This article is written by MS. ROSHANI CHAUDHARY of 3rd semester studying B.A.LL.B [hons] in UNIVERSITY OF RAJASTHAN, FIVE YEAR LAW COLLEGE, JAIPUR.
Section 304A termed as if a person causes the death of another person by doing a negligent or rash act which does not amount to culpable homicide shall be punished with imprisonment for a term of a maximum of two years, or with fine, or with both. The word negligence is termed as as an act or omission that causes damages to the property of another person. By ‘rash act’ we mean any act which is done restlessly. By the term ‘negligent act’ we mean a breach of duty due to omission to do something, which a reasonable man will do.
There are four basic elements that a person has to fulfill in order to do a negligent act. These elements are as follows:
- Duty: For committing a negligent act, there must be some duty on the part of the defendant. Here it is important to understand whether the defendant has taken legal duty of care towards the plaintiff.
- Breach of Duty: After fulfilling the first criteria the plaintiff must prove that the defendant has breached the legal duty imposed on him/her. It talks about the breach of duty on the part of the defendant which he/ she is expected to do as he/ she has some legal duty towards the plaintiff.
- The action of causing something: It means that the damage caused to the plaintiff is due to the act of the defendant. Here the defendant may do an act which is not expected from him/her or the defendant may be negligent in not doing an act which was expected from him/ her.
- Damages: At last what matters is, there must be some damage/injury that is caused to the plaintiff and this damages should be the direct consequence of the defendant’s act.
Thus it’s clear that the facts which must be proven in order to invoke the applicability of this section are essentially three folds:
- Death of a human being;
- The accused caused the death;
- The death was caused by the doing of a rash and negligent act, though it did not amount to culpable homicide.
– 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 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 rash or negligent act which is declared to be a crime is one not amounting to culpable homicide, and it must be therefore be taken that intentionally or knowingly inflicted violence, directly and willfully caused, is excluded.
The ‘rash or negligent act’ referred to in this section means the act which is the immediate cause of death, and not any act or omission, which can utmost be said to be a remote cause of death. If an act is intended to hurt and injure a specific person or object, the perpetrator of the act must be imputed with an intentional act done with consideration and cannot amount to a ‘rash’ and ‘negligent’ act. It is imperative to note that there is difference between rashness and negligence. A rash act is primarily an overhasty act. Negligence is a breach of duty caused by omission to do something, which a reasonable guided, by those considerations which ordinarily regulate the conduct of human affairs would do.
Case laws:
Cherubin Gregory v. State of Bihar, 1964
The definition of the rash or negligent act can be understood by the famous case of Cherubin Gregory v. State of Bihar. In this case, the Supreme Court stated the difference between the rash or negligent act. Here, in this case, the appellant was charged under Section 304A of IPC for causing the death of a woman who stayed near the house of the appellant. Here the deceased was using the latrine/ toilet of the accused for about a week. The accused gave the oral warnings related to it to the deceased but the deceased continue to use the latrine of the accused. As he (accused) finds his oral warnings to be insufficient so he put a naked copper wire carrying electricity on the passage leading to the latrine. On the day of the occurrence of the incident, the woman went to the latrine of the appellant and there she touched the fixed wire and she died because of this. There were several issues raised in this case. Here the Court held that the mere fact that the person entering is a trespasser does not entitle the owner of the land to inflict personal injury upon the trespasser. The same principle also applies to the fact that the owner inflicted the injury by indirect ways of doing something. The owner should know that it may cause a serious injury to the trespasser.
Here the Apex Court also held that in this case, the appellant would be liable for his rash act (as the act was considered to be reckless) and the accused was held liable under Section 304A of the Indian Penal Code.
Sarabjeet Singh And Ors. v. State of Uttar Pradesh, 1983
In the very famous case of Sarabjeet Singh And Ors. v. State of Uttar Pradesh, the intention of a person during the commission of a crime was questioned. Here the major question raised by the counsel of the accused was related to the intention of the person during committing a death of a person. In this case, the Appellant Sarabjeet Singh and 17 other peoples were put on a trial for having committed the crime of murder of infant Radhey Shyam. Here the accused (Sarabjeet Singh) lifted the child and thrown him on the ground and later it was founded that this resulted in the death of the child. It was found that there was no intention on the part of the accused towards the infant. It was also found that Sarabjeet has no grievances towards Radhey Shyam and therefore it was held that there is a lack of intention in this case. Now the next question which was put forward was about the knowledge of the wrong. Here, in this case, the accused may not have intended to kill the infant but he had all the knowledge that if the child is thrown from such height then the child will die ultimately. So the Court held the accused liable under Section 299 as all the conditions under this section get fulfilled. Now the counsel from the appellant side argued that this is the case of death by negligence and must come under Section 304A of the IPC. He argued that this is because this case includes the rash act of the appellant but as there is knowledge about the crime on the part of the accused so the court held that this case can’t come under Section 304A of IPC rather it will be covered by the second part of Section 304( it talks about knowledge of the person during committing any crime).
Conclusion :
Now I like to end this article. I hope this one clears all your doubts regarding the terms of IPC like negligence and rash. Both are being cleared with the help of case laws. section 304-A was not to create a license to kill but in the present scenario due to lack of evidence and at times due to some magical advocacy one can avail illegitimate benefits of this section. But such a situation is very much nominal and is rarely found. It has been said that in cases falling under this section it is dangerous to attempt to distinguish between the approximate and ultimate cause of death. But there is a negligible chance that the judiciary will get confused between section 304-A and the sections 299 to 302 of the I.P.C. Thus it must be concluded that the said section doesn’t endow a “License to kill” but is to protect the persons who had no intention to kill and due to an act of negligence did become guilty of a homicide.
Aishwarya Says:
The copyright of this Article belongs exclusively to Ms. Aishwarya Sandeep. Reproduction of the same, without permission will amount to Copyright Infringement. Appropriate Legal Action under the Indian Laws will be taken.
If you would also like to contribute to my website, then do share your articles or poems to secondinnings.hr@gmail.com
Join our Whatsapp Group for latest Job Opening