Section 304A of the IPC makes any act causing death by a rash or negligent act not amounting to culpable homicide, punishable with imprisonment of either description for a term which may extend to two years or with fine or with both. It reads:
“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.”
Meaning of ‘rash’ and ‘negligent’
The terms ‘rash’ or ‘negligent’ appearing in Section 304A extracted above have not been defined in the Code. Judicial pronouncements have all the same given a meaning which has been long accepted as the true purport of the two expressions appearing in the provisions. One of the earliest of these pronouncements was in Empress of India v. Idu Beg ILR (1881) 3 All 776, where Straight J. explained that in the case of a rash act, the criminality lies in running the risk of doing an act with recklessness or indifference as to consequences.
A similar meaning was given to the term ‘rash’ by the High Court of Madras in In Re: Nidamarti Negaghushanam 7 Mad HCR 119, where the Court held that culpable rashness meant acting with the consciousness that a mischievous and illegal consequence may follow, but hoping that it will not. Culpability in the case of rashness arises out of the person concerned acting despite the consciousness. These meanings given to the expression ‘rash’, have broadly met the approval of Supreme Court also as is evident from a conspectus of decisions delivered from time to time.
In the case of ‘negligence’ the Courts have favoured a meaning which implies a 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 which having regard to all the circumstances out of which the charge arises, it may be the imperative duty of the accused to have adopted.
Negligence has been understood to be 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 person would not do. Unlike rashness, where the imputability arises from acting despite the consciousness, negligence implies acting without such consciousness, but in circumstances which show that the actor has not exercised the caution incumbent upon him. The imputability in the case of negligence arises from the neglect of the civil duty of circumspection.
What constitutes Negligence?
The expression ‘negligence’ has also not been defined in the Penal Code, but, that has not deterred the Courts from giving what has been widely acknowledged as a reasonably acceptable meaning to the term. We may before referring to the judicial pronouncements on the subject refer to the dictionary meaning of the term ‘negligence’.
Black’s Law Dictionary defines negligence as under:
“The failure to exercise the standard of care that a reasonably prudent person would have exercised in a similar situation; any conduct that falls below the legal standard established to protect others against unreasonable risk of harm, except for conduct that is intentionally, wantonly, or willfully disregardful of other’s rights.”
Charlesworth and Percy on Negligence (Twelfth Edition) gives three meanings to negligence in forensic speech viz:
(i) in referring to a state of mind, when it is distinguished in particular from intention;
(ii) in describing conduct of a careless type; and
(iii) as the breach of a duty to take care imposed by either common law or statute.
The three meanings are then explained thus:
“The first meaning: Negligence as a state of mind can be contrasted with intention. An act is intentional when it is purposeful and done with the desire or object of producing a particular result. In contrast, negligence in the present sense arises where someone either fails to consider a risk of particular action, or having considered it, fails to give the risk appropriate weight.
The second meaning: Negligence can also be used as a way to characterize conduct, although such a use may lead to imprecision when considering negligence as a tort. Careless conduct does not necessarily give rise to breach of a duty of care, the defining characteristic of the tort of negligence. The extent of a duty of care and the standard of care required in performance of that duty are both relevant in considering whether, on any given facts conduct which can be characterized as careless, is actionable in law.
“The third meaning: The third meaning of negligence, and the one with which this volume is principally concerned, is conduct which, objectively considered, amounts to breach of a duty to take care”.
Clerk & Lindsell on Torts (Eighteenth Edition) sets out the following four separate requirements of the tort of negligence:
“(1) the existence in law of a duty of care situation, i.e. one in which the law attaches liability to carelessness. There has to be recognition by law that the careless infliction of the kind of damages in suit on the class of person to which the claimant belongs by the class of person to which the defendant belongs is actionable;
(2) breach of the duty of care by the defendant, i.e., that it failed to measure up to the standard set by law;
(3) a casual connection between the defendant’s careless conduct and the damage;
(4) that the particular kind of damage to the particular claimant is not so unforeseeable as to be too remote.
Law of Torts by Rattanlal & Dhirajlal, explains negligence in the following words:
“Negligence is the breach of a duty caused by the omission to do something which a reasonable man, guided by those considerations which ordinarily regulate the conduct of human affairs would do, or doing something which a prudent and reasonable man would not do. Actionable negligence consists in the neglect of the use of ordinary care or skill towards a person to whom the defendant owes the duty of observing ordinary care and skill, by which neglect the plaintiff has suffered injury to his person or property.
According to Winfield,
“negligence as a tort is the breach of a legal duty to take care which results in damage, undesired by the defendant to the plaintiff”. The definition involves three constituents of negligence:
(1) A legal duty to exercise due care on the part of the party complained of towards the party complaining the former’s conduct within the scope of the duty;
(2) Breach of the said duty; and
(3) consequential damage. Cause of action for negligence arises only when damage occurs for damage is a necessary ingredient of this tort. But as damage may occur before it is discovered; it is the occurrence of damage which is the starting point of the cause of action.”
The above was approved by Supreme Court in Jacob Mathew v. State of Punjab and Another (2005) 6 SCC 1.
Duty to take care in cases of injury arising out of use of buildings
The duty to care in cases whether civil or criminal including injury arising out of use of buildings is examined by courts, vis-à-vis occupiers of such bindings.
In Palsgraf v. Long Island Railroad, 248 NY 339, Justice Cardozo explained the orbit of the duty of care of an occupier as under:
“If no hazard was apparent to the eye of ordinary vigilance, an act innocent and harmless, at least to outward seeming with reference to her, did not take to itself the quality of a tort because it happened to be a wrong, though apparently not one involving the risk of bodily insecurity, with reference to someone else…Even then, the orbit of the danger as disclosed to the eye of reasonable vigilance would be the orbit of the duty.”
To the same effect is the decision in Hartwell v. Grayson Rollo and Clover Docks Limited and Others (1947) KB 901 where the duty of an occupier who invites people to a premises, to take reasonable care that the place does not contain any danger or to inform those coming to the premises of the hidden dangers, if any, was explained thus:
“In my opinion the true view is that when a person invites another to a place where they both have business, the invitation creates a duty on the part of the invitor to take reasonable care that the place does not contain or to give warning of hidden dangers, no matter whether the place belongs to the invitor or is in his exclusive occupation.”
The duty of a theatre owner to his patrons was outlined as follows in Rosston v. Sullivan, 278 Mass 31 (1932):
“The general duty to use ordinary care and diligence to put and keep this theatre in a reasonably safe condition, having regard to the construction of the place, character of the entertainment given and the customary conduct of persons attending.”
The above case was cited with approval in Helen Upham v. Chateau De Ville Theatre Inc 380 Mass 350 (1980).
The Supreme Court of Wyoming in Mostert v. CBL & Associates, et. Al., 741 P.2d 1090 (Wyo. 1987) held that the owner of a theatre, AMC owed an affirmative duty to patrons as “business visitor invitees” to inform them of off-premises dangers (in that case a flash flood) which were reasonably foreseeable:
“We conclude that appellee AMC owed the Mostert family an affirmative duty to exercise reasonable or ordinary care for their safety which includes an obligation to advise them of off- premises danger that might reasonably be foreseeable. We are not suggesting by our determination that AMC had a duty to restrain its patrons or even a duty to advise them what to do. The duty as we see it is only to reveal what AMC knew to its customers.”
To sum up, negligence signifies the breach of a duty to do something which a reasonably prudent man would under the circumstances have done or doing something which when judged from reasonably prudent standards should not have been done. The essence of negligence whether arising from an act of commission or omission lies in neglect of care towards a person to whom the defendant or the accused as the case may be owes a duty of care to prevent damage or injury to the property or the person of the victim.
The existence of a duty to care is thus the first and most fundamental of ingredients in any civil or criminal action brought on the basis of negligence, breach of such duty and consequences flowing from the same being the other two. It follows that in any forensic exercise aimed at finding out whether there was any negligence on the part of the defendant/accused, the Courts will have to address the above three aspects to find a correct answer to the charge.
Reference
Sushil Ansal v. State thr CBI (2014)