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Death Caused by Rash or Negligent Act


Authored By- Gauhar Alam

Keywords- #Death #negligence #rash #Medical_Negligence #Grave_Negligence #Indian_Penal_Code.


Abstract-

Section 304A of the Indian Penal Code, 1860, penalizes the act of causing death by negligence. This provision was inserted in the Code, ten years later after its enactment in the year 1870.


This section uses two words “rash” and “negligent”, which have been interpreted differently by various High Courts and Supreme Court of India. In this article, the author will analyze section 304A of the Indian Penal Code, 1860 mentioning some of the important judgments of High Courts and Supreme Court.


Introduction

Mens-rea is one of the most important ingredients of a crime; a person cannot be convicted if he had not acted with a guilty mind. Thus, Mens-rea is a pre-requisite for every crime. But there are some exceptions to it. One of the exceptions to the rule of Mens-rea is section 304A of the Indian Penal Code, 1860, which penalizes an act that is not done with any evil intention knowledge. This section punishes a person for his involuntary act.

Section 304A of the Indian Penal Code penalizes the act of causing death by rash or negligent act with imprisonment of either description extending two years with or without fine.


One of the most important ingredients of this crime is that the death must be caused by negligently and not voluntarily.


Section 304A of the Code goes as follows-

Causing Death By Negligence- Whoever causes the death of any person by doing any rash or negligent act not amounting to culpable homicide, shall be punished with imprisonment of either description for a term which may extend to two years or with fine or with both.”[1]


After making a plain reading of this provision, there come the following essentials-

1. Death of a person by another

2. Death must be caused by Rash or negligent Act

3. Act of the accused should not amount to culpable homicide


Rash or Negligent Act

The distinction between the two has thus been pointed out by Lord Esher MR, in Le Neve v. Gould[2]. The question of liability for negligence cannot arise at all until it has been established that the negligent man owed some duty to the person who seeks to make him liable for his negligence.


The word Rash and Negligent, though looks similar are yet different. In case of negligence, the wrongdoer breaks a positive duty and he does not advert to the act, which is his duty to do, while on the other hand, in case of rashness the party does an act which he is bound to forbear, and he breaks a negative duty.


The difference between rashness and negligence is that in the former case the accused acts with the awareness that some illegal consequences may follow but with the hope that they will not happen. Whereas, in the latter case the accused acts without such awareness 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 awareness.


The word negligence or rashness has not been defined anywhere in the code i.e. why various high courts and Supreme Court had given wide interpretation of the term negligence.

Criminal rashness is hazarding a dangerous or wanton act with the knowledge that it is so, and that it may cause injury or knowledge that injury will probably be caused.

Criminal negligence is acting without the awareness that the illegal 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.


In Shankar Narayan Bhadolkar v the State Of Maharashtra,[3] Hon’ble Supreme Court Observed as follows-

“Section 304A applies to cases where there is no intention to cause death and no knowledge that the act done in all probabilities will cause death”


Medical Negligence

The medical profession is considered as one of the noble professions, i.e. why several defenses have been provided to medical professionals acting in Good faith.

To make a doctor or a surgeon liable under section 304A of the Code negligence of higher degree i.e. gross negligence need to be proved.


In Kusum Sharma & Ors v. Batra Hospital &Medical Research[4]

“Negligence is an essential ingredient of the offence. The negligence to be established by the state must be grave and not the negligence merely based upon an error of judgment. In the profession of a doctor, negligence may only be said when there is any deficiency in performing operation or treatment.”


Conclusion

Section 304A of the Indian Penal Code, 1960, penalizes the act of causing death by negligence. The Maximum imprisonment which can be awarded under this section is only 2 years because the doer does not act intentionally; there is no evil intent or Mens-rea. The words “rash” and “negligent” has not been defined in the code properly, so various courts in India have interpreted them to fasten the liability.


The author recommends that the punishment under this section should be augmented because the case involves the death of a person.

[1] Section 304A in the Indian Penal Code, 1860 Inserted by act 27 of 1870. [2] (1898) 1 QB 491. [3] AIR 2004 SC 1966. [4] II (2010) SLT 73.


References-

1. https://blog.ipleaders.in/death-by-negligence/

2. https://lawtimesjournal.in/death-by-negligence/#_edn3

3. http://www.helplinelaw.com/employment-criminal-and-labour/CDRN/causing-death-by-negligence.html

4. PSA Pillai, Criminal Law, 12th Edition