CRIMINAL LAW I CIA-3

DOES SEC.304A OF IPC ACT AS A SUPPORTING TOOL TO KILL PEOPLE?

A.PRIYANKA 1116040 6TH BA LLB A

ABSTRACT: This paper highlights the significance of sec.304A and tries to solve the basic confusion as to whether section 304A in a way acts as a supporting tool for the wrongdoers. The paper first tends to explain the section in a detailed manner and then tries to answer the research question with the help of various cases. The paper also gives a clear explanation of the term rash and negligent act.

INTRODUCTION:
The original Indian Penal Code, 1860 had no provision providing punishment for causing death by negligence. Section 304-A was inserted in the Code in 1870 by the Indian Penal Code (Amendment) Act, 1870. This section did not create a new offence but was directed towards the offences which fall outside the range of section 299 and 300 of the Indian Penal Code, 1860 (herein after referred as I.P.C.) when neither intention nor knowledge to cause death is present. This section limits itself to rash and negligent act of the offender which cause death, but falls short of culpable homicide of either description. When any of these two elements i.e- intention or knowledge are present, s.304A has no application.1

304A. of Indian Penal Code states the following: 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.2 Scope of section 304-A: In order to impose criminal liability on the accused, it must be found as a fact that collusion was entirely or mainly due to the rashness or negligence; [Munile Sao v. State of Bihar, (1997) 3 Crimes 200 (Pat)].3 The provisions of this section apply to cases where there is no intention to cause death, and no knowledge that the act done in all probability would cause death. The Supreme Court has clarified that the section 304-A of I.P.C. is applicable only when death is caused due to rash and negligent act of the accused, which is an essential element to attract said provision. But a colossal group of legal scholars have always questioned whether this section provides punishment for manslaughter without intention or is it a license to kill in disguise of a rash and negligent act.

PSA Pillais Criminal Law, K I Vibhute, 11 edition. 2 Professionals Criminal Manual, Justice M.R. Mallick, 2013. 3 http://www.dabangvakil.com/indianpenalcode/section304Aipcdhara.htm

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It is very much convincing that this section would have no applicability where the act is in its nature criminal. Only the act done negligently or rashly invokes the validity of this section and it cannot be applicable to result, which supervenes upon the act which could not have been anticipated. While discussing the scope of this section as a license to kill, one may conceive that the term rash classifies the various events and acts in road accidents, mishandling of hazardous materials or lethal weapons etc. while the term negligent can be associated with the acts of professionals like medical practitioners or pharmacists etc. But the different levels of judiciary have from time to time defined and premeditated the applicability of this section ensuring it doesnt create a defensive ground for people to commit homicide.

This section deals with homicide by negligence and covers that class 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 the two elements, namely, intention or knowledge, is present this section has no application. Intentional shooting at a fleeing person and hitting someone else to death comes under the section 300 read with section 301 of the I.P.C. It is not a negligent act so as to come under section 304-A. This section applies to rash and negligence acts and does not apply to cases where death has been voluntarily caused. This makes it clear that there can be no circumstances when ones act can be read into this particular section in order to avail him the benefit of not being charged under section 299 to 302 of the I.P.C. Thus its clear that the facts which must be proven in order to invoke the applicability of this section are essentially three folds: (1) Death of a human being; (2) The accused caused the death; (3) The death was caused by the doing of a rash and negligent act, though it did not amount to culpable homicide.

Rash or negligent act:

The section 304A deals with death caused by a rash or negligent act4. However in both the cases the death should not amount to culpable homicide. The term rash or negligent act referred to in this section means the act which is the immediate cause of death, and not any act or omission, which can utmost be said to be a remote cause of death. If an act is intended to hurt and injure a specific person or object, the perpetrator of the act must be imputed with an intentional act done with consideration and cannot amount to a rash and negligent act. There is a difference between a rash act and a negligent act. A rash act is primarily an overhasty act or an act done without due consideration. Negligence is a breach of duty caused by omission to do something, which a reasonable guided, by those considerations which ordinarily regulate the conduct of human affairs would do. Thus a negligent act would refer 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 would not do in the given circumstances.5 Cherupin Gregory v. State of Bihar6- explains the defference between rash and negligent act. The appellant was charged with an offence under section 304A for causing death of one M by contact with the electrically charged copper wire which he had fixed up at the back of his house with a view to prevent the entry of intruders into his latrine. It was held that the voltage of the current passing through the naked wire being high enough to be lethal, there could be no dispute that charging it with current of that voltage was a rash act done in reckless disregard of the serious consequences to people coming into contact with it for which the accused is solely responsible under section 304A. At this point it is necessary to have a close perusal of the words of this section which it reads as rash or negligent act not amounting to culpable homicide. 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
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Under s.32 of IPC the term act here also includes illegal omission. Re JC May, AIR 1960 Mad 50 6 1964 (1) Cr LJ 138: AIR 1965 SC 205

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 under sec.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 anothers 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 Rajasthan7 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.8 it was critically observed that 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. Tribhuvandas 9the 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.

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AIR 2000 SC 423 2001 CriLJ 2968 9 1998 CriLJ 3482

The very best and clear example of this section can be drawn from State of Karnataka v. Mohd. Ismail10, 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 everyones 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 Karnataka 11it 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.

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1988(3)KarLJ 141 (2007)3 SCC 474

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 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 Maharastra12, 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.

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AIR 1972 SC 221, 1972 CriLJ 49, (1972) 4 SCC 758

CONCLUSION:
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 day due to lack of evidence and due to lack of proper advocacy, one can avail illegitimate benefits of this section. But such a situation is very rare to take place. It has been said that in cases falling under this section it is difficult to distinguish between the approximate and ultimate cause of death. But there is a negligible chance that the judiciary will get confused between section 304-A and the sections 299 to 302 of the I.P.C. Thus it must be concluded that the said section doesnt act as a supporting tool 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.

BIBLIOGRAPHY: Books referred: PSA Pillais Criminal Law, K I Vibhute, 11th edition. Professionals Criminal Manual, Justice M.R. Mallick, 2013.

Websites referred: http://www.dabangvakil.com/indianpenalcode/section304Aipcdhara.htm

Cases referred:

Munile Sao v. State of Bihar, (1997) 3 Crimes 200 (Pat) Cherupin Gregory v. State of Bihar, 1964 (1) Cr LJ 138: AIR 1965 SC 205 Satnam Singh v. State of Rajasthan, AIR 2000 SC 423 Murari v. State of M.P, 2001 CriLJ 2968 Kanaiyalal Arjandas v. Tribhuvandas, 1998 CriLJ 3482 State of Karnataka v. Mohd. Ismail, 1988(3)KarLJ 141 Rathnashalvan v. State of Karnataka, (2007)3 SCC 474 M. H. Lokre v. State of Maharastra, AIR 1972 SC 221, 1972 CriLJ 49, (1972) 4 SCC 758