Report No. 35
481. Negligence-homicide by.-
The question of homicide by rash or negligent act crops up from time to time. When A is guilty of rashness or negligence, and, by the conduct of A, the death of B is caused (without an intention to kill), the criminal liability of A may vary according to his knowledge and the nature of the act. Assuming that there is no intention to cause death,1 the answer to the question of the criminal liability of A would depend on the nature of the injury caused and the degree of intention or knowledge of the offender. The matter would be clear from the following chart.
Chart of negligent acts2 affecting the human body
|Degree of knowledge, etc.||Offence|
|Knowledge that the act is so imminently dangerous that it must in all probability cause death, or injury sufficient in the ordinary course of nature to cause death.||Murder (Section 300, clause 4).|
|Knowledge that the act was likely to cause cause death or injury sufficient in the ordinary course of nature to cause death.||Culpable homicide not amounting to murder (Section 299, last clause).|
|Rash or negligent act causing death but not amounting to culpable homicide.||Offence of causing death by negligence (section 304 A).|
|Knowledge that the Act might possibly, but was unlikely to, cause death or injury sufficient in the ordinary course of nature to cause death.||Hurt or grievous hurt.3|
1. Cases of intention to cause death would fall under the first clause of section 300, Indian Penal Code.
2. The section referred to are those of the Indian Penal Code.
3. See for details as to "hurt", etc., para. 482, infra.
482. "Hurt" can be further analysed:-
|Degree of knowledge, etc.||Offence|
|Voluntarily causing grievous hurt (grievous hurt may not be intended, but only known to be likely, etc.)||Section 322 and 325.|
|Voluntarily causing hurt (hurt may not be intended, but only known to be likely, etc.)||Section 321 and 323 and 325.|
|Causing grievous hurt by act endangering life etc. (whether or not grievous hurt intended or known to be likely etc.)||Offence under section 338.|
|Causing hurt by act endangering life etc., whether of not hurt intended or known to be likely, etc.) Offence under section 337.||Offence under section 337.|
|Doing any act so rashly or negligently as to endanger human life or the personal safety of others (No hurt need be caused).||Offence under section 338.|
Note.-The expression of 'voluntarily', as defined in section 39, Indian Penal Code includes cases of causing an effect by employing means known to be likely to cause that effect, and this definition has to be read in the sections dealing with 'voluntarily' causing hurt, or grievous hurt, etc. (sections 321 and 322), and their aggravated forms, particularly sections 323, 324, 325 and 326.
483. Clause 4 of section 300 is the main provision to be discussed in detail. The relevant portion of section 300 runs as follows:-
"300. Except culpable homicide is murder if the act by which the death is caused is done, 4thly, if the person committing the act knows that it is so imminently dangerous that it must, in all probability, cause death, or such bodily injury as is likely to cause death,. and commits such act without any excuse for incurring the risk of causing death or such injury as aforesaid.".
Illustration (d) to the section, which is relevant to this clause, runs as follows:-
"A, without any excuse, fires a loaded cannon into a crowd of persons and kills one of them. A is guilty of murder, although he may not have had a premeditated design to kill any particular individual".
The clause thus, stresses several elements-
(i) knowledge that the act is so imminently dangerous, that (ii) it must, in all probability, cause death„ etc., and, further, requires that (iii) there must be absence of an excuse for incurring the risk of causing death, etc. Extreme recklessness by itself is not sufficient. It must be a "wholly inexcusable act of recklessness."1
1. See observations of Plowden J. in Barktullla, (1887) PR No. 32 of 1887, p. 64.
484. We do not think that there is any substantial defect in the law. The test adopted is one of disregard of human life. We cannot abandon that test and make a lesser offence, a capital one. We appreciate the feeling that cases of negligence, particularly rash and negligent driving, should be dealt with severely. Whatever steps are needed to avoid danger to human life by such acts have to be taken. But the provisions of the Indian Penal Code, so far as offences attracting the sentence of death are concerned, do not seem to need a radical change on this point.
485. We would point out, that a really heinous case of causing death by negligence (including rash or negligent driving), would fall under the 4th clause of section 300, Indian Penal Code, provided there is no excuse for that particular act. The matter depends upon the degree of knowledge of the offender and the nature of the act.
486. Under section 304A, Indian Penal Code, several cases of negligence by Railway Officers have come up before the Courts, as also cases of rash driving on the Railways.1 Rash driving generally, or negligence in relation to vehicles has also figured.-3-4 The undermentioned case may be seen regarding fast driving.5
1. Tapti Prasad v. Emp., AIR 1918 All 429 (Line clear wrongly given).
2. Kaku v. Emp., AIR 1921 Lah 297 (Child hurt by accident).
3. Queen Emp. v. Bhutan, (1894) ILR 16 All 472 (Boat which was unsound used by lessee of ferry-25 persons drowned).
4. King Emperor v. Abdul Qayum, (1940) ILR 21 Lah 646 (driving when visibility very low).
5. Gurdev Singh v. Emp., AIR 1941 Lah 459 (460).
487. We have discussed this matter somewhat in detail, in view of the suggestions received to make offences under section 304A, Indian Penal Code, punishable with death.1
1. Reply of a District Bar Association, S. No. 125.
488. It has been suggested,1 that serious accidents, which result in death, where the driving is callous, grossly negligent and in utter disregard of human life and safety, deserve the highest penalty of the law. But, according to our view, this is already permissible under section 300; if the conditions of section 299 or section 300 are satisfied, the case would not fall under section 304A. Indeed, section 304A makes this clear by the words "not amounting to culpable homicide".
1. Reply of a retired High Court Judge, S. No. 95, under question 3(b).
489. If the act or omission-albeit unintentional-is so imminently dangerous that it must in all probability cause death, the charge of murder can be brought home to the accused. This can be illustrated by a snake-bite case,1 in which the accused actually caused the snake to bite the person who was killed,
1. Queen v. Poonai Fattemah, 12 WR Cr 7.
490. If the knowledge is of "likelihood" of death, the case would fall under section 299. Thus, where a snake-charmer exhibited in public a venomous snake and to show his skill, put the snake on the head of a spectator, who tried to push off the snake, was bitten and died, the accused was held to be guilty under section 299.1
Illustrations can also be drawn from cases of woman jumping into well with a child. In such cases, the question whether there was an "excuse" within the meaning of section 300, fourth clause, Indian Penal Code, becomes material.2-3 Cases of women administering dhatura, etc., to husbands4 may also be referred to in this connection.
As has been observed,5 the real question which arises in such cases is whether the act was done with the knowledge that it was likely to cause death or that it was so imminently dangerous that it must in all probability cause death.
Often the facts do not fall within section 299 or section 300; and no amendment of the law can amend the facts. By way of illustration, we may refer to a case which seems to fall on the border line.6 In that case, the accused was driving a lorry on the Grand Trunk Road from Delhi in the direction of Panipat. He had five more passengers than he was permitted to carry. He was signalled by a Sub-Inspector of Police to stop, so that the lorry might be checked. But, in order to escape, he refused to stop and drove on. The Sub-Inspector, with his constables, proceeded in a motor car "to chase the lorry".
The chase proceeded for five miles but the accused refused to allow the police car to pass his lorry, by driving his lorry in front of the police car, or by driving it on the side of the road and raising dust. Most of the time the speed was between 50 and 55 miles per hour. When the lorry came near a bridge, a small girl, who was standing on the side of the road, commenced to cross the road in order to get to her father who was washing clothes on the opposite side of the road. The accused was going so fast that he could not stop. The child also added to the trouble by starting to run across the road. The result was, that the unfortunate child was hit by the bumper of the lorry, and was knocked down and killed. The accused was ultimately arrested at Panipat.
The accused was convicted by the Sessions Judge under section 302, Indian Penal Code on the ground that the accused knew that the act he was committing was so imminently dangerous that it must in all probability cause death. Counsel for the Crown did not support this contention, but argued that the conviction ought to be under section 304, Indian Penal Code, as the accused knew that he was likely by his act to cause death. The High Court, however, did not consider that the offence came either under section 304 or under section 302.
In its view, the offence fell under section 304A. In coming to this conclusion, the High Court emphasised two facts, namely, first, that the child who was killed came from the side of the road and attempted to cross in front of the lorry, and secondly, that it was not a crowded place like a city-in which case the offence might result in a charge under section 304, or even-under section 302. The High Court sentenced the accused to rigorous imprisonment for 18 months under section 304A, Indian Penal Code.
1. Emp. v. Gonesh Dooley, 1879 ILR 5 Cal 351 (352).
2. Cf the cases discussed in Gyarsi Bai v. State, AIR 1953 MB 61 (63).
3. Emp. v. Dhiralia, ILR 1940 All 647: AIR 1940 All 486.
4. Emp. v. Chatterpal Singh, AIR 1930 Oudh 502.
5. Cf. Nga Ba Tu v. Emp., AIR 1921 Lower Burma 26 (27) (Heald J.).
6. Gurdev Singh v. Emp., AIR 1941 Lah 459 (460) (Young C.J. and Sale J.).
491. An instructive analysis of the words "with the knowledge that he is likely by such act" used in section 299, Indian Penal Code has been made by Peacock C.J. in the undermentioned case.1
1. Gorachand Gopee, (1866) 5 WR (Cri) 45. Bengal Law Reports (Suppl Vol.), 443 (451) (Full Bench).
492. If the ingredients of section 300 are satisfied, it becomes the highest degree of homicide. But otherwise it will constitute only the lowest degree of culpable homicide-section 304, second paragraph whereunder one of the possible punishments is fine only. It is, therefore, obvious that great care is reqUired in cases where "knowledge" constitutes the only mens rea, and the provisions of sections 299, 300, and 304A fall to be considered.
If, even the conditions of section 299, Indian Penal Code, are not satisfied, i.e., if knowledge of the likelihood of death cannot be proved, then it remains a case of section 304A. Thus, the evaluation of the evidence, the drawing of factual inferences, and the application of the law, in such cases, becomes a matter of the greatest importance. The act may even be no offence.1
1. Cf. Nagawa Bhimappa, 1902 ILR 4 Bom LR 425 (Poisonous substance administered as charm-no knowledge of poison-held no offence).
493. Most cases under section 304A, Indian Penal Code, would, in England, fall under man-slaughter."1 The maximum punishment for manslaughter in England is imprisonment for life.2
1. Cf. Sukaroo Kabiraj v. Emp., 1887 ILR 14 Cal 566 (569).
2. Offences against the Person Act, 1761, section 5, as amended by the Criminal Justice Act, 1948.
494. Cases are not infrequent where a conviction under section 302 has been altered to one under section 304A.1
1. See Pika Rewa v. Emp., 1912 ILR 43 Cal 855 (861).
495. For certain interesting points relating to the question of liability under section 304A, Indian Penal Code, the undermentioned decisions1-9 may be seen.
1. State v. Banshi Singh, AIR 1960 MP 105 (section 304A, Indian Penal Code and section-101, Railways Act, considered).
2. Emp. v. Khan Mohammad Sher Mohammad, AIR 1937 Bom 96 (98) (Beaumont C.J. and Wasoodew J.).
3. Emp. v. Marshall, AIR 1937 Bom 80 (Beaumont CJ. and Wasoodew J.)
4. Parthasarathy (in re:), AIR 1959 Mad 497, referring to H.W. Smith v. Emperor, ILR 53 Cal 333; and Ganesan (in re:), AIR 1950 Mad 71.
5. State of Mysore v. Bantra Kunjiana, AIR 1960 Mys 177.
6. State of Madhya Pradesh v. Ranjit Kumar, AIR 1959 MP 284.
7. Sahadevan (in re:), AIR 1955 Mad 548.
8. Pitabash Panda v. State, AIR 1961 Ori 45.
9. Emp. v. Shahu, AIR 1917 Sind 42 (1).
496. As to section 101, Railways Act, the under-mentioned Supreme Court case1 may be seen.
We should also state here, that every case of rash or negligent driving may not be necessarily heinous. In this connection, we should like to quote the following observations of Beaumont, C.J., in a Bombay case2-
'Then the learned Magistrate says that there was "extremely rash and callous conduct of the accused causing the accident without the least justification." If I took that view of the accused's conduct, I should certainly be in favour of enhancing the sentence. I think that in all these cases one has to consider whether the rash and negligent act of the accused which has occasioned the death, shows callousness on his part as regards the risk to which he was exposing other persons. I think the severity of the sentence must depend to a great extent on the degree of callousness which is present in the conduct of the accused. Here I do not think there was any callous conduct. As I said before, the accused committed an error of judgment, but, having done so, he did his best to avoid the consequences of his error. The learned Magistrate's third ground is that-
Accidents of this nature are of frequent occurrence, and in the interest of administration of justice and protection and safety of human life, such offences require to be sternly dealt with.
'I do not agree with that principle. One has to remember that driving motor cars has become an essential part of human activities, and it is impossible to avoid a certain number of accidents. In my view it is no part of the duty of Courts to punish with savage sentences every motorist who has the misfortune to have an accident, which results in a loss of life, even though the accident be due to an error of judgment on the part of the driver. The circumstances of each case must be considered in imposing sentence.'.
1. Awadh Behari v. State of Madhya Pradesh, AIR 1956 SC 2738.
2. Emperor v. Khan Mohammad Sher Mohammad, AIR 1937 Bom 96 (98) (Beaumont C.J.).
497. A moment's inattention should not attract the death penalty. Reference may be made, in this connection, to the observations made by an English Judge with reference to prosecutions under section 1, Road Traffic Act, 1960. Stevenson J. said1: "It is terribly important that these cases should be most carefully scrutinised before they are started, and that people should not take the view that merely because of death there should be a prosecution.".
1. Stevenson J's view reported in the Times, July 12, 1961, cited in (1963) 26 Modern Law Review 432.
498. Every case where a risk of life is involved is not one of rashness. "A surgeon is not reckless in performing an operation merely for the reason that he knows it very likely to be fatal; it may afford the patient's only chance."1
1. Herbert Wechsler On Culpability, and Crime, in (January 1962), Vol. 339, Annals of the American Academy of Political and Social Sciences, pp. 24, 29.
499. We may refer in this connection to two cases decided in England by Streatfield J. in November 1964. He had to consider the sentence to be passed on the accused persons who had pleaded guilty at the Sufflok Assizes to causing death by dangerous driving. In one case, the court merely fined the accused £ 50 and banned her for driving for five years; and in other case, the court fined the accused £ 50 but did not disqualify him for driving, as that would have led to very serious consequences for him. In the first case, a young woman who had no driving licence, asked the man who gave her a lift for permission to drive his Mark 10 Jaguar car.
He allowed her to do so, and while rounding a bend on the wrong side of the road, she collided head-on with a small saloon, killing two women passengers and seriously injuring a man. In the second case, a man had killed a motor-cyclist by dangerous driving. The principle on which these sentences were based was thus explained-"The fact that a death resulted from a piece of dangerous driving did not make the dangerous driving any more or less. It would be quite wrong for the court to measure a man's culpability by the amount of damage he did."1
1. See note in (1964) 80 LQR 18 (19).
500. We do not, of course, rule out any improvements or changes in matters of detail that may have to be made in section 300, clause 4, Indian Penal Code, or in the other sections dealing with negligent acts. If there is any hiatus between that clause on the one hand and section 299, 3rd clause or section 304A of the Indian Penal Code on the other hand (in the sense that cases at present falling under the latter sections, should really be brought under section 300), the matter can be considered. As at present advised, we do not find any such serious gap as to require immediate attention.
501. It must also be remembered, that a decision whether a case of homicide by negligence falls or does not fall under section 300, 4th clause, Indian Penal Code, is a matter of great importance. There is no intention to cause a bodily injury; and such a case is, therefore, one only of "knowledge". If it falls under section 300, it becomes a capital offence. But if it does not fall under section 300, then, it is punishable only under the second part of section 304, Indian Penal Code (whereunder the maximum punishment is ten years' imprisonment).