Important Points
Negligence and rashness are essential elements under Section 304-A. A rash act is a negligent act done precipitately.
Considering the increasing number of vehicular accidents resulting in death of large number of innocent persons, provision for two year’s sentence is grossly inadequate.

JUDGMENT

Dr. ARIJIT PASAYAT, J.—

1.Challenge in this appeal is to the order passed by the learned Single Judge of the Kerala High Court. By the impugned order the appellant was found guilty of the offence punishable under Section 304 Part II of the Indian Penal Code, 1860 (in short ‘IPC’). Learned Sessions Judge, Kozhikode, had convicted the appellant for the offence punishable under Section 304 Part II IPC. The High Court found the same to be in order. Custodial sentence of five years was confirmed.

2.The background facts in a nutshell are as follows :

“A boy aged 10 years residing in a hostel of the Tribal Welfare Department, while he was a student of 4th standard in a nearby school, was run over by a bus driven by the appellant in the middle of the road. The investigation by the police revealed that there was evidence to the effect that even the passengers in the bus were alarmed of the enormous speed in which it was being driven and had cautioned the driver to stop even crying, as they had seen the school children crossing the road in a queue. The investigation also revealed that even the children crossing the road had raised both hands for stopping the vehicle. The passengers and pedestrians were of the view that the bus was being driven at a high speed and that they had cried aloud to stop the bus. It was, in spite of all these, that the bus ran over the said student on his head and the bus could be stopped only 15 to 20 feet ahead of the spot of occurrence. In the light of the said evidence, the investigating officer felt that there was real intention on the part of the appellant/driver of the bus to cause death of persons to whom harm may be caused by reason of hitting the bus and he was charged with offence punishable under Section 302 IPC. The court below found that no intention had been proved in the case. But, at the same time, the accused acted with the knowledge that it was likely to cause death. So, the act committed by the appellant was culpable homicide not amounting to murder punishable under Section 304 Part II IPC. Convicting him for the said offence, he was sentenced to undergo rigorous imprisonment for five years and to pay a fine of Rs.15,000/- with a default sentence of imprisonment for three years. This was assailed in appeal.”

3.The High Court did not find any substance in the plea of the appellant that the accused had not caused death either with the intention of causing death or with the intention to cause such bodily injury as is likely to cause death or with the knowledge that he is likely to cause such act to cause the death. It was submitted that case is covered under Section 304A IPC. Same was not accepted. So, it was held that this is a case of culpable homicide. It accepted the stand of the respondent-State that conviction is to be made for culpable homicide.

4.The respective stand taken before the High Court was re-iterated in this appeal.

5.Section 304A speaks of causing death by negligence. This section applies to rash and negligence acts and does not apply to cases where death has been voluntarily caused. This section obviously does not apply to cases where there is an intention to cause death or knowledge that the act will in all probability cause death. It only applies to cases in which without any such intention or knowledge death is caused by what is described as a rash and negligent act. A negligent act is an act done without doing something which a reasonable man guided upon those considerations which ordinarily regulate the conduct of human affairs would do or act which a prudent or reasonable man would not do in the circumstances attending it. A rash act is a negligent act done precipitately. Negligence is the genes, of which rashness is the species. It has sometimes been observed that in rashness the action is done precipitately that the mischievous or illegal consequences may fall, but with a hope that they will not. Lord Atkin in Andrews v. Director of Public Prosecution