In the Draft Penal Code a provision dealing with such a matter did exist but somehow the same could not find a place in the Indian Penal Code at the time of its enactment. This section was added in the Code by Act XXVII of 1870. A similar crime under English criminal law is known as manslaughter by negligence. Three other sections in the Indian Penal Code, that is to say, sections 336, 337 and 338 also deal with rash or negligent acts but these are with respect to endangering life or personal safety of others, causing hurt in such matters and causing grievous hurt in such matters respectively.
Rash or negligent act
Rashness and negligence have nowhere been defined in the Code. However, it can be said that rashness is an overhasty act, opposed to a deliberate one done without due care and caution, while negligence is an utter disregard for the life and safety of others.
The Supreme Court has observed to the same effect in Bhalchandra v. State as were the observations made in Idu Beg v. Emp. that criminal rashness is 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. The criminality lies in running the risk of doing such an act with recklessness or indifference as to the consequences.
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.
In the abovementioned case the Supreme Court approved the remarks made in Nidamarti Nagabhushanam v. Emp that 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 actor has taken sufficient precautions to prevent their happening.
The imputability arises from acting despite the consciousness (luxuria). Culpable negligence is acting without the consciousness that the illegal and mischievous effect will follow, but in circumstances which show that the actor had not exercised the caution incumbent upon him, and that if he had he would have had the consciousness. The imputability arises from the neglect of the civic duty of circumspection.
The Supreme Court in Kurban Hussein v. State has approved the observations made in Emp. v. Omkar that death should have been the direct result of a rash or negligent act of the accused and that act must have been the proximate and efficient cause without the intervention of another’s negligence. It must have been the causa causans; it is not enough that it may have been causa sine qua non.
As is clear from the language of the section, presence of rashness and negligence both is not necessary; death must have been caused by doing either any rash or any negligent act. The word ‘act’ should be interpreted in the light of sections 32 and 33 as including illegal omission and a series of acts or a series of illegal omissions also.
Not amounting to culpable homicide
The language of the section makes it plain that the death caused by any rash or negligent act to be made punishable under this section must not amount to culpable homicide. Since culpable homicide under the Code may be both not amounting to murder and amounting to murder, this in effect means that death under this section should neither amount to culpable homicide not amounting to murder nor murder. Deliberate deaths caused by running over victims by motor vehicles, many a time by hired assasins, should thus be punishable as murders or culpable homicides not amounting to murder, as the case may be, and not under section 304-A of the Code.
Burden of proof
The burden of proof in a case under this section is as usual on the prosecution. Merely because a death has resulted by an accident does not mean that a presumption against the accused must be drawn and he must be asked to explain as to why should he not be held guilty of the same. For instance, the accused cannot be held guilty under this section only on this evidence that his vehicle has left the road and has caused an accident. The prosecution is duty bound to establish death by rashness or negligence on his part.
The principle of contributory negligence, prevalent in the law of tort, is not applicable under criminal law and, therefore, the argument on the part of the accused under this section that the deceased was partly negligent in contributing towards his own death has no substance.
Where the deceased was partly negligent while crossing a road but the accused driver of the vehicle made no attempt to swerve to the other side where sufficient space was available so that the accident could be avoided, it was held that he was guilty under this section and was not entitled to the benefit of the Probation of Offenders Act, 1958.
Similarly, where the deceased seven year old girl child was run over by the accused while driving his lorry, the possibility of the child having stepped from the footpath down on to the road and thereby contributing towards the accident was ignored and the accused was held guilty under this section.
However, in view of the fact that almost nine years had elapsed since the accident had taken place, the imprisonment of about two and a half months which the accused had undergone till then was held to be sufficient under the circumstances.
Res ipsa loquitur
The principle of res ipsa loquitur, in vogue in the law of tort, is not applicable in criminal law. Consequently, the original burden on the prosecution to prove the case against the accused beyond reasonable doubt continues to remain fastened on it. However, it can be used as an aid to assess evidence.
Road accident cases
A very large number of cases under this section relate to deaths caused in road accidents. A very careful consideration of facts and circumstances of each case is needed to enable the court to come to a just and correct conclusion. Not blowing the horn of a vehicle by itself does not necessarily mean liability under this section, all the more so in a place where one is supposed not to blow horn.
But on the other hand, racing bullock carts on a road at a time when there is enough traffic, and causing death of a child thereby, attracts liability under this section. If, however, death results by a motor vehicle accident because of some mechanical defect in the vehicle itself which could not be detected ordinarily, the driver of the vehicle could not be hauled up under this section. Where the driver of a loaded truck dozed off for a while resulting into the truck dashing against a tree causing death of one of its occupants and injuries to others, this section was held to be applicable.
Where a lorry being driven by the accused at a reasonable speed was overtaken by another lorry which partly went over the dusty unmetalled part on the right side raising a cloud of dust in the process which almost blinded the visibility of the accused driver, who instead of stopping for a while continued to drive and unknowingly went a little too far on the right causing accident with another lorry as a result of which many persons were injured and one died, it was held that he was guilty under this section.
In a similar case, the accused driver of a truck was driving at an excessive speed without lights and without blowing horn at a time when the visibility was poor, and collided with a jeep causing death of two occupants of the jeep. This section, along with sections 279 and 337, was held to be attracted.
Where the accused truck driver, on finding that two bullock carts from the opposite direction were coming on the middle of the road, blew the horn as a result of which one of the carts moved to its left side and the other to the right, which for the cart was the wrong side of the road, causing the truck to swerve to the right and collide with a tree and overturn resulting into death of one and injuries to others, the truck driver was held guilty under this section in view of the absence of evidence to the effect that the cart driver’s act was so sudden that there was no way to avoid the accident.
Where an autorickshaw was suddenly swerved to the right to take a U-turn causing a truck coming from behind at a very fast speed to hit it causing the autorickshaw to lose control and hit a lady holding a child standing under a tree with her brother on the dusty side of the road, resulting in the child falling down and dying, the driver of the autorickshaw was held guilty under this section, but since about eight years had elapsed since the day of the incident the sentence of six months’ imprisonment was set aside but the fine of five hundred rupees was enhanced to seven hundred out of which five hundred was ordered to be paid to the deceased’s mother.
In another case, the deceased a pedestrian crossed half the width of a fifty feet wide road and then stopped to let the vehicular traffic pass by first. Suddenly, the respondent riding a mobike and overtaking a bus hit the deceased who fell down and was run over by the approaching bus which was just four or five feet away from the spot.
The lower court convicted the mobike rider under this section. But the High Court, while reappreciating the evidence, noted that the deceased had all of a sudden taken a step backward when he was hit by the mobike, and had he not done so, there would have been no accident and consequently the mobike rider was not guilty.
The Supreme Court agreed with the High Court. One should be extra careful while crossing roads is the message. Where, therefore, the deceased while crossing to the other side took no notice of the approaching vehicle and was run over, the driver of the vehicle was held not liable.
In Kanwar Singh v. State of Rajasthan, the accused was convicted under sections 304-A and 279 for rash and negligent driving and he remained in jail for nine days. The incident had taken place 18 years back. The Rajasthan High Court reduced the sentence of imprisonment to the period already undergone while the fine was adequately enhanced to award compensation to the parents of the deceased.
Fast driving by itself resulting into death is not punishable under this section because a vehicle is intended to be driven fast. However, proper care and caution are required to be taken while driving. It is only when such is not the case and the act resulting into death may be categorised as rash or negligent that this section comes into play. The condition of the road and nature of the traffic are naturally important factors to be taken into consideration.
The Supreme Court has held that in motor accident cases many factors like the speed of the vehicle, width of the road, the density of the traffic and attempt, if any, at overtaking vehicles and thereby coming on to the wrong side of the road must always be kept in view while arriving at a decision as to whether the death was because of rash or negligent driving on the part of the driver.
Consequently, where the accused while overtaking certain vehicles came over to the wrong side of the road and caused an accident with a scooter rider causing his death in the process and continued to drive for about another forty-five feet before colliding again with a wall on the wrong side and overturned as a result of which one of the occupants of the car was also killed, it was held that conviction of the driver by the trial court under section 304-A and other sections was correct.
Where the accused respondent driving the speeding truck turned towards a dusty road and hit the comer of the steel cot on which the deceased was lying and caused his death thereby, it was held that he had caused death by rash or negligent driving and was guilty under section 304-A of the Code.
In Shivdev Singh v. State the deceased passenger was standing on the foot board of a bus. The driver of the bus took a sharp turn at great speed as a result of which the passenger fell down and died. The sentence of one year imprisonment under Section 304-A was reduced to one already undergone and a fine of Rs. 5,000/- in view of the fact that the incident had happened twenty-three years ago.
In Kaliaperumal v. State a passenger was boarding a bus when the conductor blew his whistle and the driver started the bus speedily as a result of which the passenger fell down and came under the rear wheel of the bus and died. It was held that there was failure on the part of the conductor to note before whistling whether all passengers had boarded and none was on the foot board.
It was also held that the driver who could have seen the passenger entering from the front entrance did not wait until she had entered and instead he started the bus so speedily as to result in her fall and death. Consequently, the accused were held guilty under Section 304-A of the Code.
Error of judgment
The Supreme Court has held that where an accident takes place because of an error of judgment on the part of a driver and not because of his negligence or lack of skill required in driving, and such error is discovered only after analysing all circumstances after the accident has already taken place, the driver cannot be held guilty of causing death by rash or negligent act.
In State v. Goutam as soon as a State Transport bus entered a narrow bridge twenty-one feet and ten inches in width, the driver lost control and the bus fell over the bridge on the right hand side in the river bed and some passengers died and some were injured as a result.
It was held that in case of motor vehicle accidents there may sometimes be a pure error of judgment which does not amount to rashness or negligence. In the present instance, the error of judgment was in judging the space on the left side and in so doing the driver went a little too far on the right side, and once the wheels of the bus struck one guard stone after another on the right, the driver would certainly lose control especially when a tube had burst.
Accidents at railway crossings are quite common in India even though most of these could be avoided with a little care and caution. The Supreme Court in S. N. Hussain v. Stated was seized of the question of liability of the driver in cases of death resulting in such accidents. The appellant bus driver, on finding the gates of a manned railway crossing open, was driving through it to the other side when suddenly he found that a goods train had almost arrived at the spot.
The train hit the rear side of the bus as a result of which the bus was thrown off causing deaths of some and injuries to others. Holding the appellant not guilty under sections 304-A, 279 and 337 of the Code the court observed quite rightly that while in cases of unmanned railway crossings there is always a duty of the driver to stop and look at both sides before proceeding further, there is no such duty in cases of manned railway crossings where the gateman is duty bound to close and open the gates at the time of existence or non-existence respectively of traffic on the railway tracks.
In the present case the unscheduled goods train was passing at the time of the incident and the gateman was negligent in not closing the gates, and a driver is not expected under law to look for train on the railway tracks when he finds the gates open because when he finds the gates of a manned railway crossing open he has a right to presume that there is no coming or going of trains at that spot at that time.
Direct relationship between the rash or negligent act and the death caused
The section obliges the prosecution to prove that the death caused was the direct result of the rash or negligent act. In other words, the act must have been the causa causans; it is not enough that it may have been causa sine qua non. In Ambalal D. Bhatt v. State the accused appellant was a chemist in the department of injections in a chemical industry.
He and five other persons were charged with having committed an offence under section 304-A by rashly or negligently manufacturing a solution of glucose in normal saline which contained more than the permitted quantity of lead nitrate as a result of which thirteen persons who had been administered this glucose had lost their lives.
The accused appellant was also charged with giving a single batch number to all the five lots of solution manufactured on a particular day and if it had not been so the defect in the solution would have been discovered. On a reappreciation of evidence the question before the Supreme Court was to determine as to whether the act of the appellant was the causa causans of the deaths or whether there had been a causa interveniens by which the chain of causation had been broken as a consequence of which his act, though negligent, could not be said to be the main cause of the deaths.
It was held that the accused appellant was not guilty under section 304-A. The company had been following the practice for a long time of allotting the same batch numbers to several lots for which the appellant alone could not be blamed. The analysts including their chief should have thoroughly tested the solutions before the bottles were sent to the injection department, and had this been done, the deaths could have been avoided. Therefore, the appellant’s act was not the causa causans of the deaths.
In another case, the accused was riding a motor cycle on which the deceased was occupying the pillion seat. A bus which was going ahead of the motor cycle collided with an electric pole causing the live electric wire passing over the road to break down.
The accused avoided touching the snapped wire by bowing down his head but the deceased could not do so and got entangled in it, fell down and was electrocuted. It was held that the death of the deceased being the direct result of the rash or negligent act of the bus driver, the accused could not be held guilty for the same.
Sections 279 and 304-A distinguished
In Badri Prasad v. State there was an accident on a public road resulting in death. The Orissa High Court observed that mere carelessness or error of judgment was not enough for conviction under section 304-A. Bare statement that the vehicle was being driven by the accused at high speed was also insufficient for conviction.
Differentiating between sections 279 and 304-A the court said that while section 279 relates to driving or riding on a public way endangering human life, the offence under section 304-A extends to any rash or negligent act causing death but falling short of culpable homicide.
Deaths because of medical negligence are quite common in India but somehow a large number of such cases do not reach the stage of trial. However, there is no doubt that if death by rashness or negligence is proved, section 304-A of the Indian Penal Code is attracted. Where a registered Homeopathic doctor administered to a patient, suffering from guinea worm, twenty-four drops of stramonium and a leaf of dhatura without having first studied the effect of such a combination and the patient died of poisoning, it was held that the doctor was guilty under this section as his act amounted to causing death by rashness.
Similarly, where a Unani doctor (hakim) who had no knowledge whatsoever about the treatment by penicillin injections, administered to a patient a procain penicillin injection immediately after which the patient perspired profusely, vomited and died, it was held that there was no doubt that he had committed an offence under section 304-A.
In Suresh Gupta v. Govt. of NCT of Delhi, the accused medical doctor operated a young man, who had no history of heart ailment, for nasal deformity which was not so complicated or serious. The patient died. The cause of death is stated to be ‘not introducing a cuffed endo-tracheal tube of proper size as to prevent aspiration of blood from the wound on the respiratory passage.
The Supreme Court through Dharmadhikari, J., observed that when a patient agrees to go for medical treatment or surgical operation, every careless act of the medical man cannot be termed as ‘criminal’. It can be termed ‘criminal’ only when the medical man 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 an 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.
To convict, therefore, 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 care or precaution or attention or inadvertence might create civil liability but not a criminal one.
Thus the 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. In the present case, there was a lack of due care and precaution for which he may be liable in tort but his carelessness or want of due attention and skill cannot be described to be so reckless or grossly negligent as to make him criminally liable.
With respect, the judgment seems to be based on wrong interpretation of the clear language used in the section wherein death must result from a rash act or a negligent act and the same should not amount to culpable homicide whereas the learned judge in his judgment has used the words like gross lack of competence or inaction and wanton indifference to his patient’s safety arising from gross ignorance or gross negligence, or high degree of negligence, or so reckless or grossly negligent etc.
In Jacob Mathew v. State of Punjab, the Supreme Court observed that a doctor who administers a medicine known to or used in a particular branch of medical profession impliedly declares that he has knowledge of that branch of science and if he does not, in fact, possess that knowledge, he is prima facie acting with rashness or negligence.
Indiscriminate prosecution of medical professionals for criminal negligence is counterproductive and does no service or good to the society. So long as a doctor follows a practice acceptable to the medical profession of that day, he cannot be held liable for negligence merely because a better alternative course or method of treatment was also available or simply because a more skilled doctor would not have chosen to follow or resort to that practice or procedure which the accused followed.
A 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.
The expression ‘rash or negligent act’ as occurring in section 304-A has to be read as qualified by the word ‘grossly’.
To prosecute a medical professional for negligence under Criminal law it must be shown that the accused did something or failed to do something which in the given facts and circumstances no medical professional in his ordinary senses and prudence would have done or failed to do.
Unless a doctor’s arrest is necessary for furthering investigation or for collecting evidence or unless the investigating officer feels satisfied that the doctor proceeded against would not make himself available to face the prosecution unless arrested, the arrest may be withheld.
It is a case of non-availability of oxygen cylinder either because of the hospital having failed to keep available a gas cylinder or because of the gas cylinder being found empty. The accused appellant cannot be proceeded against under section 304-A.
With respect, one part of the judgment does not seem to be the correct interpretation of the section and that is where the court says that the words ‘rash or negligent act’ used in the section must be read as gross rashness or gross negligence.
The accused was an unqualified person holding charge of a dispensary. He had to prepare a quinine mixture to treat cases of fever. He took a bottle from a cupboard where non-poisonous medicines were supposed to be kept and tore off and threw away its wrapper marked ‘poison’. The bottle contained strichnine hydrochloride, a poison and apparently resembled another bottle containing quinine hydrochloride which is non-poisonous.
He added full contents of it into a fever mixture and administered the same to eight persons out of whom seven died. He was held guilty under this section. Firing in an area with the knowledge about the presence of children there, resulting in the death of a child, and performance of a medical surgery of internal piles by a person not qualified to do such act, resulting in death were held to be punishable under this section.
Where the accused laid live naked electric wire in the passage to a toilet with a view to ensure that the toilet was not used by trespassers, and a trespasser managed to go there without suffering any damage but while coming out she was electrocuted, it was held that section 304-A was attracted.
Similarly, where the accused left a bare galvanised insulated live wire with which the deceased boy came in contact and was electrocuted, it was held that the accused was guilty of causing death by rash act. Shooting an arrow resulting in death of a person in an area known to the accused to be frequented by people was held to be punishable under this section.
Where the accused, owner of a fireworks manufacturing unit, allowed dangerous and prohibited material and compositions in his factory which efficiently contributed towards an explosion in the factory in which many lives were lost, it was held that the accused had committed an offence under sections 337 and 304-A of the Code.
Where some persons had boarded a truck which was fit for carrying goods but not persons and accident took place resulting in death, there is no liability under this section merely because some rules were being violated while allowing persons to board the truck because such an act was not the causa causans of the act of the accused.
In Ram Niwas v. State of U.P, the accused who was not a qualified doctor administered an injection to the deceased causing his death. There was no evidence that the accused gave any test dose to the deceased before administering the full dose of the injection. The Allahabad High Court held him guilty under section 304-A of the Code.
The offence under section 304-A of the Code is cognizable, bailable and non- compoundable, and is triable by magistrate of the first class.