Act must be causa causans not causa sine qua non.
In the case of A.D. Bhatt v. State of Gujarat, AIR 1972 SC 1150 : 1972 Cri LJ 727, it has been held as under :--
"8...... for an offence Under Section 304-A, the mere fact that an accused contravenes certain rules or regulations in the doing of an act which causes death of another, does not establish that the death was the result of a rash or negligent act or that any such act was the proximate and efficient cause of the death. If that were so, the acquittal of the appellant for contravention of the provisions of the Act and the Rules would itself have been an answer and we would have then examined to what extent additional evidence of his acquittal would have to be allowed but since that is not the criteria, we have to determine whether the appellant's act in giving only one batch number to all the four lots manufactured on 12-11-1962 in preparing batch No. 211105 was the cause of deaths and whether those deaths were a direct consequences of the appellants' act, that is, whether the appellants' act is the direct result of a rash and negligent act and that act was the proximate and efficient cause without the intervention of another's negligence."
Section 304-A IPC applies to cases where there is no intention to cause death and no knowledge that the act done, in all probabilities, will cause death. This provision is directed at offences outside the range of Sections 299 and 300 IPC. Section 304-A applies only to such acts which are rash and negligent and are directly the cause of death of another person. Negligence and rashness are essential elements under Section 304-A.
Section 304-A carves out a specific offence where death is caused by doing a rash or negligent act and that act does not amount to culpable homicide under Section 299 or murder under Section 300. If a person willfully drives a motor vehicle into the midst of a crowd and thereby causes death to some person, it will not be a case of mere rash and negligent driving and the act will amount to culpable homicide. Doing an act with the intent to kill a person or knowledge that doing an act was likely to cause a person's death is culpable homicide. When the intent or knowledge is the direct motivating force of the act, Section 304-A has to make room for the graver and more serious charge of culpable homicide. The provision of this section is not limited to rash or negligent driving. Any rash or negligent act whereby death of any person is caused becomes punishable. Two elements either of which or both of which may be proved to establish the guilt of an accused are rashness/negligence, a person may cause death by a rash or negligent act which may have nothing to do with driving at all. Negligence and rashness to be punishable in terms of Section 304-A must be attributable to a state of mind wherein the criminality arises because of no error in judgment but of a deliberation in the mind risking the crime as well as the life of the person who may lose his life as a result of the crime. Section 304-A discloses that criminality may be that apart from any mens rea, there may be no motive or intention still a person may venture or practice such rashness or negligence which may cause the death of other. The death so caused is not the determining factor. (vide Supreme Court of India
Naresh Giri vs State Of M.P on 12 November, 2007 )
In this context the following passage from Kenny's Outlines of Criminal Law, 19th Edition (1966) at page 38 may be usefully noted :
"Yet a man may bring about an event without having adverted to it at all, he may not have foreseen that his actions would have this consequence and it will come to him as a surprise. The event may be harmless or harmful, if harmful, the question rises whether there is legal liability for it. In tort, (at common law) this is decided by considering whether or not a reasonable man in the same circumstances would have realised the prospect of harm and would have stopped or changed his course so as to avoid it. If a reasonable man would not, then there is no liability and the harm must lie where it falls. But if the reasonable man would have avoided the harm then there is liability and the perpetrator of the harm is said to be guilty of negligence. The word 'negligence' denotes, and should be used only to denote, such blameworthy inadvertence, and the man who through his negligence has brought harm upon another is under a legal obligation to make reparation for it to the victim of the injury who may sue him in tort for damages. But it should now be recognized that at common law there is no criminal liability for harm thus caused by inadvertence. This has been laid down authoritatively for manslaughter again and again. There are only two states of mind which constitute mens rea and they are intention and recklessness. The difference between recklessness and negligence is the difference between advertence and inadvertence they are opposed and it is a logical fallacy to suggest that recklessness is a degree of negligence The common habit of lawyers to qualify the word "negligence" with some moral epithet such as wicked' `gross' or `culpable' has been most unfortunate since it has inevitably led to great confusion of thought and of principle. It is equally misleading to speak of criminal negligence since this is merely to use an expression in order to explain itself."
"Negligence", says the Restatement of the law of Torts published by the American Law Institute (1934) Vol. I. Section 28 "is conduct which falls below the standard established for the protection of others against unreasonable risk of harm". It is stated in Law of Torts by Fleming at page 124 (Australian Publication 1957) that this standard of conduct is ordinarily measured by what the reasonable man of ordinary prudence would do under the circumstances. In Director of Public Prosecutions v. Camplin (1978) 2 All ER 168 it was observed by Lord Diplock that "the reasonable man" was comparatively late arrival in the laws of provocation. As the law of negligence emerged in the first half of the 19th century it became the anthropomorphic embodiment of the standard of care required by law. In order to objectify the law's abstractions like "care" "reasonableness" or "foreseeability" the man of ordinary prudence was invented as a model of the standard of conduct to which all men are required to conform.
In Syed Akbar v. State of Kamataka, (1980) 1 SCC 30, it was held that "where 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. As pointed out by Lord Atkin in Andrews v. Director of Public Prosecutions (1937) (2) All ER 552) simple lack of care such as will constitute civil liability, is not enough; for liability under the criminal law a very high degree of negligence is required to be proved. Probably, of all the epithets that can be applied 'reckless' most nearly covers the case. "
According to the dictionary meaning `reckless' means `careless', `regardless' or heedless of the possible harmful consequences of one's acts'. It presupposes that if thought was given to the matter by the doer before the act was done, it would have been apparent to him that there was a real risk of its having the relevant harmful consequences; but, granted this, recklessness covers a whole range of states of mind from failing to give any thought at all to whether or not there is any risk of those harmful consequences, to recognizing the existence of the risk and nevertheless deciding to ignore it. In R. v. Briggs (1977) 1 All ER 475 it was observed that a man is reckless in the sense required when he carries out a deliberate act knowing that there is some risk of damage resulting from the act but nevertheless continues in the performance of that act.
In R. v. Caldwell (1981) 1 All ER 961, it was observed that:-
"Nevertheless, to decide whether someone has been `reckless', whether harmful consequences of a particular kind will result from his act, as distinguished from his actually intending such harmful consequences to follow, does call for some consideration of how the mind of the ordinary prudent individual would have reacted to a similar situation. If there were nothing in the circumstances that ought to have drawn the attention of an ordinary prudent individual to the possibility of that kind of harmful consequence, the accused would not be described as `reckless' in the natural meaning of that word for failing to address his mind to the possibility; nor, if the risk of the harmful consequences was so slight that the ordinary prudent individual on due consideration of the risk would not he deterred from treating it as negligible, could the accused be described as reckless in its ordinary sense, if, having considered the risk, he decided to ignore it. (In this connection the gravity of the possible harmful consequences would be an important factor. To endanger life must be one of the most grave). So, to this extent, even if one ascribes to 'reckless' only the restricted meaning adopted by the Court of Appeal in Stephenson and Briggs, of foreseeing that a particular kind of harm might happen and yet going on to take the risk of it, it involves a test that would be described in part as 'objective' in current legal jargon. Questions of criminal liability are seldom solved by simply asking whether the test is subjective or objective."
Can a person originally charged for 302 can be convicted for 304A?
Emperor v. Mofizel Peada 1925 (29) CWN 842 : AIR 1925 Cal 909 it was held that when an accused Is tried under Section 302, I.P.C., he may be found guilty of an offence under Section 304-A, I.P.C. if the evidence justifies such conviction.
The Apex Court itself State of Gujarat v. Haider Ali Kalu Bhai AIR 1976 SC 1012 In that case, the accused was originally charged under Section 302, I.P.C, Sections 326 and also 323, I.P.C. He was convicted of the offence under Section 304, Part II, I.P.C. by the Sessions Judge and also convicted of the other offences aforesaid. On an appeal to the High Court, the conviction was altered to Section 304A, I.P.C. only and the same was challenged by the State before the Apex Court. The Apex Court upheld the conviction for the offence under Section 304A, I.P.C. and observed that there is no error committed by the High Court in holding that the case was under Section 304A, I.P.C. and not under Section 304, Part II, I.P.C.
Section 304A IPC is as under :
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.
A bare perusal of these two provisions clearly reveals that they deal with the mental state or mens rea of the accused-person. While Section 304 IPC requires the existence of intention or knowledge, Section 304A IPC requires the existence of rashness or negligence. Therefore, it is imperative to understand the ambit and extent of the words intention, knowledge, rashness and negligence.
Intention is doing of an act with the aim of achieving a particular purpose, or end, or consequence. Knowledge is the awareness of the consequences when an act is done in a particular manner. The words intention and knowledge have been an integral part of criminal statutes. However, the words negligence and rashness have been transplanted into the criminal arena from the law of Torts. According to the law of Torts, every person owes a duty towards his neighbor or towards his immediate surrounding to ensure that no harm or damage is done to the neighbor or the surrounding. When this duty is breached by an act, of which the doer is unaware of the consequences, he said to have committed a negligent act.
Halsbury's Laws of England (4th Edition) Volume 34 paragraph 1 (para 3) defines the words what constitutes negligence as under :
"Negligence is a specific tort and in any given circumstances is the failure to exercise that care which the circumstances demand. What amounts to negligence depends on the facts of each particular case. It may consist in omitting to do something which ought to be done or in doing something which ought to be done either in a different manner or not at all. Where there is no duty to exercise care, negligence in the popular sense has no legal consequence, where there is a duty to exercise care, reasonable care must be taken to avoid acts or omissions which can be reasonably foreseen to be likely to cause physical injury to persons or property. The degree of care required in the particular case depends on the surrounding circumstances, and may vary according to the amount of the risk to be encountered and to the magnitude of the prospective injury. The duty of care is owed only to those persons who are in the area of foreseeable danger, the fact that the act of the defendant violated his duty of care to a third person does not enable the plaintiff who is also injured by the same act to claim unless he is also within the area of foreseeable danger. The same act or omission may accordingly in some circumstances involve liability as being negligent although in other circumstances it will not do so. The material considerations are the absence of care which is on the part of the defendant owed to the plaintiff in the circumstances of the case and damage suffered by the plaintiff, together with a demonstrable relation of cause and effect between the two".
Though the term negligence has not been defined in the Indian Penal Code, it may be stated that negligence is the 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 reasonable and prudent man would not do.
In the case of Jacob Mathew Vs. State of Punjab & Anr. [(2005) 6 SCC 1], the Hon'ble Supreme Court distinguishes between the concept of negligence in civil and criminal law. It observed as under :
What may be negligence in civil law may not necessarily be negligence in criminal law. Generally speaking, it is the amount of damages incurred which is determinative of the extent of liability in tort; but in criminal law it is not the determinative of liability. To fasten liability in criminal law, the degree of negligence has to be higher than that of negligence enough to fasten liability for damages in civil law i.e. gross of of a very high degree. Negligence which is neither gross nor of a higher degree may provide a ground for action in civil law but cannot form the basis for prosecution.
While 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; criminal negligence is the gross and culpable neglect or 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. A clear distinction exists between simple lack of care incurring civil liability and very high degree of negligence which is required in criminal cases.
Rashness, on the other hand, consists of doing an act where the doer knows the consequences of his act, but hopes that the consequences would not follow. The word rashness has also not been defined in the Indian Penal Code.
However, in the case of" Empress Vs. Idu Beg [(1881) ILR 3 All 776, Straight, J. made the following observation with regard to criminal rashness. His Lordship observed as under :
Criminal rashness is hazarding a dangerous or wanton act with the knowledge that it is so, and that it may cause injury, but without intention to cause injury, or knowledge that it will probably be caused. The criminality lies in running the risk of doing such an act with recklessness or indifference as to the consequences. Criminal negligence is the gross and culpable neglect or 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."
These observations have been approved by the Hon'ble Supreme Court in the case of Mahadev Prasad Kaushik Vs. State of U.P. & Anr. [AIR 2009 SC 125].
Thus, the distinction between the rashness and negligence is that while in the former, the doer knows about the consequences, but in the latter, the doer is unaware of the consequences.
Undoubtedly, rashness does contain an element of knowledge. But a distinction has to be made between Section 304 IPC, requiring knowledge, with regard to the consequences of the act and Section 304A IPC, rashness, having an element of knowledge about the consequences, but with the hope that the consequences would not follow. In the case of Prabhakaran Vs. State of Kerala [JT 2007 (9) SC 346], the Apex Court had analysed the ingredients of Section 304A IPC as under :
5. Section 304A speaks of causing death by negligence. This section applies to rash and negligence acts and does not apply to cases where death has been voluntarily caused. This section obviously does not apply to cases where there is an intention to cause death or knowledge that the act will in all probability cause death. It only applies to cases in which without any such intention or knowledge death is caused by what is described as a rash and negligent act. A negligent act is an act done without doing something which a reasonable man guided upon those considerations which ordinarily regulate the conduct of human affairs would do or act which a prudent or reasonable man would not do in the circumstances attending it. A rash act is a negligent act done precipitately. Negligence is the genes, (sic) of which rashness is the species. It has sometimes been observed that in rashness the action is done precipitately that the mischievous or illegal consequences may fall, but with a hope that they will not.
Lord Atkin in Andrews v. Director of Public Prosecutions observed as under:
"Simple lack of care such as will constitute civil liability is not enough. For purposes of the criminal law there are degrees of negligence; and a very high degree of negligence is required to be proved before the felony is established. Probably of all the epithets that can be applied 'recklessness' most nearly covers the case. It is difficult to visualize a case of death caused by reckless driving in the connotation of that term in ordinary speech which would not justify a conviction for manslaughter; but it is probably not all embracing, for 'recklessness' suggests an indifference to risk whereas the accused may have appreciated the risk and intended to avoid it, and yet shown in the means adopted to avoid the risk such a high degree of negligence as would justify a conviction."
6. Section 304-A applies 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 299 and 300 IPC. The provision applies only to such acts which are rash and negligent and are directly cause of death of another person. Negligence and rashness are essential elements under Section 304-A. Culpable negligence lies in the failure to exercise reasonable and proper care and the extent of its reasonableness will always depend upon the circumstances of each case. Rashness means doing an act with the consciousness of a risk that evil consequences will follow but with the hope that it will not. Negligence is a breach of duty imposed by law. In criminal cases, the amount and degree of negligence are determining factors. A question whether the accused's conduct amounted to culpable rashness or negligence depends directly on the question as to what is the amount of care and circumspection which a prudent and reasonable man would consider to be sufficient considering all the circumstances of the case. Criminal rashness means hazarding a dangerous or wanton act with the knowledge that it is dangerous or wanton and the further knowledge that it may cause injury but done without any intention to cause injury or knowledge that it would probably be caused.
7. As noted above, "Rashness" consists in hazarding a dangerous or wanton act with the knowledge that it is so, and that it may cause injury. The criminality lies in such a case in running the risk of doing such an act with recklessness or indifference as to the consequences. Criminal negligence on the other hand, is the gross and culpable neglect or 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.
8. The distinction has been very aptly pointed out by Holloway J. in these words:
''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 that if he had, he would have had the consciousness. The imputability arises from the negligence of the civic duty of circumspection." (See In re: Nidamorti Nagabhusanam 7 Mad. H.C.R. 119).
Similarly in the case of Mahadev Prasad Kaushik (Supra) the Hon'ble Supreme Court has dealt with the distinction between these two provisions. The Apex Court has held as under :
The section deals with homicidal death by rash or negligent act. It does not create a new offence. It is directed against the offences outside the range of Sections 299 and 300, IPC and covers those cases where death has been caused without 'intention' and 'knowledge'. The words not amounting to culpable homicide in the provision are significant and clearly convey that the section seeks to embrace those cases where there is neither intention to cause death, nor knowledge that the act done will in all probability result into death. It applies to acts which are rash or negligent and are directly the causes of death of another person.
There is thus distinction between Section 304 and Section 304A. Section 304A carves out cases where death is caused by doing a rash and negligent act which does not amount to culpable homicide not amounting to murder within the meaning of Section 299 or culpable homicide amounting to murder under Section 300, IPC. In other words, Section 304A excludes all the ingredients of Section 299 as also of Section 300. Where intention or knowledge is the 'motivating force' of the act complained of, Section 304A will have to make room for the graver and more serious charge of culpable homicide not amounting to murder or amounting to murder as the facts disclose. The Section has application to those cases where there is neither intention to cause death nor knowledge that the act in all probability will cause death.
(The principle that is pressed in aid by the courts in accident cases is the doctrine of res ipsa loquitur. This doctrine 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 also applied the principle of res ipsa loquitur in cases where no direct evidence was brought on record. The Act itself contains a provision which concerns with the consequences of driving dangerously alike the provision in the IPC that the vehicle is driven in a manner dangerous to public life. Where a person does such an offence he is punished as per the provisions of Section 184 of the Act. The courts have also taken the concept of ‘culpable rashness’ and ‘culpable negligence’ into consideration in cases of road accidents. ‘Culpable rashness’ is acting with the consciousness that 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 consciousness (luxuria). ‘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 that if he had, he would have had the consciousness. The imputability arises from the neglect of civic duty of circumspection. In such a case the mere fact of accident is prima facie evidence of such negligence. 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 inference, shows that the act is attributable to some person’s negligent conduct. [Ref. Justice Rajesh Tandon’s ‘An Exhaustive Commentary on Motor Vehicles Act, 1988’ (First Edition, 2010]. - This law point was approved by Supreme Court in Ravi Kapur v. State of Rajasthan )
There is distinction between Section 304 and Section 304A. Section 304A carves out cases where death is caused by doing a rash or negligent act which does not amount to culpable homicide not amounting to murder within the meaning of Section 299 or culpable homicide amounting to murder under Section 300, IPC. In other words, Section 304A excludes all the ingredients of Section 299 as also of Section 300. Where intention or knowledge is the `motivating force' of the act complained of, Section 304A will have to make room for the graver and more serious charge of culpable homicide not amounting to murder or amounting to murder as the facts disclose. The section has application to those cases where there is neither intention to cause death nor knowledge that the act in all probability will cause death.
In the case of Alister Anthony Pareira v. State of Maharashtra [(2012) 2 SCC 648] where the driver of a vehicle was driving the vehicle at a high speed at late hours of the night in a drunken state and killed seven labourers sleeping on the pavement, injuring other eight, Court dismissing the appeal, laid down the tests to determine criminal culpability on the basis of ‘knowledge’, as follows :
“41. Rash or negligent driving on a public road with the knowledge of the dangerous character and the likely effect of the act and resulting in death may fall in the category of culpable homicide not amounting to murder. A person, doing an act of rash or negligent driving, if aware of a risk that a particular consequence is likely to result and that result occurs, may be held guilty not only of the act but also of the result. As a matter of law—in view of the provisions of IPC—the cases which fall within the last clause of Section 299 but not within clause “Fourthly” of Section 300 may cover the cases of rash or negligent act done with the knowledge of the likelihood of its dangerous consequences and may entail punishment under Section 304 Part II IPC. Section 304-A IPC takes out of its ambit the cases of death of any person by doing any rash or negligent act amounting to culpable homicide of either description.”
In the case of Naresh Giri v. State of M.P. [(2008) 1 SCC 791], where a train had hit a bus being driven by the appellant at the railway crossing and the bus was badly damaged and two persons died, this Court, while altering the charges from Section 302 IPC to Section 304-A IPC, observed :
“7. Section 304-A IPC applies 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 299 and 300 IPC. Section 304-A applies only to such acts which are rash and negligent and are directly the cause of death of another person. Negligence and rashness are essential elements under Section 304-A.
8. Section 304-A carves out a specific offence where death is caused by doing a rash or negligent act and that act does not amount to culpable homicide under Section 299 or murder under Section 300. If a person wilfully drives a motor vehicle into the midst of a crowd and thereby causes death to some person, it will not be a case of mere rash and negligent driving and the act will amount to culpable homicide. Doing an act with the intent to kill a person or knowledge that doing an act was likely to cause a person's death is culpable homicide. When intent or knowledge is the direct motivating force of the act, Section 304-A has to make room for the graver and more serious charge of culpable homicide. The provision of this section is not limited to rash or negligent driving. Any rash or negligent act whereby death of any person is caused becomes punishable. Two elements either of which or both of which may be proved to establish the guilt of an accused are rashness/negligence; a person may cause death by a rash or negligent act which may have nothing to do with driving at all. Negligence and rashness to be punishable in terms of Section 304-A must be attributable to a state of mind wherein the criminality arises because of no error in judgment but of a deliberation in the mind risking the crime as well as the life of the person who may lose his life as a result of the crime. Section 304-A discloses that criminality may be that apart from any mens rea, there may be no motive or intention still a person may venture or practise such rashness or negligence which may cause the death of other. The death so caused is not the determining factor.. According to the dictionary meaning “reckless” means “careless”, regardless or heedless of the possible harmful consequences of one's acts. It presupposes that if thought was given to the matter by the doer before the act was done, it would have been apparent to him that there was a real risk of its having the relevant harmful consequences; but, granted this, recklessness covers a whole range of states of mind from failing to give any thought at all to whether or not there is any risk of those harmful consequences, to recognising the existence of the risk and nevertheless deciding to ignore it."
In the case of Mohd. Aynuddin alias Miyam v. State of A.P. [(2000) 7 SCC 72], wherein the appellant was driving a bus and while a passenger was boarding the bus, the bus was driven which resulted in the fall of the passenger and the rear wheel of the bus ran over the passenger. This Court, drawing the distinction between a rash act and a negligent act held that it was culpable rashness and criminal negligence and held as under :
“7. It is a wrong proposition that for any motor accident negligence of the driver should be presumed. An accident of such a nature as would prima facie show that it cannot be accounted to anything other than the negligence of the driver of the vehicle may create a presumption and in such a case the driver has to explain how the accident happened without negligence on his part. Merely because a passenger fell down from the bus while boarding the bus, no presumption of negligence can be drawn against the driver of the bus.
“8. The principle of res ipsa loquitur is only a 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 control of the alleged wrongdoer.
9. A rash act is primarily an overhasty act. It is opposed to a deliberate act. Still a rash act can be a deliberate act in the sense that it was done without due care and caution. Culpable rashness lies in running the risk of doing an act with recklessness and with indifference as to the consequences. Criminal negligence is the failure to exercise duty with reasonable and proper care and precaution guarding against injury to the public generally or to any individual in particular. It is the imperative duty of the driver of a vehicle to adopt such reasonable and proper care and precaution.”
In the case of Thakur Singh v. State of Punjab [(2003) 9 SCC 208], the petitioner drove a bus rashly and negligently with 41 passangers and while crossing a bridge, the bus fell into the nearby canal resulting in death of all the passengers. The Court applied the doctrine of res ipsa loquitur since admittedly the petitioner was driving the bus at the relevant time and it was going over the bridge when it fell down. The Court held as under:
“4. It is admitted that the petitioner himself was driving the vehicle at the relevant time. It is also admitted that bus was driven over a bridge and then it fell into canal. In such a situation the doctrine of res ipsa loquitur comes into play and the burden shifts on to the man who was in control of the automobile to establish that the accident did not happen on account of any negligence on his part. He did not succeed in showing that the accident happened due to causes other than negligence on his part.”
Supreme Court of India
Ravi Kapur vs State Of Rajasthan on 16 August, 2012
FACTS OF THE CASE - “Sukhdeep Singh was going to attend the marriage of his brother along with his family. They were going in two jeeps and a Maruti car. On their way, they met with an accident with a bus that was coming from the opposite direction at a very high speed. Due to this eight-person died on the spot. According to one of the witnesses, the bus was driven by the accused Ravi Kapur and after the accident, he ran away from the spot. The trial court held that the prosecution was not able to prove the liability of Ravi Kapur and hence he was acquitted by the trial court. However, the decision of the High Court (which convicted accused for 304A) comes against the trial court and its decision was backed by the reasoning which includes the principle of res ipsa loquitur, negligence, reasonable care. Supreme Court upheld the judgment of High Court and dismissed the appeal.
Rash and negligent driving has to be examined in light of the facts and circumstances of a given case. It is a fact incapable of being construed or seen in isolation. It must be examined in light of the attendant circumstances. A person who drives a vehicle on the road is liable to be held responsible for the act as well as for the result. It may not be always possible to determine with reference to the speed of a vehicle whether a person was driving rashly and negligently. Both these acts presuppose an abnormal conduct. Even when one is driving a vehicle at a slow speed but recklessly and negligently, it would amount to ‘rash and negligent driving’ within the meaning of the language of Section 279 IPC. That is why the legislature in its wisdom has used the words ‘manner so rash or negligent as to endanger human life’. The preliminary conditions, thus, are that (a) it is the manner in which the vehicle is driven; (b) it be driven either rashly or negligently; and (c) such rash or negligent driving should be such as to endanger human life. Once these ingredients are satisfied, the penalty contemplated under Section 279 IPC is attracted.
The doctrine of res ipsa loquitur is equally applicable to the cases of accident and not merely to the civil jurisprudence. Thus, these principles can equally be extended to criminal cases provided the attendant circumstances and basic facts are proved. It may also be noticed that either the accident must be proved by proper and cogent evidence or it should be an admitted fact before this principle can be applied. This doctrine comes to aid at a subsequent stage where it is not clear as to how and due to whose negligence the accident occurred. The factum of accident having been established, the Court with the aid of proper evidence may take assistance of the attendant circumstances and apply the doctrine of res ipsa loquitur. The mere fact of occurrence of an accident does not necessarily imply that it must be owed to someone’s negligence. In cases where negligence is the primary cause, it may not always be that direct evidence to prove it exists. In such cases, the circumstantial evidence may be adduced to prove negligence. Circumstantial evidence consists of facts that necessarily point to negligence as a logical conclusion rather than providing an outright demonstration thereof.
Elements of this doctrine may be stated as :
1. The event would not have occurred but for someone’s negligence ?
2.The evidence on record rules out the possibility that actions of the victim or some third party could be the reason behind the event.
3. Accused was negligent and owed a duty of care towards the victim.
IT MUST BE REMEMBERED THAT DOCTRINE OF CONTRIBUTORY NEGLIGENCE DOES NOT APPLY IN CRIMINAL CASES (Swindall (1846) 2 C &K 230)
Delhi High Court
Ram Karan vs State (Delhi Admn) on 4 December, 2009
The rule of contributory negligence may be a good defence in a civil action but it has little place in an indictment for criminal negligence. Once it is established that the accused has caused the death of the person by his negligent act not amounting to culpable homicide, contributory negligence on the part of the deceased is irrelevant. If the act of the petitioner was an act showing an utter disregard for the life and safety of others; it goes beyond a mere matter of compensation.
TREATMENT OF EVIDENCE OF WITNESS :-
In Ambika Prasad and Anr. Etc. vs. State (Delhi Administration, Delhi)83 (2000) DLT 476 the Supreme Court in a case under Section 304A of the IPC had held that the non-examination of the Investigating Officer would not have any bearing on the appreciation of the evidence of the eye-witness; it being unfortunate that Investigating Officer has not stepped into the witness box without any justifiable ground but the conduct of the Investigating Officer could not be a ground for discarding the evidence of the eye-witness whose presence on the spot is established beyond reasonable doubt.
In the case of Nageshwar Shri Krishna Ghobe v. State of Maharasthra [(1973) 4 SCC 23], this Court observed that the statements of the witnesses who met with an accident while travelling in a vehicle or those of the people who were travelling in the vehicle driven nearby should be taken and understood in their correct perspective as it is not necessary that the occupants of the vehicle should be looking in the same direction. They might have been attracted only by the noise or the disturbance caused by the actual impact resulting from the accident itself. The Court held as under :
“6. In cases of road accidents by fast moving vehicles it is ordinarily difficult to find witnesses who would be in a position to affirm positively the sequence of vital events during the few moments immediately preceding the actual accident, from which its true cause can be ascertained. When accidents take place on the road, people using the road or who may happen to be in close vicinity would normally be busy in their own pre-occupations and in the normal course their attention would be attracted only by the noise or the disturbance caused by the actual impact resulting from the accident itself. It is only then that they would look towards the direction of the noise and see what had happened. It is seldom — and it is only a matter of coincidence — that a person may already be looking in the direction of the accident and may for that reason be in a position to see and later describe the sequence of events in which the accident occurred. At times it may also happen that after casually witnessing the occurrence those persons may feel disinclined to take any further interest in the matter, whatever be the reason for this disinclination. If, however, they do feel interested in going to the spot in their curiosity to know some thing more, then what they may happen to see there, would lead them to form some opinion or impression as to what in all likelihood must have led to the accident. Evidence of such persons, therefore, requires close scrutiny for finding out what they actually saw and what may be the result of their imaginative inference. Apart from the eye- witnesses, the only person who can be considered to be truly capable of satisfactorily explaining as to the circumstances leading to accidents like the present is the driver himself or in certain circumstances to some extent the person who is injured. In the present case the person who died in the accident is obviously not available for giving evidence. The bhaiya (Harbansingh) has also not been produced as a witness. Indeed, failure to produce him in this case has been the principal ground of attack by Shri Pardiwala and he has questioned the bona fides and the fairness of the prosecution as also the trustworthiness of the version given by the other witnesses.”
Some instances :-
Supreme Court of India
Syad Akbar vs State Of Karnataka on 25 July, 1979
While driving a bus at a moderate speed its driver suddenly noticed a child attempting to cross the road. The driver swerved the bus to extreme right to dodge the child but it hit the child and it died. It was held that mere error of judgement does not amount to negligence culpable under 304A. "It was thus evident that the accident happened due to an error of judgment, and not negligence or want of driving skill on the part of the accused. An error of judgment of the kind, such as the one in the instant case, which comes to light only on post-accident reflection, but could not be foreseen by the accused in that fragmented moment before the accident, is not a sure index of negligence, particularly, when in taking and executing that decision the accused was acting with the knowledge and in the belief that this was the best course to be adopted in the circumstances for everyone's safety."
Mahadeo Hari v. State AIR 1972 SC 221
If a pedestrian suddenly cross a road without taking note of the approaching bus , there is every possibility of his dashing against the bus without driver becoming aware of it . The bus driver cannot save accident and therefore , he cannot be held liable.
In Kaliaperumal v. State 1996 CrLJ 3658
A woman was boarding the bus from the front entrance . The conductor whistled ad the driver took off speedily . Either of them could have known whether she had come in or not but neither cared to do so . She fell off and was crushed by the rear wheel. The driver and the conductor were held guilty of rash and negligent act.
Supreme Court of India
Jagdish Chander vs State Of Delhi on 3 May, 1973
The appellant was driving his auto-scooter rikshaw which on account of a sudden turn taken by the appellant struck a truck. After the impact the appellant lost control of his
scooter-rickshaw and crashed into a tree. As a result a man and a woman received simple in juries and the child whom the woman was holding in her arms received fatal injuries. The
appellant and the truck driver were charged under s. 304A of the Indian Penal Code and were convicted by the trial court. Court Held that appellant suddenly turned to the right without paying heed to the truck coming from opposite direction , in doing so he acted rashly and negligently and was held liable under 304A.
Supreme Court of India
Girish Singh vs State Of Uttaranchal on 9 May, 2008
Sageer Ansari (hereinafter referred to as the `deceased') was a carpenter, who used to live in Hotel Hari Om in Uttarkashi. On 27.3.2005, he was coming from Hari Om Hotel towards Uttarkashi town. Accused/appellant Girish Singh was coming from opposite direction towards Sageer Ansari-deceased. When both of them reached near Tambakhani they had some altercations between them. Suddenly, accused-appellant Girish Singh pushed deceased Sageer Ansari from the road. Consequently, Sageer Ansari fell down from the hill and suffered injuries due to the fall from Uttarkashi - Tehri Road.
Supreme court held -"Coming to the plea of the applicability of Section 304-A, it is to be noted that the said provision relates to death caused by negligence. Section 304-A applies 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 relates to offences outside the range of Sections 299 and 300 IPC. It applies only to such acts which are rash and negligent and are directly the cause of death of another person. Rashness and negligence are essential elements under Section 304-A. It carves out a specific offence where death is caused by doing a rash or negligent act and that act does not amount to culpable homicide under Section 299 or murder in Section 300 IPC. Doing an act with the intent to kill a person or knowledge that doing an act was likely to cause a person's death is culpable homicide. When the intent or knowledge is the direct motivating force of the act, Section 304-A IPC has to make room for the graver and more serious charge of culpable homicide. In order to be encompassed by the protection under Section 304-A there should be neither intention nor knowledge to cause death. When any of these two elements is found to be present, Section 304-A has no application."
Allahabad High Court
Raj Karan Singh vs State Of U.P. on 7 July, 1999
The gun of a police constable went off while he was loading it and it killed a person The trigger went off because of positive act of the moving belt of the gun . It was held that failure to keep the safety catch in the back position was an illegal omission . He was convicted for 304A defence of section 80 was also denied as "proper care and caution was lacking".
Bhalachandra Waman Pathe v. State of Maharashtra 1968 AIR 1319 , the appellant was charged under Section 304A of the Indian Penal Code for causing the death of a 21-year woman by driving his car rashly and negligently in the road. In this case, the appellant questioned his conviction which was brought out by the High Court through the suo moto proceedings. Here the Court tried to establish the difference between rash and negligent act. According to this case, there were two sisters who were crossing the road through the pedestrian crossings (in order to go to a beach) knocked down by a car of the appellant. As a result, the elder sister died due to a development of hemorrhage. The question that was asked by the Court was regarding the rash and negligent driving of the car by the appellant. Here, the High Court found that there was definitely negligence on the part of the appellant as his conduct was not as reasonable or prudent man would have. It was found that the appellant failed to discharge the duty imposed by law on him. Here the duty was imposed to take care of the pedestrian in pedestrian crossings. However, the appellant was not found to drive his car rashly. It is because of the fact that the prescribed limit of the speed of that in the street was found to be 35 km/hr and here, in this case, the car was found to be driven within the speed prescribed by law. Also, the time at which accident took place was in the morning and as a result, the driver does not need to take extra care regarding the speed of the car.
Duli Chand v. Delhi Administration AIR 1975 SC 1960- In this case, the appellant (driving a bus) struck the deceased person who was coming/riding a bicycle. Here it was questioned that the speed of the bus was excessive which resulted in the death of the other person because of the negligent and rash act of the appellant. However, the Supreme Court found that there was negligence on the part of appellant because the appellant did not look at his right even though he was approaching a crossroad and failed to notice the deceased who was coming from his right was crossing the road. The Supreme Court thus held that the driver of the bus is grossly negligent but the act of the driver was not found to be rash. It was because during the time of the accident, the speed of the bus was found to be 20 miles per hour which can not be considered as an excessive speed in any of the Public Highway and thus the act of driver was not rash. Therefore the Supreme Court held the appellant liable for his breach of duty.
Cherubin Gregory v. State of Bihar
The appellant was charged under s. 304-A of Indian Penal Code for causing the death of a woman. The deceased was residing near the house of the accused. The wall of the latrine of the house of the deceased had fallen down about a week prior to the day of occurrence and so the deceased along with others started using the latrine of the accused. The accused protested against their coming there. The oral warnings however, proved ineffective and so he fixed up a
naked copper wire across the passage leading upto his latrine and that wire carried current from the electrical wiring of his home to which it was connected. On the day of the occurrence, the deceased went to the latrine of the appellant and there she touched the aforesaid fixed wire as a result of which she died soon after. The trial and the appellate court convicted and sentenced the appellant under S. 304A of the Indian Penal Code. Supreme Court confirmed the conviction holding : -
"(1) that at the time of the accident it was past day break and there was therefore enough light, and (2) that an electric light was burning some distance away. But it is manifest that neither of these could constitute warning as the conditions of the wire being charged with electric current could not obviously be de- tected merely by the place being properly lit. 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 in contact with it.
A trespasser is not an outlaw, a Caput lupinem. The mere fact that the person entering a land is a trespasser does not entitle the owner or occupier to inflict on him personal in- jury by direct violence and the same principle would govern the infliction of injury by indirectly doing some- thing on the land the effect of which he must know was likely to cause serious injury to the trespasser.Thus in England it has been held that one who sets springguns to shoot at trespassers is guilty of a tort and that the person injured is entitled to recover. The laying of such a trap, and there is little difference between the spring-gun which was the trap with which the English Courts had to deal and the naked live wire in the present case, is in truth "an arrangement to shoot a man without personally firing a shot". 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 do willfully acts such as set a trap or set a naked live wire with the deliberate intention of causing harm to trespassers or in reckless disregard of the presence of the trespassers."
Sarabjeet Singh And Ors. v. State of Uttar Pradesh, . In this case, the Appellant Sarabjeet Singh and 17 other peoples were put on a trial for having committed the crime of murder of infant Radhey Shyam. Here the accused (Sarabjeet Singh) lifted the child and thrown him on the ground and later it was founded that this resulted in the death of the child. It was found that there was no intention on the part of the accused towards the infant. It was also found that Sarabjeet has no grievances towards Radhey Shyam and therefore it was held that there is a lack of intention in this case. Now the next question which was put forward was about the knowledge of the wrong. Here, in this case, the accused may not have intended to kill the infant but he had all the knowledge that if the child is thrown from such height then the child will die ultimately. So the Court held the accused liable under Section 304 part 2 as all the conditions under this section get fulfilled. Now the counsel from the appellant side argued that this is the case of death by negligence and must come under Section 304A of the IPC. He argued that this is because this case includes the rash act of the appellant but as there is knowledge about the crime on the part of the accused so the court held that this case can’t come under Section 304A of IPC rather it will be covered by the second part of Section 304 ( it talks about knowledge of the person during committing any crime).
Ambalal D. Bhatt v. State of Gujarat AIR 1972 SC 1150 -the Supreme Court again explained the concept that a person is liable under Section 304A of the Indian Penal Code only if the principle of causa causans is fulfilled. Here this case is about medical negligence. Here the appellant who was Chemist Incharge in a chemical industry along with five other members were charged under Section 304A of the IPC. They were found to be negligent in manufacturing the solution of glucose which was later consumed by the patients of different hospitals and 13 patients died by the injection of the solution. It was found that the solution contains more lead nitrate than what was permitted. Here the Prabhakaran was the Chief Analyst of the Testing Laboratory. He was found negligent in his part as he did not prepare the solution according to the Drug Control Act. Here the Supreme Court held that the appellant ( Prabhakaran) can not be liable alone. The court further stated that the appellant was not only negligent, here it was also the duty of several other persons to maintain the quality of the solution. Under the principle of the causa causans there is the causal chain that consists of many links(acts), it talks about the act which ultimately contributes to the consequence. Here the action of the appellant was found to be the only one of the causes of all causes (causa sine qua non). In other words, it can be explained that the appellant action was one of the causes of death and it was found to be insufficient to be the ultimate cause of the death of the 13 persons.
Delhi High Court
Ram Karan vs State (Delhi Admn) on 4 December, 2009
Where a deceased labour sustained injuries at the construction site during the course of demolition of the house and succumbed to his death. Eye witness categorically deposed that the house under construction was in the process of being demolished; the petitioner i.e. Ram Karan had been asked not to carry out the demolition because some mishap could take place but he did not accede to their request; incident had occurred at 9.00AM; the petitioner inspite of this warning had replied that it was his work and he knew how to carry out it. He was held liable under 304A .
Orissa High Court
Ramesh Chandra Mohapatra And Anr. vs State Of Orissa And Ors. 2002 CriLJ 3453
Child slipped on the school stairs and sustained head injuries , The child was taken to the.school dispensary where treatment was given. When the child was taken to the dispensary it was the duty of the Pharmacist to either diagnose the injury correctly or advise for immediate check up by an expert or doctor. In absence of such advice by Pharmacist the Headmaster or the Class Teacher could not have realised the gravity of the injury. As it appeared from the materials the child was brought to the Headmaster who offered him a stool to sit. The complainant was informed over phone about the incident and on her query the Headmaster also intimated that there is nothing to worry about and since no such apprehension was ever expressed by Pharmacist and when the child was found deteriorating he was immediately sent back in the school bus. IN these circumstances High court held the teacher and headmaster not liable under 304A.
In Queen Empress v. Bhutan- the lessee of a government ferry having the exclusive right of conveying passengers across a certain river was held to be guilty under s. 304A when he had committed the negligent act of putting a boat in the ferry which was in an unsafe condi- tion and which sunk resulting in some of persons getting drowned.
The Punjab Chief Court found a person guilty under ss. 304A and 338 in Kamr-ud-din v. King Emperor when he had consigned two boxes containing fire works to the Railway falsely declaring them to contain iron locks with the result that in loading one of the boxes exploded killing one coolie and injuring another. The inadvertence to the results of concealing the true character of the contents of the box which was the failure of duty to the public at large and the knowledge of the dangerous nature of the contents which must be inevitably presumed coupled with the consequences were regarded as constituting a complete offence under the sections.
In another case, Rex v. Pittwood the prisoner was charged with manslaughter on the ground that he had been negligent in not closing a gate when a train passed which it was his duty to do with the result that White who was in a hay cart was killed while the cart was struck by the train which came when it was crossing the line. Wright, J. was of the opinion that the prisoner had been guilty of gross and criminal negligence as he was paid to keep the gate shut when the train came and protect the public. It was a clear case of misfeasance as the prisoner directly contributed to the accident and he was guilty of manslaughter.
in Rustom Sherior Irani v. State of Maharashtra There the chimney of a bakery had collapsed and 11 persons were killed and certain persons were injured. The appellant had submitted no plan for the alteration of the chimney for the third time and had asked just a mason to remove the iron pipe which had corroded and to bring the height of the chimney to 65 feet. The mason had told Mm that while the work was being executed it was unnecessary to completely keep the bakery closed except during the period the repair work was being done. After the chimney fell down a number of officers visited the spot and inspected the bakery. The Chief Inspector of Boilers was of the opinion that the cause of the collapse of the chimney was the explosion which occurred in it because of the products of combustion and gases not being permitted to escape freely as a pipe of 6 inches diameter had been put instead of 12 inches diameter. It was established that the construction of the new chimney had been done without there advice of a properly qualified person. It was maintained that no negligence on the part of the appellant had been established and it was on account of the, negligence of the mason that the chimney had fallen down. SupremeCourt was of the view that the proximate and efficient cause of the deaths was the negligence of the appellant in choosing a pipe of 6 inches diameter and asking a mason (who was apparently not a qualified person) to carry out the alterations and also continuing working at least one oven there during the period while the alterations to the chimney were being made. Appellant was held liable under 304A.
Madhya Pradesh High Court
B.P. Ram And Anr. vs State Of Madhya Pradesh on 23 October, 1989
On 10-5-1988, one Rameshchandra, aged about 13 years, at 6-00 p.m., entered into the swimming pool on the basis of the admission card of his father. Another boy, by name Rishi Aggarwal, aged about 17 years, surreptitiously entered into the premises. The Chowkidar could not have the knowledge of his entry into the swimming pool. Both the boys remained in the swimming pool for about an hour. About 18 to 20 persons were also present in the swimming pool. After a while, Rishi Agarwal was not seen and Rameshchandra became worried about him. The Luna Moped of Rishi and his clothes were in the premises, but Rishi could not be noticed. He, therefore, informed his parents and, subsequently, the parents of Rishi were informed.
It was held " it has to be held that there is no possibility of the applicants being convicted for the alleged offence. It cannot be said that because there was no caution board or life-saving guard, the boy Rishi Agarwal surreptitiously entered into the swimming pool and drowned. The alleged negligence of the Club may make the Members of the Club liable under a tort, but, for the aforesaid omission, the applicants cannot be held liable under Section 304-A of the IPC."
Supreme Court of India
Bhalchandra Alias Bapu & Anr vs State Of Maharashtra on 11 April, 1968
In an explosion which took place, the persons who were working in the factory of the appellants where crackers were being manufactured died or were injured. The appellants
were convicted under ss. 304A and 337 I.P.C. In appeal to this Court, the appellants contended that criminal liability could not be imposed upon them under ss. 304A and 337 as it
had not been established that the deaths or injuries caused were the direct result of any rash or negligent act on the part of the appellants or that any such act had been proved
which was the proximate and efficient cause of the explosion without the intervention of another's negligence. Although there was no direct evidence of the immediate cause of the explosion but indisputably the explosives the possession of which was prohibited under the notifications under Explosive Acts. It is further proved that in the factory itself where the explosion took place the persons who were employed were mostly women who brought their small children with them and young children below the age of 18 had been employed in the manufacture of the fire works etc. The factory was situate in close proximity to residential quarters. It became therefore all the more incumbent on the appellants to,, have completely avoided the use of highly sensitive compositions of the nature mentioned above.
The appellants were therefore rightly convicted and sentenced under ss. 304A and 337 of the Indian' Penal Code.
Suleman Rahiman Mulani & Another V. The State of Maharashtra. In that case the question was whether the first appellant who had only a learner's licence and was driving a jeep which knocked down the deceased had been rightly convicted of an offence under S. 304A of the Code read with certain provisions of the Motor Vehicles Act. On the material on the record the court found it impossible to discover under what circumstances the accident had taken place. This Court held that it was not known what was the proximate cause of the accident and the possibility that it had been caused due to the fault of the deceased could not be ruled out. The mere fact that the appellant in question held a learner's licence did not establish that he did not know driving. His proficiency might furnish a defence which the learner could not have but the absence of proficiency did not make him guilty. His conviction under s. 304A was therefore set aside.
In Kurban Hussein Mohammedali Rangwalla v. State of Maharashtra [1965] 2 S. C. R. 622 a factory was licensed on certain conditions to manufacture paints. The manager and the working partner did not have a license for manufacturing wet paints but nevertheless the factory manufactured them. Certain burners were used for the purpose of melting rosin or bitumen by heating them in barrels and adding turpentine thereto after the temperature cooled down to a certain degree. While this process was going on froth overflowed out of the barrel and because of heat, varnish and turpentine which were stored at a short distance caught fire and resulted in the death of seven persons working in the factory. The question was whether the manager and the working partner of the firm which ran the factory was guilty under ss. 304-A and 285 of the Indian Penal Code. It was held that the mere fact that the burners were allowed to be used in the same room in which varnish and turpentine were stored even though it might be a negligent act would not be enough to make the appellant before this Court responsible for the fire which broke out. The cause of the fire, it was observed, was not merely the presence of burners in the room in which the varnish and turpentine were stored though this circumstance was indirectly responsible for the fire which broke out. The requirement of s. 304A was the causing of death by doing any rash or negligent act and this meant that the death must be the direct or proximate result of the rash or negligent act. It was found that the direct or proximate cause of the fire which resulted in seven deaths was the act of a labourer who acted in a hurry and who did not wait until the bitumen or rosin cooled down and thus it was his negligence which was the direct and proximate cause of the fire breaking out. The appellant, namely, the manager and the working partner of the firm could not be held to have committed the offence under S. 304A of the' Code.
Supreme Court of India
Sushil Ansal vs State Thr.Cbi CRIMINAL APPEAL NO.597 OF 2010
FACTS PROVED IN THE CASE CASE WHICH WERE FOUND RELEVANT FOR FASTENING THE LIABILITY UNDER 304A :-
The root cause of the fire was 1000 KVA transformer installed and maintained by the Delhi Vidyut Board (DVB), which was in the premises of Uphaar Cinema. The said transformer caught fire on 13 June, 1997 around 6.55 a.m. damaging the area surrounding the transformer. The fire was brought under control by 7.25 a.m. The repairs were carried out without use of any special equipment. The said transformer was recharged for resumption of electric supply by 11.30 a.m. on the same day.
On the fateful day, around 3 p.m., the matinee show of film ‘Border’ started. Between 3:55 and 4:55 p.m., there was a general power shut down; however the Cinema show continued. Immediately, on resumption of electricity at 4:55 pm, there was intense and heavy sparking in the DVB transformer, which ultimately resulted in rupture of the Transformer fin. Through this slit, the transformer oil spilled out, caught fire and consequently set ablaze several vehicles parked nearby in the stilt floor.
The smoke entered the hall from the staircases, air conditioning ducts as well as the area beneath the screen and the audience sitting in the ground floor of the auditorium escaped immediately. The audience sitting in the balcony found it hard to escape as there were no emergency lights or lights to give indication about the exit. Moreover, there were no warnings through public address system for immediate evacuation in an orderly manner. The closure of the right side exit, elimination of one exit and the narrowing of another exit as well as introduction of certain seats near the left side exit, together with bolting of certain doors in the balcony caused panic and resulted in delayed escape of most of the spectators occupying balcony seats.
Most of the spectators were subsequently rescued by the fire fighters, but they were severely affected by the smoke. The fire was soon declared a major one and rescue operations continued till about 7:30 p.m. Due to inhalation of toxic gases including carbon monoxide, the entire mishap claimed lives of 59 persons besides injuries to nearly 100 others.
If the second exit leading to another staircase had not been closed, possibly the damage and deaths could have been less. The reason for which the second exit was closed was arrangement of additional seats and change of layout of seats in the balcony.
The appellants, the owners of the cinema premises, were aware of the fact that one exit had been closed due to addition of seats and change in the layout of the seats and the said fact could have exposed the spectators to the risk they actually faced, which ultimately resulted into this huge tragedy. The fact remains that the appellants have been found guilty and they have been convicted.
Supreme court held -"conviction of the appellants for offences punishable under Section 304A read with Section 36 of the IPC and Sections 337 and 338 read with Section 36 of the IPC shall stand affirmed."
DRUNK DRIVING :-
The principle mentioned by Supreme court in Alister Anthony Pareira (supra) indicates that the person must be presumed to have had the knowledge that, his act of driving the vehicle without a licence in a high speed after consuming liquor beyond the permissible limit, is likely or sufficient in the ordinary course of nature to cause death of the pedestrians on the road.
Supreme Court of India
State Tr.P.S.Lodhi Colony,New ... vs Sanjeev Nanda on 3 August, 2012
Manoj Malik (P.W.2) had started from his house to leave friends Nasir, Mehendi Hasan and his friend Gulab at Nizamudin Railway Station on foot. When they reached the petrol pump of Lodhi Road, three police officials of checking squad, Constables Rajan, Ram Raj and Peru Lal, stopped them and started checking. In the meantime, BMW car driven rashly and negligently came from Nizamuddin side at a high speed and dashed violently against them. The impact was so great and severe, that they flew in the air and fell on the bonnet and wind screen of the car. Some of them rolled down and came beneath the car. On account of this, accused lost control of the vehicle which swerved to right side of the road and ultimately hit the central verge. The persons who had come under the car were dragged up to that point. Manoj (P.W.2) who had fallen on the bonnet fell down at some distance but did not come under the wheels. After hitting the central verge, car finally stopped at some distance, respondent came out from the car and inspected the gruesome site. It is said that co-passenger Manik Kapur asked the accused to rush from the scene of occurrence. Injured persons were shouting and crying for help. But ignoring them, he drove away the car at high speed towards Dayal Singh College, even though there were still some persons beneath the car. In the said accident ultimately six of them were killed and Manoj (P.W.2) was injured.
SUPREME COURT found that the offence would fall under Section 304(II) IPC, not under Section 304A, This case is also an authority on community serving sentences.
SENTENCING POLICY UNDER 304A :-
in Dalbir Singh v. State of Haryana [(2000) 5 SCC 82], Court opined:
"13. Bearing in mind the galloping trend in road accidents in India and the devastating consequences visiting the victims and their families, criminal courts cannot treat the nature of the offence under Section 304A IPC as attracting the benevolent provisions of Section 4 of the PO Act. 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 prime considerations should be deterrence. A professional driver pedals the accelerator of the 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 on 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 any accident occurs it need not necessarily result in the death of any human being; or even if such death ensues 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 a human being due to his callous driving of vehicle he cannot escape from jail sentence. This is the role which the courts can play, particularly at the level of trial courts, for lessening the high rate of motor accidents due to callous driving of automobiles."
Supreme Court of India
State Tr.P.S.Lodhi Colony,New ... vs Sanjeev Nanda on 3 August, 2012
Supreme court held :-
Generally, the policy which the court adopts while awarding sentence is that the punishment must be appropriate and proportional to the gravity of the offence committed. Law demands that the offender should be adequately punished for the crime, so that it can deter the offender and other persons from committing similar offences. Nature and circumstances of the offence; the need for the sentence imposed to reflect the seriousness of the offence; to afford adequate deterrence to the conduct and to protect the public from such crimes are certain factors to be considered while imposing the sentence.
Community Service for Avoiding Jail Sentence
" Convicts in various countries, now, voluntarily come forward to serve the community, especially in crimes relating to motor vehicles. Graver the crime greater the sentence. But, serving the society actually is not a punishment in the real sense where the convicts pay back to the community which he owes. Conduct of the convicts will not only be appreciated by the community, it will also give a lot of solace to him, especially in a case where because of one’s action and inaction, human lives have been lost.
61. In the facts and circumstances of the case, where six human lives were lost, we feel, to adopt this method would be good for the society rather than incarcerating the convict further in jail. Further sentence of fine also would compensate at least some of the victims of such road accidents who have died, especially in hit and run cases where the owner or driver cannot be traced. We, therefore, order as follows:
1) Accused has to pay an amount of Rs.50 lakh (Rupees Fifty lakh) to the Union of India within six months, which will be utilized for providing compensation to the victim of motor accidents, where the vehicle owner, driver etc. could not be traced, like victims of hit and run cases. On default, he will have to undergo simple imprisonment for one year. This amount be kept in a different head to be used for the aforesaid purpose only.
2) The accused would do community service for two years which will be arranged by the Ministry of Social Justice and Empowerment within two months. On default, he will have to undergo simple imprisonment for two years."
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