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30 JILI (1988) 293

Recklessness Under the Indian Penal Code

RECKLESSNESS UNDER THE INDIAN PENAL CODE

by
Stanley Meng Heong Yeo*
I Introduction
THE TERM “recklessness” does not appear in the Penal Code, 1860.1 This is not
surprising since it had yet to be developed as a separate notion apart from those of
“intention” and “negligence” at the time the Code was drafted.2 Indeed, the term has
gained popularity under English common law only in recent years and has taken on a
technical meaning which remains the subject of continued dissatisfaction and debate.3
It is, however, not the purpose of this article to embark upon a comparative study of
the notion of “recklessness” as contained in the provisions of the Code and recent
English decisions, although much might be gained from such an exercise. Rather, the
term is used here purely as a labelling word, a short form for the lengthy phrases in
the provisions of the Code which may broadly be subsumed under it. Generally,
“recklessness” refers to the doing of an act with the knowledge or foresight that it is
likely to cause harm. This article will present a scheme which sets out the different
forms that “recklessness” can take under the various provisions of the Code. The
scheme also demarcates the notion of “recklessness” from “intention” and
“negligence” under the Code. It will be submitted that an appreciation of such a
scheme will go a long way towards avoiding the confusion and consequent injustices
which currently plague the courts of India and those of other jurisdictions which share
the Code.4
There are three offence-creating provisions in the Code which play an integral role
in formulating the scheme. These are sections 299, 300 and 304,A which share the
common factor that a person must have caused the

Page: 294

death of another before any of these provisions can apply. It will be convenient at this
juncture to spell out these provisions so far as they are relevant to our discussion:

S. 299. Whoever causes death by doing an act (a) with the intention of causing
death, or (b) with the intention of causing such bodily injury as is likely to cause
death, or (c) with the knowledge that he is likely by such act to cause death,
commits the offence of culpable homicide.5
Since clause (a) of section 299 is identical to clause (1) of section 300, the offence
is murder which attracts the death penalty.6 As we shall see, clause (b) of section 299
falls short of murder and attracts the maximum punishment of life imprisonment.7
Likewise, clause (c) of section 299 does not constitute murder and is punishable with
the maximum sentence of ten years' imprisonment-8 The difference in punishment
between clauses (b) and (c) is because of the greater culpability of intention contained
in the former compared to that of knowledge found in the latter.
S. 300. [C]ulpable homicide is murder, if the act by which the death is caused is
done (1) with the intention of causing death, or—(2)… with the intention of causing
such bodily injury as the offender knows to be likely to cause the death of the
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person to whom the harm is caused, or—(3)…with the intention of causing bodily
injury to any person and the bodily injury intended to be inflicted is sufficient in the
ordinary course of nature to cause death, or (4) if the person committing the act
knows that it is so imminently dangerous that it must, in all probability, cause
death, or such bodily injury as is likely to cause death, and commits such act
without any excuse for incurring the risk of causing death or such injury as
aforesaid.
The offence of murder is punishable with death or with life imprisonment.9
S. 304A. Whoever causes the death of any person by doing any rash or negligent
act not amounting to culpable homicide shall be punished with imprisonment…for a
term which may extend to two years, or with fine, or with both.

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This offence is by far the least serious of the three and this fact is reflected in the
comparatively light maximum punishment given to it of two years' imprisonment.
Having presented these provisions, we can now turn to the forms which recklessness
takes under the Code.
II A scheme comprising three types of recklessness
The scheme of recklessness under the Code consists of three types, differing in their
degree of culpability and in the severity of punishments they receive. In order of
gravity, there is first what may be called “gross recklessness”10 representing clause (4)
of section 300. Secondly, there is what might be termed “substantial recklessness”
which covers clause (c) of section 299. Finally, there is “rash” as that term appears in
section 3044. The common denominator of all these forms of recklessness is that they
concern a person's state of mind and are therefore wholly subjective in nature. “Gross
recklessness” depicts a person who “knows” that his act is so imminently dangerous
that it must in all probability cause death. The culpability of a person under clause (4)
of section 300 is premised upon actual knowledge on his part as to the danger arising
from his conduct. It is therefore incorrect to regard the provision as being satisfied if
“the nature of the act is such that it is so imminently dangerous that any man should
know that it will, in all probability cause death….”11 Likewise, “substantial
recklessness” under clause (c) of section 299 refers to a person who has actual as
opposed to constructive knowledge that his conduct is likely to cause death. As for
“rashness”, although the Code does not expressly refer to the element of knowledge,
the courts have read that element into it. For example, rashness has been defined in
the context of section 304A as hazarding a dangerous act with the knowledge that it is
so and that it may cause an injury.12 Admittedly, while rashness has been blurred in
some judgments with the objective concept of negligence, it will be shown
subsequently that the weight of authority is in favour of rashness being viewed
subjectively and standing apart from negligence.
The criminal liability of a person for recklessness therefore lies in the fact that he
decides to embark on or persist with conduct which he knows or foresees to be likely
to cause harm. The mental state relevant to recklessness is confined to such
knowledge or foresight so that it is immaterial whether

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an accused hoped the harm would not occur13 or was indifferent to whether it occurred
or not.14

What distinguishes the three types of recklessness is the degree of risk of the
anticipated harm occurring. This involves an objective enquiry, namely, how an
ordinary person in the situation of the accused would have regarded the chances of the
harm occurring. Again, it is worthwhile emphasising that for an accused to be reckless
under the Code, he must have known or had foresight of such a risk as objectively
assessed.
(i) Gross recklessness: The very high degree of risk required under clause (4) of
section 300 is clearly spelt out in the words “so imminently dangerous that it must in
all probability” cause death or such bodily harm as is likely to cause death. This form
of recklessness does not appear any where else in the Code and, coupled with it being
sufficient to constitute the mental element for murder, emphasises the very gross
form in which recklessness takes here. In the words of the Indian Supreme Court in
State of Andhra Pradesh v. R. Punnayya15 :
[C]lause (4) of Section 300 would be applicable where the knowledge of the
offender as to the probability of death of a person…being caused from his
imminently dangerous act, approximates to a practical certainty. Such knowledge
on the part of the offender must be of the highest degree of probability….15a
The Code provides as an illustration a person who without intending to kill any
particular individual, fires a loaded cannon into a crowd of persons and kills one of
them.16 Other examples of gross recklessness might be where a person opens a
drawbridge when a passenger train is about to cross over it; drives a truck into a
crowd in a narrow street; or pollutes the drinking water supply of a section of the
community.
(ii) Substantial recklessness: The degree of risk under clause (c) of section 299 is
invariably compared in the cases to that under clause (4) of section 300. Having noted
that these provisions have been expounded

Page: 297

upon and clarified by many judicial decisions, the Indian Law Commission on the Code
had this to say regarding them:

The distinction between the two is clear enough, and the additional
circumstances necessary to make it murder are expressed without any obscurity.
Here also in a concrete case, the degree of probability will be relevant for deciding
between a mere likelihood of causing death by the reckless act and the reckless act
being imminently dangerous.17
Likewise, in Punnayya referred to previously, it was held that both clauses “require
knowledge of the pobability of the act causing death.”18 The court found it unnecessary
to distinguish them further other than to highlight the requirement under clause (4) of
section 300 that the risk had to be of the “highest degree of probability.” In the more
recent case of Sarabjeet Singh v. State of U.P.,19 the Indian Supreme Court discussed
clause (c) of section 299 in terms of a “distinct possibitity of death.” Thus, a lower
degree of risk is required for recklessness under section 299 than it is under section
300. Nevertheless, given that the offence under section 299 is a grave one attracting
up to ten years imprisonment, the likelohood of death being caused by the accused's
act must still be substantial.
(iii) Rashness: Section 304,A creates a specific of rence where death is caused inter
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alia by a rash act which act does not amount to culpable homicide. As the Indian
Supreme Court has stated in State of Gujarat v. Haidarali Kalubhai20 :
Doing an act with the intent to kill a person or knowledge that doing of an act
was likely to cause a person's death are ingredients of the offence of culpable
homicide. When intent or knowledge as described above is the direct motivating
force of the act complained of, Section 304,A has to make room for the graver and
more serious charge of culpable homicide.20a
By its own definition then, the section is concerned only with a form of recklessness
which has a degree of risk lower than that under sections 299 and 300. Following from
our immediately preceding discussion of recklessness under section 299, the degree of
risk under rashness might be described as “moderate” as opposed to “substantial” or
as a “possibility” as opposed to a “distinct possibility”.

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Although the degree of likelihood of the harm occurring and the accused's
knowledge of such likelihood are crucial to proof of recklessness, there remains an
additional element of recklessness which can sometimes play a determinative role.
This element has been variously described as a “lack of social utility”21 or an
“unjustified risk”.22 In a vast majority of cases, the facts will not warrant an express
reference by the court to the social utility or lack of it of the accused's conduct. For
instance, in a case where a person has shot at another with a gun for the sole purpose
of frightening him, the court will not bother to discuss the question of social utilitv
simply because no such utility can conceivably be derived from the accused's conduct.
This can be contrasted with a case where a surgeon has performed a highly dangerous
operation on a person with his consent.23 The courts will have to weigh the social
benefit of such an operation against the risk that the surgeon has taken in peforming
it. Whether the operation will be judicially recognised as conferring a social benefit will
depend on the patient's need for such an operation. Thus, the courts will distinguish a
case involving a patient who required the operation to save his life from one who did
not. So far as the case of the potentially life-saving operation is concerned, a finding of
recklessness will obviously be less forthcoming than in the situation involving the
person who fires a gun.
Clause (4) of section 300 contemplates this element of social utility when it
qualifies the provision with the words “without any excuse for incurring the risk of
death…”. Having so stated, the absence of similar words in sections 299 and 3044
should not mean that the social utility of an accused person's conduct is an irrelevant
consideration when assessing substantial recklessness or rashness. Ultimately, what is
involved in cases where an accused's act has some social benefit is an evaluation of
conflicting social values and interests which is best left to the judges, as
representatives of the community and its values, to decide. Since cases involving
social benefit are rare they can be left to one side for the remainder of this discussion.
By way of summary of this part, the following comment by Peiris neatly spells out
what recklessness generally means under the Code:
[T]he accused is conscious…. of the likelihood that harm could be caused if he
commits a particular act or if he commits it in a particular manner. Once the
accused is proved to have known of this likelihood, it makes no difference that he
hoped
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the harm would not occur…or that he was indifferent whether the harm occurred or
not. The essential elements of the concept of [recklessness] are: (a) conscious
advertence to the risk; (b) resolution to embark upon, or continue with, the
contemplated course of conduct notwithstanding the risk; and (c) the absence of
justification or excuse for the risk which the accused deliberately incurs.24

III Intention, negligence and recklessness

Dealing first with intention and recklessness, these notions involve states of mind of
an accused and are therefore both subjective in nature. So far as intention is
concerned, no judicial definition of that word seems to have been attempted. The
folowing definition in Salmond on Jurisprudence may be cited as representing what
that notion means under the Code:
Intention is the purpose or design with which an act is done. It is the fore-
knowledge of the act, coupled with the desire of it such fore-knowledge and desire
being the cause of the act, inasmuch as they fulfil themselves through the
operation of the will.
An act is intentional if, and in so far as, it exists in fact, the idea realising itself in
the fact because of the desire by which it is accompanied.25
Under this definition, intention is made out without the necessity of showing that
the accused saw his act as likely to have a particular consequence so long as he
foresaw some possibility, however remote, of that consequence occurring.26 What the
definition does is to restrict intention to desire or purpose. This restriction has been
criticised as being too narrow, the submission being that in the context of murder, a
person who does not desire death to occur but who foresees it as certain to result from
his conduct should likewise be held to have intended to kill.27 However, it is clear that
the framers of the Code meant intention to be confined to desire or purpose, leaving
what we have termed “gross recklessness” to

Page: 300

cover cases where there was no such desire but where a person knew that death was a
practical certainty. Besides the decison in Punnayya which viewed gross recklessness
in precisely these terms, support for this position can be gleaned from illustration (d)
of section 300 which reads as follows:

A, without any excuse fires a loaded cannon into a crowd of persons and kills one
of them. A is guilty of murder, although he may not have had a premeditated
design to kill any particular individual.
A is not guilty of murder under the first three clauses of section 300 because he did
not have a “premeditated design” or purpose which is required for those forms of
intentional murder to be made out. However, A is guilty of murder by virtue of clause
(4) of section 300, that is, gross recklessness which is satisfied by his knowledge that
his act of firing a cannon into a crowd would almost certainly kill one or more persons.
The position in the same as regards “rashness” under section 304A as there is a long
line of cases distinguishing this notion from intention as defined in terms of desire or
purpose. For instance in In re, Ambalal, rashness was described as “acting in the hope
that no mischievous consequences will ensue though aware of the likelihood of such
consequences.”28 By implication, an actor who hoped for a mischievous consequence
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would be regarded as having done his act intentionally and if death was the
consequence hoped for, he would be guilty of intentional murder. This distinction in
the Code between intention and recklessness based on desire or the lack of it appears,
to have worked very well in practice. It is certainly preferable to an arrangement which
fails to have any distinguishing feature between the two notions with the result that
their precise limits are blurred.29
Turning next to “negligence” and “recklessness”, there has unfortunately been some
confusion over these two notions amongst judges. The source of this confusion seems
to lie in the words “rash” and “negligent” appearing beside each other in section 304/A
coupled with the fact that the punishment specified is the same for both types of
breaches. This has often led courts to express these two notions as if they were
synonymous with each other when they are not. It would be useful to note what the
distinction is between these notions before providing some examples of the confusion
referred to. We have already observed how rashness (and the other two more serious
forms of recklessness) requires actual knowledge

Page: 301

or foresight by an accused of the risk of harm. This involves a subjective assessment.

By contrast, negligence has been judicially defined in purely objective terms. Thus it
has been described as “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.”30 By virtue of this distinction, rashness is a more serious form of
criminality than negligence since the actor has persisted with his conduct despite
knowing about the risk of harm to others.31 It is therefore vital that this distinction
should be kept in constant view not only when deciding upon the nature of the charge
but throughout the trial process up to and including sentencing.

Unfortunately, some judges have not always adhered to this distinction. Besides
disregarding judicial authority supporting the distinction, they have ignored the fact
that rashness and negligence are stated as disjunctive32 or alternative requirements
under section 304,A. The following passage on section 3044 as it appears in Smith v.
Emperor may be cited as an instance:
The question whether the accused's conduct amounted to culpable rashness or
negligence, therefore, depends directly on the quetion as to what is the amount of
care and circumspection which a prudent and reasonable man would consider to be
sufficient upon all the circumstances of the case.33
After citing this passage, the Malaysian Federal Court in Adnan bin Khamis v. Public
Prosecutor34 likewise said of section 304A that “the test to be applied for determining
the guilt or innocence of an accused person charged with rash or negligent conduct is
to consider whether or not a reasonable man in the same circumstances would have
been aware of the likelihood of damage or injury to others….”34a In these
pronouncements, the notions of rashness and negligence are said to share the same
purely objective test thereby ignoring the distinguishing feature of rashness, namely,
subjective knowledge. As a final example, there is the following statement from the
Indian High Court case of Tika Ram v. Emperor35 which highlights the distinction
between the two notions but goes on to reject it:

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A rash act is a negligent act done precipitately. Negligence is the genus, of which
rashness is the species. It has sometimes been observed that in rashness the acion
is done precipitately with the consciousness that the mischievous or illegal
consequences may follow, but with a hope that they will not. But it is not necessary
that there should always be this consciousness in a rash act. It has also been
observed that in negligence there is no such consciousness of the consequences.
This is also untrue….35a
Fortunately, the above dicta has not been followed in subsequent decisions36 and
can be put down to being made at a time when recklessness was still regarded as a
form of gross negligence. The following passage from the more authoritative Indian
Supreme Court case of Balachandra Woman Pathe v. State sets out the correct
position:
There is a distinction between a rash act and a negligent act…. Criminal
negligence is the gross and culpable neglect or faiure to exercise that reasonably
and proper care and precaution to guard against injury…. 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…. [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 often with the belief that the actor has taken
sufficient precautions to prevent their happening. The imputability arises from
acting despite the consciousness. 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 if he had he would have had the consciousness. The imputability
arises from the neglect of the civic duty of circumspection.37

Page: 303

V Applying the scheme to cases

From the preceding discussion, it follows that where a person has caused the death
of another, both the public prosecutor framing the charge and the trial judge would do
well to analyse the case at hand in the following sequential manner:
(1) Did the accused desire the death of the person or the injury which was likely to
cause death?38 If so, then the proper charge should be in terms of intentional
culpable homicide.39
(2) If the consequence of death or injury causing death was not desired, did the
accused have the knowledge or foresight that his conduct might result in such a
consequence?
(3) If the answer to (2) above is “Yes”, what is the degree of risk that death would
result from the accused's conduct? This involves an objective evaluation.
(i) If the risk was one of practical certainly, the case would be classified as
murder under clause (4) of section 300.
(ii) If the risk was probable or likely, then it would be a case of culpable
homicide not amounting to murder covered by caluse (c) of section 299.
(iii) If the risk was possible, the case would be construed as a rash act not
amounting to culpable homicide under section 3044.
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(4) If the answer to (2) above is “No”, the case might involve a negligent act not
amounting to culpable homicide under section 304/4. This would depend on an
objective assessment of whether the accused's conduct fell below the standard of
the reasonable per son in like circumstances.
We can now proceed to scrutinise a few judicial decisions to see how they stand up
to this scheme. The facts of the first case, Emperor v. Bepari40 were bizarre. The
accused were a married couple whose children had ail died in their infancy. They were
led to believe that the problem lay with an evil influence which could be removed if
they offered their next child with a “pure heart” to crocodiles in a certain pond. This
they did, with the result that a crocodile caught the child in its mouth and disappeared
with it into the water. The accused knew that this would

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happen but believed that the child would be returned unharmed and thereafter lead a
charmed life.41 The High Court of Bengal found the accused guilty of culpable homicide
not amounting to murder by virtue of clause (c) of section 299 and sentenced them
each to two years' imprisonment. The facts clearly show that the accused did not
intend to cause their child's death since they did not desire it. Furthermore, their
superstitious belief (albeit unreasonable) precluded them from contemplating any
likelihood that the child would be killed. Having no knowledge of such a risk, they
should not have been found guilty of recklessness in any of its three forms. The court
was in error to have relied on constructive knowledge, a concept which has no place in
recklessness under the Code. Assuming for a moment that it was permitted to do so,
the proper verdict should then have been murder by virtue of clause (4) of section 300
since it was a practical certainty that the child would die. Presumably on grounds of
compassion, the court chose to read the risk of death as being only probable or likely
so as to attract a verdict of culpable homicide not amounting to murder thereby
avoiding the mandatory death penalty for murder. It is submitted that this
compassion could have been better expressed either by acquitting the accused
altogther or, had some punishment been thought desirable, by convicting them of
criminal negligence under section 304,A. Such a conviction would have avoided the
introduction of constructive knowledge into the notion of recklessness and would also
have resulted in a shorter sentence than the one imposed.42

The second case for consideration is Ajmer Singh v. State43 , a decision of the High
Court of Punjab. The accused and twelve others had an altercation over a game called
“kabaddi”. In order to scare his opponents away, the accused fired his shotgun in the
air. Two stray pellets struck and killed one of the opponents. The injuries sustained by
the deceased was not conclusive that the shot was fired at any very close range. At
the trial stage, the accused was found lacking in an intention to injure anyone. He was
nevertheless convicted of murder under clause (4) of section 300. On appeal, the High
Court altered the verdict to culpable homicide not amounting to murder by relying on
clause (c) of section 299 and sentenced him to seven years' imprisonment. While this
may ultimately have been the correct decision, it is unfortunate that the court failed to
consider whether a charge of rashness under section 304,A more properly fitted the
facts.

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After all, it had accepted the evidence that the accused had fired the gun in the air.
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The fact that the deceased was killed by stray pellets possibly discharged some
distance away would also have made section 304,A a viable alternative to section 299.

The Indian Supreme Court in Haidarali Kalubhai44 had to decide on the correctness
of the Gujarat High Court in altering a conviction from an offence under section 299 to
one under section 3044. The accused, who had no driving licence, had driven a truck
on an open field situated in front of a hotel. While endeavouring to turn into a side
road, he lost control of the truck with the result that it collided against the verandah of
the hotel. The deceased, who was then sleeping on the verandah, was flung from his
cot and killed. The Supreme Court first stressed that doing an act with an intention to
cause death or with knowledge that it was likely to cause death were ingredients of
culpable homicide under section 299 or section 300. In such a case, section 304,A had
to make room for these more serious offences. The court then went on to apply the law
to the facts. Regrettably, all that it said comprises the following two short paragraphs:
The tangential track of the speeding truck coming in contact with the…cot…and
thereby throwing the deceased out of it resulting in fatal injuries, would not reveal
the accused's intention or any deliberate act with the requisite knowledge for an
offence of culpable homicide. The facts and circumstances disclosed in ths case fit
in more reasonably with the theory of loss of control by the accused of the vehicle in
high speed trying to take a turn for the kutcha road.
There is, therefore, no error committed by the High Court in holding that the
case falls under section 304,A…and not under [clause (c) of Section 299].45
The Supreme Court's inclusion of the word “deliberate” to describe the act done
with the knowledge that death was likely adds nothing to the notion of recklessness
under clause (c) of section 299. Rather, it was apt to confuse that notion with
intention. Had the court meant that word to be contrasted with the loss of control by
the accused of the truck, it is not at all clear what it had in mind. It is submitted that
the court would have been in error if it was saying that losing control of the truck was
somehow inconsistent with recklessness as that notion requires the accused to have
purposefully worked towards creating the dangerous situation. On the facts, it could be
said that the accused was being reckless the moment he started the truck and drove it
since he knew himself to be an inexperienced

Page: 306

driver. This is preferable to viewing recklessness, as the court seems to have done,
only from the time the truck went out of control. Another failing of the court is that it
did not specify which head of section 3044 it was invoking, namely, rashness or
negligence. If it construed the accused's act to be rash, there should have been some
discussion of the facts indicating why it thought the degree of risk of death to be only
possible as opposed to probable. If negligence was relied upon, there should likewise
have been some mention of what the standard of a reasonable person was in the
particular circumstances of the case. In either event then, the court's extremely brief
application of the law to the facts left much to be desired.

We continue our analysis of cases by considering a couple of judicial decisions from

jurisdictions outside India which have identical provisions to those under the Code. In
the Malaysian Supreme Court case of Ramlan bin Salleh v. Public Prosecutor,46 the
accused was a soldier who was charged with the murder of his superior officer. At the
time of the killing, the accused was on guardroom duty at the entrance of a military
camp. On seeing the deceased approaching the entrance on a motorcycle, the accused
fired several shots in his direction. Of the three shots which struck the deceased, one
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proved fatal. The accused claimed that he did not intend to kill but only to frighten the
deceased. There was some evidence that the accused had been provoked by the
deceased when the latter had caused his leave to be cancelled. The trial judge directed
the jury to consider two verdicts, guilty of murder or guilty of culpable homicide not
amounting to murder by virtue of the partial defence of provocation.47 On appeal
against his conviction for murder, the Supreme Court quashed the conviction on the
ground that the trial judge should have alerted the jury to a third possible verdict,
namely, the offence under section 3044 in that the accused's firing of his rifle was
done “in a rash or negligent manner.”48 It is unfortunate that the Supreme Court failed
to consider a fourth possibility of culpable homicide not amounting to murder under
clause (c) of section 299. The evidence that the accused fired eight shots in rapid
succession in the deceased's direction, three of which struck the deceased, suggests
that the accused knew the fatal outcome of his reckless conduct to be probable.
Another failing of the court was that, when considering section 304A, it did not
elaborate upon the distinction between a rash act and a negligent one, giving instead
the impression that it was treating these two notions as being interchangeable.
The final case for discussion is the Privy Council decision in Mohamed Yasin bin
Hussin v. Public Prosecutor.49 The accused had been convicted by the Singapore High
Court of murdering a 58 year old woman of slight

Page: 307

build. In the course of robbery, the accused had thrown the deceased to the ground
and subsequently raped her. Medical evidence showed that the fatal injuries on the
deceased consisted of fractures of the ribs in the front portion of her chest which had
resulted in congestion of the lungs and cardiac arrest. These injuries were consistent
with someone sitting forcefully on the deceased's chest as she lay on the floor. The
High Court found the accused guilty by virtue of clause (3) of section 300, namely,
that he had an intention to cause bodily injury which was sufficient in the ordinary
course of nature to cause death. The Privy Council subsequently quashed the
conviction on the ground that the High Court had misinterpreted clause (3) of section
300. Lord Diplock, who delivered the judgment, held that the clause requires the
prosecution not only to prove that the accused voluntarily performed the act which
caused death but also that the accused intended by doing it, to cause some bodily
injury to the victim of a kind which is sufficient in the ordinary course of nature to
cause death. He then observed that there was no evidence upon which a finding could
be based that the accused did intend, by sitting on the victim's chest, to inflict some
internal as distinct from superficial injuries or temporary pain. There breng an absence
of such an intention, a murder conviction under clause (3) of section 300 could not be
sustained and neither could a conviction of culpable homicide not amounting to
murder under clause (b) of section 299.50 The Privy Council eventually ruled that the
accused was guilty of a “rash” act within the meaning of section 304,A and ordered
that the case be remitted to the Singapore Court of Criminal Appeal with a direction to
convict the accused of that offence. It is submitted that this decision cannot be faulted
so far as it concerned clause (3) of section 300. However, in its effort to clarify the law
on this matter, the Privy Council focussed on the notion of intention and consequently
lost sight of recklessness under clause (4) of section 300 as well as clause (b) of
section 299. On the evidence, it is unlikely that the accused's conduct of sitting
forcefully on a frail old woman could amount to gross recklessness under section 300.
The evidence could, however, have satisfied the less serious form of recklessness
under section 299. So far as section 304.4 is concerned, while the Privy Council did
distinguish a rash act from a negligent one by confining its comments to the former, it
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would have greatly benefitted the lower courts if the Privy Council had taken the
opportunity to elaborate upon this distinction.

V Conclusion
The above analysis of judicial decisions reveals that the courts do not have a firm
grasp of the different types of recklessness appearing in the Code, their relationship to
one another nor of the relationship between recklessness and negligence. This
weakness is made more glaring by the fact that

Page: 308

the decisions analysed were those of the highest courts of the land. It is submitted
that a more systematic and thorough analysis of the law along the lines suggested in
this article would have ensured a more just result in many of these cases.

While the discussion has concentrated on cases where death has been caused, that
part which concerns rashness and negligence under section 304A is equally applicable
to the other provisions in the Code where the phrase “rash or negligent act” appears.51
Thus, for example, a court dealing with the offence under section 337 of causing hurt
by “doing any act so rashly or negligently as to endanger human life or the personal
safety of others” should be mindful that rashness requires advertence to the risk while
negligence does not. Furthermore, rashness can be satisfied upon a finding that the
accused knew the consequences of his conduct to be “possible” as opposed to the
more demanding “probable”. The court should also note that a rash person is more
culpable than a negligent one and should reflect this distinction in sentencing. In this
connection, there is some merit in the Indian Law Commission's proposal to increase
the maximum penalty for section 3044 and the other offences involving rash or
negligent conduct.52 Such a proposal would allow the sentencing court a wider tariff
within which to distinguish rashness from negligence.
———
*
Lecturer in Law, University of Sydney. The author is grateful to Professor P.M. Bakshi, Honorary Research
Professor at the Indian Law Institute, for his helpful comments on an earlier draft of this article. He takes sole
responsibility for any errors in the final version.
1 Hereinafter termed the “Code”.
2 That is, in 1837. Neither did Sir James Stephen use that term in his Digest of Criminal Law published forty years
later in 1877.
3
The current leading cases are R.v. Moloney, [1985] 1 All E.R. 1025; R. v. Lawrence, [1982] A.C. 510; R. v.
Caldwell, [1982] A.C. 341. For a critical discussion, see G. Williams, Textbook of Criminal Law (2nd ed. 1983) at
pp. 96-114; I. Patient, “Caldwell after Moloney—Another Look at Caldwell-Recklessness”, 51 Journal of Criminal
Law 82 (1987).
4 Reference will be made in this article to cases from Malaysia and Singapore, both of which have Penal Codes
containing identical provisions to the ones under discussion in the Penal Code, 1860. The numbering of the
provisions under consideration, viz. ss. 299, 300 and 304/A, are also the same in the Malaysian and Singaporean
Penal Codes.
5
The division of this section into clauses is not part of the official text of the Code. However, both the courts
and commentators use it as a convenient form of presenting the section.
6
S. 302.
7 S. 304, first part.
8 S. 304, second part.
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9
S. 302. The current judicial view is that for murder, the death penalty is to be imposed only in the “rarest of
the rare” cases; see Bachan Singh v. State of Punjab, (1980) 2 SCC 684 : AIR 1980 SC 898; Machhi Singh v.
State of Punjab, 1983 Cri LJ 1457 (S.C.).
10 It is described as “extraordinary recklessness” in H. Gour, Penal Law of India, vol. 3, p. 2294 (10th ed., 1983).
11See Kanji v. State, AIR 1953 Raj 40, per Wanchoo C.J., at pp. 41-42. Emphasis added. The same criticism can
be directed at Wasakhi Singh v. State, A.I.R. 1955 N.U.C. (Punjab) 5395 where it was held that for clause (4) of
section 300 to apply, the act causing the death should be “so imminently dangerous that the accused must be
presumed to have known that it would, in all probability, cause death….”
12 State v. Narhari Anant Naik, A.I.R. 1969 Goa 87, per Jetley J.C., adopting an earlier statement by Straight J.
In Empress of India v. Indu Beg, (1881) I.L.R. 3 All. 776 at 780.

13It will later be submitted that an accused who performed an act hoping that the anticipated harm would result
should be regarded as having intended that harm rather than reckless of it.
14Cf. Chamman Lal v. State, AIR 1954 All 186, per Mukerji J., on the meaning of rashness under s. 304.4 at 187:
“The criminality lies in running the risk or doing such an act with recklessness and indifference to the
consequences.” It is submitted that the point concerning reckless indifference does not constitute an integral
part of the defiinition of rashness.
15 (1976) 4 SCC 382 : AIR 1977 SC 45.
15a
Id. at 51 per Sarkaria J. Emphasis added. See also State v. Janardhan Prasad, 1977 Cri LJ 68.
16S. 300, illustration (d). As for shooting a gun at a crowd, see Mohinder Pal Jolly v. State of Punjab, (1979) 3
SCC 30 : AIR 1979 SC 577; Manindra Lal v. Emperor, A.I.R. 1937 Cal. 432.
17 Law Commission of India, Forty-second Report, Penal Code, 1860, para. 16.4.1971).
18 Supra note 15 at 51.
19
(1984) 1 SCC 673 : AIR 1983 SC 529 at 534, per Desai and Misra J.J.
20 (1976) 1 SCC 889 : AIR 1976 SC 1012.
20a Id. at 1015.
21 Glanville Williams, Crimiinal Law: The General Part 58 (2nd ed. 1961).
22 Colin Howard, Criminal Law 356-357. (4th ed. 1982).
23
See Juggankhan Jamshankhan v. State, AIR 1963 MP 102. (doctor guilty of the lesser offence under s. 304A.).
If the patient had not consented, the Indian court would refuse to recognise the operation as conferring any
social benefit unless the case fell within the ambit of s. 92 of the Code (for e.g., an urgent and life-saving
operation on an unconscious person).
24 G. Peiris, General Principles of Criminal Liability in Ceylon 38 (1972). Although the comment in its original form
relates to rashness it is equally applicable to the other two forms of recklessness presented in this article. The
quotation omits a statement that it is immaterial that a person hoped the consequences to occur. It will be
submitted later that this amounts to intention and not recklessness.
25(11th ed. 1957) at p. 410 and regarded as a correct pronouncement of the meaning of intention under the
Code in Nigam's Law of Crimes in India, vol. I (1965) at p. 75; and K.L. Koh and Myint Soe, The Penal Codes of
Singapore and States of Malaya, vol. I (1974) at p. 6.

26 For e.g., a person who shoots at another who is outside the normal range of the gun and kills him.
27 Williams, supra note 21 at 41.
28AIR 1967 Mad 365, per Natesan J., at 368. See also R. v. Nidamarti Nagabhushanam, 7 Mad. H.C.R. 119 (1871
-1874); Smith v. Emperor, AIR 1926 Cal 300; Chamman Lal, supra note 14; State v. Bhalchandra Waman Pethe;
AIR 1966 Bom 122.
29This is basically the problem confronting the English courts. See R. v. Hancock, [1986] 2 WLR 357; Moloney,
supra note 3. See also J. Dine, “Intention, History and Hancock”, 51 Journal of Criminal Law 72 (1987).
30
State v. Banshi Singh, AIR 1960 MP 105, per Shrivastava J., at p. 106. See also Smith, supra note 28;
Bhalchandra, supra note 28; Balachandra Woman Pathe v. State of Maharashtra, (1968) 1 S.C.W.R. 1; State v.
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Narhari, supra note 12.

31 See the Indian Supreme Court decision in Balachandra Wantan Pathe, ibid, per Hegde J., at 8.
32 In this regard the Indian Supreme Court has been particularly remiss in referring to section 304/1 in terms of
“rash and negligent act” in numerous recent decisions. For example, see Thakore v. State, (1980) 1 SCC 320 :
AIR 1979 SC 1327; Baijnath Singh v. State, (1972) 2 SCC 264 : AIR 1972 SC 1485.
33
Smith, supra note 28, per Mukerji J., at 304.
34 (1972) 1 M.L.J. 274, per Ong C.J.

34a Id. at 278.

35 AIR 1950 All 300.
35aId. at 301 per Agarwala J. He cited Andrews v. Director of Public Prosecutions, [1937] A.C. 576 where Lord
Atkin said of negligence, “[p]robably of all the ephithets that can be applied “reckless” most nearly covers the
case.” For a critical comment of Andrews, see Williams, supra note 21, at 226-127. Recent English law reform
bodies have recommended that recklessness should be framed in purely subjective terms. See Criminal Law
Revision Committee, 14th Report, Offences Against the Person, Cmnd. 7644 of 1980, at paras. 6-11; Law
Commission, Criminal Law, Report on the Mental Element in Crime (Law Com. No. 89) (1978) at p. 60.
36
It was referred to in Shiva Ram v. State, AIR 1965 All 196 which ultimately adopted a passage from the case
of Chamman Lal, supra note 14, where the distinction between rashness and negligence is maintained.
37
Balachandra Waman Pathe, supra note 30, per Hegde J., at p. 8 citing Nidantarti Nagabhushanam, supra note
28, with approval.
38
There may be cases where the homicidal victim was not the person whose death or injury the accused
intended. Such cases are covered by the doctrine of transferred malice as embodied in s. 301 of the Code; see
Shankarlal v. State, AIR 1965 SC 1260.

39Could be intentional murder if one of the first three clauses of section 300 are made out. Otherwise it could be
only culpable homicide not amounting to murder if clause (b) of section 299 is satisfied. The charge would also
be culpable homicide not amounting to murder should any of the five exceptions to s. 300 be made out.
40 A.I.R. 1921 Cal. 501.
41The court rejected out of hand the defence of mistake under section 79 of the Penal Code when it said that
“any man with any glimmering of common sense” would have known the outcome of feeding a child to a
crocodile. Tor the defence under s. 79 to be made out, the mistake must have been made “in good faith”. That
expression is defined in the Code as being done or believed “with due care and attention” (s. 52).

42The maximum punishment under s. 304A is two years' imprisonment. The sentencing court would also have
borne in mind that negligence is less serious a form of criminality than rashness: see Balaehandra Woman Pathe,
supra note 30 at 207.
43 A.I.R. 1955 Punj. 13.
44
Supra note 20.
45 Ibid, per Goswami J., at pp. 1015-1016. Emphasis added.
46 (1987) 2 M.L.J. 709. The Supreme Court is the highest court in Malaysia.
47 Exception 7 to section 300 of the Malaysian Penal Code.

48 Supra note 46 at 711.

49
(1976) 1 Mad LJ 156.
50 Clause (6) of section 299 involves the causing of death “with the intention of causing such bodily injury as is
likely to cause death.”
51
For e.g., see sections 279, 326, 337 and 338 of the Code.
52
Supra note 17, paras, 14.8, 16.25-16.27 and 16.71. Notably, the Commission proposed that the maximum
punishment for section 304/4 should be increased from two to five years' imprisonment. The Commission
proposed increasing the penalties on account of “the frequency in the commission of the offence accompanied
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by the callousness of the offender towards his victim.”. Regrettably, the Commission, in its discussion, likewise
failed to pay adequate attention to the distinction between the notions of “rashness” and “negligence”.
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