Report No. 234

2. Present law in India

(i) Indian Penal Code, 1860

2.1 The Indian Penal Code (IPC) provides the general penal code of India, impliedly assuming the possibility of existence of special statutes defining offences and prescribing punishments therefor, for example, the Motor Vehicles Act, 1988 in the present context.

2.2 Sections 279, 304A, 336, 337, 338, IPC are relevant and reproduced below:

Section 279. Rash driving or riding on a public way. "Whoever drives any vehicle, or rides, on any public way in a manner so rash or negligent as to endanger human life, or to be likely to cause hurt or injury to any other person, shall be punished with imprisonment of either description for a term which may extend to six months, or with fine which may extend to one thousand rupees, or with both."

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."

Section 336. Act endangering life or personal safety of others. "Whoever does any act so rashly or negligently as to endanger human life or the personal safety of others, shall be punished with imprisonment of either description for a term which may extend to three months, or with fine which may extend to two hundred and fifty rupees, or with both."

Section 337. Causing hurt by act endangering life or personal safety of others. "Whoever causes hurt to any person by doing any act so rashly or negligently as to endanger human life, or the personal safety of others, shall be punished with imprisonment of either description for a term which may extend to six months, or with fine which may extend to five hundred rupees, or with both."

Section 338. Causing grievous hurt by act endangering life or personal safety of others. "Whoever causes grievous hurt to any person by doing any act so rashly or negligently as to endanger human life, or the personal safety of others, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine which may extend to one thousand rupees, or with both."

2.3 Rash or negligent act is an ingredient in all the above sections. A rash act is primarily an overhasty act, opposed to a deliberate act, but it also includes an act which, though it may be said to be deliberate, is yet done without due deliberation and caution. In rashness, the criminality lies in running the risk of doing an act with recklessness or indifference to consequences. Negligence means breach of duty caused by omission to do something which a reasonable man guided by those considerations which ordinarily regulate conduct of human affairs would do or doing something which a prudent or reasonable man would not do.

Culpable negligence is acting without consciousness that illegal or mischievous effects will follow, but in circumstances which show that the actor has not exercised the caution incumbent on him, and that if he had, he would have had the consciousness. Generally, in the case of rashness, the guilty person does an act and breaks a positive duty; in the case of negligence, he does not do an act which he was bound to do, because he adverts not to it.

'Rashness' conveys the idea of recklessness or the doing of an act without due consideration; 'negligence' connotes want of proper care or the standard of conduct which a reasonably prudent person would exercise in a similar situation.

2.4 To be guilty of an offence under section 279, IPC the accused must drive a vehicle in such a rash or negligent manner as to endanger human life or to be likely to cause hurt or injury to any other person. Driving at a high speed or non-sounding of horn by itself does not mean that the driver is rash or negligent. Place, time, traffic and crowd are important factors to determine rashness or negligence.

2.5 Section 304A, which was inserted in the IPC by Act 25 of 1870, postulates a rash and negligent act entailing death of another. The provisions of this section apply to cases where there is no intention to cause death, and no knowledge that the act done in all probability would cause death; it should not amount to culpable homicide. Section 304A is directed at offences outside the range of sections 299 and 300, IPC.1 Section 279 covers only those cases which relate to driving on public way endangering human life, while offence under section 304A extends to any rash or negligent act falling short of culpable homicide.

1. Naresh Giri v. State of M.P., 2007(13) SCALE 7.

2.6 Rash and negligent acts which endanger human life, or the personal safety of others, are punishable under section 336 even though no harm follows, and are additionally punishable under sections 337 and 338 if they cause hurt, or grievous hurt. Element of volition or intention is foreign to the set of offences under sections 336 to 338, IPC. Offences defined by these sections as well as section 279 are minor offences in comparison with the offence under section 304A where death is caused by a rash or negligent act.

2.7 Recently, the Supreme Court has observed that 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 would amount to culpable homicide.1

1. The Times of India, New Delhi, 14-11-2007.

2.8 Dealing with sentencing of a convict for offences under sections 279 and 304A, IPC, the Supreme Court in Dalbir Singh v. State of Haryana, (2000) 5 SCC 82, held:

"When automobiles have become death traps any leniency shown to drivers who are found guilty of rash driving would be at the risk of further escalation of road accidents. All those who are manning the steering of automobiles, particularly professional drivers, must be kept under constant reminders of their duty to adopt utmost care and also of the consequences befalling them in cases of dereliction. One of the most effective ways of keeping such drivers under mental vigil is to maintain a deterrent element in the sentencing sphere. Any latitude shown to them in that sphere would tempt them to make driving frivolous and a frolic.

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 304-A IPC as attracting the benevolent provisions of Section 4 of the Probation of Offenders 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 the vehicle he cannot escape from a 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."

2.9 In Rattan Singh v. State of Punjab, (1979) 4 SCC 719, the Supreme Court had held:

"5. Nevertheless, sentencing must have a policy of correction. This driver, if he has to become a good driver, must have a better training in traffic laws and moral responsibility, with special reference to the potential injury to human life and limb. Punishment in this area must, therefore, be accompanied by these components. The State, we hope, will attach a course for better driving together with a livelier sense of responsibility, when the punishment is for driving offences."

2.10 Very recently, the Supreme Court upheld the sentence of imprisonment awarded to the driver of a bus convicted for offences under sections 279 and 304A, IPC, following the above dicta.1

1. B. Nagabhushanam v. State of Karnataka 2008 (7) SCALE 716