Balancing Intent and Negligence: IPC 304A/BNS 106

Content:-

• Different from Culpable Homicide

• Cherubin Gregory v State of Bihar

• S.N. Hussain v State of A.P

• Cases Illustrating Rashness and Negligence

• Drunken Driving Cases

• Section 304-A/S. 106 BNS : Need for Reforms

There is distinction between Sec. 304, IPC and Section 105 BNS (Culpable homicide not amounting to murder) and Section 106, BNS/ Sec. 304-A, IPC (Causing death by negligence).

Sec. 304-A does not create a new offence; it is directed against the offences outside the range of Secs. 299 and 300 and covers those cases where death has been caused without intention or knowledge (Sec. 304 covers cases requiring intention or knowledge). Sec. 304-A provides for very mild punishment in comparison to that provided in Secs.302/304 Part II. 

Sec. 304-A carves out cases where death is caused by doing a rash or negligent act which does not amount to culpable homicide not amounting to murder within the meaning ofSec. 299 or culpable homicide amounting to murder under Sec. 300. 

In other words, Sec. 304-A excludes all the ingredients of Sec. 299 as also of Sec. 300. Where intention or knowledge is the “motivating force” of the act complained of, Sec. 304-A will have to make room for the graver and more serious charge of culpable homicide not amounting to murder or amounting to murder as the facts disclose. 

Different from Culpable Homicide

The words “not amounting to culpable homicide” in Sec. 304-A are significant and clearly convey that the section seeks to embrace those cases where there is neither intention to cause death, nor knowledge that the act done wiil in all probability result into death.

It applies to acts which are rash or negligent and are directly the cause of death of another person (Mahadev Prasad Kaushik v State ofU.P. AIR 2009 SC 125). 

In Girish Singh v State of Uttaranchal AIR 2008 SC 3136 During altercations between the killer and his victim, on a hill road, the accused suddenly pushed the deceased who fell down from the hill and sustained injuries.

His brother and son took him to the hospital where he died. The Supreme Court said that Sec. 304-A was not attracted, and a conviction under Sec. 304, Part II was proper. The accused could be attributed to have knowledge that his act is likely to cause death.

Cherubin Gregory v State of Bihar

Facts: In Cherubin Gregory, the accused installed a live, naked electric wire in the passage leading to his latrine to prevent trespassers from using it. The deceased, residing nearby, had begun using the latrine after the wall to his own bathroom had collapsed.

Despite verbal protests from the accused, these unauthorized entries continued, prompting the accused to set up a live wire without any warning of its presence. A trespasser, who inadvertently touched the wire while exiting, received a fatal electric shock.

Issue: The question before the court was whether the appellant was guilty of a rash and negligent act under Section 304-A.

Decision: The Supreme Court ruled that the accused’s action constituted criminal rashness under Section 304-A. The mere fact of the deceased being a trespasser did not justify the accused’s action.

The Court emphasized that while an occupier owes no duty of care to a trespasser, they also lack the right to inflict harm, directly or indirectly, with the intention of causing injury or with reckless disregard for the trespasser’s safety.

The Court equated the naked live wire to an arrangement "to shoot a man without personally firing a shot." The appeal was dismissed, and the conviction under Section 304-A was upheld.

S.N. Hussain v State of A.P

Facts: In S.N. Hussain, a bus driver attempted to cross a level crossing, presuming it was safe due to the open gate and absence of a scheduled train. However, a collision with a goods train ensued, causing the deaths of four passengers and injuries to others.

Issue: The Court was asked to determine whether the appellant's actions constituted a rash or negligent act under Section 304-A.

Decision: The Supreme Court found no rashness or negligence on the driver’s part. The bus was moving slowly, and the visibility was poor due to cold weather and low-lying screens.

The driver, lacking prior warning, responded to the train’s sudden appearance by attempting to cross quickly, which the Court viewed as a reasonable reaction rather than rashness. The open gate, maintained by a gateman, suggested that no train was expected. The Supreme Court concluded that the accident stemmed from the gateman’s negligence rather than the driver’s.

Cases Illustrating Rashness and Negligence

1. State v Shahu (1917): The accused was found liable under Section 304-A after violently engaging in sexual intercourse with his child wife, causing fatal injuries. His action was deemed criminally rash.

2. Kamruddin (1905): The accused, misrepresenting fireworks as locks, caused a fatal explosion during loading. This was ruled negligent, falling under Section 304-A.

3. Negligence in Abandoning a Child: In an unnamed case, a girl who abandoned her newborn by the roadside, albeit with precautions, was held liable for causing death by starvation.

4. Waziruzama Khan (1881): Mistaking a crouching coolie for a thief, a police officer’s fatal shooting was judged as a rash act under Section 304-A.

5. Negligent Poisoning of a Spouse: An intoxicated husband mistakenly administered poison to his wife, resulting in her death, and was held guilty under Section 304-A.

6. Thompson (1894): A railway driver who failed to sound the whistle, causing a fatal accident, was convicted under Section 304-A.

7. Bhimabhai Kalabhai v State of Gujarat (1905): A low-quality water tank’s collapse, leading to multiple deaths, resulted in conviction under Section 304-A.

Drunken Driving Cases 

In recent times, the Apex Court of India has taken a serious note of the increase in ‘drunken driving’ cases. 

In Alister Anthony Pareira v State of Maharashtra (2012) 2 SCC 648, the Supreme Court observed: “Drunken driving has become a menace to our society.

Every day it results in accidents and several human lives are lost, pedestrians in many of our cities are not safe. Late night parties among elite have become a way of life followed by drunken driving.

Alcohol leads to loss of coordination, poor judgement, slowing down of reflexes and distortion of vision.” At the time of enactment of Sec. 304-A i.e. during the British era, there was no concept of fundamental rights of victims.

The Supreme Court held: Section 304-A will be applicable in a case where negligence or rashness is the cause of death and nothing more.

But where the rash or negligent act is preceded with the ‘knowledge’ that such act is likely to cause death, Section 304 Part II will be applicable. If rash and negligent act is preceded by ‘real intention’ on the part of the wrongdoer to cause death, Sec. 302 will be applied. 

“Knowledge” is awareness on the pan of the person concerned of the consequences of his act of omission or commission indicating his state of mind. Thus, knowledge means ‘foresight of consequences’. 

The Apex Court observed that the ‘culpable homicide not amounting to murder’ (Sec. 299) can include rash or reckless driving on a public road with knowledge of the dangerous character and probable impact of the act resulting in death. 

An individual who engages in reckless or careless driving that causes death which he had knowledge as a reasonable man that act was dangerous enough to lead to some untoward thing and the death was likely to be caused, may be attributed with the knowledge of the consequence and may be fastened with culpability of homicide riot amounting to murder punishable under Sec. 304 Part II.

Thus, the ‘knowledge’ contemplated under Sec. 304 Part II is attributable to a drunk driver, driving a motor vehicle rashly at high speed. 

The law is clear on the point that when there is knowledge to the accused that the act he had done is likely to cause death of a person and with the said knowledge he had done the act and in consequence thereof the person died, it will be definitely a case falling under Sec. 304 Part II. 

Section 304-A only applies to cases in which without any such intention or knowledge death is caused by a rash and negligent act.

Again, in State v Sanjeev Nanda (“BMW case”) (2012, SC), the Apex Court held that although there was no intention to cause death but there was knowledge that driving at unusual speed after taking drink was possibility to hit someone or something. 

In this case, the accused in a drunken state, driving a BMW car, dashed violently against several police men standing on the road at about 4.00 a.m.

Section 304-A: Need for Reforms

Initially, the Indian Penal Code did not address deaths resulting from negligent acts. Section 304-A was introduced in 1870 to fill this legislative gap, but its penalties remain lenient.

The Supreme Court, in Abdul Shariff v State of Haryana (2016) SCC OnLine SC 865, remarked that the nonchalance of drivers and the prevalence of drunken driving present a public safety threat, and Section 304-A’s sentencing should be re-evaluated. Despite the Law Commission of India’s 1971 recommendation to increase the sentence to five years, the law remains unchanged, necessitating legislative action to enhance its deterrent effect.