8- Negligent Homicide

LAW

Negligent Homicide

Component I: Description of Module :

Description of Module Subject Name Law Paper Name Criminal Substantive Law Module Name/Title Negligent Homicide Module Id Module 8 Pre-requisites The module’s understanding is subject the knowledge of meaning of the elements of crimes, both actusreus and mens rea and different forms of mens rea. The module also requires the knowledge distinction that exists between negligence as is dealt with under civil law and criminal law. The module also requires basic understanding of the criminal law of the country, especially IPC, in general. Objectives The object of this module is to understand the meaning and scope of terms, negligence and rashness. It is also to understand the current law framework of the country dealing with negligent homicide. It is also to examine the scope of section 304A of IPC and thereby assess and critique the extent of criminal liability that can be imposed in cases of negligent homicide.

Keywords Homicide, negligence, negligent homicide, recklessness, rash, death, 304A, medical negligence

Introduction and Module Overview:

This module begins with the analysis of two important forms of mensrea, which is “recklessness” and “negligence” and then moves to examine grounds of distinction that exists between these two. The module overviews section 304A of IPC which deals with negligent homicide. As this provision deals with both recklessness as well as negligence resulting in death, the module will cover both the issues, without limiting to negligent homicide. The module examines the scope and limitation of the provision by assessing applicable principles of laws such as reasonable man’s test, principle of causa causans, res ipsaloquitor, etc. The module will then focus on the issue of liability for negligent homicide which has come under serious criticism many times for being insufficient and disproportionate in terms of the maximum extent of punishment it prescribes. The scope of this module is limited to section 304A, IPC which in fact is the only provision of Indian Criminal law which deals with negligent homicide. Wherever appropriate relevant cases, Indian as well as foreign will be used to comprehend possible interpretations of the provisions.

The scope of the module is to examine both reckless as well as negligent homicide, though it is titled as “Negligent Homicide”. The scope is widened to cover reckless homicide for the reason that the provision which deals with it is the same as that of the one which deals with negligent homicide.

Learning Outcomes:

1. Understanding of the current law dealing with negligent homicide in India in general. 2. Understanding in specific, the scope and limitation of section 304A in terms of its applicability for negligent homicide.

3. Reviewing the extent and nature of liability imposed for negligent homicide

1. Introduction:

Negligence is both a crime as well as a tort. Criminalization of negligence however is limited to gross negligent conduct. Indian Penal Code criminalizes negligent acts resulting in injury including causing death. Negligence under criminal law is treated as aform mens rea. Negligent homicide is criminalised under all criminal justice systems including that of India. The Indian law makes a distinction between culpable homicide and negligent homicide. Courts have determined the tests to be applied in imposing liability for negligent homicide.

There is a variation in the degree of culpability attached to reckless homicide and negligent homicide. Tough it’s the same provision, that is, section 304A of IPC which deals with both, courts have considered the two as distinct while imposing punishment, thereby considering reckless homicide as more serious than the offence of negligent homicide. Similarly courts while dealing with cases of medical negligence have emphasised upon the difference that exists between mere negligence [as dealt with under civil law] and gross negligence dealt with under criminal law.

2. Offence of Negligent Homicide:

Deaths caused due to medical negligence, road accidents and other similar accidental deaths can be subjected to criminal liability for being a form of homicide. However as they lack specific intention and knowledge to cause death they cannot be covered under culpable homicide. Being a case of negligently causing death, they are rather considered as a separate category of homicide, namely, negligent homicide.

The offence of negligent homicide under Indian Penal Code is dealt with under section 304 A. This provision is wider to cover both rash as well as negligent deaths under its ambit. Death caused here is neither withthe intention nor with the knowledge of the accused. Hence the offence istreated as lesser serious one, than in comparison to an offence of culpable homicide and murder. Section 304 A provides for imprisonment up to 2 years or fine or both, as the punishment that can be imposed. Hence, the liability imposed under the provision is also less including imposition of fine only in some cases. Cases of road accidents and medical negligence resulting in deaths are often covered under this provision.

3. Negligence and Rash Act – Conceptual Clarifications:

Under criminal law, negligence, rashness and recklessness refers to varied forms of mens rea, an important element to be established under criminal law in order to impose liability. The term “negligence” implies “omission to do something which a reasonable man, guided by those ordinary considerations which ordinarily regulate human affairs, would do, or the doing of something which a reasonable and prudent man would not do. Thus it refers to failure to use reasonable care. Negligence includes the doing of some act which a person of ordinary prudence would not have done under similar circumstances or failure to do what a person of ordinary prudence would have done under similar circumstance. (Act or omission)

The mens rea required to impose liability under section 304A IPC, is either rashness or negligence. The terms ‘rash’ and ‘negligence’ though sounds similar is different under law. Though both terms are inter-related yetthey are different forms of the same phenomenon and both refer to acts done without intention and knowledge.

The difference between rash act and negligent act was explained in the case of BalachandraWamanPathev. State Of Maharastra1 which is summarized in the following chart:

RASH ACT: NEGLIGENT ACT: Rash act is an overhasty act yet is not a Negligent act refers to breach of duty caused by deliberate one omission to do something which a reasonable man would do. An act committed without due thought and It refers to breach of duty imposed by law. caution. An act done with consciousness of a risk and It refers to acts done without consciousness that knowledge that an evil consequence will illegal mischievous effect will follow yet under follow yet is done with the hope that they will circumstances which show that the actor has not not. exercised the caution incumbent upon him.

CULPABLE RASHNESS: CULPABLE NEGLIGENCE: Acting with consciousness that the It is gross and culpable neglect or failure to mischievous and illegal consequence may exercise that reasonable and proper care and follow, but with the hope that they will not 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. Criminality lies in running the risk of doing Criminality lies in taking the care legally expected such an act with recklessness or indifference by such person. as to the consequences. 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.

In R. v. Lawrence, [1981] 1 All ER 974 (HL), Lord Diplock reiterating his opinion in R. v. Caldwell 1981(1) All ER 961 (HL) about the concept of recklessness as constituting mens rea in criminal law said: "Recklessness on the part of the doer of an act does presuppose that there is something in the circumstances that would have drawn the attention of an ordinary prudent individual to the possibility that his act was capable of causing the kind of serious harmful consequences that the section which creates the offence was intended to prevent, and that the risk of those harmful consequences occurring was not so slight that an ordinary prudent individual would feel justified in treating them as negligible. It is only when this is so that the doer of the act is acting 'recklessly' if, before doing the act, he either fails to give any thought to the possibility of there being any such risk or, having recognized that there was such risk, he nevertheless goes on to do it."

4. Indian Penal Code and Negligent Homicide:

4.1. Section 304A:

11968 SCD 198

“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.”

The provision refers to causing of death due to negligence or rashness. Death caused with intention or knowledge does not come under this provision.2Actusreus required under the provision must indicate presence of mens rea in form of either negligence or rashness on the part of the accused. The provision applies only to such cases where there is neither intention to cause death nor knowledge that the act done in all probability would cause death. Hence the provision does not apply to cases where there has been the voluntary [intentional or with knowledge] commission of an offence against the person.

4.2. Determining the requisite Mens Rea of Negligence

In order to determine the liability for negligent death and apply section 304 A of IPC the courts apply the principle of “Reasonableness”. It is true that “the law of negligence is founded on reasonable conduct or reasonable care under all circumstances of particular case”. Hence an accused will be liable for negligent death provided it is proved that he has failed to take reasonable care expected to be taken by a reasonable man in a similar situation. However it is important to note that the degree of negligence required under civil and criminal are different.

The 42nd Report of Law Commission of India, 1971 clarified “negligence mentioned in the section is not of the same type as in civil disputes and in civil cases the courts insist on a maximum standard of care, while criminal courts require minimum care. If minimum care is taken, then the criminal courts would acquit the accused.” In order to bring in clarity to the law, the commission suggested for alteration to section 304A by adding the words “so as to indicate a want of due regard for human life”.

4.3. Applicability of section 304A:

To fasten liability in Criminal Law, the degree of negligence has to be higher than that of negligence enough to fasten liability for damages in Civil Law. The essential ingredient of mens rea cannot be excluded from consideration when the charge in a criminal court consists of criminal negligence.3

Every slip or mistake is not culpable under law. Rash and negligent act becomes punishable under section 304A, provided it such rashness or negligence was the immediate cause of death, not being a remote cause of death. Negligent homicide in order to be made punishable under this provision must be proved to be the direct and proximate result of rashness or negligence. Death must be proved to be causa causans and not just causa sine qua non. Similarly mere error of judgment by the accused is also not enough to convict him.

Courts hence must consider facts of cases subjectively and determine the requisite mens rea. Negligence must be established by the prosecution and cannot be presumed by the court. Hence a mere fact that the vehicle was driven fast or beyond speed limit is also not enough to establish guilty of the accused under this provision.

4.4. Contributory Negligence – Not a Defence to Negligent Homicide:

Unlike a case of tort, contributory negligence on the part of the victim cannot be a ground of defence for the accused. As long as the mens rea in form of rashness or negligence is established by the prosecution, liability under section 304A is possible.

4.5. Principle of “Res IpsaLoquitor” – Not applicable to Negligent Homicide:

2Shankar Narayan Bhandolkar v. State of Maharastra, AIR 2004 SC 1966 3 Jacob Mathew v. State Of Punjab &Anr

Res ipsaloquitor, which is a rule of evidence applies in a case of tort and provides for assumption of commission of tort in a case where the evidence by itself suggests or indicates negligence on the part of the wrong doer. Hence liability in such case is established based on the circumstances of the case itself.

However, in a criminal case it is essential to establish presence of both mens rea [rashness or negligence] as well as actusreus in order establishes guilt. So is also the case under section 304A. Being a criminal case, the burden of proof is upon the prosecution or complainant and it must be established beyond reasonable doubt.4 Hence facts indicating negligence per se is not enough for conviction, as the principle of “res ipsaloquitor” [according to which “things speaks itself] is not applicable in a criminal case unlike a civil case.5 Hence proof of the elements of crime cannot be based on this principle in a criminal case.

The primary reasons for non-application of res ipsa loquitur asan abstract doctrine to criminal trials, are: firstly, in a criminal trial the burden of proving everything essential to the establishment of the charge against the accused always rests on the prosecution; secondly, while in civil proceedings a mere preponderance of probability is sufficient to establish a fact in issue, it is not so in criminal proceedings wherein the presumption of guilt must amount to such a moral certainty as convinces the mind of the court, as a reasonable man, beyond all reasonable doubt. Where negligence is an essential ingredient of the offence, the negligence to be established by the prosecution must be culpable or gross and not negligence merely based upon an error of judgment.6

Criminal negligence also includes:

Medical negligence

And

Road accidents

5. Death Due To Medical Negligence and Criminal Liability:

In a case of medical negligence, it is essential to establish culpable negligence on the part of the erring medical professional and also bring in the causal link between such medical negligence and the death of the patient. Such link must be immediate and direct consequence of the alleged negligence.

Though medical negligence amounting to death can be covered under section 304A, yet the courts have impliedly applied a different method of determining professional liability for negligence. Courts in India have narrowed the scope of imposing criminal liability for medical negligence. While narrowing down the application of this provision to cases of medical negligence [on proof of gross negligence on the part of the accused], the Supreme Court of India in Suresh Gupta vs Govt. of N.C.T. Of Delhi &Anr7 held “to convict a doctor, the prosecution has to come out with a case of high degree of negligence on the part of the doctor. Mere lack of proper care, precaution and attention or inadvertence might create civil liability but not a criminal one.” The court in this case made a distinction between mere negligence and gross negligence on part of a doctor and confirmed that only

4Syad Akbar v. State Of Karnataka, 1979 AIR [SC] 1848 5Ibid 6Moore v. R. Fox & Sons, [1956] 1 Q.B. 596 7 (2004) 6 SCC 422

gross negligence must be subject to criminal liability. The court clarified that: “for fixing criminal liability on a doctor or surgeon, the standard of negligence required to be proved should be so high as can be described as "gross negligence" or recklessness. It is not merely lack of necessary care, attention and skill.” The court further said that: “Between civil and criminal liability of a doctor causing death of his patient the court has a difficult task of weighing the degree of carelessness and negligence alleged on the part of the doctor. For conviction of a doctor for alleged criminal offence, the standard should be proof of recklessness and deliberate wrong doing i.e. a higher degree of morally blameworthy conduct.”8

6. Road Accidents Resulting In Negligent Death and Liability:

According to the 234th Report on Legal Reforms to Combat Road Accidents of 2009, more than 100,000 Indians are dying every year in road accidents and more than a million are injured or maimed. The same report says that “ driving recklessly/dangerously, non-observance of traffic rules, like crossing speed limit, jumping red light, driving without driving licence, driving by untrained/disqualified driver, driving by minor, driving under the influence of liquor, driving while talking on mobile, driving without helmet, ill-health of vehicle and bad road infrastructure are amongst the causes of road accidents.”

Thus most of the cases of road accidents are due to rash and negligent conduct of another, making it possible to apply section 304A.

7. Liability for Negligent Death & Appropriateness of the Current Extent of Liability:

The liability imposed under section 304A, for rash and negligent death is:

 imprisonment of either description for a term which may extend to two years, or  fine, or  both

According to this the minimum punishment for negligent homicide shall be fine while maximum punishment can be imprisonment extending up to two years with or without fine. Many criticize the provision for being too lenient in terms of the extent of punishment prescribed and suggest for an increase of the same.

The 42nd Report of Law Commission of India in 1971 had optioned “the present maximum punishment for the offence is inadequate, and should be increased. This is desirable, in view of the greater importance which this offence has assumed since the section was inserted due to the wide use of fast moving mechanically propelled vehicles and the frequency in the commission of the offence, accompanied by callousness of the offender towards the victim; often there are cases tried under this section which are very near to culpable homicide and deserve a severe sentence.” The commission further said “after taking into account our proposal to fix the maximum punishment for culpable homicide not amounting to murder at ten years, we recommend that the maximum punishment for causing death by negligence may be half that period, namely, five years.”

The Law Commission’s 234th Report on Legal Reforms to Combat Road Accidents of 2009 by considering the current extent of criminal liability under section 304 A as inappropriate recommends for increase in the liability. According to the law commission, section 304 A must be amended with increase in the liability for the offence of rash and negligent with imprisonment extending up to ten years, instead of two years as currently provided. It further recommended that causing death of any

8 Also see: Dr.Jacob Mathew Vs. State of Punjab &Anr, (2005) 6 SCC 1

person through driving under the influence of drink or drugs should be punishable with the minimum term of imprisonment of two years.

The above views of the law commission hence make it clear that the liability for negligent death is inappropriate and insufficient and needs a review and appropriate amendment.

Further similar is the view of Supreme Court of India which recently in Alister Anthony Pareira v. State Of Maharashtra9, while referring to the road accidents resulting in death the court said: “World Health Organization in the Global Status Report on Road Safety has pointed out that speeding and drunk driving are the major contributing factors in road accidents. According to National Crime Records Bureau (NCRB), the total number of deaths due to road accidents in India every year is now over 1, 35,000. NCRB Report also states drunken driving as a major factor for road accidents. Our country has a dubious distinction of registering maximum number of deaths in road accidents. It is high time that law makers revisit the sentencing policy reflected in Section 304A IPC.”

Thus an increase in the extent and nature of punishment is required so as to being in proportionality of sentence as per the nature of offence.

8. Summary:

Negligent homicide which lacks intention or knowledge of causing death is treated differently from culpable homicide and murder under Indian Penal Code. It is dealt with under section 304A of Indian Penal Code which infact is a lesser serious offence than culpable homicide or murder. The section however requires proof of either rashness or negligence. Legally rashness and negligence are different in term of degree of culpability that can be attached. While the first refers to such state of mind in which an accused has knowledge about the risk involved and yet takes the risk, thereby causing death of the victim. On the other hand, the later refers to breach of duty of due care and caution, thereby resulting in death of the victim. The court after considering the nature of mens rea [rashness or negligence] involved in an offence determines the extent of punishment. Additional remedy for negligent homicide can also be sought under civil law. Hence negligent homicide can be an offence both under civil as well as criminal law. However in order to result in criminal liability it is essential to prove that the degree of negligence on the part of accused was not just simple but “gross”. Courts have considered this requirement of grossness in the negligence of the accused as more essential in cases of medical negligence resulting in death of the patient.

The applicability of Section 304A even for cases of road accidents resulting in death is clear through case laws. However in all these cases in order to apply section 304A it is essential to establish that the death caused was the proximate and direct result of rash or negligence on the part of the accused.

Further the provision has come under serious criticism for being the one which is punished with inadequate punishment. Courts as well as Law Commission have in fact suggested for an increase of the liability.

9. ADDITIONAL SOURCES FOR FURTHER READING

i. Kenny’s Outlines Of Criminal Law – By J.W. Cecil Turner, Cambridge University Press. [For Understanding Of Mens Rea And Actus Reus Importance] ii. Smith And Hogan Criminal Law – By David Ormerod, Oxford University Press. iii. RusselOn Crime – By J.W. Cecil Turner, Universal Law Publishing Co Pvt., Ltd. iv. Card, Cross And Jones – Criminal Law – By Richard Card, Butterworths.

9 (2012) 2 SCC 648

v. Criminal Law, Sweet and Maxwell’s Textbook Series – By Alan Reed And Peter Seago, Sweet And Maxwell, A Thomson Company. vi. General Principles Of Criminal Law – By K.N. Chandrashekaran Pillai, Eastern Book Company vii. Criminal Law by P.S.A. Pillai, By V. Suresh And D. Nagasaila, Butterworths.