By Saurav Das, School of Law, Christ University.

Humans, by their nature itself, often divert from the boundaries of righteousness that they have set up for themselves. These diversions can be caused due to mistake, or they may even be deliberate and intentional. These acts invite various penalties, which too are the yielding of our mind. One of the examples of these yielding is tortious liabilities. Since its evolution in the Roman law, tort law has come a long way. This evolution has given the victims of acts committed without any intention of causing such damage, the opportunity to approach the courts for justice. One of the major examples of these acts are the acts committed by Negligence. Negligence means a failure to exercise the care that a reasonable and prudent person would exercise in like circumstances. It is the failure to perform a legal duty, which causes damage to the party. The ingredients to constitute negligence are:

  1. There must be an act
  2. There was a duty of care which was breached.
  3. There was a loss suffered due to such breach of duty.


In negligence, the nature of death is quite different from that of others. Here, there is no concept of murder, but the death, which is caused due to a negligent act. In India, IPC is the central statute which governs the criminal law of the country. Section 300 of the IPC defines an offense which specifically states that, for an act causing death, to constitute a murder, there needs to be a mens rea to commit the offense in the first place.

The IPC was amended in 1870 and a new Section, Sec. 304-A, was inserted in the Code. This section specifically deals with the provision for the deaths caused due to negligence. This provision applies to the cases where mens rea was missing and there was no prior intention of causing death through the act. The Supreme Court of India, in many cases, has clarified that Section 304-A of the IPC will apply to the cases where the act was caused due to the negligent and rash act of the accused. The legal fraternity has criticized this provision by saying that the provision is actually not a paradigm of justice, but instead is a ‘license to kill’. Here the act is not caused due to the intention of a person, but purely due to a rash and negligent act, and thus it falls short of culpable homicide, but when there is knowledge and intention accompanied with the act, then this provision would not apply, rather other provisions of the IPC dealing with Murder or Culpable Homicide may apply.

The intention of the framers of the legislation was to distinguish the act where there was a homicide and death, but no culpability of the person who has committed the act. It must be clearly established that the death was the consequence of the act. Only a remote connection between the death and the act of the person would not suffice the implementation of this provision. Death should be the direct result of the act that was committed by the person in question. There has to be a clear nexus between the death of the person.

A common example involving rash and negligent acts are road accidents. The Hon’ble Supreme Court has interpreted Section 304-A in various judgments in the past and has specifically commented as to when its provisions will apply. In Satnam Singh vs. State of Rajasthan, the court said that the truck driver who was driving the vehicle will be liable under Sec. 304-A, as he did not have the intention to kill the person on the road.

This provision can be further understood with the help of State of Karnataka vs. Md. Ismail. Here a motorcyclist hit an old man and the man succumbed to the injuries. The death was said to have been caused due to rash and negligent driving and the person was not charged under Section 299-302 of the IPC, rather he was charged under Section 304-A of the IPC. If the brakes of the car fail and if the pedestrians are injured, then the negligent driving cannot be brought into the court of law, this is because the act took place due to an external factor and not due to the negligence of the driver, thus, there is no liability under Section 304A.

In Rathnasalvan vs. State of Karnataka, where a similar situation was decided with almost the same set of facts and circumstances, here, the witnesses had seen the driver driving negligently on an empty clear road as a result, it dashed in a tree and stopped. Investigation proved that there was no mechanical failure, and the act was committed by the person himself, and there was no other external factor involved. The person in this case was negligent and hence, the person was liable under section 304-A.

The quantum of the punishment must be decided by deterrence. A person while driving knows the fact that he is driving a vehicle and is aware of the possible outcomes of rash driving. He is aware that if any accident occurs, it can cause death. The courts should look at this matter constructively and punish the offender who was driving negligently. Moreover, this type of act is a serious offence and the degree of the punishment will depend on the amount of negligency involved while driving the vehicle.

But, where in case of a driver who is driving with caution and is not negligent and if any fatal accident occurs, then the act will be seen from a different perspective. Here, the person will not be held liable. It was decided in M.H. Lokre vs. State of Maharashtra, that a person will not be held liable if any accident happens inspite of due care and precaution. The fact that he was not driving in a rash and negligent manner and the accident could not have been avoided is evidence enough to save him from all the liabilities.

While applying Section 304-A, we need to examine the intention of the person and his awareness of the consequences of his acts. If the person is having the full knowledge of the consequences and still does it, then he will be held liable for murder or culpable homicide, but where there was a death, but no intention or a rash and negligent act, he will be liable under Section 304-A of the IPC. This provision cannot be called the licence to kill, but rather it’s a provision which saves a person from getting punished more extensively than he deserves under Section 302 or 304 of the IPC. There is, thus, a reasonable justification in punishing a person under Section 304-A and another under 302 0r 304 of the IPC.