CAUSING DEATH BY RASH AND NEGLIGENT DRIVING

The Indian Penal Code, 1860 defines rash driving or riding on a public way and causing death by negligence. Rash driving or riding on a public way is defined under Sec. 279 and causing death by negligence is defined under Sec. 304A of Indian Penal Code (IPC).

The traffic violation known as “reckless driving” is one of the most frequently misinterpreted ones. And this reckless driving only has a negative impact on society’s prospects and quality of life. Legal definitions of reckless driving can often be found in cases where the courts have interpreted homicide statutes when reckless driving (also known as culpable or criminal negligence or something similar) is a specified element of the offence. Many of these laws only add the element of a death happened as a result of reckless driving.

Section 279 is a relatively new category of offence because driving implies a vehicle by definition. Vehicles were very recently introduced in India during the British era, but Section 304A can be claimed to have existed long before that. Its definition of a negligent act or omission is broad and does not only apply to driving.

Therefor according to section 279 of the Indian penal code, “ 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”.The main ingredients of section 279 of the Indian penal code is to cause hurt (sec 319) or grievous hurt (sec 320). Because of which if any person cause death by rash and negligent driving can only be liable under section 304A of the Indian penal code.

As of section 304 of Indian penal code define the true body of of section 304A of Indian penal code since according to section 304 0f Indian penal code “Punishment for culpable homicide not amounting to murder.—Whoever commits culpable homicide not amounting to murder shall be punished with [imprisonment for life], or imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine, if the act by which the death is caused is done with the intention of causing death, or of causing such bodily injury as is likely to cause death, or with imprisonment of either description for a term which may extend to ten years, or with fine, or with both, if the act is done with the knowledge that it is likely to cause death, but without any intention to cause death, or to cause such bodily injury as is likely to cause death.”

According to Section 304A of the Indian Penal Code, “Whoever causes the death of any person by committing 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.”

Therefore, if someone causes a death by their careless actions, they could face a 2-year sentence, a fine, or both. It is a crime that is cognizable. Without the need for an arrest warrant, the police can seize the accused. However, the charge is bailable, meaning the accused can request bail. This crime cannot be “compounded,” meaning it cannot be resolved outside of court. The state will trial the accused in court since a FIR must be filed with the police for an offence. Under Section 357A of the CrPC, which holds the accused accountable for compensating the victim, the accident victim may at any time ask the court for compensation.

The elements shared by sections 279 and 304A of the IPC are that the accused must have committed the act or omission in question and that the accuse actions must have been rash and negligent. In contrast to Sec. 304A, which allows any rash and negligent act that results in death, Sec. 279 requires that the act be rash and negligent driving.

DIFFERENCE BETWEEN SECTION 279 AND 304A OF IPC

under Section 279 it need not be necessary that death must be caused. If the rash and negligent driving may cause death of the resultant act of the accused then he may be charged under other Sections of IPC such as under Section 304A. It may then constitute a crime committed under Section 279 read with Section 304A.

Section 304A deals with a large number of cases than Section 279 as it include any rash and negligent act resulting in death by the accused, while Sec. 279 focuses on rash and negligent driving only which means that it cannot be any negligent act but though it is a specific negligent act i.e. Rash and Negligent Driving or Riding and this specific act too must be on a public way to constitute as such.

Section 304A has a wider terminology and needs much interpretation than Section 279 of the IPC. 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.

	SECTION 279 IPC	SECTION 304A IPC
1.	Under this section rash driving or riding should be the act.	Under this section it need not be rash or negligent driving. It can be any rash or negligent act.
2.	The rash or negligent driving must be on a public way.	The rash or negligent act can be done anywhere it need not be any public way.
3.	The rash act or negligent act can be while driving or riding only.	Driving or riding is not necessary to commit such offence.
4.	It is a minor offence punishable with imprisonment extending upto six months or fine upto Rs. 1000 or both.	It is a grave offence punishable with imprisonment extending upto two years or with fine or with both.

Elements of negligence

To apply Section 304A it becomes very important to show that there is no intention on the part of the defendant to commit a crime. For understanding the ‘rash act’ one should understand that it is an act which is done hastily and is opposed to any intentional act. A rash act is done without any deliberation or with caution. It depends on the level/degree of recklessness.

There are four basic elements that a person has to fulfill in order to do a negligent act. These elements are as follows:

• Duty: For committing a negligent act, there must be some duty on the part of the defendant. Here it is important to understand whether the defendant has taken legal duty of care towards the plaintiff.  
• Breach of Duty: After fulfilling the first criteria the plaintiff must prove that the defendant has breached the legal duty imposed on him/her. It talks about the breach of duty on the part of the defendant which he/ she is expected to do as he/ she has some legal duty towards the plaintiff. 
• The action of causing something: It means that the damage caused to the plaintiff is due to the act of the defendant. Here the defendant may do an act which is not expected from him/her or the defendant may be negligent in not doing an act which was expected from him/ her. 
• Damages: At last what matters is, there must be some damage/injury that is caused to the plaintiff and this damages should be the direct consequence of the defendant’s act.

INGREDIENTS OF SECTION  304A OF IPC

To bring a case of homicide under this section the conditions are-

• There must be death of the person in question or can be called as the victim.
• The accused must have caused such death.
• That such act of the accused was rash and negligent and that it did not amount to culpable homicide

It is necessary that the accused’s rash and negligent behaviour be the immediate and effective cause of the death without the help of another person’s fault in order to impose criminal liability under this clause.It must be the causa causans (the immediate or operating cause); it is not enough that it may have been the causa sine qua non (a necessary or inevitable cause).

“Whoever causes the death of any person by committing a rash or negligent act not amounting to culpable homicide” is the definition of the section.

The term “Any Person” must now be defined because a “Person” encompasses a human being of any age, including the unborn. The accused was found guilty under this clause in a case where she was pregnant to an advanced stage when she was kicked, which caused the baby to pass away in the womb.

Rash and negligent act according to this section is defined as

Rashness is the act of acting in hopes that negative consequences won’t materialize while taking a chance that they could. Rash acts are primarily hurried rather than intentional, as was also stated in the section above.

A negligent act, which in criminal law refers to a failure to take reasonable and appropriate care and precaution to prevent injury to the public generally or to a specific individual, is a breach of a legal duty.

Section 304A, which was inserted in the IPC by Act 25 of 1870, postulates a rash and negligent act entailing death of another. Then 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 offenses outside the range of sections 299 and 300, IPC.

In case of

State v. Mohammed Yusuf, 2001 Cri LJ 5 (Kant.)

driving.-Where evidence on record showed that deceased a pedestrian, had alighted from jeep and while crossing highway impatiently collided with motor cycle. This incident had occurred at night. There was no evidence which showed that accused motor cyclist was wholly responsible for the accident. As there was possibility that deceased was the main contributory to the incident in question, order for acquittal of accused was proper.

Smt. Manju Baradia v. State of Chattisgarh, 2001 Cr. LJ 3762

When identity of accused-driver of offending vehicle not established and no evidence led to show that accused was driving rashly and negligently which dashed scooterist causing his death then conviction of accused not sustainable.

Keshavamurthy v. State, 2002 Cr LJ 103 (Kant)

In absence of examination of accused on aspect of negligence on his part,report of Motor Vehicle Inspector cannot be accepted as a piece of evidence.

Baldevji v. State of Gujarat,

1979 Cr. LJ 1136: AIR 1979 SC 1327:(1980) 1 SCC 320.

In the present case, the High Court has given good and cogent reasons for displacing the the findings of the Magistrate that the prosecution was not able to prove the charge against the appellant. There is clear finding to show that the appellant had caused the death of the deceased by rash and negligent driving. He had tried to run over the deceased while the deceased was trying to cross the road. The appellant did not make any attempt to save the deceased by swerving to the other side when there was sufficient space. The Supreme Court does not see any reason to interfere with the conviction of the appellant.

Doctrine of Res Ipsa Loquitur

The term Res Ipsa Loquitur comes from the Latin language and it means that ‘the things itself speaks’. In common language, it can be understood by the phrase “ the things speaks for itself”. It is applied where it is difficult to find who is negligent in the case. But it is well established (prima facie) that someone must be negligent in the case. When any train crashes, a bridge collapses or when any automobile is found inside the hotel lobby then it is very certain that it must be due to someone’s negligence. But when we do not have any conclusive evidence regarding who was actually negligent then the doctrine of Res Ipsa Loquitur is applied. Here in the above cases, the crash of the train must be due to the conductor who fell asleep during the journey of the train. It is decided by the fact that who is the person/ authority etc. in control at the time of the accident. 

The principle of res ipsa loquitur is a rule of evidence to determine the responsibility/onus of proof in actions related to negligence. This principle is applicable only when the nature of the accident and the circumstances related to the case would lead to the belief that in the absence of negligence the accident would not have occurred and the thing which caused the injury must be under the management and control of the wrongdoer.

Ravi Kapur v. State of Rajasthan, 2012

In the very famous case of Ravi Kapur v. State of Rajasthan the principle/doctrine of res ipsa loquitur was discussed in detail. This is the case of an appeal against the judgment of the High Court of Jaipur Bench. The facts of the case were as follows:

“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 Ram Kapur and hence he was acquitted by the trial court. However, the decision of the High Court comes against the trial court and its decision was backed by the reasoning which includes the principle of res ipsa loquitur, negligence, reasonable care.” 

The principle of res ipsa loquitur serves two purposes – it establishes the negligence on the part of the accused party and secondly, it is applied in the cases where the claimant is able to prove that there is an accident but is not able to prove how the accident occurred. The High Court by applying the principle of res ipsa loquitur found Ram Kapur liable under Section 304A of the IPC. The same case when went to the Supreme Court the court held that the decision of the High Court was right and the appellant was held liable ultimately.

All the provision relating to rash and negligent driving other than section 304A IPC

Not only causing accident is offence in India even driving rashly on the road is also an offence in Indian Penal Code, so low gives a wide bracket as to punish those individuals who have still not caused accidents but are likely to cause so, rash driving offence is generally not reported, it is observed by police posts and individuals are charged with the same. However, FIR can also be lodged with the police. Provisions for Rash Driving are as follows:

Section 279 IPC states “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 336 IPC states “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.” The offence of rash driving can be covered under both the sections and individual can be prosecuted and punished accordingly. Both the offenses of rash driving are cognizable and bailable.

Causing hurt to another party due to the acts of another is also an offence. Accidents due to negligence which cause hurt are also covered under this. As Section 337 IPC states “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.”

And when grievous hurt is caused Section 338 IPC comes into action as it states “Whoever causes grievous hurt to any person by doing any act so roshly 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.

Under these offenses, a FIR cannot be filed, but the police must be notified, at which point legal action will be taken. Both of these offenses are non-cognizable, meaning that the court must issue an arrest warrant, but they are both bailable. Both of these offenses are compoundable, meaning that with the court’s approval, both parties may come to an agreement to ignore the harm caused by the offence, but it may be compounded by the party who suffered harm.

Therefore, it is important to remember that a person who drives rashly can only be punished for a maximum of 6 months. There is no combining or extending of two separate sections’ penalties, and the maximum fine is Rs. 1000. A person can only be penalized for a deadly accident for a maximum of two years. If harm or death was brought on by another party’s actions or by an accident that was unavoidable and could not have been avoided even with reasonable care, the individual is not liable.If someone is injured after being smashed through, the offender is responsible; however, if a building was smashed through and a rock fell on the victim, the offender is not responsible.

With this remark, we recognize the degree of our responsibility and the idea that a person shouldn’t be punished for something other than his crimes and unreasonable punishments. “May 10 criminals walk free but an innocent should not be punished.”

Duli Chand v. Delhi Administration, 1975

The famous case of Duli Chand v. Delhi Administration is a classic example of doing a negligent act in driving along a public highway. 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.

Mohammed Aynuddin@Miyam v. State of Andhra Pradesh, 2000

The case of Mohammed Aynuddin @ Miyam v. State of Andhra Pradesh is another example where driving in a rashly or negligently manner was questioned. In this case, the appellant appealed against previous decision to the Supreme Court of India. The major question, in this case, was whether the driver of the bus was really negligent in driving? Here the driver was driving a bus of the Andhra Pradesh Road Corporation. A passenger named Agamma boarded the bus and she fell down from the bus as the bus moved forward. And as the rear wheel of the bus ran over her the women suffered from many injuries and due to these injuries, she died ultimately. According to a witness as the woman fell down the bus stopped after traveling some distance as the appellant heard the voice to stop the bus.

Here, in this case, the various elements of Section 304A of the Indian Penal Code were again cross-checked. Here the Supreme Court held that it is wrong to presume the negligence on the part of the driver in any motor accident negligence. It was further held that in an accident like this, it becomes important for the driver to prove that he/she is not negligent. The Supreme Court also talked about the principle of Res Ipsa Loquitur. The Apex Court said that this principle can not be applied everywhere and its application depends on the situation.

In the present case, the Supreme Court found that there can be negligence on the part of the passenger, there can be negligence on the part of the driver as well as there is the possibility that it is an accident. In this case, the Supreme Court found that the driver was unaware of the fact that there is even a possibility of an accident. The evidence, in this case, was found to be too scanty to fasten the driver with criminal negligence. 

Avtar Singh vs. Union Of India And Others

Supreme Court Of India

Order 07/07/2017  The petitioner had applied for the post of driver under the CISF. He has already been convicted for rash and negligent driving under Sections 279 and 337 IPC by a competent Court. Taking into consideration conviction and involvement in the criminal case, authorities who had initially selected the petitioner, did not find him suitable for appointment and the offer of appointment was cancelled vide order dated 01.06.2017.  Learned Counsel for the petitioner submits that in view of the judgment passed by the Apex Court in the case of Avtar Singh Vs. Union of India (2016) 8 SCC 471, the petitioner could not have been denied appointment. (2 of 2) [CW-10121/2017]  Having heard learned Counsel for the petitioner, I do not find any reason to interfere with the order passed by the authorities cancelling the offer of appointment of the petitioner on the ground stated above. The post for which appointment is to be made and the offence of which a person has been convicted has to have some relevance. A driver cannot claim appointment in police or paramilitary services once he has already been convicted of negligent and rash driving

Ravi Kapur v. State of Rajastan

Supreme Court Of India

 In the case of Ravi Kapur v. State of Rajastan . 2012 AIR SCW 4659, Apex Court has observed that, a person who drives a vehicle on the road is liable to be held responsible for the act as well as for the result and that it may not always possible to determine with reference to the speed of a vehicle whether a person was driving rashly and negligently and that even when one is driving a vehicle at slow speed, but, recklessly and negligently, it would amount to rash and negligent driving within the meaning of the language of Section 279 IPC.

Tejwinder Singh vs. State Of Punjab 

Punjab & Haryana High Court

Reliance has also been placed on another judgment of this Court in Tejwinder Singh v. State of Punjab 2009(5) RCR (Criminal) 526 wherein the accused while driving a bus had caused death of a person by rash and negligent driving. He was convicted under Sections 279 and 304-A IPC, however, this Court released him on probation by holding that under Section 12 of the Act, conviction cannot be made the basis of his dismissal from service

Suleman Rehiman Mulani & Another vs. State Of Maharashtra 

Supreme Court Of India

 It is in the above light of the evidence, learned counsel for the petitioner vehemently submitted that though the injured Venkateshappa sustained certain injuries in the accident including the compound fracture of tibia and fibula, his death which occurred one month later after the accident was not due to the injuries sustained by him in the accident. In his support, he relied upon the decisions of the Apex Court, Full Bench decision of the Kerala High Court and an unreported decision of this Court, as below. In Suleman Rehiman Mulani & Another vs. State of Maharashtra reported in AIR 1968 SC 829, Crl.R.P.No.551/2011 the Honble Apex Court was pleased to observe that requirements of Section 304(A) of IPC are; (a) that the death of any person must have been caused by the accused by doing any rash or negligent act. In other words, it must be proved that the rash and negligent act of the accused was the proximate cause of the death and (b) that there must be direct nexus between the death of the person and the rash or negligent act of the accused. In DR. V. Rughmini VS. State of Kerala And Others reported in MANUPATRA (MANU/KE/0192/1986) with respect to S.304(A), the Full Bench of High Court of Kerala was pleased to observe that an act which causes death need not necessarily be a rash act. It is enough that death is caused by the negligent act of the accused. Death Crl.R.P.No.551/2011 should have been the direct result of the negligent act. A Co-ordinate Bench of this Court in Criminal Revision Petition No. 478/2004 (Mohan @ Rathod Vs. The State of Karnataka), with respect to Section 304(A) of IPC, was pleased to observe that the mere driving of the vehicle at the high speed itself is not sufficient to hold that the driver was rash and negligent in driving. Section 304(A) of IPC requires that the death occurred due to the rash or negligent act and death was the direct or proximate result of the act

Manjappa vs. State Of Karnataka 

Supreme Court Of India

In Manjappa v. State of Karnataka JT 2007 7 SC 226 this Court considered the scope of grant of relief under the provisions of section 361 crpc or under the provisions of the Probation of Offenders Act, 1958 reconsidering earlier judgment of this Court in Om Prakash v. State of Haryana 2001 10 SCC 477, and held that such a relief should be granted where the offence had not been of a very grave nature and in certain cases where mens rea remains absent as in a case of rash and negligent driving under section 279 read with section 304-a ipc