using the park for defection.
