Causing death by negligence

Section 106(1)

• Whoever causes death of any person
  • by doing any rash or negligent act
  • not amounting to culpable homicide
• shall be punished with
  • imprisonment of upto five years and fine

• If such act is done by a registered medical practitioner
  • while performing medical procedure
• he shall be punished with
  • imprisonment of upto two years and fine

Section 106(2)

• Whoever causes death of any person
  • by rash and negligent driving of vehicle not amounting to culpable homicide, and
  • escapes without reporting it to a police officer or a Magistrate soon after the incident
• shall be punished with
  • imprisonment of upto ten years and fine

Old provisions under IPC:

Causing death by negligence

Section 304A:

• 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 upto two years or with fine or with both

COMPARISON:

Every death not amounting to culpable homicide caused by doing a rash or negligent act is punishable.

(1)

• The punishment under the earlier provision of IPC was imprisonment of a maximum of two years, but it could be as low as fine alone.

• Under the new provision of the newly-enacted BNS the maximum punishment has been increased to imprisonment of five years. Secondly, it cannot now be limited just to fine alone. There has to be some imprisonment.

(2)

A special category of registered medical practitioners has been carved out under the new law.

• A death not amounting to culpable homicide caused by a registered medical practitioner by doing a rash or negligent act while performing medical procedure is punishable less severely or at a concessional rate so to say.
• The maximum punishment to a registered medical practitioner is restricted to imprisonment of just two years and not five years as is applicable to all other persons.

(3)

One more special category of offenders has been carved out in sub-section (2).

• This more stringent provision applies to a person who causes death by rash and negligent driving of vehicle not amounting to culpable homicide and who escapes without reporting it to a police officer or a Magistrate soon after the incident.

• The maximum punishment to such driver of vehicle has been enhanced to imprisonment of ten years which is double the number of years [five years] applicable to all other persons.

What is rashness?

• 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.

What is criminal negligence?

• Criminalnegligence 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.

Source:   Empress   v.   Idu Beg   (1881)

Rash act and criminal negligence

• 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.

Source:  Supreme Court in Mohd Ayanuddin  v.  State of AP  [2000]

Some illustrative cases on section 304A

Case 1:   Death caused by live electric wire fencing

• 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.

• The fact that at the time of the accident it was past day break and there was therefore enough light, and that an electric light was burning some distance away could not constitute warning as the condition of the wire being charged with electric current could not obviously be detected merely by the place being properly lit.

• The right of private defence of property which is set out in Section 97 of the Indian Penal Code is, as that section itself provides, subject to the provisions of Section 99, of the Code. It is obvious that the type of injury caused by the trap laid by the accused cannot be brought within the scope of Section 99, nor of course of Section 103 of the Code.

• The voltage of the current fed into the wire precludes any contention that it was merely a reasonable precaution for the protection of private property.

Liability towards a tresspasser

• 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 injury by direct violence and the same principle would govern the infliction of injury by indirectly doing something on the land the effect of which he must know was likely to cause serious injury to the trespasser.

• 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 wilfully 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.

Source:  Cherubin Gregory  v.  State of Bihar [1964  SC]

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Case 2:  Liability of driver in motor accidents

• 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.

• The principle of res ipsa loquituris 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.

Source:   Mohd Ayanuddin  v.  State of AP  [2000  SC]

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