Death By Rash And Negligent Act: Jamia Millia Islamia

 1

JAMIA MILLIA ISLAMIA FACULTY OF LAW PROPERTY LAW PROJECT

DEATH BY RASH AND NEGLIGENT ACT

 By: SAMEEKSHA KASHYAP  B.A.- LLb.(Hons.), LLb.(Hons.), Self-finance Self-finance SEMESTER- III (2nd  Year)

 2

Punishment for culpable homicide not amounting to murder. —  Whoever  — Whoever commits culpable homicide not amounting to murder shall be punished wi th [ i mpr i sonm sonme ent for lif li fe] 1 , or im i mpr i sonm sonme ent of ei ther her de desc scrr i pti on for for a ter ter m which whi ch may may ex extend tend to ten ten year year s, and shall also lso be be liab li able le to fi ne, ne, i f the act by by whi which ch the dea death is i s caused caused is is done done wi wi th the i ntenti ntentio on of causi causi ng death, or or of causi causing ng such bo bodi ly inj i njur uryy as as is i s lik li kely to cause cause death, or wi th i mpr i sonme sonment of of ei ther ther descri scr i ptio ti on fo f or a ter ter m which whi ch ma may ex extend tend to to ten ten  ye  year s, or wi wi th fine fi ne,, or wi wi th both, i f the act i s done wi th the know knowled ledge that that it i t is i s li li kely to cause cause de death, but witho wi thout ut any inte i ntenti ntion on to cause cause de death, or to cause cause such bo bodi ly inj i njur uryy as as is i s li kely to cause cause de death. Section 304, The Indian Penal Code

 . Ins.

1

by Act 27 of 1870, sec.12.

 3

INTRODUCTION 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. 38 Section 304-A postulates a rash and negligent act entailing death of another. A man, as stated, in Kenny, may bring about an event without having adverted to it at all; he may not have foreseen that his actions would have this consequence and it will come to him as a surprise. The event may  be harmless harmless or harmful; harmful; if harmful harmful the question question arises whether there there is legal legal liability liability for it. In In tort (at common law) this is decided by considering whether or not a reasonable man in the same circumstances would have realized the prospect of harm and would have stopped or changed his course so as to avoid it. If a reasonable man would not, then there is no liability and the harm must lie where it falls. But if the reasonable man would have avoided the harm then there is liability and the perpetrator of the harm is said to be guilty of negligence. The word 'negligence' denotes, and should be used only to denote, such blameworthy inadvertence; and the man who through his negligence has brought harm upon another is under a legal obligation to make reparation reparation for it to the victim of the injury who may sue him in tort for damages. But it should now be recognized that at common law, there is no criminal liability for harm thus caused by inadvertence. This has been laid down authoritatively for manslaughter again and again. There are only two states of mind which constitute mens rea, rea, and they are intention and recklessness. The difference between recklessness and negligence is the difference between advertence and inadvertence; they are opposed and it is a logical fallacy to suggest that recklessness is a degree of negligence. Criminal liability for negligence is exceptional at common law; manslaughter appears to be the only common law crime which may result from negligence. Crimes of negligence may be created by statute, and a statute may provide that it is a defence to charges brought under its provisions for the defendant to prove that he was not negligent. Whether negligence involves a mental element, or whether it is conduct assessed by reference to an impersonal standard is arguable. What is or is not negligent involves a consideration of that which a reasonable man would or would not have done in the circumstances; this does not invariably rule out of consideration subjective factors such as a person's knowledge, physical condition or age. A statutory  provision may may be so phrased phrased as to require consideration consideration of the defendant's defendant's intelligence intelligence or maturity maturity in order order to determine whether it was negligent for him to have acted as he did. 40 Death of a scooterist was caused by the accused due to rash and negligent driving of tanker. Since offence under Section 304A is non-compoundable accused was convicted and amount of Rs. 1 lakh was awarded to the mother of deceased by way of compensation but sentence of imprisonment was reduced to the period already undergone.41 In another case witnesses testified that vehicle with more than 50 persons on board was  being driven driven on a very very high speed. speed. It was was held that that this being being a rash and negligent negligent driving the accused accused could could 42 not be dealt with leniently.  The mechanic of bus was driving it when accident killing three persons on road had taken place. The act was done at the instance or abetment of the co-accused driver. It was held that mechanic should be convicted under Section 304A as he was incharge of bus at the relevant time of occurrence but driver of bus was convicted. 43 In a medical negligence case the patient herself was a medical student and she was operated on by a doctor with the help of anaesthetist after administering necessary antibiotics. When her condition became serious she was put on oxygen. Doctor was held not guilty. 44

 4

In another medical negligence case death of pregnant woman had occurred immediately after delivery of child due to injuries suffered in her vaginal part. Petitioner doctor was alleged to have committed negligence in giving packing to wound for stopping bleeding and injecting prostodin injection. It was a positive evidence that one such injection is given in certain circumstances. Report given by the medical board against the  petitioner was ambiguous and petitioner produced the evidence that she had taken proper care before delivery. It was held that case of criminal negligence was not made out. 45 This paper aims to under the concept of ‘Death by Rash and Negligent Acts’ of persons within the ambit o f Indian Penal code, through case laws and judgements. The paper discussed some of the key concepts covered here like the meaning of ‘ rash and negligent acts’. In the latter part of the paper,  concepts like ‘medical negligence’ and motor vehicle acciden ts on account of negligence as well as proof of negligence. The last concept discussed is punishment under section 304-A.

 5

SCOPE OF THE SECTION There are two parts of Section 304-Aof the I.P.C. The first part relates to causing of death of any person by any rash act of the accused. The second part comes in operation when the death is caused due to negligent act; but in both cases, it should not amount to culpable homicide. The prosecution has either to prove the first  part or the second part but there may be cases where both the parts may come in operation simultaneously if the evidence suggests that the act of the accused was not only rash but also negligent which resulted in the death of someone. Criminal rashness is hazarding a dangerous or wanton act with the knowledge that it is so and that it may cause an injury but without intention, to cause injury or knowledge that it will probably be caused. The criminality lies in taking the risk of doing such an act with recklessness or being indifferent as to the consequence. Reckless driving or driving in a manner dangerous to public is rashness. In order to see whether it is so the condition of the road, the amount of traffic at the time and number of persons frequently moving about on the road or expected to be on the road, are some of the factors to be taken into consideration in assessing the rashness or negligence of the driver. It is the duty of every man who drives a vehicle on the  public way, to drive it with such a care and caution as to prevent, as far as possible, any injury to anyone. Criminal negligence is gross and culpable neglect or failure to exercise with reasonable care and proper care to guard against injury either to the public generally or to an individual in particular as non-exercise of this imperative duty on the part of the accused amounts to culpable neglect. 46 While rashness is acting in the hope that no mischievous consequences will ensue though aware of the likelihood of such consequences, negligence is acting without the awareness that harmful or mischievous consequences will follow, but in circumstances which show that had the actor exercised the caution incumbent on him he would have had awareness of the consequences of his act. Negligence, as such, had not  been defined in the Code but idea of the degree of negligence that would make the act criminal can be had if the words of Section 279, I.P.C. namely, "whoever drives any vehicle or rides, on any public way in a manner so rash or negligent as to endanger human life, or to be likely to cause hurt or injury to any other  person....." are referred. Rashness or negligence should be of the kind to endanger human life or likely to cause hurt or injury to any other person. Negligence in this context has generally been understood as conduct which falls below the standard established for the protection of others against unreasonable risk of harm--the standard of conduct ordinarily measured by what a reasonable man of ordinary prudence would do under the circumstances. The standard of negligence must be rated in terms of the circumstances, be such, as would be accepted as criminal negligence by an intelligent and sensitive community. 47 To invoke Section 304-A, the accused must do consciously some rash and negligent act and it must entail the death of the victim and the act should not amount to culpable homicide as defined in Section 299, I.P.C. Section 304-A by its own definition totally excludes the ingredients of Section 299 or Section 300 I.P.C. When a speeding truck while taking a turn in open field hits a cot causing death of a person who was resting on it, the case falls under Section 304-Aand not under Section 304, Part II as the driver obviously did not wilfully drive the car on the cot.48

 6

An offence under Section 304-A is committed either by committing a rash act or a negligent act. There is a marked 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 consequences. 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 sometimes with the optimism that they will not, and often with the belief that the author has taken sufficient precaution to prevent their happening. 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 to have adopted. Negligence implies 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 a reasonable man would not do. Thus culpable negligence is acting without the consciousness that the illegal or mischievous act will follow, but in circumstances which show that the actor or the author has not exercised the caution incumbent upon him and if he had, he would have the consciousness. The imputability arises from the neglect of civil duty and circumspection. 49 The deceased and the accused, both friends in cordial terms were last seen together when they went for hunting. The dead body of the deceased with gun shot wounds was found next day morning. It was established that the accused's gun was used. But, it might be that the gun shot aimed at a wild bear by the accused hit the deceased. The accused had no intention to kill. It involved only his knowledge that his friend, the deceased might die. The offence answered Section 304, Part-II, I.P.C. 50 Unaware of the fact that the victim was a heart patient, if the accused pushes the victim who falls (here on paddy field) and dies because of his heart disease, the offence answers not Section 304, I.P.C.nor Section 304-A, I.P.C., but Section 323, I.P.C. 51 The accused was alleged to have caused the death by negligent driving of bus. He neither examined owner nor produced other evidence to show that he was not driving the bus on given date. Plea of false implication was not available as his name and bus number was mentioned in FIR. The accused was convicted  but sentence of imprisonment was reduced to the period already undergone. 52The doctor performed operation for treatment relating to the termination of pregnancy as per circulation issued by Health Deptt. which had authorised nurses to participate in surgical process under the supervision of a Doctor. The Royal college challenged the circular, and it was held that termination mean entire process and registered medical  practitioner if after prescribing the treatment for the termination of a pregnancy remained in charge and accepted responsibility throughout then it would be treated that termination was by registered medical  practitioner for purposes of abortion Act, 1957 and exemption from liability provided by Section 1 (1)of the Act will extend to any person, such as nurse, participating in that treatment. 53 The section applies only to such acts which are rash or negligent and are directly the cause of death of another person. In other words, a rash act is primarily an overhasty act as opposed to a deliberate act but done without due care and caution. The accused a police constable fired two shots killing two persons and third shot went off. There was actual quarrel and fight between accused and two more constables on the one side and prosecution witness and his brother on the other side. The accused started indiscriminate firing. The occurrence took place at 9 p.m. and so due to darkness the accused could not have noticed any bystanders. The firing was not aimed at two deceased. He had fired only to scare away people. It was held that the accused acted in haste, rashly and without circumspection and due case and therefore provisions of Section 304-A were attracted. 54

 7

Accused's truck hit scooterist from behind causing his death. It is not case of accused that scooterist had suddenly applied brakes and accused was taken unaware which led to accused truck hitting scooter from  behind. The conviction for negligent driving was upheld. 55 In a hit and run case accused was originally charged u/s. 304A but charge was subsequently altered to Section 304. High Court quashed the charge on the ground of insufficiency of evidence. It was held that it was too mature a finding and trial Court was directed to proceed on further. 56 Accused in a case made amorous approach towards C , the wife of the victim. But the overtures were not reciprocated by C . One day the accused trespassed upon the house of the victim and tried to rape her who violently resisted the attempt and raised alarm, the 8-year-old son of the victim rushed in but was slapped by the accused. P.W.s, the close neighbour as also the victim rushed in and having seen them the accused retreated. The victim went to the house of the accused to register his protest but instead of seeing reasons in the grief, he pushed the victim so hard by a lathi that the victim fell upon a stone and two days after died. The offence of the accused was held to answer not Section 304but Section 325, I.P.C. 57 Where the act is in its nature criminal, the section has no application. 58The section 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. 59In order that a person may be guilty under this section, the rash or negligent act must be the direct or proximate cause of the death. 60 The section deals with homicide by negligence.

INTENTIONAL OR VOLITIONAL ACT: EXCLUSION FROM PURVIEW OF SECTION 304-A, I.P.C. Intentionally or knowingly inflicted violence directly of wilfully caused is excluded under Section 304-A, I.P.C. In other words, the said section does not apply to a case in which there has been voluntary commission of an offence against a person. Thus where bodily injury is intentionally inflicted and the victim dies, the offence will be one of simple or grievous hurt if the intention or knowledge which is an ingredient of culpable homicide is wanting. 61 This section does not apply to a case in which there has been the voluntary commission of an offence against the person. Acts, probably or possibly involving danger to others, but which in themselves are not offences, may be offences under Ss. 336, 337, 338or 304-A, if done without due care to guard against the dangerous consequences. Acts which are offences in themselves must be judged with regard to the knowledge or means of knowledge of the offender, and place in their appropriate place in the class of offences of the same character. 62 Where a man strikes at another with a spear, he is committing a criminal offence, and that offence remains just the same whether he hits his intended victim or by chance hits a third person who intervenes between the two. 63

 8

RASH OR NEGLIGENT ACT 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. 65 The hazard must be of such a degree that injury was most likely to be occasioned thereby. The accused driving a bus came in good speed and at a place where two bullock-carts were stationary and sheep were moving about swerved the vehicle to the right of the road and hit a cyclist going ahead of the bus, the cyclist dying on the spot, the bus travelling a distance of nearly 79 feet before it came to a stop, it was held that the two strong circumstances, namely, the speed at which the vehicle was driven at the time without reminding the traffic conditions and taking the vehicle to the right half of the road, indicated that the accused was rash and negligent in driving the vehicle and causing the death of the cyclist. 66 For criminal negligence it must be shown to secure conviction that the act was done with the consciousness of risk that evil consequences of death were likely to flow therefrom and/or there was mens reain the doing of the negligent act alleged against the accused. 67  Lord Macaulay Report.--The authors of Code have said, "When a person engaged in the commission of an offence causes death by rashness, or negligence, but without either intending to cause death, or thinking it likely that he shall cause death, we propose that he shall be liable to the punishment of the offence which he was engaged in committing, superadded to the ordinary punishment of involuntary culpable homicide. The arguments and illustrations which we have employed for the purpose of showing that the involuntary causing of death without either rashness or negligence ought, under no circumstances, to be punished at all, will, with some modifications which will readily suggest themselves, serve to shew that the involuntary causing of death by rashness or negligence, though always punishable, ought under no circumstances to be  punished as murder."68 "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  precaution 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 has 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. It is manifest that personal injury, consciously and intentionally caused, cannot fall within either of these categories, which are wholly inapplicable to the case of an act or series of acts, themselves intended, which are the direct producers of death. To say that because, in the opinion of the operator, the sufferer could have borne a little more without death following, the act amounts merely to rashness because he has carried the experiment too far results from an obvious and dangerous misconception...It is clear, however, that if the words, 'not amounting to culpable homicide,' are a part of the definition, the offence defined by this section consists of the rash or negligent act not falling under that

 9

category, as much as of its fulfilling the positive requirement of being the cause of death." 69 When a homeopath administers poisonous medicine to patients without studying its effects resulting in the death of the patient, the homeopath is guilty under Section 304-A, I.P.C. 70 A rash act is primarily an overhasty act and is opposed to a deliberate act; even if it is partly deliberate, it is done without due thought and caution. 71Criminal rashness is hazarding a dangerous act with the knowledge that it is so and that it may cause an injury. There is a breach of positive duty. 72 Illegal omission is "act" under this section and may constitute an offence if it is negligent. 73 In this connection see also sub-para entitled "Rash or Negligent" under S. 279, I.P.C., ante. The deceased was enjoying liquor party at the house of accused who due to some disrespectful behaviour of deceased put gun on his chest but gun went off and killed the deceased. It was held that accused had no intention to kill the deceased as he had pulled the trigger without aiming at the deceased in a state of intoxication in order to prevent Mahant deceased from leaving the place. It was wholly rash and negligent act on B's Part or at the worst was an act which would amount to the manslaughter and could not be held to constitute an offence of murder. The accused was, therefore, held guilty of an offence u/ s. 304A and was sentenced to imprisonment he had already undergone. 74 The deceased when did not stop the cart he was driving the accused assaulted him with lathi on his back due to which he fell down and wheel of cart passed through his body. The conviction of accused for causing death  by negligence was held proper.75

RASH ACT AND NEGLIGENT ACT: DISTINCTION

No

Rash

Negligent Act

1)

Rash is Primarily over hasty act, it is opposed to a deliberate act.

Negligence is a breach of duty imposed by law.

2)

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.

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

3)

The criminality is lies in running the risk of doing such an act with recklessness or indifference as to the consequences.

Negligence may either civil or criminal negligence depend upon the nature and gravity of the negligence.

 10

DEATH TO BE DIRECT RESULT OF RASH OR NEGLIGENT ACT Death must be direct result of the rash or negligent act of accused and the act must be efficient cause without intervention of another's negligence. It must be the causa causans; it is not enough that it may have been the causa sine qua non.76There must, therefore, be a direct nexus between death of a person and a rash and negligent act of the accused. 77 The death should be the direct result of rash and negligent act of the accused and that act must be the proximate and efficient cause without the intervention of another's negligence. 78 Thus there can be no conviction when rashness or negligence of third party intervenes. 79 The car driver abruptly opened the door and knocked down the cyclist who was crushed under the wheels of the lorry coming from behind. Thus tragic fusion of two events snuffed the life of a young boy, for which  both drivers were responsible and both were prosecuted in the same trial for rash and negligent driving. The trial Court acquitted the car driver but convicted the lorry driver. It was aggrieved father of the deceased who filed revision in the High Court. As per settled legal position the driver of lorry could be convicted u/ s. 304 A and that of car only under Section 337 I.P.C. However High Court acquitted the lorry driver as he was not found criminally negligent. Car driver's acquittal was set aside and he was convicted and a fine of Rs. 500/was imposed on him.80 Mere carelessness of error of judgment is not sufficient but ingredients of rash and negligent driving on public road endangering human life or likely to cause injury must be established. Bare statement that vehicle was being driven in high speed is not sufficient and accused may get acquitted. Section 279covers only those cases which relate to driving on public way endangering human life while offence under Section 304-Aextends to any rash and negligent act falling short of culpable homicide. So where  prosecution made no efforts to prove that there was any rash or negligent act on the part of the driver, the accused was acquitted although he had run over the deceased. 81 The accused was charged to have spread the live wire around sugar cane land belonging to the accused's joint family and that had caused the death of the deceased. However it could not be proved by the direct evidence that the accused in any way was connected with the alleged crime. Since land belonged to his family, in the interest of justice the accused was asked to pay Rs. 20000/- as compensation to the legal heirs of the deceased. 82 The accused caused the death of pillion rider of motor cycle which he was driving rashly and negligently. The evidence showed that immediately after accident the deceased was taken to hospital and accused spent ten thousand rupees in his treatment. It was held that imposition of lenient sentence was  proper.83 The deceased was collecting earth dug by the accused labourer who was alleged to have caused spade injury to him. It was held that the act of accused neither would come within Section 302 nor even Section 304orSection 80 of Penal Code but it was criminal negligence for which he would be convicted u/ s. 304-A and he was awarded the sentence for the period already undergone. 84The accused was not qualified doctor but administered the injection to deceased without giving any test dose and caused the death of the deceased. It was held that accused was guilty of causing the death by rash and negligent act but benefit of  probation was given to him as there was no allegation of misuse of bail granted to him. 85 In a Supreme Court case there was a collision of bus and goods train at level crossing. The gateman was negligent and so there occurred the collision resulting in death of many innocent passengers. As the negligence of gateman intervened the driver of the bus was acquitted. 86 A boat capsized in mid river, the boat having taken more passengers than what was proper. But, the accused was not present when it sailed off. Evidence of his direct supervision was lacking. The defect in the boat was not the lone reason of the accident when some lives were lost. The accused was acquitted. 87

 11

The accused came in contract with extra high tension line which was drawn much prior to the construction of  building in question and much before the accused employees of KPTCL entered into service. The local municipal authorities were at fault for issuing licence for construction of the said building. Hence, direct nexus between act of negligence of accused and boy's death was not established. They were not held liable for negligence.88 Accused driver, in another, case dashed his rashly driven bus against motor cycle but vehicle Inspector's report was not marked and prosecution case, therefore, was weak. Conviction of accused was not proper and matter was remitted.89

 12

RASH AND NEGLIGENT ACT: MOTOR VEHICLE ACCIDENT In a case the accused was driving his car on the Marine Drive, Bombay now known as Netaji Subhash Road, from North to South. At about 5-30 p.m. that day Kunda the deceased, who was aged about twenty-one years, and her younger sister, Vidya, aged about ten were crossing, it is said, the pedestrian crossing near '  B' Road, Churchgate, at which the accused's car knocked down Kunda and Vidya. As a result of this Kunda died and Vidya received some injuries. The Court found that the accident was the result of negligence and rashness on the part of the accused. The accused was convicted. The Court observed: In order to establish a charge of negligence under Section 304-A, I.P.C.it must be established that the accident was the direct result of the negligence or rashness of the accused. A far higher standard of proof of negligence or rashness in a criminal prosecution is required by the Court in England, because the offence then is that of manslaughter if death is caused. But in respect of the offence under Sections 304-Aand 337, I.P.C., the same standard cannot obtain though no doubt the guilt must be proved beyond reasonable doubt. 12 Turning to English Law, HALSBURY lays down: A person upon whom the law imposes a duty or who has taken upon himself any duty, tending to the preservation of life, and who, regardless of the life and safety of others, neglects to  perform that duty or performs it negligently and thereby causes the death of another person may be guilty of manslaughter. A higher degree of negligence is necessary to render a person guilty of manslaughter than to establish civil liability against him. Mere carelessness is not enough. In order to render a person guilty of manslaughter the negligence must be more than a matter of compensation between subjects; it must show such disregard for the life and safety of others as to amount to a crime against the State. 13 As to causing death by reckless driving in England, it has been provided by Section 1 of Act of 1972 (Road Traffic Act, 1972) that it is punishable with up to five years' imprisonment and is triable only on indictment. It was created on account of the reluctance of jury to convict in cases of so-called 'motor manslaughter'. In addition to establishing a case of reckless driving (and it may be that here only recklessness as to the risk of harm to the person, as opposed to property, suffices), the prosecution must prove that the reckless driving was a substantial (i.e. more than minimal) cause of the death in question; it need not necessarily have been the sole cause. If the jury are not satisfied that the accused's reckless driving caused death, they may convict of reckless driving, and if they are not satisfied that he drove recklessly they may convict him of careless driving. There is no power to convict of causing death by reckless driving on a charge of manslaughter. 14 The accused was engaged in an operation to unload bags of cobblestones from the hold of a ship using the crane possessing a grab bucket adapted for the purpose by the addition of two chains. He was decapitated when the grab bucket under which he was standing closed unexpectedly. The director of Public Prosecutions decided not to prosecute the employer or its managing director for manslaughter. The brother of deceased sought judicial review of DPP's decision. The DPP took the view that there was insufficient evidence to satisfy a jury that the objective test for negligent manslaughter had been satisfied. It was accepted that the requirement of duty, breach and causation had been fulfilled, the issue was whether the breach amounted to a sufficiently gross act of negligence to warrant criminal sanction. It was held that review could be granted as correct test for establishing gross negligent manslaughter was an objective one as set out in Adomako case, (1995) 1 AC 171: (1994) CLY 1124. The DPP had reached an erroneous conclusion that the danger had not  been sufficiently obvious. Thus conclusion of DPP was held to be irrational. 15 In a rash and negligent driving case RTO stated in his evidence that accident was not the outcome of mechanical defect. Witnesses who were travelling in the same vehicle stated that vehicle was being driven at

 13

a very high speed and road was quite wide and un-congested. It was held that the accused was rightly held guilty for the offence charged. 16 When a driving leads to an accident, the main question is whether it was rash and negligent. But in deciding this speed is not the only criterion. The width of the road, density of traffic and attempt to overtake are also criteria.17 A finding as to criminal rashness or criminal negligence is to be arrived at by the Court--high speed of the vehicle is not enough to prove rashness or negligence on the part of the driver of a motor vehicle unless evidence is elicited from the witness as to what his notion about speed is. 18 Accident accused on  Kutcha portion of right side of road in which a boy standing there was dashed and died due to injuries caused  by this accident. Place of incident is itself indicative of negligent manner in which vehicle was being driven. Conviction by High Court is justified. 19 Where the driver of a bus was prosecuted under Section 304-AandSection 279, I.P.C. for carrying on busroof certain corrugated iron sheets which fell down due to jolting while bus was being driven on a Kucha road as a result of which some persons were injured and one of them died and the Investigating Officer made no mention of any attempt on his part to find the said sheets or discover them nor did the prosecution care to find out who the owner of the bus was and who had loaded them, the driver would not be liable for conviction under the above sections. 20 In a case, the accused a State Transport passenger bus driver was  proceeding along a National Highway and was proceeding from north to south on a far road, which was 22' wide with 9' kutcha shoulder on each side. Thus, the total width of the road was 40'. The bus was proceeding on its correct side i.e. eastern side but on the wrong side a 10-year-old girl was caught under the rear wheel and died. The Court held the negligence of the bus driver is patent and convicted the accused. The theory that the girl was suddenly entering the road from the eastern side and was crossing the road and going towards the western side and in order to save the girl the bus turned westward was rejected in view of the evidence of the eye witnesses, and in view of the fact that the girl was accompanied by her mother. 21 The accused truck driver was driving his vehicle rashly and negligently and had killed a boy of 8 years who was standing on the side of road. The defence plea that accident occurred due to mechanical failure was not accepted as there was evidence of witnesses that accused after incident stopped truck at a distance of 3 km and ran away. The order of conviction of Trial Court was held proper. 22 Similarly woman standing by side of road was killed due to rash and negligent driving and conviction was upheld. 23 The Courts in rash and negligent driving are not expected to be prejudiced or influenced by ghastliness of accident. They should appreciate evidence in unbiased manner especially when two vehicles are involved and accident is head on collision. 24 Death was caused in a road accident and driver of offending vehicle was charge sheeted but no independent witnesses were examined and Court considered it immaterial as unnamed witnesses examined in the case were reliable and trust worthy. 25 Where the accused crushed the deceased while she was proceeding on her left side, conviction for causing death by negligent driving was held  proper.26 The cyclist boy was killed when truck driven by the accused dashed against cycle. Evidence showed that due to high speed driver could not control the vehicle as it veered from left to right and stopped diagonally in the middle of road. It was held that death was caused due to negligent driving and accused could be convicted u/s. 304A. Since accused in this case had availed of all remedies available to him he was convicted without showing any leniency. 27 Where, however, accident had occurred due to sudden failure of  break, the accused was acquitted as it was merely an accident and Section 80 in such circumstances had come into force. 28

 14

Accused, a bus driver when despite being dazzled by head light of vehicles coming from opposite direction drives at a speed of 25 k.m. per hour, his act must be taken to be rash and negligent. 29In a case, the accused  by driving his truck crashed the mother and her minor daughter. No motive nor any intention was proved. It was merely a "rash and negligent act" that brought the death of the two victims. It was held that not Section 302, but Section 304-A is proper. 30 In a Supreme Court case, the Supreme Court held that if a pedestrian suddenly crosses the road without taking note of the approaching bus, the bus driver cannot save the accident and he cannot be said to the negligent. 31 When the driver of a dumper backed the dumper on the loading only after blowing the horn and getting a signal of clearance from helper and in doing so two persons sleeping  behind the dumper came under the rear wheels and were killed, he cannot be convicted under Section 304A.32 As to rash and negligent act causing death by a motor vehicle a Delhi case lays down: it is the duty of the driver to drive his vehicle at a speed which will not imperil the safety of others using the road. In order to impose criminal liability on the accused it must be found as a fact that collision was entirely or at least mainly due to rashness or negligence on the part of the accused who was driving the vehicle at that time. It is not sufficient, if it is only found that the accused was driving at a fast speed. Relationship between speed and rashness depends upon the place and time. The important criteria for deciding whether driving which led to the accident was rash or negligent would include not only the speed of the vehicle but also the width of the road, density of the traffic and attempt, if any, to overtake other vehicles resulting in coming to the wrong side of the road being responsible for the accident. Death should have the direct result of a rash and negligent act of the accused and that act must have been proximate and efficient cause without the intervention of anothers negligence. 33

NOT AMOUNTING TO CULPABLE HOMICIDE "Section 304-A is directed at offences outside the range of Ss. 299 and 300, and obviously contemplates those cases into which neither intention nor knowledge enters. For the rash or negligent act which is declared to be a crime is one 'not amounting to culpable homicide', and it must therefore be taken that intentionally or knowingly inflicted violence, directly and wilfully caused, is excluded. Section 304-A does not say that every unjustifiable or inexcusable act of killing not hereinbefore mentioned shall be punishable under the  provisions of this section, but it specifically and in terms limits itself to those rash or negligent acts which cause death but fall short of culpable homicide of either description." 34

CONTRIBUTORY NEGLIGENCE. The doctrine of contributory negligence does not apply to criminal liability, where the death of a person is caused partly by the negligence of the accused and partly by his own negligence. If the accused is charged with contributing to the death of the deceased by his negligence, it matters not whether the deceased was deaf, or drunk, or negligent, or in part contributed to his own death. 35 If the defendant's negligent act or omission was the proximate and effective cause of death, the fact that the deceased was himself negligent and so contributed to the accident or other circumstances by which the death was occasioned does not afford a defence to an indictment for manslaughter. 36 However when a pedestrian suddenly crosses a road without taking note of the approaching bus there is every possibility of his dashing against the bus without the driver

 15

 being aware of it. The bus driver cannot save accident, however slowly he may be driving and, therefore, he cannot be held to be negligent in such a case. 37 In this connection see also sub-para entitled "Contributory negligence" under S. 279, I.P.C., ante.

RASH AND NEGLIGENT ACT ENTAILING DEATH: PRESUMPTION OF INNOCENCE The general presumption of innocence of accused is also available even to an accused charge-sheeted for rashness and negligence in driving a motor vehicle which resulted in injury or loss of life to a pedestrian or others. Simply because an accident happened which resulted in death on injury to somebody it cannot be taken for granted that the driver of the vehicle involved in the accident is guilty of crime. There may however  be exceptional cases where the rule res ipsa locuitur  applies. In such cases proved facts and circumstances may speak for themselves. Ordinarily it is for the prosecution to establish the guilt of the accused. The  prosecution is to prove not only the rashness or negligence of the driver but also must prove that the rashness or negligence is responsible for the accident and consequent injury on or death of the victim. 38 There can be no presumption of negligence from the mere fact that a man is knocked down and killed by a motorist. 39

RASH OR NEGLIGENT ACT Where a railway official, after being instructed to move some trucks down an incline uncoupled and singly, disobeyed the instruction and lost control over them, and a cooly in trying to stop the truck fell under the wheels and was killed; 40 where an engine-driver failed to sound his whistle before starting the engine, and the engine having been put in motion caused a boy, who was painting a wagon on the line, injury, which resulted in his death; 41 where the accused cut out the piles of a person with an ordinary knife and from the profuse  bleeding the person died; 42 where the accused struck at a man carrying a child and the blow fell on the child and killed it; 43 where the accused received poison from her paramour to administer to her husband as a charm and administered it with the result that death ensued, but she did not know that the substance given to her was noxious until she saw its effects;44 where the lessee of a ferry allowed an unsound boat to be used, and in consequence of its unsoundness the boat sank while crossing the river and some of the persons in it were drowned;45 where the accused sent two boxes containing fire-works for carriage upon a railway falsely declaring them to contain iron locks, with the result that in loading, one of the boxes exploded killing one cooly and injuring another and damaging the railway wagon in which it was being placed; 46 where the accused receiving a powder from an enemy of her relative took no precaution to ascertain whether it was noxious and mixed it with food believing that by so doing she would become rich but four of the persons who ate the food died; 47 and where the accused administered to her husband a deadly poison (arsenious oxide) believing it to be a love potion in order to stimulate his affection for her and the husband died; 48 negligently shooting arrow causing death without motive 49 To G, a driver in Road Transport Corporation, a  bus which was brought after the defective brake being repaired, was made over and G went to test the same and found the brake still defective. He was returning to bus depot on 4th gear at a speed of 15/20 k.m. and rammed against a scooter to cause death of the scooter driver and hurt to pillion rider. H.P. High Court convicted the driver under Section 279, 304A 237 having observed that if a vehicle with defective brakes is

 16

driven at a speed of 15 to 20 kilometres in a crowded bazar, it is nothing but driving the vehicle rashly at high speed.50 It was held in all these cases that the acts of the accused were either rash or negligent.

 17

MEDICAL NEGLIGENCE

The anaesthetist took over from another anesthetist during the course of an operation. While he was in charge of patient the endatracheal tube which supplied oxygen to the patient became disconnected. He first came to know about it when an alarm on blood pressure monitor sounded some 4-1/2 minutes after the disconnection.  A carried out various checks of the equipment and administered astropine to raise the pulse but just few minutes later patient died of heart attack and then anaesthetist on this point could discover the disconnection. He was convicted of manslaughter due to gross negligence. On appeal house of lords held that direction in terms of gross negligence was appropriate direction. Lord MACKAY observed, "...... the ordinary principles of the law of negligence apply to ascertain whether or not the defendant has been in breach of a duty of care towards the victim who has died. If such breach of duty is established the next question is whether that  breach of duty caused the death of the victim. If so the jury must go on to consider whether that breach of duty should be characterised as gross negligence and therefore as a crime." 51The death must be caused by unlawful or negligent act and if there is situation where, on examination of the evidence, it cannot be said that death as alleged was caused by an act which was unlawful or negligent, then the critical link in chain of causation is not established. 52

NO CONVICTION OF DOCTOR  In a medical negligence case complainant at one place alleged that the deceased died in hospital on account of injection being given negligently by the petitioners doctors and at another place alleged that the patient died due to excess administration of anesthesia or bleeding through canula arranged by doctor. However  postmortem report did not show that the deceased died on account of any hemorrhage. It was not emphasised  by the complainant that injection was given in such a careless manner that it caused death of victim. It was held that it was not a case for taking cognizance of offence u/s. 304A and proceedings were liable to be quashed. 53The accused was alleged to have shown negligence in not attending patient on time. It so happened that in post operative complications surgeon refused to examine patient when he was informed about the condition of patient. However he examined the patient next day and again performed another surgery but there was no evidence to show that he had made any mistake either in the first surgery or second surgery. The proximate cause of death was not failure to visit patient. It was held that alleged negligence on part of the doctor was not so reckless or grossly negligent act so as to invite criminal prosecution. 54 The accused, a Homoeopathic practitioner, administered to a patient suffering from guinea worm, 24 drops of stramonium and a leaf of dhatura without studying its effect; the patient died of poisoning. The accused was held guilty under this section. 55 A compounder in order to make up a fever mixture took a bottle from a cup-board where non-poisonous medicines were kept and without reading the label of the bottle which was in its wrapper added its full contents to a mixture which was administered to eight persons out of whom seven died. The bottle was marked poison and contained strychnine hydrochloride and not quinine hydrochloride as he supposed. It was held that the compounder was guilty under this section. 56

 18

QUASHING OF CHARGE The complainant's daughter had suffered epilepsy due to rash and negligent act of the petitioner doctor while treating her. Evidence on record showed that test dose was given to the patient in presence of concerned expert and not by the petitioner and due care and attention was given in treating the patient as petitioner exhibiting his concern for patient had himself taken him to the hospital in his case. Apart from this he was a qualified neurologist. The High Court refused to interfere with order of magistrate recalling summoning order against the petitioner doctor. 5

 19

ACT NOT RASH OR NEGLIGENT Where the accused threw his stick at the deceased with such force that it hit the deceased on the head with the point, and made a punctured wound which caused the death of the deceased, it was held that he was not guilty of an offence under this section because the injury was intentionally caused to the deceased, but was guilty of causing hurt. 86 The accused carrying a loaded gun stood quietly in a corner of a public place and was watching a dramatic performance. One of the actors, who was playing the part of a drunken dacoit, to enhance the effect of his acting approached the accused and grappled with him and in the course of the struggle the gun went off and the actor was killed. It was held that the accused was not guilty of a negligent act or causing death by a negligent act. 87 If the driver of a motor vehicle does not blow the horn because the  prevailing traffic rules prohibit him from doing so, it cannot be said that he has failed to exercise reasonable and proper care, nor can it be said that duty to blow the horn was imperative upon him, so as to hold him guilty of negligence under this section. 88 If a pedestrian suddenly crosses a road without taking note of an approaching bus and thus gets killed by dashing against the bus, the driver cannot be held responsible for any rash or negligent act. 89 Where a bus driver finding a level crossing gate open at a time when there is no train scheduled to pass tries to cross the railway line and the rear portion of the bus collides with an on-coming goods train resulting in the death of four passengers, the driver cannot be held responsible for an offence under this section. 90 A bus with some corrugated sheets on the roof was being driven by the accused. On the way, due to jolting, these sheets got loose and fell down on the heads of passers-by, one of which later died. The investigating officer did not care to seize either those sheets and even ascertain who the owner of the bus was and for the matter of that as to who actually loaded those sheets without tying them properly. It was held that the bus driver could not be held liable under this section. 91The accused was driving a passenger bus at moderate speed along a narrow 12' road which had deep ditches on either side of the road. When the bus reached a  place where a kaccha road bifurcated for a nearby village, a girl of 4 suddenly ran across the road from left to right. The accused in order to save the girl swerved the bus to the right to the extent possible but still the left wheel hit the girl and she died on the spot. In setting aside his conviction under this section the Supreme Court held that it was a case of pure error of judgment and not a rash or negligent act. It further held that the doctrine of " res ipsa loquitur"  (i.e., let thing speak for itself) had no application in a criminal case. 92 In a case, it was alleged by the second respondent that when her husband was in a serious condition, he was taken to the hospital wherein the accused doctor did not attend to the patient immediately. On being insisted by her, the accused became angry, administered an injection to the patient and patient was taken to another hospital where he was pronounced dead. The Apex Court held that the ''allegations do not disclose,  prima facie, a case of rash or negligent act on the part of the appellant so as to attract the penal provision under Section 304-A, I.P.C. By no stretch of imagination can it be said that the death of the deceased was caused by any act done by the appellant." 93 Victim suddenly crossed the road after getting down from a truck and was crushed under rear wheels of a  passing vehicle. It was held that the accused driver was not negligent as he had no time to apply the brake. Since he was not driving rashly and negligently he was acquitted. 1 Similarly evidence showed that the victim had dashed his motor cycle with truck from behind and it was held that there was no negligence on part of the driver of truck and conviction was liable to be set aside. 2

 20

ACT AND PROOF When the driver of the bus, namely accused before the Court was not at all previously known to the witnesses who identified him, and when they had not volunteered any type of description while making statement to the police, and had not been asked to participate in any test identification parade; the identification of the accused before the Court when one was appearing after more than a year of the accident and the other, after about two years, was not worthy of any credence and thus there was no evidence to connect the accused with the rash and negligent driving justifying his conviction. 3 To sustain a charge under Section 304A, the prosecution must prove that it was much more than a simple negligence. 4 Acquittal of accused on the ground of failure to prove that the accused was driving the offending vehicle that caused accident, is unwarranted when the driving licence seized immediately after the accident and the accused fled away thereafter and later surrendered himself in Court. 5 In absence of explanation about the accident the principle res ipsa loquitur  applies and the accused must be held guilty. 6 Evidence clearly established that accident had taken place only due to rash and negligent driving of lorry by its driver. It was established that lorry at the time of accident was being driven by the accused and there was no mechanical fault in it. As per medical report death had occurred due to various fractures and head injury sustained by the deceased. His conviction u/s. 304A was held proper. 7 Eye witness statement was not inspiring confidence as he was not in position to explain as to how he had identified the accused in Court. However conviction was upheld but sentence was reduced. 8

PROOF OF CRIMINAL RASH OR NEGLIGENT ACT AND PRINCIPLES OF RES IPSA LOQUITUR. The maxim res ipsa loquitur  means the thing speaks for itself. This maxim applies in actions for negligence where the circumstances of an accident are such that it is so improbable that it would have occurred without the negligence of the defendant, that it can be presumed that it was so caused, e.g., where a moving motor car collides with a stationary vehicle. The onus is on the defendant to disprove the presumed negligence. 9 In a case a motor vehicle driven at high speed knocked down a pedestrian who was walking on the left side of the road, causing his death. After hitting the victim and breaking down road side fencing the vehicle was stuck up in a ditch. The guilt of the accused stands proved by application of res ipsa loquitur.10

COMPENSATION TO VICTIM OR FAMILY In this case, the accused was seen being chased by two constables who were shouting stop, stop and immediately thereafter gunshots were heard. Injured was brought to road and taken to hospital where he was declared brought dead. It was held that finding of Lower Court that the accused had died in police action was  proper and mother of the deceased was entitled to compensation. 11

 21

PUNISHMENT In conviction under Section 304A, I.P.C., 1860, the legislature in its wisdom has given discretion to the Court to fix up the proper sentence and imprisonment is not a must merely because human life is lost. 12 Driving was in rash and negligent manner as road was narrow but speed was high and there was sign board indicating go-slow. It was held that acquittal of driver by trial Court has resulted in miscarriage of justice. The accused was, therefore, convicted but sentence was reduced to the period already undergone. 13 The death of patient was caused due to negligence of accused in not putting a cuffed endotracheal tube of  proper size in a prescribed manner. It was held that though act may amount to negligence but it was not so reckless or grossly negligent as to make him criminally liable. Proceedings were quashed. 14 The accused, who was driving bus on public road in rash and negligent manner he was held liable for causing the death by negligence. Since case was pending for 10 years and accused was under stress sentence was reduced to three months simple imprisonment with a fine of Rs. 1000/-. 15 In a case, the accused was driving a truck full of cylinders. But the truck driven by the accused while trying to overtake a tractor overturned with the result that the passengers seated in a truck got injuries. The injury of one was fatal. The accused was convicted u/s. 304A but it was found that at the time of the occurrence the accused was only 24-year-old and he was not a previous convict. His corporal punishment was set aside and he was sentenced only to a fine of Rs. 1500/-, a part of which was paid to heirs of the deceased. 16 Where the driver had not only driven his bus in a reckless manner and caused the death of one person and injuries to another but he had also attempted to escape prosecution by failing to report the accident to the  police authorities and the driver was guilty of offence under Section 304Aand other offences, the accused deserves a strict sentence. The Supreme Court raised the sentence to six months' R.I. and fine of Rs. 1000/in default to undergo R.I. for two months. 17 But, the mere fact that a human life is lost due to negligent driving of motor car does not justify the Court in passing a deterrent sentence, if the lost life could not have  been reasonably anticipated by the accused. In considering the question of enhancement of sentence one has to consider whether the rash and negligent act of the accused which has occasioned the death, shows callousness on his part as regards the risk to which he was exposing other persons. The severity of the sentence must depend to a great extent on the degree of callousness which is present in the conduct of the accused. 18 In a case the accused bus driver drove his vehicle at the extreme wrong side at a high speed and dashed against an autorickshaw and caused death of two persons. The offence answered Section 304A, I.P.C. High Court declined to reduce the sentence of imprisonment of 18 months. Benefit of probation was refused. 19 The driver was driving the car in a rash and negligent manner whereby car dashed against a tree resulting in death of one passenger and injuries to others. As per evidence road was sufficiently wide and there was no mechanical defect in vehicle. The trial Court however committed some procedural irregularities in convicting the accused u/ s. 279, 337, 338 and 304A, the case was therefore remitted to the learned Magistrate to  proceed as afresh in accordance with the law. 20 The truck was being driven rashly and negligently resulting in death of one person and evidence on records clearly proved the guilt of truck driver u/ s. 279, 338/ 304A. The time of seven years had already elapsed and there were other mitigating circumstances available in favour of accused person, his sentence was, therefore, reduced but benefit of probation was denied. 21 Due to

 22

fire in DVB transformer parked vehicles were affected and thick smoke and toxic gas resulted in entrapment and asphyxiation of patrons in balcony of cinema hall. There were no proper safety devices and violation of rules and by-laws made for public safety contributed to tragedy in equal proportion. It was held that framing of charge u/ s. 304A, 337, 338, 36 and Section 14 of Cinematograph Act was proper. 22 The offence under Section 304Ais committed without any mens rea. In conviction under Section 304A, I.P.C., the interest of justice would be met if the accused is sentenced to pay a fine instead of jail sentence,  particularly, when a long period (seven years) elapses after the occurrence before the conviction. 23 The accused was driving his vehicle rashly and negligently knowing it well that heaps of sand and stones lying on the road had made it narrow. The vehicle went beyond his control and hit a cyclist who was crushed under the rear wheels of the vehicle. It was held that evidence was sufficiently enough to support the allegations of the prosecution that the accused driver was driving the vehicle rashly, negligently and with a high speed. He was, accordingly, convicted under Section 304A. 24 Where guilt of accused was not proved and it could not be established that the deceased fell down from the bus as driver while overtaking another vehicle had applied  brakes at full speed,25 it was held that driver was entitled to the acquittal. 26 The accused caused accidental death by gun shot injury and made extra-judicial confession before the witness whose evidence was found vague, discrepant, doubtful and incomplete. The accused was held entitled for the acquittal. 27 Similarly the accused was acquitted where he was not driving the vehicle at the time of accident. 28 In a case of rash and negligent driving causing death of a boy having regard to the fact that the occurrence took place 15 years ago the appellant was released on probation of good conduct. 29

REDUCTION IN SENTENCE Death of accused was due to negligent driving and accused was in custody for more than nine months. Court reduced the sentence from two years to one year. 30 Accused had taken illegal electric connection to his house and when the deceased came to meet him he was electrocuted. It was held that death was caused due to negligence of accused and he was rightly convicted. However sentence of imprisonment was modified to heavy fine.31 Supreme Court is of the view that interference with sentence by revisional Court is not proper as it is likely to set unhealthy precedent to subordinate Court. 32 The accused was found guilty of rash and negligent driving which had caused death of 4 persons and injuries to one person. The trial Court convicted him u/s. 279, 304A, 337 & 338 but in revision High Court reduced sentence into fine on the ground that collision was due to bursting of front tyre whereas this possibility was not accepted by trial Court. Supreme Court held that interference with sentence by revisional Court was not  proper and it was likely to set unhealthy precedent to the subordinate Courts. The accused was hence sentenced to simple imprison for six months for offence u/s. 304A. 33 The deceased child fell down from school stairs. It was held that principal or teacher of school could not be held liable for causing death by negligence. 34 In an English case driver caused death as he lost the control over the vehicle due to hypoglycaemic attack which occurred without warning. It was held that where driver was aware of his bodily defect, it was immaterial that this condition was caused by diabetes or alcohol. 35

 23

PUTTING ACCUSED ON PROBATION Accused driver caused death of the deceased due to negligent driving. Since prosecution witnesses already knew the accused not only by name but also by face and place of his residence, holding of T.I. Parade was not considered necessary. It was held that no interference was needed in concurrent findings of lower Court whereby the accused was convicted. However keeping in view the age of accused and the fact that it was solitary offence attributed to him, he was put on probation of one year instead of subjecting him to undergo actual sentence. 36

GRANT OF PROBATION Accused had caused death by rash and negligent driving but was released on probation. It was held that  benefit of probation could not be accorded to the accused held guilt u/s. 304A as it would amount to ignoring of law laid down by the Apex Court in Dalbir Singh v. State of Haryana .37 The case was remanded back for fresh consideration.38

PRACTICE AND PROCEDURE

(A) ESSENTIAL INGREDIENTS

An offence under Section 304A has following essentials: (i) (ii)

That the accused caused the death of any person; That such death was caused by the accused doing any rash act; Or That such death was caused by the accused doing any negligent act; and

(iii)

Such a death did not amount to culpable homicide.

(B) EVIDENCE

To prove the offence under Section 304A, I.P.C.the prosecution is to prove: ( i) It is the accused who did some act which was rash or negligent; (ii) it entailed death of any person; (iii) this death is the direct result of the rashness or negligence; (iv) that this rash and negligent act did not amount to culpable homicide. As to the first criterion, it must be established that the accused committed the rash and negligent act. Connecting the accused with the crime is of vital importance. The prosecution is required to prove that the act was much more than simple negligence. (C) PROCEDURE

 24

The offence is cognizable, bailable and not compoundable. It is triable by Magistrate, First class as warrant case. (D) CHARGE

A Model charge under Section 304A, I.P.C. is as follows: I, _______ (name and office of Judicial Magistrate of the first class, etc.), hereby charge you (name etc. of accused person) as herebelow:-That you, on or about the _______ day of _______, at _______, caused the death of _______ by doing a rash or negligent act not amounting to culpable homicide, to wit _______, and thereby committed an offence  punishable under Section 304A, I.P.C., and within my cognizance. And I do hereby direct you to be tried on the said charge. (E) PUNISHMENT

The sentence should be a proper one and considering all the facts. Merely because a life was lost--the sentence need not be deterrent. The callousness must be looked for the severity of the sentence. The Courts have frawned against a lenient approach towards sentence, when death of an innocent person resulted in the occurrence.

ENDNOTES 38 Sukaroo Kobiraj, v (1887) 14 Cal 566, 569;  Chhallu, v (1941) All 441. 39 KENNY on Outlines of Criminal Law, 19th Edn., para 25, pp. 38-39. 40 HALSBURY'S Laws of England , 4th Edn., Vol. 11, para 17, p. 20. 41  Manish Jalan v. State of Karnataka, 2008 CrLJ 3941 (SC):  Manish Jalan v. State of Karnataka, AIR 2008 SC 3074:  Manish Jalan v. State of Karnataka, (2008) 8 SCC 225. 42  Kuldeep Singh v. State, 2008 CrLJ 3932 (SC):  Kuldeep Singh v. State, AIR 2008 SC 3062. Where evidence was not sufficient t o support the case of prosecution, the conviction was set aside, State v. Nathu Lal, 2008 CrLJ 3861 (Raj). 43  Matu Ram v. State, 2008 CrLJ 4181 (P&H). Coaccused was acquitted. 44  Katcherla Venkata Sunil v. Dr. Vanguri Seshumamba, 2008 CrLJ 853 (AP). Occupants of tempo and eye witness did not support the theory of rash and negligent driving and acquittal was held proper;  State v. Mahmad Sarif Umar, 2008 CrLJ 644 (Guj). 45 Sarita Upneja (Dr) Smt. v. State, 2008 CrLJ 3097 (Raj). Supreme Court cases  Jacob Mathew v. State of Punjab, 2005 CrLJ 3710and Suresh Gupta v. Govt. of N.C.T. of Delhi, 2004 CrLJ 3870were followed in this case. 46 State of H.P. v. Mohinder Singh, (1989) 2 Crimes 159. Where accused intentionally drove his tractor in such a m anner that it ran over the deceased causing his death. Evidence sufficiently proved the guilt of the accused and it was held that the accused would be liable u/s. 302 and not u/s. 304-A, R. Payani v. State of Andhra, 1994 CrLJ 78 (AP); also see  Surendra Kumar v. State, 1996 CrLJ 94 (All). The accused was given benefits of doubt as he could not avoid the accident in the circumstances the occurrence had taken place. Similarly where there was no proper medical evidence about the nature of injuries the conviction was set aside,  P.C. Poulose v. State, 1996 CrLJ 203 (Ker). 47  Ambalal, In Re AIR 1967 Mad 365:  Ambalal, In Re 1967 CrLJ 1521:  Ambalal, In Re (1966) 2 Mad LJ 433.

 25

48 State of Gujarat v. Haiderali, AIR 1976 SC 1012: State of Gujarat v. Haiderali, 1976 CrLJ 732: State of Gujarat v. Haiderali, (1976) 1 SCC 889: State of Gujarat v. Haiderali, 1976 SCC (Cri) 211. 49  Bhalachandra Woman v. State of Maharashtra, 1968 SCD 198:  Bhalachandra Woman v. State of Maharashtra, 1968 MPLJ 371:  Bhalachandra Woman v. State of Maharashtra, 1968 ACJ 38; S.N. Hussein v. State of A.P., AIR 1972 SC 685: S.N. Hussein v. State of A.P., 1972 CrLJ 496: S.N. Hussein v. State of A.P., (1972) 1 SCWR 306: S.N. Hussein v. State of A.P., 1972 ACJ 140: S.N. Hussein v. State of  A.P., 1972 SCD 433: S.N. Hussein v. State of A.P., (1972) 3 SCC 18;  Krishna v. State of Assam, 1979 CrLJ 1258:  Binoy v. State of WB 1984 CrLJ 1038:  Binoy v. State of WB 88 CWN 329. 50  Pitala Yadagiri v. State of A.P., (1991) 2 Crimes 359 (AP). The driver was driving the vehicle rashly and negligently whereby a sch ool girl was killed. It was held that he was li able u/s. 304-A, Prafulla Kumar Roat v. State, 1995 CrLJ 1277 (Ori). Similarly conviction was held  proper where accused had turned his vehicle in such a high speed that the passengers had fallen down on the road. It was held that he was liable to be convicted u/s. 304-A but sentence of imprisonment was reduced to period already undergone and amount of fine was enhanced, Shiv Dev Singh v. State (Delhi), 1995 CrLJ 2142 (Del). 51 Vijayan v. State of Kerala, (1991) 2 Crimes 305 (Ker). 52  Kishore Chand v. State, 2003 CrLJ 3321 (Del):  Kishore Chand v. State, 2002 (97) DLT 705. A doctor was framed for causing death of newly born baby due to negligence but he was Emergency Medical Officer on c all and previous sanction u/ s. 197CrPC was not taken. Framing of charge and taking cognizance u/ s. 304A was set aside,  Beenu Yadav (Dr.) v. State, 2003 CrLJ 3402 (MP):  Beenu Yadav (Dr.) v. State, 2003 CrLR (SC & MP) MPJ 564. 53  Royal College of Nursing of United Kingdom v. Department of Health and Social Security, (1981) 1 All ER 545 HL:  Royal College of  Nursing of United Kingdom v. Department of Health and Social Security, (1981) AC 800:  Royal College of Nursing of United Kingdom v.  Department of Health and Social Security, (1981) 2 WLR 279. 54  Balwant Singh v. State of Punjab, 1994 SCC (Cri) 844:  Balwant Singh v. State of Punjab, 1994 (1) Crimes 745 (SC):  Balwant Singh v. State of Punjab, 1994 Supp (2) SCC 67. 55  Paras Nath v. State, 2004 CrLJ 731 (Delhi). Deceased was alighting when driver moved the truck without any warning signal. He was convicted for negligent driving and for carrying passengers in open truck in flagrant violation of rules,  Munna Khan v. State, 2004 CrLJ 525 (Chhattisgarh). 56 State of Maharashtra v. Salman Salim Khan, 2004 CrLJ 920 (SC): State of Maharashtra v. Salman Salim Khan, (2004) 1 SCC 525: State of Maharashtra v. Salman Salim Khan, AIR 2004 SC 1189. The deceased fell down from third floor while watching tying of rope to weight being lifted from ground floor. It was held that due to absence of mens rea accused could not be convicted,  D.S. Ghai v. State, 2004 CrLJ 1024 (Kar). 57  Mangan Rabidas v. State of Bihar, (1991) 2 Crimes 447 (Pat). 58  Damodaran, v (1888) 12 Mad 56. 59  Heera, v (1901) 3 Bom LR 394. 60  Kurban Hussain, v (1964) 67 Bom LR 447 (SC):  Kurban Hussain, v AIR 1965 SC 1616:  Kurban Hussain, v (1965) 2 CrLJ 550. 61  Dayal v. Union of India, AIR 1963 HP 18:  Dayal v. Union of India, (1963) 1 CrLJ 762. 62  Ketabdi Mundul, v (1879) 4 Cal 764, 766. 63 Chhallu, v (1941) All 441. 64 See heading No. 2 under S. 279 I.P.C. 65 Per STRAIGHT J., in Idu Beg, v (1881) 3 All 776, 780;  Attra, v (1891) PR No 9 of 1891;  Bhalchandra, v (1968) 71 Bom LR 634 (SC). 66 Sundaram Pillai, In Re 1969 ACJ 430: Sundaram Pillai, In Re 1969 Mad LJ (Cr) 757: Sundaram Pillai, In Re 1969 Mad LW (Cr) 134: Sundaram Pillai, In Re (1969) 2 Mad LJ 464relying on AIR 1926 Cal 300: ILR 3 All 776: AIR 1953 All 72: AIR 1954 All 187. 67  Pritam Singh v. State, 35 Cut LT 723.

 26

68 Note M P-65. 69  Nidamarti Nagabhushanam, v (1872) 7 MHC 119, 120;  Smith, v (1925) 53 Cal 333;  Rangaswamy, v (1952) Nag 93. 70  Juggankhan v. State of M.P., AIR 1965 SC 831:  Juggankhan v. State of M.P., (1965) 1 CrLJ 763:  Juggankhan v. State of M.P., (1965) 1 SCR 14. 71 Gaya Prasad, v (1928) 51 All 465. 72  Ambalal, In Re AIR 1967 Mad 365:  Ambalal, In Re 1967 CrLJ 1521:  Ambalal, In Re (1966) 2 Mad LJ 433. 73 Captain D'Souza v. Pashupati Nath Sarkar, 1968 CrLJ 405. 74 Sadhu Singh Harnam Singh v. State of Pepsu, AIR 1954 SC 271: Sadhu Singh Harnam Singh v. State of Pepsu, 1954 CrLJ 727 (SC). Similarly where deceased was thrown out of truck due to a jerk and case was pending for long period the sentence was reduced to the period already undergone; Bharat Pandhari Nath More v. State, 2004 CrLJ 205 (Bom). 75 Shiv Dani Singh v. State, 2004 CrLJ 338 (Jhar). 76  Md. Rangawalla v. State of Maharashtra, AIR 1965 SC 1616:  Md. Rangawalla v. State of Maharashtra, (1965) 2 CrLJ 550:  Md.  Rangawalla v. State of Maharashtra, (1965) 1 SCWR 718. 77 Satya Prakash Chowdhury v. State of M.P., 1990 CrLJ NOC 132 (MP). 78  Rustom Sherior Irani v. State of Maharashtra, 1969 ACC CJ 70 (SC). 79  Kishan Chand v. State of Haryana, 1970 UJ (SC) 845:  Kishan Chand v. State of Haryana, 1970 Cur LJ 893:  Kishan Chand v. State of  Haryana, 1970 SCD 1166:  Kishan Chand v. State of Haryana, (1971) 2 SC Cri R 18:  Kishan Chand v. State of Haryana, (1970) 2 SCWR 655. This settled legal position found approval of the Supreme Court in  Kurban Hussain's case, v AIR 1965 SC 1616:  Kurban Hussain's case, v (1965) 2 CrLJ 550;  Suleman Rahiman's case, v AIR 1968 SC 829and  A.D. Bhatt v. State of Gujarat, AIR 1972 SC 1150:  A.D. Bhatt v. State of Gujarat, 1972 CrLJ 727:  A.D. Bhatt v. State of Gujarat, (1972) 3 SCC 525. 80  P.S. Jose v. State of Kerala, 1994 CrLJ 363 (Ker). 81  Badri Pd. Tewari v. State of Orissa, 1994 CrLJ 389 (Ori). The accused had fired shot at the fleeing complainant pa rty but also shot dead the son of the c omplainant who was standing nearby. It was held t hat accused was guilty of murder and should be punished u/s. 302 and not u/s. 304-A, Abdul Ise Suleman v. State of Gujarat, 1995 CrLJ 464 (SC):  Abdul Ise Suleman v. State of Gujarat, 1994 Supp (2) SCC 9:  Abdul Ise Suleman v. State of Gujarat, AIR 1994 SC 1910:  Abdul Ise Suleman v. State of Gujarat, (1994) 2 Crimes 962. The accused killed 8 persons due to his rashness and negligence and all available evidence fully supported the case of the prosecution. It was held that conviction u/s. 304-A was proper,  M.A. Waheed v. State, 1996 CrLJ 1059 (AP). 82  Nallapareddy Janardhan Reddy v. State, 1996 CrLJ 3034 (AP). Also see  Kulwant Singh v. State of Punjab, 1997 CrLJ 2055 (P&H)where accused had killed a scootrist by his rash and negligent driving and it was held that no compassion could be shown to the accused and sentence of 1-1/2 years R.I. itself was meagre and no reduction in it was needed. 83 State v. Benoy Thomas, 1997 CrLJ 1255 (Kant). 84 Sita Ram v. State of Rajasthan, 1998 CrLJ 287 (Raj). 85  Ram Niwas v. State of U.P., 1998 CrLJ 635 (All). Benefit of probation was refused where accus ed by rash and negligent driving had killed an innocent child, Ganpat Singh v. State, 1998 CrLJ 716 (Raj). 86 S.N. Hussain v. State of A.P., (1972) 1 SCWR 306: S.N. Hussain v. State of A.P., 1972 Cri AP R 124 (SC): S.N. Hussain v. State of  A.P., 19 ACJ 140: S.N. Hussain v. State of A.P., 1972 SC Cri R 221: S.N. Hussain v. State of A.P., 1972 SCD 433: S.N. Hussain v. State of  A.P., 1972 UJ (SC) 487: S.N. Hussain v. State of A.P., (1972) 3 SCC 18: S.N. Hussain v. State of A.P., 1972 SCC (Cri) 254: S.N. Hussain v. State of A.P., AIR 1972 SC 685. 87  Joseph v. State of Kerala, 1990 CrLJ 56 (Ker).

 27

88  B.E. Chandrashekhar v. State, 2007 CrLJ 486 (Kant). 89  D. Selvaraj v. State, 2007 CrLJ 909 (Kant). 90  Emp. Omkar, v (1902) 4 Bom LR 679, followed in  Akbar Ali, v (1936) 12 Luck 336;  Chinubhai Haridas, v (1959) 61 Bom LR 1309. 91  Kurban Hussein, v (1965) 2 SCR 622:  Kurban Hussein, v 67 Bom LR 447; see also A.D. Bhatt, v 1972 CrLJ 727 (SC):  A.D. Bhatt, v AIR 1972 SC 1150;  Juddhisthir Palata v. State of Orissa, (1971) 2 Cut LT 673. 92 Suleman v. State of Maharashtra, 1968 CrLJ 1013: Suleman v. State of Maharashtra, AIR 1968 SC 829;  Ladu Kishore Panigrahi v. State of Orissa, (1971) 2 Cut WR 585:  Ladu Kishore Panigrahi v. State of Orissa, 37 Cut LT 1142. 93 State v. C. Angaddi, AIR 1969 Goa 39: State v. C. Angaddi, 1969 CrLJ 466; Ananda Singh v. State, AIR 1969 Ori 49:  Ananda Singh v. State, 1969 CrLJ 428:  Ananda Singh v. State, 34 Cut LT 1189:  Ananda Singh v. State, AIR 1972 SC 1150;  Juddhishthir Palata v. State of Orissa, (1971) 2 Cut LT 673. 94  Khanmahomed, v (1936) 38 Bom LR 1111. 95  Akbar Ali, v (1936) 12 Luck 336. 96 Tukaram Sitaram, v (1970) 72 Bom LR 492. 97  Finney, v (1874) 12 Cox 625;  Sat Narain Pandey, v (1932) 55 All 263. 98 State v. Hari Singh, AIR 1969 Raj 86: State v. Hari Singh, 1968 Raj LW 485: State v. Hari Singh, 1969 CrLJ 444: State v. Hari Singh, 1969 ACJ 19; V. Rugmini v. State of Kerala, 1987 CrLJ 200: V. Rugmini v. State of Kerala, 1986 Ker LT 1356 (FB). 99 Satya Prokash v. State of Rajasthan, 1986 CrLJ 542: Satya Prokash v. State of Rajasthan, 1985 Raj LW 162: Satya Prokash v. State of  Rajasthan, 1985 Raj LR 293: Satya Prokash v. State of Rajasthan, (1985) 1 WLN 345. 1 Ghanashyamdas v. State of M.P., 1977 CrLJ 1373. 2 1970 All Cr R 167 (All). 3  Meera Puri v. State of Nagaland, 1971 CrLJ 539:  Meera Puri v. State of Nagaland, Ass LR 1971 (Ass) 22. 4  Raj Karan Singh v. State, 2000 CrLJ 555 (All). 5 Satnam Singh v. State of Rajasthan, 2000 CrLJ 584 (SC): Satnam Singh v. State of Rajasthan, (2000) 1 SCC 662: Satnam Singh v. State of Rajasthan, AIR 2000 SC 423. 6  M. Shafi Goroo v. State, 2000 CrLJ 2172 (Del). 7  Dalbir Singh v. State of Haryana, 2000 CrLJ 2283 (SC):  Dalbir Singh v. State of Haryana, AIR 2000 SC 1677:  Dalbir Singh v. State of  Haryana, (2000) 5 SCC 82. The Court has observed, "He must always keep in his mind the fear psyche that if he is convicted of the offence for causing death of a human being due to his callous driving of vehcile he cannot escape from jail sentence.". 8  Mohammed Aynuddin v. State of Andhra Pradesh, 2000 CrLJ 3508 (SC):  Mohammed Aynuddin v. State of Andhra Pradesh, (2000) 7 SCC 72:  Mohammed Aynuddin v. State of Andhra Pradesh, AIR 2000 SC 2511. 9  Ladu Kishore Choudhury v. State, 2000 CrLJ 3617 (Ori). 10  Ajaib Singh v. State of Punjab, 2000 CrLJ 4362 (P&H). 11 Suyambu v. State, 2001 CrLJ 1577 (Mad). 12 State of Maharashtra v. Bhalchandra, AIR 1966 Bom 122: State of Maharashtra v. Bhalchandra, 1966 CrLJ 400. 13 HALSBURY'S Laws of England , 4th Edn., Vol. 11, para 1170, p. 625.

 28

14 CROSS & JONES Introduction to Criminal Law, 4th Edn., Vol. 11, para 16.4, pp. 325-326. 15  R. v. DPP, Ex P Jones (Timothy), (2000) 1 RLR 373 QBD. 16  Rathnashalvan v. State of Karnataka, 2007 CrLJ 1451 (SC). 17 Shakila Khader v. Nauser Gama, AIR 1975 SC 1324: Shakila Khader v. Nauser Gama, (1975) 4 SCC 122: Shakila Khader v. Nauser Gama, 1975 CrLJ 1105: Shakila Khader v. Nauser Gama, 1975 SCC (Cri) 379: Shakila Khader v. Nauser Gama, (1975) 2 SCWR 130: Shakila Khader v. Nauser Gama, (1975) 2 AP LJ (SC) 9. 18  J.S. Gore v. State, AIR 1971 Bom 164:  J.S. Gore v. State, 1971 CrLJ 767:  J.S. Gore v. State, 1970 ACJ 362:  J.S. Gore v. State, 1970 Mah LJ 763:  J.S. Gore v. State, 72 Bom LR 492;  Ladu Kishore v. State, 37 Cut LT 1142:  Ladu Kishore v. State, (1971) 2 Cut WR 585. 19  A.P. Raju v. State of Orissa, 1995 SCC (Cri) 675:  A.P. Raju v. State of Orissa, 1995 Suppl (2) SCC 385. 20  Baij Nath Singh v. State of Bihar, (1972) 2 SCWR 177:  Baij Nath Singh v. State of Bihar, 1972 Cri App R 238 (SC):  Baij Nath Singh v. State of Bihar, 1972 SC Cri R 397:  Baij Nath Singh v. State of Bihar, 1972 ACC CJ 448:  Baij Nath Singh v. State of Bihar, 1972 SCD 1025:  Baij Nath Singh v. State of Bihar, AIR 1972 SC 1485 (1486, 1487):  Baij Nath Singh v. State of Bihar, 1972 CrLJ 919. 21 Soma Bhai Mangal Bhai v. State of Gujarat, (1988) 3 Crimes 702 (Guj). Mere driving at a high s peed is not a negligent act, therefore driver of vehicle was not held liable for accident and his conviction was set aside,  Pradeep Kumar v. State of Haryana, 2000 CrLJ 3394 (P&H). 22 Chhanga v. State, 2003 CrLJ 4306 (MP): Chhanga v. State, 2003 Cr LR (SC & MP) MPJ 357. 23 State v. Bhagirath, 2003 CrLJ 4608 (MP): State v. Bhagirath, 2003 (2) MPLJ 462;  Rattan Singh v. State of Punjab, AIR 1980 SC 84:  Rattan Singh v. State of Punjab, 1980 CrLJ 11 (SC)was followed in this case. The Supreme Court in that case had refused to reduce the sentence of two years as rash & negligent driving of truck driver had resulted in fatal accident. 24 Suruvu Parashaiah v. State of A.P., 2006 CrLJ 824 (AP). Scene of offence panchnama is not substantive evidence and order taking  panchnama as corroboration to oral testimony or to draw inference of rash and negligent driving is improper. 25  Prakash v. State, 2006 CrLJ NOC 94 (Utr). In  Gajanan Malik v. State, 2006 CrLJ 1146 (Bom)as per evidence accident took place due to mechanical defect of locking of steering and accused were acquitted. 26  Raghunath Pradhan v. State, 2006 CrLJ 3211 (Ori). 27  Madhukar Bhausaheb v. State, 2006 CrLJ 3700 (Bom). 28  Mahadev v. State, 2006 CrLJ 4246 (MP). 29  Muthuswamy v. State of T.N., 1989 CrLJ NOC 140 (Mad):  Muthuswamy v. State of T.N., 1988 Mad LW (Cr) 172:  Muthuswamy v. State of T.N., (1989) 1 Crimes 75. 30  Kishnaram v. State of Rajasthan, (1989) 2 Crimes 489 (Raj). 31  Mahadeo Hari Lokre v. State of Maharashtra, AIR 1972 SC 221:  Mahadeo Hari Lokre v. State of Maharashtra, 1972 CrLJ 49:  Mahadeo Hari Lokre v. State of Maharashtra, (1972) 4 SCC 758:  Mahadeo Hari Lokre v. State of Maharashtra, (1972) 1 SCJ 485. 32  Pritam Singh v. State, 35 Cut LT 723. 33  Rajinder Singh v. State (Delhi Administration), (1991) 2 Crimes 416 (Del). 34  Idu Beg, v (1881) 3 All 776,778,779. 35 Swindall, v (1846) 2 C & K 230. 36 HALSBURY'S Laws of England , 4th Edn., Vol. 11, para 1173, p. 628.

 29

37  Mahadeo v. State of Maharashtra, 1972 CrLJ 49:  Mahadeo v. State of Maharashtra, (1972) 1 SCJ 485:  Mahadeo v. State of  Maharashtra, 1972 ACJ 185:  Mahadeo v. State of Maharashtra, 1972 Andh WR 184:  Mahadeo v. State of Maharashtra, 1972 Mad LJ (Cr) 270:  Mahadeo v. State of Maharashtra, 1972 MPLJ 609:  Mahadeo v. State of Maharashtra, (1972) 4 SCC 758. 38  P. Rajappan v. State of Kerala, (1985) 2 Crimes 507 (508):  P. Rajappan v. State of Kerala, 1986 CrLJ 511:  P. Rajappan v. State of  Kerala, (1986) 2 ACC 5. 39 Tukaram Sitaram Gore v. State of Bombay, 1971 CrLJ 767: Tukaram Sitaram Gore v. State of Bombay, AIR 1971 Bom 164: Tukaram Sitaram Gore v. State of Bombay, 1970 Mah LJ 763: Tukaram Sitaram Gore v. State of Bombay, 72 Bom LR 492. The licence of jeep driver was not seized by police soon after the accident and this created a doubt whether the knew perfect driving or not. The rush and negligent driving was not proved and accused  was acquitted, Kamal Daroi v. State, 2005 CrLJ NOC 108 (MP). 40  Nand Kishore, v (1884)6 All 248. 41 Thompson, v (1894) Unrep Cr C 721. 42 Sukaroo Kobiraj, v (1887) 14 Cal 566. 43  Budhya, v (1888) Unrep Cr C 398, but in  Sahae Rae, v (1878) 3 Cal 623, such act was held t o be grievous hurt. The accused was alleged to have caused the death by his negligent and rash driving but there was no evidence to show that accused was in any way connected with the offence. Moreover omission on part of prosecution t o examine investigating officer without any sat isfactory explanation had caused  prejudiced to the accused. It was held that conviction was liable to be set aside, Thana Ram v. State, 1996 CrLJ 2020 (P&H). Also see  State v. Nagaraja, 1997 CrLJ 696 (Kant)where accused driver was awarded inadequate sentence and his case was remanded back to trial Court for disposing of case afresh according to the law. 44  Mussammat Bakhan, v (1887) PR No 60 of 1887. In a somewhat similar case the Bombay High Court acquitted the accused of the offence of murder, Nagawa, v (1902) 4 Bom LR 425. 45  Bhutan, v (1894) 16 All 472. 46  Kamr-ud-din, v (1905) PR No 22 of 1905. 47  Jamna, v (1909) 31 All 290. 48  Ramava, v (1915) 17 Bom LR 217. 49  Hukum Prosad v. State of Orissa, 1987 CrLJ 251:  Hukum Prosad v. State of Orissa, (1986) 3 Crimes 308. 50 Gurdas Singh v. State of H.P., (1991) 3 Crimes 381 (HP). 51  R. v. Adamako, (1995) IAC 171:  R. v. Adamako, (1994) 3 All ER 79 HL:  R. v. Adamako, (1994) 3 WLR 288. In this case;  R. v.  Bateman, (1925) 19 CrAppR 8 CCA, and  Andrew v. DPP, (1937) 2 All ER 552 HL. were followed and for gross negligence it was said that there should be duty of care, gross breach of duty of care and breach must cause the death. 52  Inner South London Coroner, Ex p. Douglas Williams, v (1999) 1 All ER 344 (350). In case of gross negligence it should be establi shed that in given situation the accused was bound to foresee a serious and obvious risk not merely of injury or even serious injury but of death, Singh (Gurphal), v (1999) CrLR 582 CA. 53  M. Raghavan Rao (Dr.) v. Oruganti Buchireddy, 2006 CrLJ 3087 (AP). 54 Sujoy Das (Dr.) v. State, 2006 CrLJ 1148 (Bom). 55  Juggankhan, v AIR 1965 SC 831:  Juggankhan, v (1965) 1 CrLJ 763. 56  De Souza, v (1920) 42 All 272. 57  B.P. Saha v. Vinit Suri Dr., 2007 CrLJ 1482 (Del). 58 Cherubin Gregory v. State of Bihar, AIR 1964 SC 205; see also  Benoy Chandra, v 1984 CrLJ 1038 (Cal).

 30

59  Bhalchandra, v (1968) 71 Bom LR 248 (SC):  Bhalchandra, v AIR 1968 SC 1319:  Bhalchandra, v 1968 CrLJ 1501. 60 Supadi, v (1925) 27 Bom LR 604. 61 Smith, v (1925) 53 Cal 333. 62  Abdul Qayyum, v (1940) 21 Lah 646. 63 Gurdev Singh, v (1941) 24 Lah 50. 64 Chhotey Lal, v (1944) All 674. 65  Mangal Singh, v (1952) 31 Pat 716. 66  Hari Singh, v AIR 1969 Raj 86. 67  Baldevji v. State of Gujarat, AIR 1979 SC 1327:  Baldevji v. State of Gujarat, 1979 CrLJ 1136:  Baldevji v. State of Gujarat, (1980) 1 SCC 320. 68  Indramoni Jena v. State of Orissa, 1992 CrLJ 72 (Ori). 69 Shiva Ram, v AIR 1965 All 196. 70  Duli Chand, v 1975 CrLJ 1732 (SC):  Duli Chand, v (1975) 4 SCC 649:  Duli Chand, v AIR 1975 SC 1560; see also  Shakila Khader, v 1975 CrLJ 1105 (SC): Shakila Khader, v (1975) 4 SCC 122: Shakila Khader, v AIR 1975 SC 1324. 71 State of Gujarat v. HHyderali, 1976 CrLJ 732 (SC): State of Gujarat v. HHyderali, (1976) 1 SCC 889: State of Gujarat v. HHyderali, AIR 1976 SC 1012. 72 Sripati Pandey, v 1984 CrLJ NOC 46 (Gau). 73  Jagannath Sahu v. Sasibhushan Rath, 1995 CrLJ 4070 (Ori); also see  Pawankumar v. State, 1996 CrLJ 369 (All), where accused was convicted for killing the cart driver and buffalo by hitting the cart by the truck, and  Mann Prakash v. State, 1996 CrLJ 663 (P&H), where the truck had climbed on foot path and killed the deceased and conviction u/s. 304A was sustained. 74  Kaliaperumal v. State, 1996 CrLJ 3658 (Mad). Also see  Mahendra Singh v. State, 1996 CrLJ 3688 (P&H)where accused was tried for having killed the deceased by rash and negligent driving but prosecution had failed t o produce any evidence and tria l was dragged on for 8 or 10 years, it was held that procedure was not within spirit of reasonable procedure implicit under Article 21 of Constitution and sentence was reduced to S.I. for six months. 75  Kanwar Singh v. State, 1996 CrLJ 4054 (Raj). 76  Manohar Singh v. State, 1998 CrLJ 1900 (Raj). 77  K. Perumal v. State, 1998 CrLJ 4436 (Mad). 78  Rattan Baxi v. State, 1999 CrLJ 477 (Del). 79  Lakshmanan Prakash v. State, 1999 CrLJ 2348 (Mad). 80 State v. S.B. Marigowda, 1999 CrLJ 2171 (Kant); also see  Malleshi v. State, 1999 CrLJ 2617 (Kant), where accused was convicted for rash and negligent driving due to which two bullocks were injured and two persons were also injured out of which one had subsequently died. 81 Sanjeev v. State of Maharashtra, 1999 CrLJ 2923 (Bom). 82  Keshub Mahindra v. State of Madhya Pradesh, (1996) 6 SCC 129:  Keshub Mahindra v. State of Madhya Pradesh, 1996 (3) Crimes 288 (SC):  Keshub Mahindra v. State of Madhya Pradesh, 1996 SCC (Cri) 1124. 83  R. v. Kite, (1996) 2 Cri App R (S) 295Swinton Thomas LJ CA (Crim Div).

 31

84  R. v. Roberts and George, (1997) CrLR 209 (CA); Collins J . A drug dealer gave heroin to the victim girl who was a first time user. The overdose taken by her had caused serious adverse effect and subsequently she died. The dealer in whose flat all this incident had taken place instead of calling medical help had run away. It was held that actus reus in this case was dealer's omission to call the medical help but trial  judge could not consider whether there was duty to summon such help. If there is such duty then it would have effect of adding to the categories of person to whom such a duty was owed. The conviction for manslaughter was set aside;  R. v. Khan (Rungzabe) and Khan Tahir, v (1998) CLY p. 339 (CA):  Khan Tahir, v (1998) Crim LR 830. 85  R. v. Singh (Gurphal), (1999) CLY 354 (CA):  R. v. Singh (Gurphal), 1999 Cr LR 582 (CA). 86  Keegan, v (1893) Unrep Cr C 673. 87  Babu Ram, v (1942) All 884. 88 Tukaram Sitaram, v (1970) 72 Bom LR 492. 89  M.H. Lokre, v 1972 CrLJ 49 (SC):  M.H. Lokre, v (1972) 4 SCC 758:  M.H. Lokre, v AIR 1972 SC 221. 90 S.N. Hussain, v 1972 CrLJ 496 (SC): S.N. Hussain, v (1972) 3 SCC 18: S.N. Hussain, v AIR 1972 SC 685. 91  Baijnath Singh, v 1972 CrLJ 919 (SC):  Baijnath Singh, v (1972) 2 SCC 264:  Baijnath Singh, v AIR 1972 SC 1485. 92 Syad Akbar, v 1979 CrLJ 1374 (SC): Syad Akbar, v (1980) 1 SCC 30: Syad Akbar, v AIR 1979 SC 1848. 93  Rakesh Ranjan Gupta v. State of Uttar Pradesh, AIR 1999 SC 2115:  Rakesh Ranjan Gupta v. State of Uttar Pradesh, 1999 CrLJ 3484:  Rakesh Ranjan Gupta v. State of Uttar Pradesh, 1999 (1) SCC 188:  Rakesh Ranjan Gupta v. State of Uttar Pradesh, 1999 SCC (Cri) 76. 1 Shri Madhukar Gaurishankar Swamy v. State, 2007 CrLJ (NOC) 434 (Bom). 2  Ram Charan v. State, 2007 CrLJ 2884 (Chh). Where accused was a poor labourer and there was no record of previous conviction his imprisonment was reduced, Bansilal Babuji v. Vanjara : Vanjara v. State, 2007 CrLJ 2879 (Gujarat). 3  Ram Kishan v. State (Delhi Administration), 1989 CrLJ (NOC) 93 (Del). 4 1970 Ker LT 958: 1971 Mad LJ (Cr) 127: 1971 Ker LJ 134. 5 State of M.P. v. Jagdish, (1992) 1 Crimes 62 (MP): State of M.P. v. Jagdish, 1992 CrLJ 746 (MP). 6 State of M.P. v. Jagdish , ( Ibid ). 7 Venkatesan v. State, 2007 CrLJ 4593 (Mad). 8  Ramesh v. State, 2007 CrLJ 3911 (P&H). Accused had caused death due to rash and negligent driving and framing charge u/s. 304 A was held proper, Krishna Muniyani v. State of Kerala, 2007 CrLJ 4242 (SC). 9 MITRA on Legal and Commercial Dictionary, edited by Saha, 5th Edn., p. 619. 10 State of M.P. v. Jagdish Jogilal Baloi, 1992 CrLJ 746 (MP): State of M.P. v. Jagdish Jogilal Baloi, (1992) 1 Crimes 62 (MP). 11  Nangkhujam Mungsong v. Thokcham Ongbi Gambhini Devi, 2007 CrLJ 1419 (Gau). In this case Rs 5 lakh as compensation was paid. 12 State of Karnataka v. A. Joseph, (1988) 3 Crimes 452 (Kant). 13 State v. Madivalappa Fakirappa, 2004 CrLJ 3712 (KNTK). Occurrence took place longback sentence reduced t o period already undergone, Mukesh v. State, 2004 CrLJ 3830 (Delhi). 14 Suresh Gupta (Dr.) v. Govt. of NCT Delhi, 2004 CrLJ 3870 (SC): Suresh Gupta (Dr.) v. Govt. of NCT Delhi, (2004) 6 SCC 422: Suresh Gupta (Dr.) v. Govt. of NCT Delhi, AIR 2004 SC 4091: Suresh Gupta (Dr.) v. Govt. of NCT Delhi, (2004) 3 KLT 14.

 32

15 State v. Madanlal, 2005 CrLJ 803 (HP). The driver due to negligent driving of jeep on public road caused death of a woman and injuries to others. It was held that awarding sentence lesser than maximum prescribed by law was not proper,  Babul Chakraborty v. State, 2005 CrLJ 4712 (Gau). 16  Nirmal Singh v. State of Haryana, (1989) 1 Crimes 398. 17 State of Karnataka v. Krishna, AIR 1987 SC 861: State of Karnataka v. Krishna, 1987 CrLJ 776: State of Karnataka v. Krishna, 1987 SCC (Cri) 198: State of Karnataka v. Krishna, (1987) 1 Crimes 397: State of Karnataka v. Krishna, (1987) 1 SCC 538. No leniency is to be shown to the acucsed in matter of awarding the punishment and Court must pass deterrent punishment in such cases, so that it may set up an example to the other erring driver, who drive their vehicles in a very rash and negligent manner,  Poonma Ram v. State of Rajasthan, 1998 CrLJ 4377 (Raj).  Ratan Singh v. State of Punjab, AIR 1980 SC 84:  Ratan Singh v. State of Punjab, 1980 CrLJ 11:  Ratan Singh v. State of  Punjab, (1979) 4 SCC 719;  State v. Krishna, 1987 CrLJ 776 (SC): State v. Krishna, (1987) 1 SCC 538;  Baldeoji Bathiji Thakore v. State, 1979 CrLJ 1136:  Baldeoji Bathiji Thakore v. State, AIR 1979 SC 1327:  Baldeoji Bathiji Thakore v. State, (1980) 1 SCC 320were followed in this case. 18  Emperor v. Khan Mohammed Shermahomed, 38 CrLJ 660 (Bom). 19  Raj Pal v. State (Delhi Administration), 1992 CrLJ 1470 (Del). 20  Keshavamurthy v. State, (2002) CrLJ 103 (Kant):  Keshavamurthy v. State, 2001 AIR Kant HCR 2978:  Keshavamurthy v. State, 2002 (2) Crimes 132. 21 State v. Varinder Singh, (2002) CrLJ 735 (HP): State v. Varinder Singh, 2002 (2) Rec CrR 487. 22 Sushil Ansal v. State, 2002 CrLJ 1369 (Del): Sushil Ansal v. State, 2002 (4) All CrLR 527. The death was c aused due to deceased coming under the wheel of bus but there was no negligence on part of bus conductor who had given the bell after all passengers had got out of the bus. His conviction was set aside; Aliar Kunju Shajahan v. State, (2002) CrLJ 1981 (Ker). 23 State of H.P. v. Mohinder Singh, (1989) 2 Crimes 159 (HP). 24  M. Bhoopal Reddy v. State, 1993 CrLJ 2494 (AP), but conviction was sustained where truck had hit the rickshaw from behind due to which victim fell down and was crushed under the wheels of truck,  Manjit Singh v. State, 1997 CrLJ 331 (P&H). When death of 12 years  boy was caused due to rash and negligent driving, there was no justification in reducing sentence which was totally disproportionate, State v.  K. Farid, 2005 CrLJ 2993 (Kant). 25  Niranjan Singh v. State, 1997 CrLJ 336 (Del), where bus driver and conductor were not at fault and there was no direct nexus between death and rash or negligent driving, the accused would be entitled to the acquittal,  Sudalaimuthu v. State, 1997 CrLJ 1038 (Mad). 26  Niranjan Singh v. State, 1997 CrLJ 336 (Del), where bus driver and conductor were not at fault and there was no direct nexus between death and rash or negligent driving, the accused would be entitled to the acquittal,  Sudalaimuthu v. State, 1997 CrLJ 1038 (Mad). 27  Kamlesh v. State, 1997 CrLJ 3191 (All). 28  Kanaiya Lal v. Tribhuwan Das, 1998 CrLJ 3482 (Guj). 29  A.P. Raju v. State of Orissa, 1995 SCC (Cri) 675:  A.P. Raju v. State of Orissa, 1995 Supp (2) SCC 385. 30 Yakub Paul v. State, 2006 CrLJ 1880 (Jhar). 31  Ratnappa Shivalingappa Jeevani v. State, 2006 CrLJ 1579 (Kant). 32 State of Kant v. Shiranappa Basnagowda, AIR 2002 SC 1529 (SC): State of Kant v. Shiranappa Basnagowda, 2002 CrLJ 2020 (SC). 33 State of Karnataka v . Sharanappa Basnagouda, (2002) CrLJ 2020 (SC): State of Karnataka v. Sharanappa Basnagouda, AIR 2002 SC 1529: State of Karnataka v. Sharanappa Basnagouda, 2002 (2) Crimes 30. The deceased fell down from m udguard of tractor trolley and was fatally wounded but any rashness or negligence on part of accused was not proved. The acquittal of accused was held proper;  State v.  Jotia, (2002) CrLJ 3514 (Raj).

 33

34  Ramesh Chandra Mahapatra v. State, (2002) CrLJ 3453 (Ori):  Ramesh Chandra Mahapatra v. State, 2002 (3) Crimes 119. The only evidence that bus driver was driving the bus rashly and negligently was not considered sufficient to convict the accused, K. Srinivas v. State, (2002) CrLJ 3865 (Kant):  K. Srinivas v. State, 2002 AIR Kant HCR 2186. 35  R. v. Marison (Lee John), (1996) Cr LR 909 McCowen LJ CA (Crim Div). 36 Chuni Lal v. State, 2006 CrLJ 1512 (P&H). 37 State v. Girdhari Lal, 2007 CrLJ 4347 (HP). 38  Dalbir Singh v. State of Haryana, 2000 CrLJ 2283 (SC):  Dalbir Singh v. State of Haryana, 2000 AIR (SC) 1677:  Dalbir Singh v. State of Haryana, 2000 (3) SCR 1000:  Dalbir Singh v. State of Haryana, 2000 (5) SCC 82.

 34

BIBLIOGRAPHY

BOOKS REFERRED: 1. P S A Pillai, Criminal law, 13th Edition, 2017, Lexis Nexis 2. Ratanlal & Dhirajlal, THE INDIAN PENAL CODE , 34th Edition, 2014,LexisNexis ONLINE SOURCES AND LINKS: www.lexisnexis.com.elibrarydsnlu.remotexs.in http://www.srdlawnotes.com/2017/04/difference-between-rash-and-negligence.html

 35