E DIGEST U/S 279, 337, 338,304 A, 304 II of India penal codes

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E DIGEST ON
U/S 279, 337, 338
304 A, 304 II OF
INDIAN PENAL CODE
&
OFFENCES RELATING TO
M. V. ACT 1988.
(SPECIALLY FOCUS ON ACCIDENTAL CASES)
PREPARED BY
MR. A. P RANDHIR
B.COM, LL.M, D.L.P

2
INDEX
Sr. Particular Page No.
1 Introduction 3
2 Meaning Of Negligence And Rash 4
3 Punishment Provision In IPC & M.V Act 1988 31
4
Applicability Of I.P.C 304 Punishment For
Culpable Homicide
46
5 Police Investigation In Accident Cases 76
6 Appreciation Of Evidence In Accident Cases 78
7 Electrocution Cases 87
8 Medical Negligence Cases 98
9 Sentencing Policy & Compensation 111
10 Right To File Appeal Before Higher Forum 135

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CHAPTER 1 INTRODUCTION
“More people die of road accidents than by most diseases, so
much so the Indian highways are among the top killers of the
country”, the saturation of accidents toll was not even half of
what it is today1”.
Hon’ble Mr Justice V .R. Krishna Iyer,
1.1 HISTORY OF IPC
● The present section 304A was subsequently inserted at the
instance of the then Law Minister, Sir James Stephen, by Act
25 of 1870
● The 42nd Report of the Law Commission of India, submitted in
June, 1971,
● The 156th Report of the Law Commission of India, submitted in
August, 1997, examined the IPC (Amendment) Bill, 1978, and
affirmed the above amendments, except that new section 304B was
recommended to be inserted as sub-section (2) in section 304A
because the number could not be ‘304B’ in view of the amendment
of the IPC by Act 43 of 1986 inserting section 304B relating to
dowry death.
● The IPC, on the other hand, is punitive and deterrent in nature.
The principal aim and object is to punish offenders for offences
committed under the IPC. The relevant provisions of the IPC which
are necessary to advert to are extracted herein below:
● Certain laws not to be affected by this Act .- Nothing in this Act
shall affect the provisions of any Act for punishing mutiny and
desertion of officers, soldiers, sailors or airmen in the service of
the Government of India or the provisions of any special or local
law.
1
Rattan Singh v. State of Punjab, (1979) 4 SCC 719 : 1980 SCC (Cri) 17] thus: (SCC p. 720,
para 3)

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CHAPTER 2 : MEANING OF NEGLIGENCE AND RASH
"To impose criminal liability under Section 304-A, Indian penal
Code, it is necessary that the death should have been the direct
result of a rash and negligent act of the accused, and that act must
be the proximate and efficient cause without the intervention of
another s negligence. It must be the cause causans; it is not enough
that it may have been the causa sine qua non."2
2.1. Meaning of Negligence:
A simple definition of negligence i.e. failure to take proper care,
and, as a result, that failure causes injury or damage to someone.
Negligence is the omission to do something which a reasonable man
guided upon those considerations which ordinarily regulate the conduct
of human affairs, would do, or doing something which a prudent and
reasonable man would not do3.
Dictionary meaning of rash4 is reckless, impetuous, hasty; acting
or done without due consideration. The respondent has given a test dose.
It appears that she must have waited for the reasonable time to note
whether the said dose reacts or not. Giving of a regular dose after a test
dose cannot be said to be reckless or an impetuous act. It also cannot be
said to an act done without due consideration.
According to the dictionary meaning 'reckless' means 'careless',
'regardless' or heedless of the possible harmful consequences of one's
acts'. It presupposes that if thought was given to the matter by the doer
before the act was done, it would have been apparent to him that there
was a real risk of its having the relevant harmful consequences; but,
granted this, recklessness covers a whole range of states of mind from
failing to give any thought at all to whether or not there is any risk of
those harmful consequences, to recognizing the existence of the risk and
nevertheless deciding to ignore it. it was observed that a man is reckless
in the sense required when he carries out a deliberate act knowing that
2
Emperor v. Omkar Rampratap, 4 Bom LR 679, Sir Lawrence Jenkins (had to interpret S. 304-A
and observed)
3
In the words of Alderson in case of Blyth v Birmingham Waterworks Co [1856]:
4
The Concise Oxford Dictionary page 994

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there is some risk of damage resulting from the act but nevertheless
continues in the performance of that act5.
2.2 What constitutes negligence has been analysed in Halsbury's
Laws of England (4th Edition) Volume 34 paragraph 1 (para 3) as
follows
"Negligence is a specific tort and in any given circumstances is the
failure to exercise that care which the circumstances demand. What
amounts to negligence depends on the facts of each particular case. It
may consist in omitting to do something which ought to be done or in
doing something which ought to be done either in a different manner or
not at all. Where there is no duty to exercise care, negligence in the
popular sense has no legal consequence, where there is a duty to
exercise care, reasonable care must be taken to avoid acts or omissions
which can be reasonably foreseen to be likely to cause physical injury to
persons or property. The degree of care required in the particular case
depends on the surrounding circumstances, and may vary according to
the amount of the risk to be encountered and to the magnitude of the
prospective injury. The duty of care is owed only to those persons who
are in the area of foreseeable danger, the fact that the act of the
defendant violated his duty of care to a third person does not enable the
plaintiff who is also injured by the same act to claim unless he is also
within the area of foreseeable danger. The same act or omission may
accordingly in some circumstances involve liability as being negligent
although in other circumstances it will not do so. The material
considerations are the absence of care which is on the part of the
defendant owed to the plaintiff in the circumstances of the case and
damage suffered by the plaintiff, together with a demonstrable relation of
cause and effect between the two"
Negligence6 is conduct which falls below the standard established
for the protection of others against unreasonable risk of harm".
It is stated in Law of Torts by Fleming at page 124 (Australian
Publication 1957) that this standard of conduct is ordinarily measured
by what the reasonable man of ordinary prudence would do under the
circumstances.
5
In R. v. Briggs (1977) 1 All ER 475
6
Restatement of the law of Torts published by the American Law Institute (1934) Vol. I. Section 28

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In Director of Public Prosecutions v. Camplin (1978) 2 All ER
168 it was observed by Lord Diplock that "the reasonable man" was
comparatively late arrival in the laws of provocation. As the law of
negligence emerged in the first half of the 19th century it became the
anthropomorphic embodiment of the standard of care required by law. In
order to objectify the law's abstractions like "care" "reasonableness" or
"foresee ability" the man of ordinary prudence was invented as a model of
the standard of conduct to which all men are required to conform. They
are7:
(i) a state of mind, in which it is opposed to intention;
(ii) careless conduct; and
(iii) The breach of duty to take care that is imposed by either
common or statute law.
All three meanings are applicable in different circumstances but
any one of them does not necessarily exclude the other meanings. The
essential components of negligence, as recognized, are three: "duty",
"breach" and "resulting damage", that is to say:-
1) the existence of a duty to take care, which is owed by the defendant
to the complainant;
2) the failure to attain that standard of care, prescribed by the law,
thereby committing a breach of such duty; and
3) damage, which is both casually connected with such breach and
recognized by the law, has been suffered by the complainant.
If the claimant satisfies the court on the evidence that these three
ingredients are made out, the defendant should be held liable in
negligence.
2.3 As to what is meant by causa causans ?
o Supreme Court in the case of Sushil Ansal v. State through
Central Bureau of Investigation, (2014)6 SCC 173, as under :
o As to what is meant by causa causans we may gainfully refer to
Blacks Law Dictionary (Fifth Edition) which defines that
expression as under:
7
According to Charles worth & Percy on Negligence (Tenth Edition, 2001),

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❖ "Causa causans. The immediate cause; the last link in the chain of
causation."
o The Advance Law Lexicon edited by Justice Chandrachud,
former Chief Justice of India defines Causa causans as
follows:
o Causa causans. The immediate cause as opposed to a remote
cause; the last link in the chain of causation; the real effective
cause of damage
o The expression proximate cause is defined in the 5th Edition
of Blacks Law Dictionary as under: Proximate cause. That
which in a natural and continuous sequence unbroken by
any efficient, intervening cause, produces injury and without
which the result would not have occurred.
o Wisniewski vs. Great Atlantic & Pacific Tea Company, 226
Pa. Super 574 : 323 A2d 744 (1974), A2d at p. 748. That
which is nearest in the order of responsible causation. That
which stands next in causation to the effect, not necessarily
in time or space but in causal relation. The proximate cause
of an injury is the primary or moving cause, or that which in
a natural and continuous sequence, unbroken by any
efficient intervening cause, produces the injury and without
which the accident could not have happened, if the injury be
one which might be reasonably anticipated or foreseen as a
natural consequence of the wrongful act. An injury or damage
is proximately caused by an act, or a failure to act, whenever
it appears from the evidence in the case, that the act or
omission played a substantial part in bringing about or
actually causing the injury or damage; and that the injury or
damage was either a direct result or a reasonably probable
consequence of the act or omission.
2.4 Negligence as a Crime8 & Tort Law
First of all torts and criminal incidents are both wrongful acts.
A. Primary Distinction. The primary distinction between tort and criminal
law is that criminal law is considered a wrong against the state. A tort is
a action where one person brings a suit against another party.
8
https://www.legalserviceindia.com/legal/article-3564-act-of-negligence.html

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Negligence as a crime has a different measure. Negligence under
law of tort due to the negligence arises of loss caused under criminal law
is dependent amount of negligence. Courts held that the burden of
proving criminal negligence heavily on the person claiming it. Criminal
law requires a guilty mind. If there is a guilty mind, then person will be
liable in any case. Under the criminal law, rashness and recklessness
amount to crime, In other words, the element of criminality is introduced
guilty mind or bad intention.
Generally Criminal negligence also includes two type of Medical
negligence, Road accidents, Liability for Negligent Death &
Appropriateness of the Current Extent of Liability:
The liability imposed under section 304A of IPC, for rash and negligent
death is:
1) imprisonment of either description for a term which may extend to
two years, or
2) fine, or
3) both.
The liability imposed under section 304 Part II, of IPC, for provides for
punishment for culpable homicide not amounting to murder (if the act is
done with the knowledge that it is likely to cause death, but without any
intention to cause death, or to cause such bodily injury as is likely to
cause death) is:
1) imprisonment of either description for a term which may extend to
10 years, or
2) fine, or
3) both.
Some of the examples of Criminal negligence are as follows9:
1. If a person is drink and driving, and kills someone on the road, he
can be held criminally negligent. The reason is that killing is a
crime and similarly drinks and driving is also a crime, therefore he
can be sued and held criminally liable.
2. In a nursing home forgets to feed the patient and the patient dies
because of the negligent act of the nurse that is when the nurse
9
https://www.legalserviceindia.com/legal/article-3564-act-of-negligence.html

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can be held criminally liable because of her criminal negligence
that the patient is put forward for a risk to life.
3. Caretaker in a hospital who is not paying attention and who
provides someone with a deadly dose of medication could be
considered criminally negligent.
4. A doctor who prescribes additive drugs to a patient knowing that he
is allergic to it can be held criminally negligent.
5. A doctor in lieu of making money from the services he provides, if
exchanges the lungs of a person during a surgery or leaves a tool or
any hazardous substance inside his patient’s body, is criminally
negligent.
DISTINCTION BETWEEN “A RASH ACT” AND “A NEGLIGENT ACT”.
RASH ACT: NEGLIGENT ACT:
Rash act is an overhasty act
yet is not a deliberate one10.
Negligent act refers to breach of
dut y caused by omission to do
something which a reasonable man
would do.
An act committed without due
thought and caution.
It refers to breach of duty imposed
by law.
An act done with
consciousness of a risk and
knowledge that an evil
consequence will follow yet is
done with the hope that they
will not
It refers to acts done without
consciousness that illegal
mischievous effect will follow yet
under circumstances which show
that the actor has not exercised
the caution incumbent upon him.
CULPABLE RASHNESS CULPABLE NEGLIGENCE:
10
State of Gujarat Vs. Maltiben Valjibhai Shah, 1993 (2) GLR 1600

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Acting with consciousness
that the mischievous and
illegal consequence may
follow, but with the hope that
they will not.
It is gross and culpable neglect or
failure to exercise that reasonable
and proper care and 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 such an act with
recklessness or indifference as
to the consequences.
Criminality lies in taking the care
legally expected by such person.
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 terms ‘rash’ and ‘negligence’ though sounds similar is different
under law. Though both terms are inter-related yet they are different
forms of the same phenomenon and both refer to acts done without
intention and knowledge.
● Balachandra Waman Pathe vs State of Maharashtra
Hon’ble Supreme Court11 laid down the fundamental distinction between
rash act and negligent act in the following words;
There is a distinction between a rash act and negligent act. In the
case of a rash act, the criminality lies in running the risk of doing
such an act with recklessness or indifference as to the
consequences. Criminal negligence is the gross and culpable neglect
or failure to exercise that reasonable and proper care to guard
against injury either to public generally or to an individual in
particular, which, having regard to all the circumstances, out of
11
(1968) SCD 198,

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which the charge has arisen, it was imperative duty of the accused
person to have adopted. Negligence is omission to do something
which a reasonable man, guided upon those considerations, which
ordinarily regulate the conduct of human affairs would do, or doing
something which a prudent and reasonable man would not do. A
culpable rashness is acting with the consciousness that the
mischievous and illegal consequences 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. The imputability
arises from acting despite consciousness. Culpable negligence is
acting without the consciousness that the illegal and mischievous
effect will follow but in circumstances which show the actor has not
exercised the caution incumbent upon him and if he had he would
have had the consciousness. The imputability arises from the neglect
of the civic duty of circumspection.
2.5 DISTINCTION BETWEEN RESHNESS AND NEGLIGENCE12
● ‘Rashness’ means an act done with the consciousness of a risk that
evil consequences will follow. (It is an act done with the knowledge
that evil consequence will follow but with the hope that it will not).
● A rash act implies an act done by a person with recklessness or
indifference as to its consequences.
● The term ‘negligence’ means ‘breach of a legal duty to take care,
which results in injury/damage undesired by the wrong doer.
● The term ‘negligence’ as used in Section 304-A does not mean mere
carelessness.
● A negligent act refers to an act done by a person without taking
sufficient precaution or reasonable precautions to avoid its
probable mischievous or illegal consequences.
● It implies an omission to do something, which a reasonable man, in
the given circumstances, would not do.
● Rashness is a higher degree of negligence.
● The rashness or negligence must be of such nature so as to be
termed as a criminal act of negligence or rashness.
12
KLE LAW ACADEMY BELAGAVI, STUDY MATERIAL for LAW OF CRIMES I, K.L.E. Society's Law College,
Bengaluru

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● 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.
● Criminal negligence is the gross and culpable neglect or failure to
exercise that reasonable and proper care and 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.
● Culpable rashness is acting with the consciousness that the
mischievous and illegal consequences may follow, but with the
hope that they will not, and often with the belief that the actor has
taken sufficient precaution to prevent their happening.
● The imputability arises from acting despite the consciousness.
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 incumbent
upon him, and that, if he had, he would have had the
consciousness.
● The imputability arises from the neglect of the civic duty of
circumstances. A rash act primarily is an overhasty act.
● Negligence is a breach of a duty caused by omission to do
something which a reasonable man, guided by the those
considerations which ordinarily regulate the conduct of human
affairs would do.
● The expression ‘not amounting to culpable homicide’ in Section 304-
A indicates the offences outside the range of Sections 299 and 300,
and obviously contemplates those cases into which neither
intention nor knowledge enters. It indicates that intentionally on
knowingly inflicted violence, directly and willfully caused, is
excluded from the implication of Section 304A.
● Contributory negligence is no defence to a criminal charge i.e.,
where the death of a person is caused partly by the negligence of
the accused and partly by his own negligence. If the accused is

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charged with contributing to the death of the deceased by his
negligence it matters not whether the deceased was deaf, or drunk,
or negligent, or in part contributed to his own death. In order to
impose criminal liability under Section 304-A, it is essential to
establish that death is the direct result of the rash or negligent act of
the accused.
● Generally, Section 304-A is taken into consideration in the cases of
road accidents, accidents in factories, etc.( It is the duty of the
driver to drive the vehicle in a cautious way. Where a driver drives
the vehicle in an abnormal manner and cause the death of persons,
he is liable under Section 304-A. Where a factory owner neglects the
maintenance of the machine, and causes the death of a person, he
shall be held liable under Section 304-A.)
● However, Section 80 of the IPC provides, “nothing is an offence
which is done by accident or misfortune and without any criminal
knowledge or intention in the doing of a lawful act in a lawful
manner by a lawful means and with proper care and caution’. It is
absence of such proper care and caution, which is required of a
reasonable man in doing an act, which is made punishable under
Section 304-A.
● To render a person liable for neglect of duty it must be such a
degree of culpability as to amount to gross negligence on his part.
It is not every little slip or mistake that will make a man so
liable.
● 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
causans13 and not just causa sine qua non. Similarly mere error of
judgment by the accused is also not enough to convict him.
● The requirements of Sec. 304-A IPC are that there must be a direct
nexus between the death of a person and a rash and negligent act
of the accused. A remote nexus is not enough. For the purpose of
criminal law there are degrees of negligence and a very high degree
of negligence is required to be proved before a charge can be
sustained under this section and also Sections 337 and 338 of the
IPC. A reasonable foresight is the criterion of negligence. In the
case of negligence, the person accused does not do an act which he
13
Ambalal Bhat v. State of Gujarat reported in AIR 1972 SC 1150

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is bound to do. Mere negligence is not enough to bring a case
within the ambit and scope of these sections. Negligence or
rashness must be such as should carry with it a criminal liability.
Criminal rashness is hazarding a dangerous act with the knowledge
that it is so and that it may cause an injury. There is a breach of a
positive duty14.
● 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. The mens
rea required to impose liability under section 304A IPC, is
either rashness or negligence.
● Principle of “Res Ipsa Loquitor” – Not applicable to Negligent
Homicide: Res ipsa loquitor,
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. Hence facts indicating negligence
per se is not enough for conviction, as the principle of “res ipsa
loquitor” [according to which “things speaks itself] is not applicable
in a criminal case unlike a civil case. Hence proof of the elements of
crime cannot be based on this principle in a criminal case.
● Kuldeep Singh v. State of Himachal Pradesh AIR 2008 SC
3062
2.6 WORDS AND PHRASES- WORDS AND PHRASES
Meaning of words ‘negligence’ and ‘recklessness’.
The truck was being driven at very high speed carrying more than
50 persons – Conviction on account of rash and negligent driving is
correct and accused does not deserve to be dealt with leniently.
Held
Section 304-A IPC applies to cases where there is no intention to
cause death and no knowledge that the act done, in all probabilities,
14
Jigish Devendra Upadhyaya Versus State Of Gujarat 2020 JX(Guj) 10

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will cause death. This provision is directed at offences outside the
range of Sections 299 and 300 IPC. Section 304-A applies only to such
acts which are rash and negligent and are directly the cause of death
of another person. Negligence and rashness are essential elements
under Section 304-A
What constitutes negligence has been analysed in Halsbury’s Laws of
England (4th Edition) Volume 34 paragraph 1 (para 3) as follows:
“Negligence is a specific tort and in any given circumstances is
the failure to exercise that care which the circumstances demand.
What amounts to negligence depends on the facts of each particular
case. It may consist in omitting to do something which ought to be
done or in doing something which ought to be done either in a
different manner or not at all. Where there is no duty to exercise care,
negligence in the popular sense has no legal consequence, where there
is a duty to exercise care, reasonable care must be taken to avoid
acts or omissions which can be reasonably foreseen to be likely to
cause physical injury to persons or property. The degree of care
required in the particular case depends on the surrounding
circumstances, and may vary according to the amount of the risk to
be encountered and to the magnitude of the prospective injury. The
duty of care is owed only to those persons who are in the area of
foreseeable danger, the fact that the act of the defendant violated his
duty of care to a third person does not enable the plaintiff who is also
injured by the same act to claim unless he is also within the area of
foreseeable danger. The same act or omission may accordingly in
some circumstances involve liability as being negligent although in
other circumstances it will not do so. The material considerations are
the absence of care which is on the part of the defendant owed to the
plaintiff in the circumstances of the case and damage suffered by the
plaintiff, together with a demonstrable relation of cause and effect
between the two”.
In this context the following passage from Kenny’s Outlines of
Criminal Law, 19th Edition (1966) at page 38 may be usefully noted:
“Yet a man may bring about an event without having adverted to
it at all, he may not have foreseen that his actions would have this
consequence and it will come to him as a surprise. The event may be
harmless or harmful, if harmful, the question rises whether there is
legal liability for it. In tort, (at common law) this is decided by
considering whether or not a reasonable man in the same

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circumstances would have realised the prospect of harm and would
have stopped or changed his course so as to avoid it. If a reasonable
man would not, then there is no liability and the harm must lie where
it falls. But if the reasonable man would have avoided the harm then
there is liability and the perpetrator of the harm is said to be guilty of
negligence. The word `negligence’ denotes, and should be used only to
denote, such blameworthy inadvertence, and the man who through
his negligence has brought harm upon another is under a legal
obligation to make reparation for it to the victim of the injury who may
sue him in tort for damages. But it should now be recognized that at
common law there is no criminal liability for harm thus caused by
inadvertence. This has been laid down authoritatively for
manslaughter again and again. There are only two states of mind
which constitute mens rea and they are intention and recklessness.
The difference between recklessness and negligence is the difference
between advertence and inadvertence they are opposed and it is a
logical fallacy to suggest that recklessness is a degree of negligence
The common habit of lawyers to qualify the word “negligence” with
some moral epithet such as ‘wicked’ ‘gross’ or ‘culpable’ has been
most unfortunate since it has inevitably led to great confusion of
thought and of principle. It is equally misleading to speak of criminal
negligence since this is merely to use an expression in order to explain
itself.”
“Negligence”, says the Restatement of the Law of Torts published by
the American Law Institute (1934) Vol. I. Section 28 “is conduct which
falls below the standard established for the protection of others
against unreasonable risk of harm”. It is stated in Law of Torts by
Fleming at page 124 (Australian Publication 1957) that this standard
of conduct is ordinarily measured by what the reasonable man of
ordinary prudence would do under the circumstances. In Director of
Public Prosecutions v. Camplin (1978) 2 All ER 168 it was observed by
Lord Diplock that “the reasonable man” was comparatively late arrival
in the laws of provocation. As the law of negligence emerged in the
first half of the 19th century it became the anthropomorphic
embodiment of the standard of care required by law. In order to
objectify the law’s abstractions like “care” “reasonableness” or
“foreseeability” the man of ordinary prudence was invented as a model
of the standard of conduct to which all men are required to conform.

17
● In Syed Akbar v. State of Kamataka, (1980) 1 SCC 30, it was held
that “where negligence is an essential ingredient of the offence, the
negligence to be established by the prosecution must be culpable or
gross and not the negligence merely based upon an error of judgment.
As pointed out by Lord Atkin in Andrews v. Director of Public
Prosecutions (1937) 2 All ER 552 simple lack of care such as will
constitute civil liability, is not enough; for liability under the criminal
law a very high degree of negligence is required to be proved.
Probably, of all the epithets that can be applied ‘reckless’ most nearly
covers the case.”
According to the dictionary meaning ‘reckless’ means ‘careless’,
‘regardless’ or heedless of the possible harmful consequences of one’s
acts’. It presupposes that if thought was given to the matter by the
doer before the act was done, it would have been apparent to him that
there was a real risk of its having the relevant harmful consequences;
but, granted this, recklessness covers a whole range of states of mind
from failing to give any thought at all to whether or not there is any
risk of those harmful consequences, to recognizing the existence of the
risk and nevertheless deciding to ignore it. In R. v. Briggs (1977) 1 All
ER 475 it was observed that a man is reckless in the sense required
when he carries out a deliberate act knowing that there is some risk of
damage resulting from the act but nevertheless continues in the
performance of that act.
● In R. v. Caldwell, (1981) 1 All ER 961, it was observed that: –
“Nevertheless, to decide whether someone has been ‘reckless’,
whether harmful consequences of a particular kind will result from
his act, as distinguished from his actually intending such harmful
consequences to follow, does call for some consideration of how the
mind of the ordinary prudent individual would have reacted to a
similar situation. If there were nothing in the circumstances that
ought to have drawn the attention of an ordinary prudent individual
to the possibility of that kind of harmful consequence, the accused
would not be described as ‘reckless’ in the natural meaning of that
word for failing to address his mind to the possibility; nor, if the risk
of the harmful consequences was so slight that the ordinary prudent
individual on due consideration of the risk would not he deterred from
treating it as negligible, could the accused be described as reckless in
its ordinary sense, if, having considered the risk, he decided to ignore
it. (In this connection the gravity of the possible harmful

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consequences would be an important factor. To endanger life must be
one of the most grave). So, to this extent, even if one ascribes to
‘reckless’ only the restricted meaning adopted by the Court of Appeal
in Stephenson and Briggs, of foreseeing that a particular kind of harm
might happen and yet going on to take the risk of it, it involves a test
that would be described in part as ‘objective’ in current legal jargon.
Questions of criminal liability are seldom solved by simply asking
whether the test is subjective or objective.”
● The decision of R. v Caldwell (supra) has been cited with approval
in R v. Lawrence (1981) 1 All ER 974 and it was observed that: –
“– 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”.
The above position was highlighted in Naresh Giri v. State of M.P.,
(2008) 1 SCC 791.
The evidence of PWs 1, 3 & 4 clearly show that the vehicle was being
driven at a very high speed. Evidence on record show that more than
50 persons were there in the truck and the appellant was driving the
same at a very high speed. One of the witnesses has stated that the
truck was being driven as if it was an aeroplane. Therefore, the
conviction as recorded cannot be faulted.
Coming to the question of sentence, in Dalbir Singh v. State of
Haryana (2000) 5 SCC 82 it has been stated as follows: –
“................While considering the quantum of sentence to be
imposed for the offence of causing death by rash or negligent driving
of automobiles, one of the prime considerations should be deterrence.
A professional driver pedals the accelerator of the automobile almost
throughout his working hours. He must constantly inform himself
that he cannot afford to have a single moment of laxity or

19
inattentiveness when his leg is on the pedal of a vehicle in locomotion.
He cannot and should not take a chance thinking that a rash driving
need not necessarily cause any accident; or even if any accident
occurs it need not necessarily result in the death of any human being;
or even if such death ensues he might not be convicted of the offence;
and lastly, that even if he is convicted he would be dealt with leniently
by the court. He must always keep in his mind the fear psyche that if
he is convicted of the offence for causing death of a human being due
to his callous driving of the vehicle he cannot escape from a jail
sentence. This is the role which the courts can play, particularly at
the level of trial courts, for lessening the high rate of motor accidents
due to callous driving of automobiles.”
● Sushil Ansal v. State Through Central Bureau of Investigation
(2014) 6 SCC 173
● TORTS- Negligence
● (i) Rashness – Meaning – Where the actor foresees possible
consequences but, foolishly thinks they will not occur as a result of
his act – Negligence – Meaning – The essence of negligence
whether arising from an act of commission or omission lies in
neglect of care towards a person to whom the defendant or the
accused, as the case may be, owes a duty to take care to prevent
damage or injury to the property or the person of the victim.
● (ii) Concept of negligence in civil and criminal law – Difference –
Negligence to provide a cause of action to the affected party to sue
for damages is different from negligence which would be required to
prove an offence punishable under section 304-A IPC – In the latter
case, it is imperative for the prosecution to establish that the
negligence with which the accused is charged is “gross” in nature –
What is “gross” would depend on the fact situation of each case and
cannot, therefore, be defined with certitude.
● (iii) Criminal liability under section 304-A, when arises? It shall
arise only if the prosecution proves that the death of a victim was
the result of a rash or negligent act of the accused and that such
act was the proximate and efficient cause (causa causans) without
the intervention of another’s negligence – What was the causa
causans in a given case, would depend upon the fact situation in
which the occurrence has taken place and the question arises.

20
● (iv) Availability of protection under section 79 IPC on the basis of
the no objection certificates issued by the authorities concerned
granted and from time to time renewed the Cinema licence?
Fundamental obligation and duty to care at all times rested with
the occupiers of the Cinema and the licensee thereof – In the
discharge of that duty the occupiers were not entitled to argue that
so long as there was a licence in their favour, they would not be
accountable for the loss of life or limb of anyone qua whom the
occupiers owed that duty.
● Extracts from the judgment:
● To sum up, negligence signifies the breach of a duty to do
something which a reasonably prudent man would under the
circumstances have done or doing something which when judged
from reasonably prudent standards should not have been done.
The essence of negligence whether arising from an act of
commission or omission lies in neglect of care towards a person to
whom the defendant or the accused as the case may be owes a
duty of care to prevent damage or injury to the property or the
person of the victim. The existence of a duty to care is thus the first
and most fundamental of ingredients in any civil or criminal action
brought on the basis of negligence, breach of such duty and
consequences flowing from the same being the other two. It
follows that in any forensic exercise aimed at finding out whether
there was any negligence on the part of the defendant/accused, the
courts will have to address the above three aspects to find a correct
answer to the charge.
● Difference between negligence in civil actions and in criminal
cases.
● Conceptually the basis for negligence in civil law is different from
that in criminal law, only in the degree of negligence required to be
proved in a criminal action than what is required to be proved by
the plaintiff in a civil action for recovery of damages. For an act of
negligence to be culpable in criminal law, the degree of such
negligence must be higher than what is sufficient to prove a case of
negligence in a civil action. Judicial pronouncements have
repeatedly declared that in order to constitute an offence,
negligence must be gross in nature. That proposition was argued
by Mr Ram Jethmalani at great length relying upon the English
decision apart from those from this Court and the High Courts in

21
the country. In fairness to Mr Salve, counsel appearing for CBI and
Mr Tulsi appearing for the Association of Victims, we must mention
that the legal proposition propounded Mr Jethmalani was not
disputed and in our opinion rightly so. That negligence can
constitute an offence punishable under Section 304-A IPC only if
the same is proved to be gross, no matter the wore “gross” has not
been used by Parliament in that provision is the settled legal
position.
● To sum up: for an offence under Section 304-A to be provided it is
not only necessary to establish that the accused was either rash or
grossly negligent but also that such rashness or gross negligence
was the causa causans that resulted in the death of the victim.
● The essence of Section 79 IPC is a belief entertained in good faith
about the legitimacy of what is being done by the person
concerned. Absence of good faith is enough to deny to him the
benefit that he claims. Good faith has in turn to be proved by
reference to the attendant circumstances. That is because good
faith is a state of mind which can be inferred only from the
circumstances surrounding the act in question. The test of ordinary
prudence applied to such proved attendant circumstances can help
court determine whether an act or omission was in good faith or
otherwise.
● Having said that, we would simply recall our findings recorded
earlier that the fundamental obligation and duty to care at all times
rested with the occupiers of the Cinema and the licensee thereof. In
the discharge of that duty the occupiers were not entitled to argue
that so long as there was a licence in their favour, they would not
be accountable for the loss of life or limb of anyone qua whom the
occupiers owed that duty. The duty to care for the safety of the
patrons, even independent of the statutory additions made to the
same, required the occupiers to take all such steps and measures,
as would have ensured quick dispersal from the cinema building of
all the patrons inside the premises in the event of an emergency.
The statutory requirements were, in that sense, only additional
safeguards which in no way mitigated the common law duty to
care, the degree of such care or the manner in which the same was
to be discharged.
● Dalapatbhai Rameshbhai Vasava Versus State Of Gujarat, :-
2020 (2) AIJ(DG) 105 : 2020 CrLJ 3429

22
(18.) Considering the contentions raised by both the sides and on
perusal of evidence on record, it is an admitted fact that on the date of
accident, at late night, tempo bearing registration no.GJ-6-V-8851
turned turtle and in such accident, two young persons have died and
many persons, who were travelling in said tempo got injuries and they
have been treated by the doctors for such injuries. The happening of
accident is not disputed. At the same time, though during trial the
accused has put up defence that the witnesses could not identify the
person, who was driving the tempo, but in the appeal memo filed in this
Court, the appellant has categorically stated that it was the fear of mob
attacking him, forced him to run away from the place of accident. Now,
considering the evidence on record, the only question is as to whether
there was any negligence or rashness on the part of the accused and
whether he was responsible for the injuries to various witnesses and for
causing death of two young persons.
(22.) Now, considering the evidence of all the injured witnesses, which
are on record, it appears that they have categorically stated similar facts
as to the tempo being driven by the accused and it was in over speed
and, their request to lower down the speed was not paid heed by the
accused and the accused was driving it at excessive speed. All of them
have deposed that due to full speed, the driver lost control over the
vehicle and due to that tempo turned turtle and they all have got
injuries.
22.1 During their cross-examination, they have admitted when they
were passing through Anoti Single road is a single strip road and it
is having curve. However, they have denied the suggestion that it
was a sloppy road having curve there. They have admitted that at
the time of accident, all the persons have slipped on one side of the
tempo and due to that, the tempo turned turtle. The evidence of the
injured clearly suggests that at the time accident, the tempo was in
high speed and the place where the accident has occurred, is
sloppy one and having curve.
(25.) It appears from report of FSL officer, M.N.Trivedi, Scientific Officer,
FSL, who has examined the place of occurrence, has stated that he has
paid visit to the place on 21.3.2011. In his report, it is specifically stated
that near bus stand of Bal Gav, there is sloppy road and blood stains
were noticed on road and as the time has elapsed, no brake marks or
any other marks have been found. It appears from this note that the
officer has made specific observation in his report, Exh.63, that

23
necessary process through RTO officer be carried out. However, on
perusal of entire material on record, it appears that no such
inspection by RTO Inspector has been carried out to find out as to
whether there was any mechanical defect in the tempo or not.
(26.) It is pertinent to note that version of all the individuals, who are
injured is to the effect that at the relevant time, tempo was in high
speed. It is also found from the evidence of the injured that the road
was sloppy one and there was curve. It also came on record that
almost 70 to 80 persons were travelling in tempo. Further no mark
of application of brake is found on road. It also came on record that
at the relevant point of time, all persons were in tempo have slipped
to one side of the tempo. It is possible that due to such event the
tempo might have turned turtle. It has also come in evidence of the
persons travelling in the tempo that they had shouted and instructed the
driver to drive the tempo in proper manner as he was driving it in rash
manner. However, when a vehicle is in moving condition at a certain
speed, the driver may not be able to listen to the shouts of the
passengers and, therefore, evidence of these witnesses cannot be
believed as a proof against the accused.
(28.) In view of above two decisions and on perusal of aforesaid
observations of the Honourable Supreme Court, if we peruse the material
on record, it is found that the ingredients of negligence rashness are not
proved by the prosecution in this case. It appears from the impugned
judgment that learned trial Court has relied on the maxim of race ipsa
locutar on the basis of the evidence produced by the prosecution but
when the necessary ingredients regarding rashness or negligence is not
brought on record, mere fact of high speed is not sufficient to connect the
accused with alleged crime. Learned trial Court has not appreciated
these facts and legal point and thereby has committed error of facts and
law in convicting the accused and sentencing him for various offences.
Impugned judgment is not sustainable in the eyes of law, especially in
view of pronouncement of aforesaid two decisions of the Honourable
Supreme Court. Therefore, the impugned judgment is required to be set
aside.
APPLICABILITY OF MAXIM “ras ipsa locutar”
Mrs. Shakila Khader And Ors. vs Nausheer Cama And Ors. Reported
in AIR 1975 SC 1324, (1975) 4 SCC 122,

24
It was observed that main criteria for deciding whether driving
which relate to accident was rash and negligent is not only the speed but
the width of the road, density of the traffic etc. Further in the case of
State of Karnataka v. Satish (supra), the Honourable Supreme Court has
held that merely because truck was being driven at a high speed does
not bespeak of either negligence or rashness by itself. High Speed is a
relative term and criminality is not to be presumed subject of
course to some statutory exceptions. In absence of any material on
record, no presumption of rashness or negligence could be drawn by
invoking the maxim ras ipsa locutar .
● Krishnan and Anr. V/s. State of Kerala, 1996 10 SCC 508
The Court has observed that there may be a case where the proved
facts would themselves speak of sharing of common intention and while
making such observation one of the learned judges constituting the
Bench has in his concurring opinion merely stated "res ipsa loquitur'.
Nowhere it has been stated that the rule has applicability in a criminal
case and an inference as to an essential ingredient of an offence can be
found proved by resorting to the said rule. In our opinion, a case
u/s. 304A of Indian Penal Code cannot be decided solely by applying the
rule of res ipsa loquitur.
● Syad Akbar VS State of Karnataka, 1979 AIR(SC) 1848;
ISSUE
● First, whether the courts below were right in discarding entirely
the evidence of the said eye-witnesses merely on the ground that
they were treated as hostile by the prosecution and cross
examined.
● Second, whether the principle of res ipsa loquitur is applicable in
criminal proceedings. If so, could it be invoked in the
circumstances of the case in favour of the prosecution to presume
rashness and negligence on the part of the accused?
Para 19. As a rule, mere proof that an event has happened or an
accident has occurred, the cause of which is unknown, is not evidence of
negligence. But the peculiar circumstances constituting the event or
accident, in a particular case, may themselves proclaim in concordant,
clear and unambiguous voices the negligence of somebody as the cause
of the event or accident. It is to such cases that the maxim res ipsa
loquitur may apply, if the cause of the accident is unknown and no

25
reasonable explanation as to the cause is coming forth from the
defendant. To emphasise the point, it may be reiterated that in such
cases, the event or accident must be of a kind which does not happen in
the ordinary course of things if those who have the management and
control use due care. But, according to some decisions, satisfaction of
this condition alone is not sufficient for res ipsa to come into play and it
has to be further satisfied that the event which caused the accident was
within the defendants control. The reason for this second requirement is
that where the defendant has control of the thing which caused the
injury, he is in a better position than the plaintiff to explain how the
accident occurred. Instances of such special kind of accidents which "tell
their own story" of being offsprings of negligence, are furnished by cases,
such as where a motor vehicle mounts or projects over a pavement and
hurts somebody there or travelling in the vehicle; one car ramming
another from behind, or even a head-on-collision on the wrong side of the
road. (See per Lord Normand in Barkway v. South Wales Transport
Co. (1950) 1 All ER 392 at p. 399 Cream v. Smith (1961) 8 All ER
349 Richley v. Faull (1965) 1 WLR 1454.
Para 20. Thus, for the application of the maxim res ipsa loquitur no less
important a requirement is that the res must not only bespeak
negligence, but pin it on the defendant."
Para 21. It is now to be seen, how does res ipsa loquitur fit in with the
conceptual pattern of the indian Evidence Act. Under the Act, the general
rule is that the burden of proving negligence as cause of the accident,
lies on the party who alleges it. But that party can take advantage of
presumptions which may be available to him, to lighten that burden,
Presumptions are of three types :-
(i) Permissive presumptions or presumptions of fact.
(ii) Compelling presumptions or presumptions of law (rebuttable).
(iii) Irrebuttable presumption of law or conclusive proof.
Clauses (i), (ii) and (iii) are indicated in clauses (1), (2) and (3)
respectively, of S. 4, Evidence Act. Presumption of facts are inferences of
certain fact patterns drawn from the experience and observation of the
common course of nature, the constitution of the human mind, the
springs of human action, the usages and habits of society and ordinary
course of human affairs. S. 114 is a general Section dealing with
presumptions of this kind. It is not obligatory for the Court to draw a
presumption of facts. In respect of such presumptions, the Act allows the

26
judge a discretion in each case to decide whether the fact which under S.
114 may be presumed has been proved by virtue of that presumption.
Para 22. In case of a Presumption of Law no discretion has been left to
the Court, and it is bound to presume the fact as proved until evidence is
given by the party interested to rebut or disprove it. Instances of such
presumptions are to be found in Ss. 79, 80, 81, 83, 85, 89 and 105,
Evidence Act.
Para 23. The distinction between the effect of the first and the second
kind of presumption on the burden of proof is important. presumptions
of fact merely affect the "burden going forward with the evidence".
Presumptions of law, however, "go so far as to shift the legal burden of
proof so that, in the absence of evidence sufficient to rebut it on a
balance of probability a verdict must be directed.
Para 28. In our opinion, for reasons that follow, the first line of approach
which tends to give the maxim a larger effect than that of a merely
permissive inference, by laying down that the application of the maxim
shifts or casts, even in the first instance, the burden on the defendant
who in order to exculpate himself must rebut the presumption of
negligence against him, cannot as such be invoked in the trial of criminal
cases where the accused stands charged for causing injury or death by
negligent or rash act. The primary reasons for non-application of this
abstract doctrine of res ipsa loquitur 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, as every man is presumed to be innocent until the contrary
is proved, and criminality is never to be presumed subject to statutory
exception. No such statutory exception has been made by requiring the
drawing of a mandatory presumption of negligence against the accused
where the accident "tells its own story" of negligence of somebody.
Secondly, there is a marked difference as to the effect of evidence, viz. the
proof, in Civil and Criminal proceedings. In Civil proceedings, a mere
preponderance of probability is sufficient, and the defendant is not
necessarily entitled to the benefit of every reasonable doubt; but in
Criminal proceedings, the persuasion 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 the negligence merely based upon an error
of judgment. As pointed out by Lord Atkin in Andrews v. Director of

27
Public Prosecution (1937) 2 All ER 552 "simple lack of care such as will
constitute civil liability, is not enough" for liability under the Criminal
Law "a very high degree of negligence is required to be proved. Probably,
of all the epithets that can be applied reckless most nearly covers the
case."
Para 29. However, shorn of its doctrinaire features, understood in the
broad, general sense, as by the other line of decisions, only as a
convenient ratiocinative aid in assessment of evidence, in drawing
permissive inferences under S. 114, Evidence Act, from the
circumstances of the particular case, including the constituent
circumstances of the accident, established in evidence, with a view to
come to a conclusion at the time of judgment, whether or not, in favour
of the alleged negligence (among other ingredients of the offence with
which the accused stands charged), such a high degree of probability, as
distinguished from a mere possibility has been established which will
convince reasonable men with regard to the existence of that fact beyond
reasonable doubt. Such harnessed, functional use of the maxim will not
conflict with provisions and the principles of the Evidence Act relating to
the burden of proof and other cognate matters peculiar to criminal
jurisprudence.
Para 30. Such simplified and pragmatic application of the notion of res
ipsa loquitur, as a part of the general mode of inferring a fact in issue
from another circumstantial fact is subject to all the principles, the
satisfaction of which is essential before an accused can be convicted on
the basis of circumstantial evidence alone. There are : Firstly all the
circumstances, including the objective circumstances constituting the
accident, from which the inference of guilt is to be drawn, must be firmly
established. Secondly, those circumstances must be of a determinative
tendency pointing unerringly towards the guilt of the accused. Thirdly,
the circumstances should make a chain so complete that they cannot
reasonably raise any other hypothesis save that of the accused guilt.
That is to say, they should be incompatible with his innocence, and
inferentially exclude all reasonable doubt about his guilt.
Para 31. Let us now see whether the appellant, in the instant case,
could with the aid of res ipsa, as explained and described in the
preceding paragraph, be held guilty of causing death by negligent or
rash driving. The primary reason given by the courts below for
invoking the maxim is that the appellant had swerved the bus to the
extreme right side of the road, where the unfortunate child, who

28
came running from the left side of the road, struck against the bus
and was fatally knocked down by its left-front wheel.
Para 32. In our opinion, this circumstance of taking the vehicle
suddenly to the extreme right of the road, did not bespeak
negligence or dereliction of duty to exercise due care and control,
on the part of the accused, in clear and unambiguous voice. Nor
could it be said, that the cause of swerving the vehicle to the right,
was unknown. The accused gave a reasonably convincing
explanation of his conduct in doing so, and his version was fully
supported by four prosecution witnesses who had seen the
occurrence. In these circumstances, the maxim res ipsa loquitur
could have no manner of application.
Ravi Kapur v. State of Rajasthan AIR 2012 SC 2986
Held:
(i) Rash and negligent driving in cases of road accidents – To be
examined in the light of attendant circumstances – Only driving
speedily does not, but the manner of driving that endangers human
life, is the determinative factor to attract the penalty contemplated
u/s 279 IPC.
(ii) Res ipsa loquitur – This doctrine is applicable to the cases of motor
accident, provided the attendant circumstances and the basic facts
are proved.
(i) Rash and negligent driving has to be examined in light of the facts
and circumstances of a given case. It is a fact incapable of being
construed or seen in isolation. It must be examined in light of the
attendant circumstances. A person who drives a vehicle on the road is
liable to be held responsible for the act as well as for the result. It may
not be always possible to determine with reference to the speed of a
vehicle whether a person was driving rashly and negligently. Both these
acts presuppose an abnormal conduct. Even when one is driving a
vehicle at a slow speed but recklessly and negligently, it would amount to
‘rash and negligent driving’ within the meaning of the language of S. 279
IPC. That is why the legislature in its wisdom has used the words
‘manner so rash or negligent as to endanger human life’. The preliminary
conditions, thus, are that (a) it is the manner in which the vehicle is
driven; (b) it be driven either rashly or negligently; and (c) such rash or
negligent driving should be such as to endanger human life. Once these

29
ingredients are satisfied, the penalty contemplated under S.279 IPC is
attracted.
‘Negligence’ means omission to do something which a reasonable and
prudent person guided by the considerations which ordinarily regulate
human affairs would do or doing something which a prudent and
reasonable person guided by similar considerations would not do.
Negligence is not an absolute term but is a relative one; it is rather a
comparative term. It is difficult to state with precision any
mathematically exact formula by which negligence or lack of it can be
infallibly measured in a given case. Whether there exists negligence per
se or the course of conduct amounts to negligence will normally depend
upon the attending and surrounding facts and circumstances which
have to be taken into consideration by the Court. In a given case, even
not doing what one was ought to do can constitute negligence.
The Court has to adopt another parameter, i.e., ‘reasonable care’ in
determining the question of negligence or contributory negligence. The
doctrine of reasonable care imposes an obligation or a duty upon a
person (for example a driver) to care for the pedestrian on the road and
this duty attains a higher degree when the pedestrian happen to be
children of tender years. It is axiomatic to say that while driving a vehicle
on a public way, there is an implicit duty cast on the drivers to see that
their driving does not endanger the life of the right users of the road, may
be either vehicular users or pedestrians. They are expected to take
sufficient care to avoid danger to others.
(ii) The doctrine of res ipsa loquitur is equally applicable to the cases of
accident and not merely to the civil jurisprudence provided the attendant
circumstances and basic facts are proved.
The doctrine of res ipsa loquitur serves two purposes – one that an
accident may by its nature be more consistent with its being caused by
negligence for which the opposite party is responsible than by any other
causes and that in such a case, the mere fact of the accident is prima
facie evidence of such negligence. Secondly, it is to avoid hardship in
cases where the claimant is able to prove the accident but cannot prove
how the accident occurred. The courts have also applied the principle of
res ipsa loquitur in cases where no direct evidence was brought on
record. This maxim suggests that on the circumstances of a given case
the res speaks and is eloquent because the facts stand unexplained, with
the result that the natural and reasonable inference from the facts, not a

30
conjectural inference, shows that the act is attributable to some person’s
negligent conduct.
In the case of Thakur Singh v. State of Punjab, (2003) 9 SCC 208, the
petitioner drove a bus rashly and negligently with 41 passengers and
while crossing a bridge, the bus fell into the nearby canal resulting in
death of all the passengers. The Court applied the doctrine of res ipsa
loquitur since admittedly the petitioner was driving the bus at the
relevant time and it was going over the bridge when it fell down. The
Court held as under:
“4. It is admitted that the petitioner himself was driving the vehicle
at the relevant time. It is also admitted that bus was driven over a bridge
and then it fell into canal. In such a situation the doctrine of res ipsa
loquitur comes into play and the burden shifts on to the man who was in
control of the automobile to establish that the accident did not happen
on account of any negligence on his part. He did not succeed in showing
that the accident happened due to causes other than negligence on his
part.”
Still, in the case of Mohd. Aynuddin alias Miyam v. State of A.P., AIR
2000 SC 2511, this Court has also stated the principle :
“8. The principle of res ipsa loquitur is only a rule of evidence to
determine the onus of proof in actions relating to negligence. The said
principle has application only when the nature of the accident and the
attending circumstances would reasonably lead to the belief that in the
absence of negligence the accident would not have occurred and that the
thing which caused injury is shown to have been under the management
and control of the alleged wrongdoer.”
It has also been stated that the effect of this maxim, however, depends
upon the cogency of the inferences to be drawn and must, therefore, vary
in each case.

31
CHAPTER 3 PUNISHMENT PROVISION IN IPC & M.V ACT 1988
The Indian Penal Code (IPC) provides the general penal code of India,
impliedly assuming the possibility of existence of special statutes
defining offences and prescribing punishments therefor, for example, the
Motor Vehicles Act, 1988 in the present context. Sections 279, 304A,
336, 337, 338, IPC are relevant and reproduced below:
3.1 Section 279. Rash driving or riding on a public way.
“Whoever drives any vehicle, or rides, on any public way in a manner so
rash or negligent as to endanger human life, or to be likely to cause hurt
or injury to any other person, shall be punished with imprisonment of
either description for a term which may extend to six months, or with
fine which may extend to one thousand rupees, or with both.”
Scope of the Section 279: -
● To be guilty of an offence under section 279, IPC the accused must
drive a vehicle in such a rash or negligent manner as to endanger
human life or to be likely to cause hurt or injury to any other
person. Driving at a high speed or non-sounding of horn by itself
does not mean that the driver is rash or negligent. Place, time,
traffic and crowd are important factors to determine rashness or
negligence.
● Section 279 IPC falls under Chapter XIV Offences affecting Public
Health, Safety, Convenience, Decency And Morals , and provides for
offences relating to rash and negligent driving which endanger
human life.
● Section 279 IPC makes rash driving, or riding on a public road,
punishable if such rash driving or riding endangers human life, or
is likely to cause hurt or injury to any person. It is the rash or
negligent manner of driving or riding which endangers human life,
or is likely to cause hurt or injury to any person, which constitutes
an offence under Section 279 IPC.
3.2 Section : 304A. Causing death by negligence
Whoever causes the death of any person by doing any rash or
negligent act not amounting to culpable homicide, shall be punished

32
with imprisonment of either description for a term which may extend to
two years, or with fine, or with both.]
Example : Section 304-A specifically deals with the 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 at В and pulls the trigger, В is shot dead. A would be liable
for causing the death negligently under Section 304-A.
Scope of the section 304 A :-
Section 304A, which was inserted in the IPC by Act 25 of 1870,
postulates a rash and negligent act entailing death of another. The
provisions of this section apply to cases where there is no intention to
cause death, and no knowledge that the act done in all probability would
cause death; it should not amount to culpable homicide. Section 304A is
directed at offences outside the range of sections 299 and 300, IPC.11
Section 279 covers only those cases which relate to driving on public way
endangering human life, while offence under section 304A extends to any
rash or negligent act falling short of culpable homicide. The provisions
of Section 304-A apply to cases where there is no intention to cause
death, and no knowledge that the act done in all probability would cause
death. Section 304-A deals with homicide by negligence. It does not apply
to a case in which there has been the voluntary commission of an offence
against the person. The doing of a rash or negligent act, which causes
death, is the essence of Section 304-A.
Section 304-A was added to the IPC by the Amendment Act, of
1870.
This supplies an omission providing for the offence of manslaughter
by negligence which was originally included in Draft Code, but omitted
from the Code when it was finally enacted in 1860. To impose criminal
liability under Section 304-A, it is necessary that the death should have
been the direct result of a rash and negligent act of the accused and that
the act must be the proximate and efficient cause without the
intervention of another’s negligence. It must be the causacausans
(immediate or operating cause); it is not enough that it may have been
the causa sine qua non (a necessary or inevitable cause). That is to say,
there must be a direct nexus between the death of a person and rash or
negligent act of the accused.
3.3 Section 336. Act endangering life or personal safety of others.

33
“Whoever does any act so rashly or negligently as to endanger human life
or the personal safety of others, shall be punished with imprisonment of
either description for a term which may extend to three months, or with
fine which may extend to two hundred and fifty rupees, or with both.”
3.4 Section 337. Causing hurt by act endangering life or personal
safety of others.
“Whoever causes hurt to any person by doing any act so rashly or
negligently as to endanger human life, or the 11 personal safety of
others, shall be punished with imprisonment of either description for a
term which may extend to six months, or with fine which may extend to
five hundred rupees, or with both.”
3.5 Section 338. Causing grievous hurt by act endangering life or
personal safety of others.
“Whoever causes grievous hurt to any person by doing any act so rashly
or negligently as to endanger human life, or the personal safety of others,
shall be punished with imprisonment of either description for a term
which may extend to two years, or with fine which may extend to one
thousand rupees, or with both.”
Rash and negligent acts which endanger human life, or the personal
safety of others, are punishable under section 336 even though no harm
follows, and are additionally punishable under sections 337 and 338 if
they cause hurt, or grievous hurt. Element of volition or intention is
foreign to the set of offences under sections 336 to 338, IPC. Offences
defined by these sections as well as section 279 are minor offences in
comparison with the offence under section 304A where death is caused
by a rash or negligent act.
Before a person is held guilty of the offence, following ingredients
need to be established:
a) Causing grievous hurt to a person.
b) Grievous hurt should be the result of an act.
c) Such act ought to have been rash and negligent.
d) The intensity of commission of such an act ought to endanger
human life or the personal safety of others.
3.6 MOTOR VEHICLES ACT, 1988

34
Chapter XIII of the M.V Act relates to offences, penalties and
procedure.
Section 134 : . Duty of driver in case of accident and injury to a
person - When any person is injured or any property of a third party is
damaged, as a result of an accident in which a motor vehicle is involved,
the driver of the vehicle or other person in charge of the vehicle shall:
(a) unless it is not practicable to do so on account of mob fury or any
other reason beyond his control, take all reasonable steps to secure
medical attention for the injured person, by conveying him to the nearest
medical practitioner or hospital, and it shall be the duty of every
registered medical practitioner or the doctor on the duty in the hospital
immediately to attend to the injured person and render medical aid or
treatment without waiting for any procedural formalities, unless the
injured person or his guardian, in case he is a minor, desired otherwise.
(b) give on demand by a police officer any information required by him or,
if no police officer is present, report the circumstances of the occurrence,
including the circumstances, if any, or not taking reasonable steps to
secure medical attention as required under clause (a), at the nearest
police station as soon as possible, and in any case within twenty-four
hours of the occurrence.
(c) give the following information in writing to the insurer, who has
issued the certificates of insurance, about the occurrence of the accident,
namely:
(i) insurance policy number and period of its validity.
(ii) date, time and place of accident.
(iii) particulars of the persons injured or killed in the accident.
(iv) name of the driver and the particulars of his driving licence.
Explanation - For the purposes of this section, the expression “driver”
includes the owner of the vehicle.”
Duty of Driver, Passengers and Bystanders
Vismay Amitbhai Shah VS State of Gujarat, 2020 0 Supreme(Guj)
272; Para 92. We have found on facts that the accused had never
extended any helping hand to the victims lying on the road and fled from
the scene. Section 134 of M.V. Act, 1988 casts a duty on a driver to take

35
reasonable steps to secure medical attention for the injured person.
Section 134 of M.V. Act, 1988 reads as follows:
Section 177 contains the general provision for punishment of
offences, which is available in the absence of any specific provision for
punishment applicable in a given case; the punishment is a maximum
fine of Rs. 100/- for the first offence and for the subsequent offence it is
only Rs. 300/-.
Section 183 provides the punishment for contravention of the speed
limits referred to in section 112.
Section 184 provides for punishment for dangerous driving and
section 185 for driving by a drunken person or a person under the
influence of drugs.
These sections read as under:
Section 184. Driving dangerously. “Whoever drives a motor vehicle at a
speed or in a manner which is dangerous to the public, having regard to
all the circumstances of the case including the nature, condition and use
of the place where the vehicle is driven and the amount of traffic which
actually is at the time or which might reasonably be expected to be in the
place, shall be punishable for the first offence with imprisonment for a
term which may extend to six months or with fine which may extend to
one thousand rupees, and for any second or subsequent offence, if
committed within three years of the commission of a previous similar
offence, with imprisonment for a term which may extend to two years, or
with fine which may extend to two thousand rupees, or with both.”
● Section 183 provides for the offence of driving a vehicle at excessive
speed in contravention of the speed limits referred in Section 112 of
the M.V. Act; while Section 184 M.V. Act deals with the offence of
driving dangerously. In order to constitute an offence under Section
184, the following ingredients are required to be proved: (a) the
accused should be driving a motor vehicle; (b) the vehicle should be
driven at a speed or in a manner which is dangerous to the public
having regard to all the circumstances of a case, including the
nature, condition and use of the place where the vehicle is driven
and the volume of traffic at the time of the accident or which might
reasonably be expected to be in the place.
● Section 183 and 184 must be read with Section 209 of M.V. Act,
which provides that a warning, notice or summons, is mandatorily

36
required to be given for an offence punishable under Section 183 or
184.
Section 185. Driving by a drunken person or by a person under the
influence of drugs.
“Whoever, while driving, or attempting to drive, a motor vehicle,- (a) has,
in his blood, alcohol exceeding 30 mg. per 100 ml. of blood detected in a
test by a breath analyzer, or (b) is under this influence of drug to such an
extent as to be incapable of exercising proper control over the vehicle,
shall be punishable for the first offence with imprisonment for a term
which may extend to six months, or with fine which may extend to two
thousand rupees, or with both; and for a second or subsequent offence, if
committed within three years of the commission of the previous similar
offence, with imprisonment for a term which may extend to two years, or
with fine which may extend to three thousand rupees, or with both.
Section 185 of the M.V. Act pertains to the offences of driving after
consuming alcohol, or driving under the influence of drugs. Any person
who while driving or attempting to drive, (a) has alcohol exceeding 30 mg.
per 100 ml. present in his blood, detected by a breath analyser; or (b) is
under the influence of a drug to such an extent that he is incapable of
exercising proper control over the vehicle, shall be guilty of an offence
under Section 185 of the M.V. Act.
Section 187 pertains to offences arising from accidents. The offence
is for breach of duty and failure to comply with the provisions of Section
132(1)(c) or Section 133 or Section 134 of the M.V. Act. Clause (c) of
Section 132 (1) was omitted by S. 40 of the Motor Vehicles (Amendment)
Act, 1994 (w.e.f. 14 11 1994); Section 133 relates to the duty of the
owner to give information regarding the name and address of, and the
licence held by, the driver or conductor, who is accused of any offence
under this Act on the demand of any police officer; while Section 134
relates to the duty of the driver in case of an accident and injury to a
person, to take all reasonable steps to secure medical attention for the
injured person, by conveying him to the nearest medical practitioner or
hospital, and providing necessary information to the police and insurer of
the vehicle about the accident.
The offences under Chapter XIII of the MV Act provide a summary
procedure for disposal of cases, which are compoundable in nature
under Section 208 (3) of the M.V. Act. Section 208(3) provides that if an
accused pleads guilty and deposits the fine imposed, then no further

37
proceeding in respect of offence shall be taken against him nor shall he
be liable, notwithstanding anything to the contrary contained in this Act,
to be disqualified for holding or obtaining a licence by reason of his
having pleaded guilty.
WHETHER OFFENCES PUNISHABLE UNDER SECS. 184 AND 185 M.V
ACT ARE COGNIZABLE OR NON-COGNIZABLE?
ANSWER :
1 The Offences under M.V Act 184 & 185 are non –cognizable
offences, Hence police cannot file chargsheet without permission of
the court as per section 155(2) of Cr.P.C.
2 If cognizance taken by the learned Magistrate of offences
punishable under Sec. 184 and 185 of the Code on a charge sheet
submitted by the police officer after an investigation in violation
of Sec. 155(2) of the Code is illegal.
3 The said charge sheet cannot also be deemed to be a complaint as
defined under Sec.2(d) of the Code. Cognizance taken being
illegal is liable to be
quashed.
JUDGMENTS
1. Keshav Lal Thakur V/s. State of Bihar (1996 (11) SCC 557).
The offence under Section 31 of the the Representation of the People
Act,
1950 is non-cognizable and therefore the police could not have
registered a case for such an offence under Section 154 Criminal
Procedure Code. Of course, the police is entitled to investigate into a
non- cognizable offence pursuant to an order of a competent
Magistrate under Section 155(2 Criminal Procedure Code but,
admittedly, no such order was passed in the instant case. That
necessarily means, that neither the police could investigate into the
offence in question nor submit a report on which the question of taking
cognizance could have arisen. While on this point, it may be mentioned

38
that in view of the Explanation to Section 2(d) Criminal Procedure Code,
which defines 'complaint', the police is entitled to submit, after
investigation, a report relating to a non-cognizable offence in which
case such a report is to be treated as a 'complaint' of the police officer
concerned, but that explanation will not be available to the prosecution
here as that relates to a case where the police initiates investigation
into a cognizable offence unlike the present one but ultimately finds that
only a non-cognizable offence has been made out.
2. P.Kunhumuhammed Versus State Of Kerala, 1981 KerLT 50,
KERALA HIGH COURT
A consideration of the judicial precedents referred to above in the
light of the changes made in the new Code, would suggest the following
propositions as being applicable under the new Code. (1) Section
155(2) of the new Code prohibits investigation by a police officer into
a non-cognizable offence without the order of a Magistrate. A violation of
this provision would stamp the investigation with illegality. (2) This
defect in the investigation can be obviated and prejudice to the
accused avoided by the Magistrate ordering investigation under Section
202 of the Code. (3) The report of a police officer following an
investigation contrary to Section 155(2) could be treated as a complaint
under Section 2(d) and Section 190 (1)(a) of the Code if at the
commencement of the investigation the police officer is led to believe
that the case involved commission of a cognizable offence or if there is
doubt about it and investigation establishes only commission of a non-
cognizable offence.
(4) If at the commencement of the investigation it is apparent that the
case involved only commission of a non-cognizable offence, the report
followed by investigation cannot be treated as a complaint under
Section 2 (h) or Section 190(1)(a) of the Code.
(5) Whenever a report of a police officer relating to a non-cognizable
offence is brought to the notice of a Magistrate he has to look into the
matter and apply his judicial mind and find out whether, (a) it is a case
where reinvestigation has to be ordered under Section 202 of the
Code, or (b) whether it could be treated as a complaint under
Section 2(h) and Sec. 190(1)(a) of the Code and if so cognizance could
be taken, (c) or whether it is case where the report cannot be treated
as a complaint under Section 2(h) and Section 190(1)(a) of the Code or,

39
(d) it is a fit case for taking cognizance taking into consideration all the
attendant circumstances.
(6) If these aspects are not brought to the notice of or adverted to by the
Magistrate at that stage and trial is concluded, the trial cannot be said
to be vitiated on account of the defect as the defect in the investigation
precedent to trial could be cured by Section 465 of the new Code,
unless failure of justice been occasioned thereby.
3. Delhi High Court in Narain Singh V/s. The State (1986 (1) Crimes
535 at page 537) Hon’ble Delhi High Court held that, an offence under
any law other than the Indian Penal Code would be non-cognizable
in character if it is punishable with imprisonment for less than
three years or with fine only. Offences under Secs.184 and 185 of the
Act must come under the third category of cases mentioned in Part II of
the First Schedule of the Code, i.e. punishable with imprisonment for
less than three years and hence non-cognizable and bailable in
character.
4. Mehaboob Koya Moideen Versus State, 2011 (2) KerLJ 574
ISSUE
Whether the Magistrate could take cognizance of offences
punishable under Secs.184 and 185 of the Act on a police report
following an investigation conducted in violation of Sec. 155(2) of the
Code- Sub-sec.(l) of Sec.155 of the Code deals with information
regarding commission of a non-cognizable offence given to an officer-
in-charge of a police station. Sub-sec. (2) says that no police officer shall
investigate a non-cognizable case without the order of a Magistrate
having power to try or commit for trial such case. An investigation
conducted in violation of the said provision stamps such
investigation with illegality ?
(Para 11.) The above discussion leads me to the conclusion that
cognizance taken by the learned Magistrate of offences punishable
under Secs. 184 and
185 of the Code on a charge sheet submitted by the police officer after
an investigation in violation of Sec. 155(2) of the Code is illegal and for
reasons I have stated, the said charge sheet cannot also be deemed to
be a complaint as defined under Sec.2(d) of the Code. Cognizance taken

40
being illegal is liable to be quashed.
(Para 12.) But that cannot be the end of the matter so far as this case is
concerned. Learned Magistrate has to return the charge sheet and
connected records. The police officer, as indicated in paragraph 10
above may subject to the relevant laws seek permission of the learned
Magistrate to conduct investigation under Sec. 155(2) of the Code
and on receiving such permission register a case, conduct
investigation as provided under sub-sec. (3) of Sec.155 and submit a
final report as provided under Sec. 173(2) of the Code or if he is so
advised, file a complaint on his own as provided under Sec. 190(l)(a) and
200 of the Code in which case it is within the power of the Magistrate to
order an investigation and call for a report under Sec.202 of the Code.
This would be subject to the provisions of the law relating to limitation,
etc. The complaint would proceed as if it is a complaint filed by a public
servant acting or purporting to act in the discharge of his official duty.
6. Rishbud and Anr. V/s. State of Delhi (AIR 1955 SC 196) and
Kunhumuhammed V/s. State of Kerala (1981 KLT 50) : (1981 Cri LJ
356 (Ker)).
In the present case, the police officer notwithstanding that
offences under Secs. 184 and 185 of the Act are non-cognizable in
character has proceeded to register a case as if the said offences are
cognizable in character. Recording of first information relating to a
cognizable offence is regulated by Sec.154 of the Code. The expression
'First Information Report' must be understood to mean an information
recorded under Sec.154 of the Code and the condition which is a sine
qua non for recording First Information is that the information
received must relate to the commission of a cognizable offence. In the
present case the report of the police officer only disclosed anon-
cognizable offence and hence a First Information Report could not have
been registered under Sec.154 of the Code. Instead, after recording
substance of the non-cognizable offence in the book maintained in the
police station for the purpose, the police officer should have submitted a
report to the Magistrate having power to try the case and obtained an
order for investigation of the case. On receiving such order, such police
officer could by virtue of sub-sec.(3) of Sec.155 of the Code exercise the
same powers in respect of investigation (except the power to arrest
without warrant) as an officer-in-charge of a police station may exercise
in a cognizable case. Thereon he could register a First Information
Report under Sec.154 of the Code and investigate the case as in a case

41
involving cognizable offence and submit a final report under Sec. 173(2)
of the Code in respect of the non- cognizable offences. Thus, the
police officer in this case could have registered a First Information
Report and investigated the case relating to the offences punishable
under Secs. 184 and/or 185 of the Act only with the order of a
Magistrate having power to try the case. Since no such order is
obtained, registering of the First Information Report, conducting the
investigation, filing of charge- sheet and taking cognizance by the
learned Magistrate (of offences under Secs. 184 and 185 of the Act) are
illegal.
Section 203 of the MV Act deals with Breath Tests.
Section 203. Breath tests –
(1) A police officer in uniform or an officer of the Motor Vehicles
Department, as may be authorized in this behalf by that Department,
may require any person driving or attempting to drive a motor vehicle in
a public place to provide one or more specimens of breath for breath test
there or nearby, if such police officer or officer has any reasonable cause
to suspect him of having committed an offence under section 185:
xxx xxx xxx
(4) If a person, required by a police officer under sub-section (1) or sub-
section (2) to provide a specimen of breath for a breath test, refuses or
fails to do so and the police officer has reasonable cause to suspect him
of having alcohol in his blood, the police officer may arrest him without
warrant except while he is at a hospital as an indoor patient.”
Section 205. Presumption of unfitness to drive –
In any proceeding for an offence punishable under section 185 if it is
proved that the accused when requested by a police officer at any time so
to do, had refused, omitted or failed to consent to the taking of or
providing a specimen of his breath for a breath test or a specimen of his
blood for a laboratory test, his refusal, omission or failure may, unless
reasonable cause therefor is shown, be presumed to be a circumstance
supporting any evidence given on behalf of the prosecution, or rebutting
any evidence given on behalf of the defence, with respect to his condition
at that time.

42
CAUSE OF ACCIDENT:
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.
We may also note the following description of the chaotic conditions
prevailing on Indian roads, Hon’ble Supreme Court of India, in case of
Rattan Singh v. State of Punjab (1979) 4 SCC 719, in the words of
Hon’ble Mr. Justice V. R. Krishna Iyer:
“More people die of road accidents than by most diseases, so much
so the Indian highways are among the top killers of the country….”
“Parking of heavy vehicles on the wrong side, hurrying past traffic
signals on the sly, neglecting to keep to the left of the road, driving
vehicles criss-cross, riding scooters without helmets and with
whole families on pillions, thoughtless cycling and pedestrian gay
walking with lawless ease, suffocating jam-packing of stage
carriages and hell-driving of mini-buses, overloading of trucks with
perilous projections and, above all, policemen, if any, proving by
helpless presence that law is dead in this milieu charged with
melee – such is the daily, hourly scene of summons by Death to
innocent persons who take to the roads, believing in the bona fides
of the traffic laws”
ESSENTIAL INGREDIENTS OF SECTION 304 A
State Of Arunachal Pradesh Versus Ramchandra Rabidas @
Ratan Rabidas, 2019 (10) SCC 75 : AIR 2019 SC 4954, Naresh
Giri v. State of M.P. (2008) 1 SCC 791; Rathnashalvan v. State
of Karnataka, (2007) 3 SCC 474 : (2007) 2 SCC (Cri) 84
Where the rash or negligent driving, results in the death of a
person, without the knowledge that the said act will cause death,
Section 304A IPC would be applicable. In other words, Section
304A applies to cases where there is no intention to cause death,

43
and no knowledge that the act done in all probability will cause
death. Negligence and rashness are essential elements of Section
304A.,
The three ingredients of Section 304 A, which are required to
be proved are:
(1) the death of a human being;
(2) the accused caused the death; and
(3) the death was caused by the doing of a rash or negligent act,
though it did not amount to culpable homicide of either description
Alister Anthony Pareira v. State of Maharashtra (2012) 2 SCC
648 : (2012) 1 SCC (Civ) 848 : (2012) 1 SCC (Cri) 953.
The requirement of culpable rashness under S.304A IPC is more
drastic than negligence sufficient under the law of tort to create
liability.,
N.K.V Bros (P) Ltd. v. M. Karumai Ammal & Ors. (1980) 3 SCC
457
Criminal or culpable rashness means hazarding a dangerous or
wanton act with the knowledge that it is dangerous or wanton, and
the further knowledge that it may cause injury, but done without
any intention to cause injury or knowledge that the act would
probably cause15.
THE PROSECUTION OF OFFENDERS UNDER TWO STATUTES I.E.
THE M.V. ACT AND THE IPC, IS SUSTAINABLE16?
(i) Bus was hit by train at railway crossing resulting in death and
injuries to passengers – Charges were framed u/s 302 IPC
alternatively u/ss 304, 325 and 323 IPC – Revision filed by the
accused questioning the charge dismissed by High Court – Supreme
Court set aside the order – Held, S. 302 IPC has no application and
at the most it may be S. 304-A of IPC
15
Rathnashalvan v. State of Karnataka, (2007) 3 SCC 474 : (2007) 2 SCC (Cri) 84
16
State Of Arunachal Pradesh Versus Ramchandra Rabidas @ Ratan Rabidas, AIR
2019 SC 4954

44
(ii) ‘Negligence’, meaning of.
Section 26 of the General Clauses Act, 1897 provides, Where an act or
omission constitutes an offence under two or more enactments, then the
offender shall be liable to be prosecuted and punished under either or
any of those enactments, but shall not be liable to be punished twice for
the same offence.
It is well settled that an act or an omission can constitute an offence
under the IPC and at the same time, be an offence under any other law.
The finding of the High Court that the prosecution of offenders under two
statutes i.e. the M.V. Act and the IPC, is unsustainable and contrary to
law, is therefore, set aside.
A plain reading of the section shows that there is no bar to the trial or
conviction of the offender under both enactments but there is only a bar
to the punishment of the offender twice for the same offence. In other
words, the section provides that where an act or omission constitutes an
offence under two enactments, the offender may be prosecuted and
punished under either or both the enactments but shall not be liable to
be punished twice for the same offence. We accordingly reject the
argument of the appellant on this aspect of the case.
ISSUE :
whether the Court was justified in issuing directions that road traffic
offences shall be dealt with only under the provisions of the Motor
Vehicles Act, 1988 ( M.V. Act ), and in holding that in cases of road
traffic or motor vehicle offences, prosecution under the provisions of
Indian Penal Code,1860 ( IPC ) is without sanction of law, and
recourse to the provisions of the IPC would be unsustainable in law?
HELD THAT,
● In our view there is no conflict between the provisions of the IPC and
the MV Act. Both the statutes operate in entirely different spheres.
The offences provided under both the statutes are separate and
distinct from each other. The penal consequences provided under
both the statutes are also independent and distinct from each other.
The ingredients of offences under the both statutes, as discussed
earlier, are different, and an offender can be tried and punished
independently under both statutes. The principle that the special law
should prevail over the general law, has no application in cases of

45
prosecution of offenders in road accidents under the IPC and M.V.
Act.
● It is pertinent to mention that there is no provision under the M.V.
Act which separately deals with offences causing death, or grievous
hurt, or hurt by a motor vehicle in cases of motor vehicle accidents.
Chapter XIII of the M.V. Act is silent about the act of rash and
negligent driving resulting in death, or hurt, or grievous hurt, to
persons nor does it prescribe any separate punishment for the same;
whereas Sections 279, 304 Part II, 304A, 337 and 338 of the IPC
have been specifically framed to deal with such offences.
● The legislative intent of the MV Act, and in particular Chapter XIII of
the MV Act, was not to override or supersede the provisions of the
IPC in so far as convictions of offenders in motor vehicle accidents
are concerned. Offences under Chapter XIII of the MV Act, cannot
abrogate the applicability of the provisions under Sections 297, 304,
304A, 337 and 338 of the IPC. The offences do not overlap, and
therefore, the maxim of generalia specialibus nonderogant is
inapplicable, and could not have been invoked. The offences
prescribed under the IPC are independent of the offences prescribed
under the M.V. Act. It cannot be said that prosecution of road
traffic/motor vehicle offenders under the IPC would offend Section 5
of the IPC, as held by the High Court, in so far as punishment for
offences under the M.V. Act is concerned.
● Considering the matter from a different perspective, offences under
Chapter XIII of the MV Act are compoundable in nature in view of
Section 208(3) of the MV Act, whereas offences under Section 279,
304 Part II and 304A IPC are not. If the IPC gives way to the MV Act,
and the provisions of CrPC succumb to the provisions of the MV Act
as held by the High Court, then even cases of culpable homicide not
amounting to murder, causing death, or grievous hurt, or simple
hurt by rash and negligent driving, would become compoundable.
Such an interpretation would have the consequence of letting an
offender get away with a fine by pleading guilty, without having to
face any prosecution for the offence committed.
● We thus hold that a prosecution, if otherwise maintainable, would lie
both under the IPC and the MV Act, since both the statutes operate
with full vigour, in their own independent spheres. Even assuming
that some of the provisions of the MV Act and IPC are overlapping, it

46
cannot be said that the offences under both the statutes are
incompatible.
CHAPTER 4 : APPLICABILITY OF IPC 304 PUNISHMENT FOR
CULPABLE HOMICIDE
Sec. 304 IPC provides for punishment for culpable homicide not
amounting to murder. It reads as under:
S.304. - Punishment for culpable homicide not amounting to
murder - Whoever commits culpable homicide not amounting to
murder shall be punished with imprisonment for life or
imprisonment of either description for a term which may extend to
ten years, and shall also be liable to fine, if the act by which the
death is caused is done with the intention of causing death, or of
causing such bodily injury as is likely to cause death, or with
imprisonment of either description for a term which may extend to
ten years, or with fine, or with both, if the act is done with the
knowledge that it is likely to cause death, but without any intention
to cause death, or to cause such bodily injury as is likely to cause
death"
● Supreme Court in the case of Keshub Mahindra V. State of
Madhya Pradesh, 1996 6 SCC 129 (popularly known as the
Bhopal Gas Tragedy case).
"19. The learned Senior Counsel for the appellant-accused on the
other had submitted that even if taking the material available on
record at the stage on its face value the short question is whether
any charge could have been framed against the accused under
Section 304 Part-II IPC with our without the aid of Section 35 IPC
and even for that matter any charges could have been framed
under Sections 326, 324 or 429 with or without the aid of Section
35 IPC. We may at once state that both the learned Sessions Judge
as well as the High Court have taken the view on the aforesaid
material that a prima facie case has been made out by the
prosecution requiring the accused to face the aforesaid charges and
the trial of the accused on these charges can not be cut short or
nipped in the bud in the light of the aforesaid material which has to

47
be accepted as prima facie true and reliable at this preliminary
stage of framing o charges.
20. It, therefore, becomes necessary for us now to address
ourselves on this moot question. As noted earlier the main charge
framed against all the accused is under section 304 Part II IPC. So
far as Accused 2,3, 4 and 12 are concerned, they are also charged
with offences under sections 326, 324 IPC and 429 IPC read with
Section 35 IPC while Accused 5 to 9 are charged substantially with
these offences also. We shall first deal with the charges framed
against the accused concerned under the main provisions of
Section 304 Part II IPC. A look at Section 304 Part II shows that the
accused concerned can be charged under that provision for an
offence of culpable homicide not amounting to murder and when
being so charged if it is alleged that the act of the accused
concerned is done with the knowledge that it is likely to cause
death but without any intention to cause death or to cause such
bodily injury as likely to cause death the charged offences would
fall under Section 304 Part II. However, before any charge under
Section 304 Part II can be framed, the material on record must at
least prima facie show that the accused is guilty of culpable
homicide and the act allegedly committed by him must amount to
culpable homicide. However, if the material relied upon for framing
such a charge against the accused concerned falls short of even
prima facie indicating that the accused appeared to be guilty of an
offence of culpable homicide Section 304 Part I or Part in the
interest of justice would get out of the picture. In this connection
we have to keep in view Section 299 of the Indian Penal Code which
defines culpable homicide. It lays downs that :-
"Whoever cause death by doing an act with the intention of causing
death, or with the intention of causing such bodily injury as is
likely to cause death, or with the knowledge that he is likely by
such act to cause death, commits the offence of culpable homicide."
Consequently, the material relied upon by the prosecution for
framing a charge under Section 304 Part II must at least prima
facie indicate that the accused had done an act which had caused
death with at least such a knowledge that he was by such act likely
to cause death. The entire material which the prosecution relied
upon before the trial court for framing the charge and to which we
have made a detailed reference earlier, in our view, cannot support

E DIGEST U/S 279, 337, 338,304 A, 304 II of India penal codes

E DIGEST U/S 279, 337, 338,304 A, 304 II of India penal codes

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E DIGEST U/S 279, 337, 338,304 A, 304 II of India penal codes