CHANAKYA NATIONAL LAW UNIVERSITY,PATNA

2011-2016 IPC PROJECT NEGLIGENCE AS A FORM UNDER MES REA

SUBMITTED TO: PROF.MANORANJAN ASSOCIATE PROFESSOR

SUBMITTED BY: SADHVI JAISWAL 2ND YEAR ROLL No: 604

ACKNOWLEDGEMENT

RESEARCH METHODOLOGY

CONTENTS

INTRODUCTION

CHAPTER 1:
DEATH BY NEGLIGENCE SECTION 304 A SCOPE: Section 304A of IPC deals with death by negligence.The provisions of this section apply to ceses where there is no intention to cause death,and no knowledge that the act done in all probability would caused death.For the application of this section ,it is necessary that death is caused by doing a rash or negligent act and such act must not amount to culpable homicide.Thus section will apply where there is neither any intention to cause death nor knowledge that the act would in all probability cause death.So where the act is in its nature criminal,this section has no application.This section does not apply to cases where the death has arisen,not from the negligent or rash mode of doing the act ,but from some result supervening upon the act which could not have been anticipated.This section deals with homicide by negligence.So to impose criminal liability under this section it is necessary that the death should have been the direct result of a rash or negligent act of the accused ,and that act must be the proximate and efficient cause without the intervention of anothers negligence.It must be the causacausans;it is not enough that it may have been the causa sine qua non. Culpable rashness is acting with consciousness that the mischievous and the illegal consequence may follow but with the hope that they will not and often with the belief that the actor has taken sufficient precautions to prevent their happening. Culpable negligence is acting without the consciousness that the illegal and mischievous effect will follow ,but in circumstances which show that the actor has not exercised the caution required of him, and that if he had he would have had the consciousness. Where a chemist gives expired date medicine to a patient and the patient dies, the chemist would be liable for causing death by negligence because he has failed to exercise due caution to ascertain whether the medicine that he was giving was expired date or not. This section does not apply to a case in which there has been the voluntary commission of a n offence against the person. Acts probably or possibly involving danger to others, but which in themselves are not offences ,may be offences under sections 336,337,338 or 304A.,if done without due care to guard against the dangerous consequences. RASH OR NEGLIGENT ACT
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Rash or negligent act is an act done not intentionally or designedly.A rash act is primarily an over hasty act ,and is thus 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.Criminal rashness is hazarding a dangerous or wanton act with the knowledge that it is so,and that it may cause injury,but without intention to cause injury ,or knowledge that it will probably be caused.The criminality lies in running the risk of doing such an act with recklessness or indifference as to the consequences.Negligence is the breach of a duty caused by omission to do something which a reasonable man guided by those considerations which ordinarily regulate the conduct of human affairs ,would do,or the doing of something which a reasonable man would not do.Criminalnegligence is the gross and culpable neglect or failure to exercise that reasonable and proper care and precaution to guard against the 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 imperitive duty of the accused person to have adopted.So the same act cannot be rash as well as negligent.The rash or negligent act means the act which is immediate cause of death,and not any act or omission which can at most be said to be a remote cause of death.In order that rashness or negligence may be criminal it must be of such a degree as to amount to taking hazard knowing that the hazard was of such a degree that injury was most likely to be caused thereby.The criminality lies in running the risk or doing such an act with recklessness and indifference to the consequences. In cases relating to a rash driving it is the duty of the driver to drive his vehicle at a speed which will not imperil the safety of others using his road.In order to hold a driver criminally liable it must be proved that a collision was entirely or at least mainly due to rashness or negligence on the part of the driver. It would not be sufficient if it was only found that the accused was driving the vehicle at a very high speed.A person driving a car is under a duty to control a car,he is prima facie guilty of negligence if the vehicle leaves the road and dashes into a tree and it is for the driver to explain the circumstances under which the car had left the road.Those circumstances may be beyond his control,and may exculpate him,but in the absence of such circumstances ,he fact that the car left the road is evidence of negligence on the part of the driver. Where due to collision of a vehicle injury ir death is caused ,it cannot be taken for granted that the driver of the vehicle involved in the accident was guilty of the crime.There may be exceptional cases where the rule res ipsaloquiterapplies.It is for the prosecution toestablish the guilt of the accused beyond reasonable doubt.Speed alone is not the criterion to decide rashness or negligence on the part of the driver.A motor vehicle is intended to be driven in speed The relationship between speed and rashness or negligence depends above the place and time.In a straight wide road where the obstruction from other vehicles or pedestrians are not there ,it cannot be said that driving in speed or absence of sounding horn by itself will amount to rashness or negligence. It is not every little slip or mistake that will make a man so liable.A passenger was standing on the foot-board of a bus to the knowledge of the driver and evev so the driver negotiated the sharp turn without slowing down. The passenger fell off to his death.The driver was held
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to be guilty under this section.Similarly, a woman was boarding the bus from the front entrance. The conductor whistled and the driver took off speedily.Either of them could have known whether she had come in or not ,but neither cared to do so.She fell off and was crushed by the rear wheel.No doubt remained in the mind that the driver and the conductor were guilty of a rash and negligent act. A boy entered a swimming pool of a club surreptitiously and without notice of the chowkidar. He was lost in drowning. The secretary of the club and chowkidar were prosecuted under this section. It was alleged that the club had no caution board and no life saving guard .The court prosecuted this case. If the entry of the boy could be due to want of these precautions ,only then there could have been a finding of negligence. The negligence, at all was of civil nature.

NEGLIGENT ACT NOT AMOUNTING TO CULPABLE HOMICIDE It was observed by Allahabad High court in Idu beg ,that section 304A is directed at offences outside the range of sections 299 and 300 ,and obviously contemplates those cases into which neither intention nor knowledge enters.For the rash or negligent act which id=s declared to be a crime is one not amounting to culpable homicide., and it must therefore be taken that intentionally or knowingly inflicted violence, directly and wilfully caused ,is excluded. Section 304A does not say that every unjustifiable or inexcusable act of killing not herein therefore mentioned shall be punishable under the provisions of this section ,but it specifically and in terms limits itself to those rash or negligent acts which cause death but fall short of culpable homicide of either description . Where A takes up a gun not knowing it is loaded ,points in sport of B and pulls the trigger. B is shot dead A would be liable for causing the death negligently under this section.

CONTRIBUTORY NEGLIGENCE The doctrine of contributory negligence does not apply to criminal liability.,that is , where the death of the person is caused partly by the negligence of the accused and partly by his own negligence. I f the accused is charged with contributing to the death of the deceades by his negligence, it matters not whether the deceased wasdeaf, or drunk, or negligent,or in part contributed to his own death.

LAYING TRAP BY LIVE WIRE The accused connected live wire with his bicycle with a view to ward off mischief making children.A child touched th bicycle and got shock and ultimately died.It was held that tehe act of the accused amounted to negligence as he placed no sign board ,caution,or warning for not touchoing the bicycle and was liable to be punished under section 304A and under section 304 ,Part II.
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RES IPSA LOQUITER Where a vehicle driven at a high speed knocked down the deceased who was walking on the left side of the road and breaking the roadside fencing got stuck up in a ditch.it was held that the maxim res ipsaloquiter as applicable and the accused driver could be held guilty of rash negligent driving.

CASES In THOMPSON, a railway engine driver failed to sound the whistle before starting the engine, and a boy, who was painting a wagon on the line was runover and killed.It was held that the driver was liable for an offence under this section. In a case where a man sets a naked live electric wire in the passage to a lavatory so that no trespasser may come and use the same, a trespasser manages to enter the lavatory without touching the wire but receives a shock while coming out and dies..There was no warning that the wire is live. It was held that the man was guilty under this section. In KAMRUDDIN, the accused sent two boxes containing fireworks for a carriage upon a railway falsely declaring them to contain iron locks, one of the boxes exploded during loading killing one coolie and injuring another and damaging the railway wagon in which it was being placed .The accused was held liable under this section. In MUSSAMMAT BAKHAN,a woman had received poison from her paramour to administer to her husband as a charm. She administered it but she did not know that the substance given to her was noxious until she saw its effects. The man died and the woman was held liable for an offence under this section. In SUPADI, a girl aged 17 years was carrying her infant baby tied on her back .She having been exasperated at an altercation which she had with her husband, attempted to commit suicide by jumping into a well .She was found alive but her child was dead.It was held that the girl was liable for causing death of the child by negligent omission and for attempting to commit suicide in as much as she failed to put the child down before jumping into the well. In SHANU, the accused had the sexual intercourse with his child wife with such violence as to rupture the vagina and destroy the partition between the vagina and the rectum and the girl died. The accused was liable under this section. `In DE SOUZA, A, a compounder while preparing a fever mixture took out certain medicines from a bottle without reading its label and mixed it in the mixture.The mixture was administered to 8 persons out of whom 7 died. The bottle was marked poison and contained strychnine hydrochloride and not quinine hydrochloride as he supposed it to be.The compounder was held guilty under this section.

In a case where a homeopathic practitioner administered to a patient suffering from guinea worm, 24 drops of stramonium and a leaf of dhatura without studying its effect and the patient died of poisoning ,it was held that the doctor was guilty for causing death by doing an act negligently. `In AGASTHAVALINGA GOUNDAN, the accused had kept a bottle of the atlas tree killer in his farm shed .Two of his farm servants drank it thinking to be arrack and died in consequence.The farm owner was not liable for an offence under this section.

CHAPTER 2
HURT OR GRIEVOUS HURT BY NEGLIGENCE SECTION 336,337,338

SECTION 336: This section deals with those acts which endangers human life or personal safety of others .Rash or negligent acts which endanger human life,or the personal safety of others ,are punishable under this section even though no harm follows, and are additionally punishable under ss.337and 338,if they cause hurt or grievous hurt.The word rashly means something more than mere inadvertence or inattentiveness or want of ordinary care : it implies that an indifference to obvious consequences and to the right of others .An intentional acts done with consideration cannot be a rash and negligent act.So this section deals with acts done negligently or rashly to endanger human life or personal safety of others.

CASES Where a priest of a temple left the temple at night and from outside deliberately threw bricks at it hoping that the Hindus of the locality would believe that the bricks came from the Mohammedan quarter and that this would lead to a riot between the two communities,it was held that the act was a deliberate one and not a rash or negligent act.

SECTION 337: Section 304A deals with those cases where death is caused by a rash or negligent , but this section deals with those cases where hurt is caused by rash or negligent act.This section applies where there is no criminal intention,only rashness or negligence is in the act.But such rashness or negligence must be proved as would necessarily with it criminal liability. So, this section deals with a n offence in which hurt is caused to a person due to negligent act of another to endanger human life.

CASES NEGLIGENCE WITH REFERENCE TO A GUN The causing of hurt by negligence in the use of a gun was held to fall within the purview of this section rather than of s. 286. But where all the evidence against the accused was that he
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went out shooting when people were likely to be in fields and that single pellet from his gun struck a man who was sitting in a field.It was held that this was not sufficient evidence of rashness or negligence to support a conviction under this section.

NEGLIGENT OPERATION A hakim (native physician) performed an operation of the eye with an ordinary pair of scissors and sutured the wound with an ordinary thread and needle..The instruments used were not disinfected and the complainants eye-sight was permanently damaged. It was held that the hakim had acted rashly and negligently, and was guilty under this section, as there was no permanent privation of the sight of the eye.The accused removed intra uterine device during the fourth month of pregnancy of the complainanyt. The latter had a premature delivery The child died after 22 days of delivery.The court said that the incident the incident was the direct result of the act of the accused.The complaint was quashed.For the purpose of draining out urine,the doctor treated the ppatient with the method,namely by using catheter.The court held that the doctor could not be said to be negligent in adopting that method It was not tenable to say that catheter was an old and crude method and that the doctor ought to have used suprapubic method.

PELTING STONES There was a sudden quarrel at a marriage feast .The accused pelted stones indiscriminately without aiming at anybody.A person was hit by a stone in the abdominal area leading to intestinal injury and death. The conviction of the accused was shifted from under s. 325 to one under this section.

SECTION 338 This section covers Grievous hurt i.e, it deals with those cases where grievous hurt is caused by rash or negligent act .It deals with an offence in which grievous hurt is caused to a person due to the negligent act of another to endanger human life.

CASES SEXUAL INTERCOURSE CAUSING INJURY A husband has not the absolute right to enjoy the person of his wife without regard to the question of safety to her. Hence, where a husband had a sexual intercourse with his wife ,aged 11 years, and she died from the injuries thereof, it was held that he was guilty of causing grievous hurt by doing a rash act under this section.Clause (6) of s.375 will now
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make the husband guilty of rape also. Where a driver of a motor bus ,by reason of his inattention and failure to apply brakes ,pressed a person against a wall ,he was held to have committed an offence under this section as well as under s.279.

RUNNING OVER BY A CART Where a person by allowing his cart to proceed unaatended along a road ,ran over a boy who was sleeping on the road,it was held that he had committed an offence under s.337 or s.338.

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CHAPTER 3
OFFENCES AFFECTING PUBLIC HEALTH, SAFETY AND CONVENIENCE CAUSED BY NEGLIGENCE SECTIONS 269, 284-289

SECTION 269 This section deals with a n offence which is done by any person either unlawfully or negligently in order to spread infection of any disease which are dangerous to life.This section is framed in order to prevent people from doing acts which are likely to spread infectious diseases.Welfare of the society is the primary duty of every civilised state.This section punishes any person who does any act whch is likely to spread infectious diseases in the society.The infectious diseases are cholera,plague,and small-pox,etc..However such person must have knowledge that his action was likely to spread infectious diseases.

PUNISHMENTS The punoishments include both

CHOLERA Where a man was suffering from cholera and was aware of its infectious nature, travelled by train without informing the railway authorities of his condition, it was held that he was responsible for spreading infection of cholera.

SMALL POX Where a mother refused to allow a daughter suffering from small-pox to be removed to a hospital in accordance with a n order made by aDitrict Magistrate unless she accompanied her ,it was held that she had committed no unlawful or negligent act within the meaning of this section.

PLAGUE

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The accused resided in a plague-striken house and was in contact with a plague patient.H e was taken to the plague-shed in company with the patient who doiedthere.The next daty he left the shed against orders and travelled by rail to a neighbouring town and from there to another village. Itt was held that he was guilty of an offence under this section as ghe had sufficient reason to believe that his act was dangerous ,and likely to spread infection of a disease dangerous to life.

SYPHILIS Where a prostitute who was suffering from syphilis encouraged and permitted a man ,whom ahe had assured that she was healthy ,to have sexual intercourse with her and thus communicated the disease to him it was held that she was not guilty under this section as the complainant was himself a responsible person and himself generally an accomplice. This decision is not sound as the complainant cannot be deemed to be an accomplice, as he was unaware of the disease. Communication of syphilids of a person must amount to spreading infection under this section. However it is doubtful wthether syphilis can be called a disease dangerous to life.

SECTION 284 This section deals with under this section a person who is rash or negligent with respect to poisonous substance shall be punished. The poisonous substance should endanger human life or should be likely to cause hurt or injury to any person. In the second par of this section the person in possession of poisonous substance should have omitted to take reasonable care which insufficient to guard against any possible danger to human life. It is not necessary that actual injury to hurt should follow the negligent omission on the part of the person in possession of poisonous substance.

SECTION 285 This section deals with negligent conduct with respect to fire or combustible matter.It extends the provisions of the preceeding section to fore or any other combustible matter.

SECTION 286 This section deals with explosive substance. The word knowingly is evidently used in this section advisedly.The accused having returned to his house after drawn from watching his crops at night with a loaded gun and finding his house-door locked ,placed yhe gun, loaded with a the hammer down on the cap , on a cort
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outside his house, and went foir a sgort time to a neighbouring house. I n his absence the child of a neighbourer came to the cot and began playing with the gun ,which went off and killed the child. It was held that he could not be convicted under this section as it could not not be said that he must have known or ought to have considered it to be probable that a child or a children would be likely to be playing about in that place ,and that, it or they, would be likely to handle or play with the gun and that, the danger which actually occurred had not been such a probable danger as that he could be held responsible.

SECTION 289 In this section a person who does not take sufficient care of any animal in his possession which may endanger human life shall be punished. The words any animal includes both wild and domestic animal. Any person who keeps wild animals such as tiger or beer ,which escapes and causes damage shall be punished .those persons who were in possession of such animals have a primary duty to protect the public against the mischief resulting for such animal being large.

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