KHALIDA KHAN

[Link]. (HONS) III SEM

ROLL NO: 32
LAW OF CRIMES – I
SUBMITTED TO: Dr. Samia Khan

Death Caused by Rash and Negligent Act

[(s 304 A) 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 both.]

This section was inserted in IPC, 1860 by IPC (Amendment) Act, 1870 to cover those cases
wherein a person caused the death of another by such acts as are rash or negligent act there is no
such intention to cause death and no knowledge that the act will cause death. The case should not
be covered by sections 299 and 300 only then it will come under this section. The section
provides punishment of either description for a term which may extend to two years or fine or
both in case of homicide by rash or negligent act. 1

Essential ingredients of section 304A are the following:

1. Death of a person
2. Death was caused by accused during any rash or negligent act.
3. Act does not amount to culpable homicide.
And to prove negligence under criminal law, the prosecution must prove:
1. The existence of duty.
2. A breach of duty causing death.
3. The breach of duty must be characterized as gross negligence.
For the application of the section it is necessary that death is caused by doing a rash or negligent
act and such Act must not amount to culpable homicide. Thus, this section shall apply where
there is neither any intention to cause death nor knowledge that the act would in all probability
cause death.2 To impose criminal liability under section it is necessary that the death should have
been the direct result of a rash or negligent act of the accused, and that act must be the

1State of Punjab v Balwinder Singh, 2012 (2) SCC182: AIR 2012 SC 861.
2 Sukaroo Kaviraj, (1887) 14 Cal. 566.

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approximate and efficient cause without the 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. 3 Culpable rashness
is acting with consciousness that the mischievous and the illegal consequence may follow but
with the hope that they will not and often with the belief that the actor has taken sufficient
precautions to prevent their happening. 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 required of him, and that if he had he would have had the
consciousness. The imputability arises from the neglect of the Civic duty of
circumspection.4Where a chemist gives expired date medicine to a patient and patient die, the
chemist would be liable for causing death by negligence because he has failed to exercise due
caution to ascertain whether the medicine that he was giving was expired date or not.
Rash or negligent act- Rash or negligent act is an act done not intentionally or designedly. A
rash act is primarily an over-hasty act, and is thus opposed to deliberate act, but it also includes
an act which, though it may be said to be deliberate is yet done without due deliberation and
caution. Negligence is the breach of Duty caused by omission to do something with reasonable
man guided by those considerations which ordinarily regulate the conduct of human affairs,
would do, or the doing of something a prudent and reasonable man would not to do.
Rashness and negligence are not the same things. Mere negligence cannot be construed to mean
rashness. Negligence is the genus of which rashness is a species. The word "Rashly and
negligently"are distinguishable and one is exclusive of the other. The same act cannot be Rash as
well as negligent. The rash or negligent act means at which is the immediate cause of death and
not any act or omission which can at most be said to be a remote cause of death. In order that
rashness or negligence maybe, criminal it must be of such a degree as to amount to taking hazard
knowing that the hazard was such a degree that injury was most likely to be caused thereby. The
criminality lies in running the risk or doing such an act with recklessness and Indifference to the
consequences.
In cases relating to rash driving it is the duty of the driver to drive his vehicle at a speed which
will not imperil the safety of others using his road. In order to hold a driver criminally liable it
must be proved that a collision was entirely or at least mainly due to rashness or negligence on
the part of the driver. It would not be sufficient if it was only found that the accused was driving
the vehicle at a very high speed 5. A person driving a car is under a duty to control the car, he is
prima facie guilty of negligence if the vehicle leaves the road and dashes into a tree and it is for
the driver to explain the circumstances under which the car had left the road. Those
circumstances may be beyond his control, and make Exculpate him, but in the absence of such
circumstances, the fact the car left the road is evidence of negligence of the part of the driver.
Where due to collision of a vehicle injury or death is caused it cannot be taken for granted the
driver of the vehicle involved in the accident was guilty of the Crime. There may be exceptional
cases where the rule res ipsa loquitur applies. Ordinarily it is for the prosecution to establish the
guilt of the accused beyond reasonable doubt. Speed alone is not the criterion for deciding

3 Emperor v. Omkar Rampratap, 5 Bom. L.R. 679.

4 Bhalchandra, A.I.R. 1968 S.C. 1319.
5 Hari Singh, A.I.R. 1969 Raj.86.

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rashness or negligence on the part of the driver. A motor vehicle is intended to be driven in
speed. The relationship between speed and rashness or negligence depends upon the place and
time. In a straight Wide Road where obstruction from other vehicles or pedestrians are not there,
it cannot be said that driving in the speed or absence of sounding horn by itself will amount to
rashness or negligence.
It was held in Jacob Mathew v State of Punjab6, in section 304 A of IPC, yet it is settled that in
criminal law negligence or recklessness, to be source held, must be of such a high degree as to be
‘’gross’’.The expression "rash or negligent act" as occurring in section 304 A of the IPC has to
be read as qualified by the word "grossly".
In Rathnashalvan v. State of Karnataka7, the accused, a driver of a lorry while driving at a
very high speed in a rash and negligent manner dashed against a tree which was by the side of
the road and caused death of Shivanna, Bililyamma and Basheer. Bleeding injuries were caused
to CWs 3 to 5 who were travelling in the cabin of the said lorry. Two of them died at the spot
and third person died on the way to the hospital. Since CWs 3 to 5 sustained grievous injuries the
accused was charge- sheeted under section 279, 337 and 304- A of IPC. The prosecution
examined 10 witnesses as PWs 1 to PW 10 to prove the guilt. The accused denied but he did
choose to examine any witness on his behalf. The evidence of RTO clearly stated that the
accident did not occur on account of any mechanical defects in vehicle. The supreme Court in
view of the evidence of eye-witnesses some of whom were travelling by the same Lorry showing
that vehicle was being driven at a very high speed and that road was quite wide and there was no
traffic at the time of accident, help that accused was writing found guilty under section 304-A
Indian Penal Code.
Negligent act not amounting to culpable homicide. - it was observed by Allahabad High Court
in Idu beg8, that "section 304-A is directed at offences outside the range of sections 299 and 300,
and obviously contemplates those cases into which neither intention not 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 willfully caused, is excluded. Section 304 A does not say that every unjustifiable or
inexcusable act of killing not hear in before 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". Where A takes up a gun
not knowing it is loaded, points in sport at B and pulls the trigger, 'B' is shot dead, A would be
liable for causing the death negligently under this section.
Contributory negligence- Contributive negligence is no defence to a criminal charge. A
Criminal charge shall be sustainable if the accused had been at fault even though someone else
may have been equally at fault. In such cases the question is: did the accused rashly or
negligently do an act which was likely to endanger the public? If he did such an act, the fact that

6 2005 Cri. L.J. 3710 (S.C.).

7 2007 Cri. L.J. 1451 (S.C.).
8 (1881) 3 All. 776.

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the actual injury was brought about by carelessness or contribution of the victim also will be no
defence.
Cases- In a case where a Homeopathic practitioner, administered to a patient suffering from
guinea worm, 24 drops of strampnium and a leaf of dhatura without studying its side effect and
patient died of poisoning, that the doctor was guilty for causing death by doing an act
negligently9. Similarly, in De Souza10, A, a compounder while preparing a fever mixture took
out certain medicines from a bottle without reading its label and mixed it in the mixture. The
mixture was administered to eight persons out of home 7 died. The bottle was marked Poison
and contained strychnine hydrochloride and not quinine hydrochloride as he supposed it to be.
The compound was held guilty under this section.
'A' kept the of medicine in a shelf where some other bottles containing poisonous solution for
photography business were also kept. In the state of drunkenness, before going to bed, 'A'
mistakenly gave his ailing wife the poisonous solution, as a result of which she died. Here A is
liable for causing death by negligence under section 304-A. Since A was voluntarily drunk, he
cannot claim the provision of section 86 I.P. Code.
India has a distributable record of road accidents. Drunkenness contributes to careless driving
leading to lose of innocent lives. Section 304-A of the Indian Penal Code, 1860 was inserted in
1870 by the Indian Penal Code (Amendment) Act, 1870. The section pertains to causing death by
negligence. The present case examines the fundamental purpose of imposition of sentence for
causing death by negligence which is based on the principle that the accused must realize that the
crime committed by him has not only created a Dent in his life but also a concavity in the social
fabric. The purpose of just punishment is designed so that the individuals in the society which
ultimately constitutes the collective do not suffer time and again for such crimes.
Facts of the case are that Jagdish Ram and his nephew (the victims) were proceeding to Patiala
when an Indica car bearing registration number HR- 02- 6800 came from the opposite side at a
very high speed and the driver (the accused or respondent) of the said car hit straightway the car
of Jagdish and dragged it to a considerable distance as a result of which it fell in the ditches.
Both the victims had sustained serious injuries. A FIR was filed against the respondent, and a
case under section 279 / 304A of the IPC was registered against the respondent for rash and
negligent driving. The respondent was convicted for the offences punishable under section 304A,
Indian Penal Code and the trial court sentence him to undergo rigorous imprisonment for a
period of 1 year and pay fine of Rs. 2,000/-. The respondent thereafter approached the High
Court vide revision petition against the conviction. The High Court upheld the conviction and
reduce the sentence to the period already undergone on the basis and that the respondent had
adequately compensated the victims. Hence, the present appeal has been preferred by the State
against the said order.
In this case, the court dealt with the concept of adequacy of quantum of sentence imposed by the
High Court under Section 304-A of the Indian Penal Code after maintaining the conviction of the
respondent. The court while analyzing a catena of decisions opined that in the present case, the

9 Juggan Khan, A.I.R. 1965 S.C. 831.

10 (1920) 42 All. 272.

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factor of rash and negligent driving has been established. The court further held that the
respondent has graduated himself to harbor the idea that he can escape from the substantive
sentence by payment of compensation. Neither the Law nor the court that implements the Law
should ever get oblivious of the fact that in such accidents precious lives are lost or the victims
who survive are crippled for life which, in a way, is worse than death. Young age cannot be a
plea to be accepted in all circumstances.

Needless to say, the principle of sentencing recognizes the corrective measures but there are
occasions when the deterrence is an imperative necessity depending upon the facts of the case.
The Supreme Court held that the High Court has been swayed away by the passion of Mercy in
applying the principal that payment of compensation is a factor for reduction of sentence to 24
days. Such being in the realm of misplaced sympathy. The court while upholding the Conviction
reduced the one-year sentence imposed by the trial court to a period of 6 months 11.
In a case A beat B, who fell down unconsciously, A thinking B to be dead, put the dead body in a
bag and threw it in the river in a bid to destroy the evidence. The dead body was discovered and
the medical examination revealed that B had died of drowning. In such a case One view is that A
would be liable for causing death by doing an act negligently. However, applying the ruling of
Patna High Court in Sreenarayan 12, A may be held liable under section 304 part II. The latter
view is a better one. If a motor driver rashly drives a bus whose handbrake was ineffective, the
foot brake was and defective and the rod and drag link were loose and the bus capsizes resulting
in death of some passengers and injuries to others the driver would be guilty under this section
under section 279 and 338. But if the mechanical defect in the vehicle is such that it cannot be
detected without meticulous examination of the Machinery the driver would not be liable. A
gave a blow to B, his wife, on the head with the hammer. B fell down unconscious A thinking
that B had died, hang her from the ceiling fan with the Rope around her next to make it look like
a case of suicide. The medical evidence show that B was not killed by the blow on her head but
her death was caused c by strangulation. A would be liable for causing death under section 304
part II because he had acted with gross negligence and, therefore, the act shall be deemed to have
been done with knowledge. A would also be liable for fabricating false evidence under para 2 of
Section 193.
A, an unmarried girl give birth to a child. She left the child in the night by the roadside believing
that someone will pick him up and bring him up. She took all the precautions to leave the child in
a lighted place and cover it up properly. The child, however, died of starvation before being
detected by anyone. A would be liable for causing death by starvation.
In a case where a bus driver finding a level crossing Gate open at a time there was no train
schedule to pass, try to cross the railway line and the rear portion of the bus collided with an
oncoming goods train resulting in the death of four passengers, the driver cannot be held
responsible for an offence under this section 13.

11 State of Punjab v. Saurabh Bakshi, 2015 Cri. LJ 2459 (SC).

12 (1947) 27 Pat. 67.
13 SN Hussain, 1972 Cr LJ 496: AIR 1972 SC 700.

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In the State of Maharashtra vs Salman Salim Khan14, the allegation was that the accused
drove his car under the influence of alcohol, in a rash manner and cause the death of one person
and caused grievous injuries to 4 others who happened to be sleeping on the footpath. A few
days later, charge sheet filed came to be modified based on the additional statement of the
complainant, and instead of section 304A, IPC, 1860, section 304A, Part II, IPC, 1860 was
substituted. The sessions court frame charges under section 304 part II. The High Court quashed
the order framing charges in 304, Part II, IPC, 1860 and directed the appropriate Magistrate's
Court to frame the de novo charges under various sections mentioned in the said impugned High
Court including one under section 304A, IPC, 1860. In the appeal filed by the state, the
Supreme Court held that neither of the sides would have been in any manner prejudice in the trial
by framing of a charge either under section 304A or section 304, Part II, IPC, 1860 except for the
fact that the forum trying charge might have been different, which by itself, being open to the
concerned Court to have altered the charge appropriately depending on the material that is
brought before it in the form of evidence.
Distinction between sections 304 and 304A.- The Supreme Court stated as follows: There is
distinction between sections 304 and 304A. Section 304A deals with homicidal death by rash or
negligent act. It does not create a new offence. It is directed against the offences outside the
range of sections 299 and 300 and covers those cases where death has been caused without
intention knowledge. Section 304A carves out cases where death is caused by doing a rash or
negligent act which does not amount to culpable homicide not amounting to murder within the
meaning of section 299 or culpable homicide amounting to murder under section [Link] other
words, section 304A excludes all the ingredients of section 299 as also of section [Link]
intention or knowledge is the "motivating force" of the act complained of, section 304A will
have to make room for the graver and more serious charge of culpable homicide not amounting
to murder or amounting to murder as the facts disclose. The words "not amounting to culpable
homicide" in section 304A are significant and clearly convey that the section seeks to embrace
those cases where there is neither intention to cause death nor knowledge that the act done will in
all probability result into that. It applies to acts which are rash or negligent and are directly the
cause of the death of another person 15. Undoubtedly, "rashness" does contain an element of
knowledge. But a distinction has to be made between section 304, IPC, 1860, requiring
knowledge, with regard to the consequences of the act and section 304A, IPC, 1860, "rashness",
having an element of knowledge about the consequences, but with the hope that the
consequences would not follow. Furthermore, in order to understand the distinction between
sections 304 and section 304A, IPC, 1860, it is pertinent to note that while the former section
deals with an act 'amounting to culpable homicide', the latter section deals with an act 'not
amounting to culpable homicide'. Although "rashness" does contain an element of "knowledge",
even then the case would not fall within the ambit of section 304, IPC, [Link], in section 304,
IPC, 1860, the knowledge is about the consequences as the consequences would naturally and
obviously follow from the nature of the act. But in "rashness", although there is a knowledge that
the consequences make follow or likely to follow, the doer hopes that the consequences would
not follow. Thus, even if the element of knowledge is common in section 304 and 304A, IPC,

14 State of Maharashtra v Salman Salim Khan , AIR 2004 SC 1189 : (2004) 1 SCC 525.
15 Mahadev Prasad Kaushik v State of UP, (2008) 14 SCC 479 : AIR 2009 SC 125.

6
1860, the extent and ambit of "knowledge" defer in its nature. Therefore, the element of
"knowledge" should not lead to any confusion between the scope of section 304, IPC, 1860 and
scope of section 304A, IPC, 1860 16. If a person willfully drives a motor vehicle into the midst of
a crowd and thereby causes death to some person, it will not be the case of mere rash and
negligent driving and the act will amount to culpable homicide. Doing an act with the intent to
kill a person or Knowledge that doing an act was likely to cause a person's death is culpable
homicide. When intent or Knowledge Is the direct motivating force of the act, Section 304A, has
to make room for the graver and more serious charge of culpable homicide 17.
Can the Section 304A of IPC a license to kill?
The very words of this section indicate that the intent of the legislature was to apply this
provision to the acts where a homicide was not culpable, i.e. where there was no intention to kill.
The requirement of section 304-A of I.P.C. is that; death of any person must have been caused by
the accused doing any rash or negligent act. In other words, there must be proof that the rash and
negligent act of the accused was the proximate cause of death.

There must be a direct nexus between the death of a person and the rash or negligent act of the
accused, a remote nexus is not enough. To impose criminal liability u/s 304-A of IPC it is
necessary that the death should have been the direct result of the rash and negligent act of the
accused, and that act must be proximate and efficient cause without the intervention of another's
negligence, and it must be a causa causans, and not causa sine quo non.
To see the other side of the same coin in Satnam Singh v. State of Rajasthan18 it could not be
proved that the truck driver deliberately crushed the man on the scooter, thus the conviction was
made under section 304-A of I.P.C. Again, in Murari v. State of M.P.19 it was critically
observed that the truck driver knew that the passengers were sitting on the slabs he was carrying.
But still he drove negligently and despite the protest by passengers caused an accident, leading to
the death of a woman and two children.
While in Kanaiyalal Arjandas v. Tribhuvandas20 the prosecution was unable to prove that the
accused was driving the vehicle. Another connotation regarding the applicability of this section
is that if the driver of a motor vehicle does not blow the horn because of the prevailing traffic
rules prohibit him in doing so, it can neither be said that he failed to exercise reasonable and
proper care nor that the duty to blow horn was imperative upon him, so as to hold him guilty of
negligence under this section. Further the Supreme Court has laid down that, to render a person
liable for neglect of duty there must be such a degree of culpability as to amount to gross
negligence on his part. It is not every little slip or mistake that will make a man so liable. So, it
can be observed that at times this section creates such conditions, whereby one can use it as a
defensive and protective measure in order to escape from the clutches of culpable homicide
amounting to murder.

16 Abdul Kalam Musalman v State of Rajasthan, 2011 Cr LJ 2507 (Raj); Prabhakaran v State of Kerala,
JT 2007 (9) SC 2376.
17 Naresh Giri v State of MP, (2008) 1 SCC 791 : 2007 (13) Scale 7.

18 Satnam Singh v. State of Rajasthan, AIR 2000 SC 423.

19 Murari v. State of Madhya Pradesh, 2001 Cr LJ 2968 (MP).

20 1998 Cr LJ 3842 (Guj).

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The very best and clear example of this section can be drawn from State of Karnataka v.
Mohd. Ismail21, where a 28-year-old motor-cyclist pushed from behind an old man of 85 years
who sustained head injuries and died on the spot, the death was held to be result of rash and
negligent conduct. In another classic example the petitioner was convicted under the same
section, where the petitioner constructed a water tank for the use of village people. The tank
when filled with water collapsed killing seven villagers. The tank collapsed because the material
used in the construction was of low quality.
The question here is that can someone kill a person in the disguise of a rash or negligence act.
The very best example which strikes everyone's mind is that of automobile accidents. In this
regard the investigation and the role of witnesses are of great importance. Coming to the question
of whether there was any rash and negligence involved, the evidence of the RTO is relevant.
In Rathnashalvan v. State of Karnataka22 it was clearly stated that the accident did not occur
on account of mechanical defects. The evidence of eye witnesses showed that the vehicle was
being driven at a very high speed and that the road was quite wide and there was no traffic at the
time of accident. The evidence of witnesses showed that the vehicle dashed against the tree and
the branches of the tree fell on it. As per evidence though it was rainy season but there was no
rain at the relevant point of time, thus the accused was held guilty under this section. The
principle of 'res ispa loquitur' is the only rule of evidence to determine the onus of proof in
actions relating to negligence. The said principle has application only when the nature of the
accident and the attending circumstances would reasonably lead to the belief that in the absence
of negligence the accident would not have occurred and that the thing which caused injury is
shown to have been under the management and the control of the alleged wrong-doer. In an
another event the petitioner was himself driving the bus over the bridge when it fell into a canal
thus it was concluded that in such a situation the doctrine of 'res ispa loquitur' comes to play and
the burden of proof shifts to the person in control of the motor vehicle to show that the accident
did not happened on account of his negligence. He was unable to show that there was any other
reason of the accident rather than his negligence.

While considering the quantum of sentence, to be imposed for the offence of causing death by
rash or negligent driving of automobiles, one of the most important consideration should be
deterrence. A professional driver pedals the accelerator of an automobile almost throughout his
working hours. He must constantly inform himself that he cannot afford to have a single moment
of laxity or inattentiveness when his leg is one the pedal of a vehicle in locomotion. He cannot
and should not take a chance thinking that a rash driving need not necessarily cause any accident;
or even if an accident occurs, it need not necessarily result in the death of any human being; or
even such death ensures that he might not be convicted of the offence and lastly that even if he is
convicted he would be dealt with leniently by the Court. He must always keep in his mind the
fear psyche that if he is convicted of the offence for causing death of human beings due to his
callous driving of vehicle, he cannot escape from jail sentence. This is the role which the court
can play, particularly at the level of trail courts for lessening the high rate of motor-accidents due
to callous driving of automobiles.
Though it might be a difficult issue to determine that whether there was negligence on the part of

21 1989 Cr LJ 235 (Kant).

22 2007 Cr LJ 1451 (SC).

8
the accused or the act was done intentionally and the degree of punishment the convict deserves.
But very instance of driving without due care and attention is a crime and it can scarcely be a law
that every such case would be manslaughter if the driving happened to cause death. But if a
driver is not rash, he is not liable for the death of a person who suddenly comes before his
vehicle.
For instance, in M. H. Lokre v. State of Maharastra23, the appellant who was not driving
rashly was not held guilty under this section for causing the death of the person who, while
suddenly crossing the road, came under the wheels of his vehicle. However vigilant and slowly a
man might be driving, he cannot avert an accident if a person suddenly crosses the road.
While discussing the scope of a particular legislative text, one has to study the intent of the
legislature behind the articulation of that section or article. The intent of the nineteenth century
drafters of the 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 [Link] 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.

CONCLUSION
Death due to negligence has been described under section 304A of the Indian Penal Code, 1860.
Initially, the code didn’t have any provision which related to the rash and negligent act leading to
to the death of the person. This left a very big gap in administering justice as due to lack of clear
and express provision punishing any such rash and negligent act causing death, a number of
people were left off the hook. However, after the amendment brought in 1870, rash and negligent
act was made punishable. What is negligent and rash act has been decided by the Supreme Court
in number of cases. Medical negligence has also been interpreted to attract section 304A. The
Supreme Court in landmark cases has laid down the guidelines which would be necessary to
attract section 304A if there is medical negligence. The punishment for offence under section
304A has been defined under the section as well. However, in the opinion of the supreme court,
it had been held that the punishment under the section 304A is inadequate. It indeed seems
inadequate to punish an offence which results in death with just 2 years of imprisonment.

23 AIR 1972 SC 221.