Section 304A. 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.
The original IPC had no provision providing punishment for causing death by negligence.
Section 304A was inserted in the code in 1870 by the IPC (Amendment) Act 1870. It does not create a new offence. This section is directed at offences, which fall outside the range of section 299 and 300, where neither intention nor knowledge to cause death is present. This section deals with homicide by negligence and covers that claas of offences, where death is caused neither intentionally nor with the knowledge that the act of the offender is likely to cause death, but because of the rash and negligent act of the offender. This clause limits itself to rash and negligent acts which cause death, but falls short of culpable homicide of either description. When any of these two elements, namely, intention or knowledge, is present, section 304A has no application.
In fact, if this section is also taken into consideration, there are three types of homicides which are punishable under the IPC namely,
1. Culpable homicide amounting to murder;
2. Culpable homicide not amounting to murder, and;
3. Homicide by negligence.
Section 304A of the Penal code is applicable to cases where there is no intention to cause death and no knowledge that the act done in all probability will cause death. The provision is directed at offences outside the range of sections (i.e., 299 & 300) dealing with unlawful homicide. Section 304A is applicable only to such acts which are rash or negligent and are directly the cause of death of another person. It carves out s specific offence where death is caused by doing a rash and negligent act and that act does not amount to culpable homicide under Section 299 or murder under section 300, IPC. It takes out of its ambit the cases of death of any person by doing any rash or negligent act amounting to culpable homicide not amounting to murder and culpable homicide amounting to murder.
RASH OR NEGLIGENT ACT
Section 304A deals with ‘death’ caused by ‘rash’ or ‘negligent’ act. However, in both the cases, the death caused should not amount to culpable homicide. The doing of a rash or negligent act, which causes death, is the essence of Section 304A. There is a distinction between a rash act and a negligent act. ‘Rashness’ conveys the idea of recklessness or doing of an act without due consideration and ‘negligence’ connotes want of proper care. A rash act implies an act done by a person with recklessness or indifference as to its consequences. The doer, being conscious of the mischievous or illegal consequences, doest the act knowing that this act may being some undesirable or illegal result but without hoping or intending them to occur. A negligent act, on the other hand, refers to an act done by a person without taking sufficient precautions or reasonable precautions to avoid its probable mischievous or illegal consequences. It implies an omission to do something, which a reasonable man, in the given circumstances, would not do.
The term ‘Negligence’ as used in this section does not mean mere carelessness. The rashness or negligence must by of such nature so as to be termed as a criminal act of negligence or rashness. Section 80 of the IPC provides nothing is an offene which is done by accident or misfortune and without any criminal knowledge or intention in the doing of lawful act in a lawful manner by a lawful means and with proper care and caution’. It is absence of such proper care and caution, which is required of a reasonable man in doing an act, which is made punishable under this action.
It is the degree of negligence that really determines whether a particular act would amount to rash and negligent act as defined under this section. It is only when the rash and negligent act is of such a degree that the risk run by the doer of the act is very high or is done with such recklessness and with total disregard and indifference to the consequences of this act, the act can be constituted as a rash and negligent act under this section. Negligence is the gross and culpable neglect or failure to exercise reasonable and proper care, and precaution to guard against injury, either to the public generally or to an individual in particular, which a reasonable man would have adopted. Negligence, thus, means omission to do something which a reasonable and prudent person guided by the considerations which ordinarily regulate human affairs would do or doing something which a prudent and reasonable person guided by similar considerations would not do.
However, negligence is not an absolute term but is a relative one; it is rather a comparative term. It is difficult to state with precision any mathematically exact formula by which negligence or lack of it can be infallibly measured in a given case. Whether there exist negligence per se or the course of conduct amounts to negligence will normally depend upon the attending and surrounding facts and circumstances which have to be taken into consideration by the court.
In Cherubin Gregory V State of Bihar, the deceased was an inmate of a house near that of the accused. The wall of the latrine of the house of the deceased had fallen down a week prior to the day of occurrence, with the result that his latrine had become exposed to public view. Consequently, the deceased, among others, started using the latrine of the accused. The accused resented this and made it clear to them that they did not have his permission to use it and protested against their coming there. The oral warnings, however, proved ineffective. Therefore, the accused fixed a naked and uninsulated live wire of high voltage in the passage to the latrine, to make entry into his latrine dangerous to intruders. There was no warning put up that the wire was live. The deceased managed to pass into latrine without contacting the wire, but as she came out, her hand happened to touch it, she got a shock and died because of it.
It was contended on behalf of the accused that he had a right of private defence of property and death was caused in the course of the exercise of that right, as the deceased was a trespasser. The Supreme Court rejected the contention stating that the mere fact that the person entering a land is a trespasser does not entitle the owner of occupier to inflict on him personal injury by direct violence. The court observed that it is no doubt true that the trespasser enters the property at his own risk and the occupier owes no duty to take any reasonable care for his protection, but at the same time, the occupier is not entitled to willfully do any act, such as setting a trap of naked live wire of high voltage, with the deliberate intention of causing harm to trespasser or in reckless disregard of the presence of trespasser. It was held that since the trespasser died soon after the shock, the owner who set up the trap was guilty under section 304A. The Supreme Court upheld the conviction of the accused.
An assistant station master gave a ‘line clear’ signal to a passenger train with the knowledge that a goods train was standing at a particular point, where the train might collide, hoping to remove the goods train before the arrival of the passenger train. The Goods train was not removed in time and a collision occurred which was attended with loss of life. The assistant station master was held guilty of a rash act punishable under this section.
DIFFERNCE BETWEEN RASHNESS AND NEGLIGENCE
A rash act is primarily an over hasty act. Negligence is a breach of a duty caused by omission to do something, which a reasonable man guided, by those considerations which ordinarily regulate the conduct of human affairs would do.
In Bhalachandra Waman Pathe V State of Maharashtra, the Supreme Court explained the distinction between a rash and a negligent act in the following manner;
There is a distinction between a rash 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 consequence. Criminal negligence is the gross and culpable neglect of 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. Negligence is 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 reasonable man would not do,. 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.
In the instant case, the appellant was driving his car at a speed of 35 miles an hour, the speed permissible under the rules. No other circumstance was pointed out to show that he was driving in a reckless manner. Therefore, he cannot be said to have been running the risk of doing an act with recklessness or indifference as to the consequences. However, he was undoubtedly guilty of negligence. He had a duty to look ahead and see whether there was any pedestrian in the pedestrian crossing. It is likely that while driving the car, he was engrossed in taking with the person who was sitting by his side. By doing so, he failed to exercise the caution incumbent upon him. His culpable negligence and failure to exercise that reasonable and proper care and caution required of him resulted in the occurrence. He was therefore held guilty of the offence punishable under section 304A.
RASH AND NEGLIGENT ACT IN DRIVING ALONG A PUBLIC HIGHWAY
Generally, a person who is driving a motor vehicle is expected to always be in control of the vehicle in such a manner as to enable him to prevent hitting against any other vehicle running over any pedestrian, who may be on the road.
In Baldevji V State of Gujrat, the accused had run over the deceased while the deceased was trying to cross over the road. The accused had run over the deceased while the deceased was trying to cross over the road. The accused did not attempt to save the deceased by swerving to the other side, when there was sufficient space. This was a result of his rash and negligent driving. His conviction under section 304A, IPC, was upheld.
In Duli Chand V Delhi Administration, the accused was driving a public transport bus, and he had reached a crossroad. At that time, although he was not going at a great speed, he failed to look to his right and thus did not see the deceased, who was coming from his right and was crossing the road. The main road was 42 feet wide and had the accused been reasonably alert and careful, he would have seen the deceased coming from his right trying to cross the road, and in that event he could have immediately applied the brake and brought the bus to a grinding halt. The act of the accused in failing to look to his right, although he was approaching a crossroad, amounted to culpable homicide on his part and hence, he was convicted under section 304A, IPC.
In Thakur Singh V State of Punjab, the Supreme Court held the driver of a bus, carrying 41 passengers, while crossing a bridge, fell into a nearby canal resulting death of all the passengers, guilty of rash and negligent driving.
Refuting his plea that the prosecution failed to prove negligence on his part, the court invoked the doctrine of res ipsa loquitur to shift the onus of proof to him to prove that the accident did not happe due to his negligence,
In Mohammed Aynuddin @ Miyami V State of Andhra Pradesh, the apex court stressed that the doctrine of res ipsa liquitor is only a rule of evidnce to determine that onus of proof in actions relating to negligence. It has application only when the nature of accident and the attending circumstances would reasonably lead to the belief that in the absence negligence, the accident would not have occurred and that the thing which caused injury is shown to have been under the management and control of the alleged wrongdoer.
In Ravi kapur V State of Rajasthan, wherein negligent driving of a bus took lives of eight persons, the Supreme Court, highlighting the significance of the doctrine of res ipsa liquitor in cases of negligence observed;
--[T]he doctrine of res ipsa liquitor – serves two purposes – one that an accident may by its nature be more consistent with its being caused by negligence for which the opposite party is responsible than by any other causes and that in such a case, the mere fact of the accident is prima facie evidence of such negligence. Secondly, it is to avoid hardship in cases where the claimant is able to prove the accident but cannot prove how the accident occurred. The courts have applied the principle of res ipsa liquitor in cases where no direct evidence was brought on record. – This maxim suggests that on the circumstances of a given case the res speaks and is eloquent because the facts stand unexplained, with the result that the natural and reasonable inference from the facts, not a conjectural interference, shows that the act is attrituble to some person’s negligent conduct.
RASH OR NEGLIGENT ACT IN MEDICAL TREATMENT
Courts have repeatedly held that great care should be taken before imputing criminal rashness or negligence to a professional man acting in the course of his professional duties. A doctor is not criminally liable for a patent’s death, unless his negligence or incompetence passes beyond a mere matter of competence and shows such a disregard for life and safety, as to amount to a crime against the state.
In Juggan Oni Akerel’s case, a medical practitioner had administered a medical dose of sorbital injection to a child, because of which the child died. The doctor was charged under section 304A, IPC. The contention of the accused doctor was that the child was peculiarly susceptible to the medicine and therefore unexpectedly succumbed to a dose which would have been harmless in case of a normal child. The Privy council held the doctor was guilty of criminal negligence.
In Suresh Gupta (Dr) V Govt of NCT of Delhi & Anor, the Supreme Court held that for fixing criminal liability of a doctor, the standard of negligence should not merely be lack of necessary care, attention and skill. The standard of negligence required to be proved should be so high as can be described as ‘gross negligence’ or ‘recklessness’. With this perception, the court observed;
..[W]hen a patient agrees to go for medical treatment or surgical operation, every careless act of the medical man cannot be termed as ‘criminal’. It can be termed ‘criminal’ only when the medical man exhibits a gross lack of competence or inaction and wanton indifference to his patient’s safety and which is found to have arisen from gross ignorance or gross negligence. Where a patient’s death results merely from error of judgment or an accident, no criminal liability should be attached to it. Mere inadvertence or some degree of want of adequate care and caution might create civil liability but would not suffice to hold him criminally liable, … [T]he act complained against the doctor must show negligence or rashness of such a degree as to indicate a mental state which can be described as totally apathetic towards the patient. Such gross negligence alone is punishable.
In Jacob Mathew V State of Punjab, the Supreme Court not only approved the principle laid down in the Dr. Gupta case but also opined that ‘negligence’ in the context of medical profession necessarily calls for a treatment with a difference… a case of occupational negligence is different from one of professional negligence. Delving into liability of a doctor for his rash or negligent act leading to death of his patient, it ruled that;
….[A] professional may be held liable for negligence on one of the two findings; either he was not possessed of the requisite skill which he professed to have possessed, or, he did not exercise, with reasonable competence in the given case, the skill which he did possess. The standard to be applied for judging, whether the person charged has been negligent or not, would be that of an ordinary competence person exercising ordinary skill in the profession.
In Kusum Sharma & Ors V Batra Hospital and Medical Research & Ors, the Supreme Court, in a case under section 21 of the Consumer Protection Act, 1986 dealing with deficiency in medical service, has after scrutiny of leading judicial pronouncements on medical negligence from home and abroad, laid down a set of guidelines for deciding as to whether the medical professional is guilty of medical negligence or not and has advised courts subordinate to it to keep them in mind while determining liability of doctors for professional negligence. They are;
1. Negligence is the breach of a duty exercised by 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.
2. Negligence is an essential ingredient of the offence. The Negligence to be established by the prosecution must be culpable or gross and not the negligence merely based upon an error of judgment.
3. The medical professional is expected to bring a reasonable degree of skill and knowledge and must exercise a reasonable degree of care. Neither the very highest nor a very low degree of care and competence judged in the light of the particular circumstances of each case is what the law requires.
4. A medical practitioner would be liable only where his conduct fell below that of the standards of a reasonable competent practitioner in his field.
5. In the realm of diagnosis and treatment there is scope for genuine difference of opining and one professional doctor is clearly not negligent merely because his conclusion differs from that of other professional doctor.
6. The medical professional is often called upon to adopt a procedure which involves higher element of risk, but which he honestly believes as providing greater chances of success for the patient rather than a procedure involving lesser risk but higher chances of failure. Just because a professional looking to the gravity of illness has taken higher element of risk to redeem the patient out of his/her suffering which did not yield the desired result may not amount to negligence.
7. Negligence cannot be attributed to a doctor so long as he perform his duties with reasonable skill and competence. Merely because the doctor chooses one course of action in preference to the other one available, he would not be liable if the course of action chosen by him was acceptable to the medical profession.
8. It would not be conductive to the efficiency of the medical profession if no Doctor could administer medicine without a halter round his neck.
9. The medical professionals are entitled to get protection so long as they perform their duties with reasonable skill and competence and in the interest of the patients. The interest and welfare of the patients have to be paramount for the medical professionals.
The apex court reminded the courts of their bounden duty and obligation to ensure that medical professionals are not unnecessary harassed or humiliated so that they can perform their professional duties without fear and apprehension. Courts have to protect them from malicious proceedings. They, at times, also have to be saved from complainants who use criminal process as a rool for pressurizing them or hospitals, particularly private hospitals or clinics, for extracting uncalled for compensation. As long as doctors perform their duties and exercise an ordinary degree of professional skill and competence, they cannot he held guilty of medical negligence.
Elsewhere, the apex court, reiterating that simple lack of care or an error of judgment by a medical practitioner is not sufficient to constitute medical negligence, negligence must be of a gross or a very high degree to amount to criminal negligence, observed that for establishing medical negligence or deficiency in service, the courts would need to determine the following;
1. No guarantee is given by any doctor or surgeon that the patient would be cured.
2. The doctor, however, must undertakes a fait, reasonable and competence degree of skill, which may not be the highest skill.
3. Adoption of one of the modes of treatment, if there are many; and treating the patient with due care and caution would not constitute any negligence.
4. Failure to act in accordance with the standard, reasonable, competent medical means at the time would not constitute a negligence. However, a medical practitioner must exercise the reasonable degree of care and skill and knowledge which he possesses. Failure to use due skill in diagnosis with the result that wrong treatment is given would be negligene.
It advised the adjudging courts to proceed slow in complicated cases in contributing negligence on the part of the doctor, if he is performing his duties to be best of his ability.