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Can the section 304-A of I.P.C. be a license to kill?

Written by: Bharat Maheshwari - IVth yr. B.A. LL.B. (5 yrs) New Law College, Bharati Vidyapeeth University, Pune
Constitutional Lawyers in India
Legal Service
  • 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.

    The said section reads as follows:
    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 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.

    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 doesn't 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 one's 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 it's 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.

    The 'rash or negligent act' referred to in this section means the act which is the immediate cause of death, and not any act or omission, which can utmost be said to be a remote cause of death. If an act is intended to hurt and injure a specific person or object, the perpetrator of the act must be imputed with an intentional act done with consideration and cannot amount to a 'rash' and 'negligent' act. It is imperative to note that there is difference between rashness and negligence. A rash act is primarily an overhasty act. Negligence is a breach of duty caused by omission to do something, which a reasonable guided, by those considerations which ordinarily regulate the conduct of human affairs would do.

    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 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 Rajasthan 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. 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 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.

    The very best and clear example of this section can be drawn from State of Karnataka v. Mohd. Ismail, 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 Karnataka 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 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 Maharastra, 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 I.P.C. Thus it must be concluded that the said section doesn't endow a "License to kill" but is to protect the persons who had no intention to kill and due to an act of negligence did become guilty of a homicide.

    # Dr. K. I. Vibhute, PSA Pillai’s Criminal Law, 10th Edition, LexisNexis Butterworths India, New Delhi, 2008, p. 818
    # Prof. S. N. Mishra, Indian Penal Code, 13th Edition, Central Law Publications, Allahabad, 2005, p. 505
    # Girish Singh v. State of Uttaranchal, AIR 2008 SC 3136
    # Raghunath Bahesa v. State of Orissa, (1968) Cr LJ 851 (Ori)
    # Shankar Narayan Bhadolkar v. State of Maharastra, AIR 2004 SC 1966
    # Abdul Ise Suleman v. State of Gujarat, (1995) 1 Cr LJ 464 (SC)
    # Prabhakaran v. State of Kerala, AIR 2007 SC 2376, para 5
    # 2, Justice V. V. Raghavan, revised by P. M. Bakshi, Law of Crimes, 5th Edition, India Law House, New Delhi, 1999, p. 188
    # Akbar Ali, (1936) 12 Luck 336; Ratanlal & Dhirajlal’s, The Indian Penal Code, 30th Edition, Re-print 2009, LexisNexis Butterworths Wadhwa Nagpur, p. 548
    # Karuni Samal and Others v. State, 1976 Cut LT 207; R. N. Saxena, Indian Penal Code, Sixteenth Edition, 2005, Central Law Publications, Allahabad, p. 314
    # Balwant Singh v. State of Punjab, 1994 SCC (Cri) 844
    # 3, Hari Singh Gour, Penal Law of India, 11th Edition, Law Publishers, Allahabad, 1998, p. 3028
    # 4, A. N. Sana, Supreme Court on Criminal Law (1950-2008), 2nd Edition, Ashok Law House, New Delhi, 2009, p. 4169
    # Mulani v. State of Maharastra, AIR 1968 SC 829
    # Kurban Hussein Mohamadali v. State of Maharastra, AIR 1965 SC 1616
    # Satnam Singh v. State of Rajasthan, AIR 2000 SC 423
    # Murari v. State of Madhya Pradesh, 2001 Cr LJ 2968 (MP)
    # Kanaiyalal Arjandas v. Tribhuvandas, 1998 Cr LJ 3842 (Guj)
    # Tukaram Sitaram, (1970) 72 Bom LR 492
    # State of Karnataka v. Krishna (1987) 1 SCC 538
    # State of Karnataka v. Mohd. Ismail, 1989 Cr LJ 235 (Kant)
    # Bhimabhai Kalabhai v. State of Gujarat, 1992 Cr LJ 2585 (Guj)
    # Rathnashalvan v. State of Karnataka, 2007 Cr LJ 1451 (SC)
    # Mohammed Aynuddin v. State of Andra Pradesh, AIR 2000 SC 2511
    # Thakur Singh v. State of Punjab, 2003 (9) SCC 208 (SC)
    # Ratanlal & Dhirajlal’s, The Indian Penal Code, 30th Edition, Re-print 2009, LexisNexis Butterworths Wadhwa Nagpur, p. 547
    # Dalbir Singh v. State of Haryana, AIR 2000 SC 1677
    # David Ormerod, Smith & Hogan Criminal Law, Cases & Materials, Ninth Edition, Oxford University Press, 2006, p. 646
    # M. H. Lokre v. State of Maharastra, AIR 1972 SC 221
    # K. D. Gaur, A Textbook on the Indian Penal Code, Third Edition, Universal Law Publishing Co. Pvt. Ltd., 2004, p. 439

    About The Author:
    Bharat Kedar Maheshwari
    #401, Parvati Residency, 188A/23 Maniktalla Main Road
    Kakurgachi, Kolkata, West Bengal, Pin - 700054
    Mobile: +919916944416

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