Rayat College of laws, SBS Nagar
Project of
INDIAN PENAL CODE
Topic: Section 304A of IPC can be used as
a ‘ License to kill'
Case: Jacob Mathew v. State of Punjab
(2004)
Submitted to
Dr. Akashdeep Singh
Submitted by
Ashlyn Jain
B. Com. Ll. B.(hons. )
19606
6th semester ‘B’ section
1
ACKNOWLEDGEMENT
The dawn of each morning brings wrapped beneath its wings an
opportunity to learn and grow. Every day that I worked on this project
I learnt so much and working without proper guidance and expecting
success is just making castles in the air. So, whenever one wants to
start any work, one requires guidance from experts.
On the completion of this term project work, I would like to place on
record my sincere gratitude towards all those people who have been
instrumental in its making.
Firstly, I would like to thank Dr. Akashdeep Singh for assigning me
with such an interesting topic ‘Section 304A of IPC can be used as a ‘
License to kill’. Case: Jacob Mathew v. State of Punjab (2004) ’ and for
helping me with it. I sincerely thank him for all the support and
encouragement without which the completion of this term paper
could not have been possible.
I also owe sincere gratitude to the staff at the college library for
always helping me in the process of finding material and other
sources for research.
And last but not the least; I thank my family and friends for supporting
me throughout my endeavours.
Ashlyn Jain
2
INDEX
SERIAL TOPIC PAGE
NO. NO.
1. INTRODUCTION
2. SECTION 304A
3. ORIGIN
4. RASH & NEGLIGENT ACT
5. ESSENTIALS
6. ACCIDENTS
• Fast driving
• Error of judgment
• Railway crossing
7. MEDICAL NEGLIGENCE
8. PUNISHMENT
9. CONCLUSION
3
INTRODUCTION
The Indian Penal Code (IPC) is a comprehensive criminal code that was the official law in India.
Enacted in 1860, the IPC aimed to cover all substantive aspects of criminal law in India. It consists
of 23 chapters with 511 sections, covering a wide range of offenses. The code was drafted by the
First Law Commission of India, chaired by Lord Thomas Babington Macaulay, and came into force
in 1862. The IPC was inherited from British India after independence and was applicable across the
country, except in Jammu and Kashmir until 2019. The code has been amended several times and
was supplemented by other criminal provisions. The IPC provided a general penal code for India,
consolidating various laws on criminal offenses. The IPC is divided into four categories: offences
against the human body, offences against property, offences relating to public tranquillity, and
offences against the state.
Major offences under the IPC include murder, attempt to murder, culpable homicide, kidnapping,
abduction, dacoity, robbery, extortion, theft, mischief, housebreaking, unlawful assembly, rioting,
affray, forgery, falsification of accounts, counterfeiting currency notes, waging war, sedition, and
criminal conspiracy etc.
The IPC has been amended several times since its inception to address evolving societal needs and
challenges. It forms a crucial part of the Indian legal system and is applicable to all Indian citizens,
regardless of their location.
SECTION 304A CAUSING DEATH BY NEGLIGENCE
BARE PROVISION:
Whoever causes the death of any person by doing any rash or negligent act not amounting to
culpable homicide, shall be punished with imprisonment of either description for a term which may
extend to two years, or with fine, or with both.1
In other words if the death of a person is caused by a rash or negligent act without any knowledge
that it will lead to death and without any intention to kill someone, then that person will not be
accused with the crime of culpable homicide ( i.e. 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) and he will only be punished with
uttermost 2 years of punishment, or with fine or with both.
But the question here arises that does this section only protect people who killed someone
unknowingly? Or is it giving people license to kill under the name of rash or negligent act? Does it
1
Indian Penal Code, 1860
4
give people right to do manslaughter without intention? As people are aware that in the end during
the trial they only need prove 3 points.
1 A person died.
2 Accused killed A person.
3 A Person was killed due to a rash or negligent act of the accused, not due to culpable homicide.
When these 3 points are proved the end result will be the accused will be punished upto the
imprisonment of 2 years, or with fine, or with both. Accused will never be able to realize his mistake
in such a short period of imprisonment or with some fine. Specifically the accused people who
actually want to protect themselves after committing the crime when they had the intention and
knowledge to kill. For the people who commit the crime section 304A of has become a good shield
to protect themselves that is because 2 year imprisonment is something that could never create
fear in their heart that they would have to suffer some serious consequences if they committed a
crime.
ORIGIN
The original IPC had no provision providing punishment for causing death by negligence. Section
304A was inserted in the Code in 1870 by the Indian Penal Code (Amendment) Act 1870. It does not
create a new offence. This section is directed at offences, which fall outside the range of section
299 and 300, where neither intention nor knowledge to cause death is present. This section deals
with homicide by negligence and covers that class of offences, where death is caused neither
intentionally nor with the knowledge that the act of the offender is likely to cause death, but
because of the rash and negligent act of the offender.
RASH OR NEGLIGENT ACT
Rashness and negligence have nowhere been defined in the Code. However, it can be said that
rashness is an overhasty act, opposed to deliberate one done without due care and caution, while
negligence is an utter disregard for life and safety of others.
The Supreme court has observed to the same effect in BHALCHANDRA V. STATE OF
MAHARASHTRA, 19682, as were the observation made in IDU BEG V. EMPRESS OF INDIA(1881)3:
That criminal rashness is hazarding a dangerous or wanton act with knowledge that it is so, and that
it may cause injury, but without intention to cause injury, or knowledge that it will probably be
2
1968 AIR 1319
3
ILR 3. All 776,
5
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.
In this case the Supreme Court approved the remarks made in Nidamarti Nagabhushanam v.
Emperor (1872). That 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.
ESSENTIALS OF SECTION 304A
• Not amounting to Culpable homicide.-
The language of the section makes it clear that the death caused by any rash and negligent
act to be made punishable under this section must not amount to culpable homicide.
Since culpable homicide under the code may be both not amounting to murder and
amounting to murder, this in effect means that death under this section should neither
amount to culpable homicide not amounting to murder nor murder.
• Burden of Proof –
The burden of proof in a case under this section is as usual on the prosecution. Merely because a
death has resulted by an accident does not mean that a presumption against the accused must be
drawn and he must be asked to explain as to why should he be not held guilty of the same. For
instance, the accused cannot be held guilty under this section only on this evidence that his vehicle
has left the road and has caused an accident. The prosecution is duty bound to establish death by
rashness or negligence on his part.
• Res Ispa Loquitur.-
The principle of res ipsa loquitur, in vogue in the law of tort, is not applicable in criminal law.
Consequently, the original burden on the prosecution to prove the case against the accused
beyond reasonable doubt continues to remain fastened on it. However, it can be used as an aid to
assess evidence.
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• Contributory negligence.-
The principle of contributory negligence, prevalent in the law of torts, is not applicable under
criminal law and, therefore, the argument on the part of the accused under this section that the
deceased was partly negligent in contributing towards his own death has no substance. But, it may
be accepted in case of mitigating lesser sentence.
BALDEVJI THAKORE V. STATE OF GUJARAT 4
Where the deceased was partly negligent while crossing a road but the accused driver of the vehicle
made no attempt to swing over to other side where sufficient space was available so that the
accident could be avoided, it was held that he was guilty under this section and was not entitled to
the benefit of The Probation of Offenders Act, 1958.
USMAN GANI MD. V. STATE OF MAHARASHTRA
Where the deceased seven year old girl child was run over by the accused while driving his lorry, the
possibility of the child having stepped from the footpath down on to the road and thereby
contributing towards the accident was ignored and the accused was held guilty under this section.
ROAD ACCIDENT CASES
A very large number of cases under this section relate to deaths caused in road accidents. A very
careful consideration of facts and circumstances of each case is needed to enable the court to
come to a just and correct conclusion,. Not blowing the horn of a vehicle by itself does nor
necessarily mean liability under this section, all the more so in a place where one is supposed not
to blow horn. But on the other hand, racing bullockarts on a road at a time when there is enough
traffic, and causing death of a child thereby, attracts liability under this section. If, however, death
results by a Motor vehicle accidents because of some mechanical defect in the vehicle itself which
could not be detected ordinarily, the driver of the vehicle could not be held guilty under this section.
4
AIR1979SC1327
7
FAST DRIVING
BABU SINGH V. STATE OF UTTAR PRADESH, 19815
In this case, the court held that Fast driving by itself resulting into death is not punishable under
this section because a vehicle is intended to be driven fast. However, proper care and caution are
required to be taken while driving. It is only when such is not the case and the act resulting into
death may be categorized as Rash or negligent that this section comes into play. The condition of
the road and Nature of the traffic and naturally important factors to be taken into consideration.
SHAKILA KHADER V. NAUSHEER CAMA, 1975 6
In this case, the Supreme Court has held that in Motor accident cases many factors like :
• Speed of the vehicle
• Width of the road,
• Density of the traffic
• Attempt, if any, at overtaking vehicles and thereby coming on to the wrong side of the road
These factors must always be kept in view while arriving at a decision as to whether the death was
because of rash or negligent driving on the part of the driver.
ERROR OF JUDGMENT
SYAD AKBAR V. STATE OF KARNATAKA, 19797
The Supreme Court has held that where an accident takes place because of an error of judgment
on the part of a driver and not because of his negligence or lack of skill required in driving, and such
error is discovered only after analysing all circumstances after the accident has already taken
place, the driver cannot be held guilty of causing death by rash or negligent act.
STATE OF MAHARASHTRA V. GOUTAM, 1977,
In this case, as soon as a State transport bus entered a narrow bridge Twenty-one feet and ten
inches in width, the driver lost control and the bus fell over the bridge on the right hand side in the
river bed and some passengers died and some were injured as a result. It was held that in case of
5
1978 AIR 527
6
AIR1975SC1324
7
1979 AIR 1848
8
motor vehicle accidents there may sometimes be a pure error of judgment which does not amount
to rashness or Negligence.
RAILWAY CROSSING
Accidents at railway crossing are quit common in India even though most of these could be
avoided with a little care and caution. The railway crossing is of 2 types:
• Manned railway crossing, i.e. in this case guard is liable for any accident due to his
negligence.
• Unmanned railway crossing, i.e. in this case the private individual is himself liable for any
accident.
S.N. HUSSAN V. STATE OF ANDHRA PRADESH, 19728
The supreme court was seized of the question of liability of the driver in cases of death resulting in
such accidents. The appellant bus driver, on finding the gates of a manned Railway crossing open,
was driving through it to the other side when suddenly he found that a goods train had almost
arrived at the spot. The train hit the rear side of the bus as a result of which the bus was thrown off
causing deaths of some and injuries to others. Holding the appellant not guilty under section 304-A,
278 and 337 of the Code the court observed quite rightly that while in case of unmanned railway
crossing there is always a duty of the driver to stop and look at both sides before proceeding further,
there is no such duty in cases of manned railway crossings where the gateman is duty bound to
close and open the gates at the arrival and departure of the train respectively.
• Direct relationship between the rash or negligent act and the death caused in order to impose
criminal liability under this section, it is essential to establish that death is the direct result of
the rash and negligent act of the accused.
SULEMAN REHIMAN MULANI V STATE OF MAHARASHTRA ,19679
In this case, the accused, who was driving a jeep struck the deceased, as a result of which he
sustained serious injuries. The accused put the injured person in the jeep for medical treatment,
but he died. Thereafter, the accused cremated the body. The accused was charged under section
304A and 201, IPC. As per s 304A, there must be a direct nexus between the death of a person and
rash and negligent act of the accused that caused the death of the deceased. It was the case of the
prosecution that the accused had possessed only a learner’s Licence and hence, was guilty of
causing the death of the deceased.
8
AIR 1972 SC 685
9
1968 AIR 829
9
The Supreme Court held that there was no presumption in law that a person who possesses only a
learner’s licence or possesses no licence at all does not know driving. A person could, for various
reasons, including sheer indifference, might not have taken a regular licence. There was evidence
to show that the accused had driven the jeep to various places on the previous day of the
occurrence. So, before the accused is convicted under s 304A, there must be proof that the
accused drove in a rash or negligent manner and the death was a direct consequence of such rash
or negligent driving. In the instant case, there was absolutely no evidence that the accused had
driven in a rash and negligent manner. In the absence of such evidence, no offence under section
304A was made out. The accused was acquitted of the charges.
AMBALAL D. BHATT V. STATE OF GUJARAT, 197210
In this case, the accused was a chemist in charge of the injection department of Sanitax Chemical
Industries Limited, Baroda. The company prepared glucose in normal saline, a solution containing
dextrose, distilled water and sodium chloride. The sodium chloride sometimes contained
quantities of Lead nitrate, the permissible limit for lead nitrate being five parts in one million. The
Saline solution, which was supplied by the company, was found to have lead nitrate higher than the
permissible limits and hence was dangerous to human life. The bottles, which were sold by the
company, were purchased by different hospitals and nursing homes and were administered to
several patients of whom 12 patients died.
As per the Drugs Act 1940, and the rules framed there under, a chemist of a chemical Company
has to give a batch number to every lot to bottles containing preparation of Glucose in normal
saline. The accused, who was responsible for giving the batch numbers, failed to do so. He gave a
single batch number to four lots of saline. The accused appellant was charged with giving a single
batch number to all the five lots of solution manufactured on a particular day and if it had not been
so the defect in the solution would have been discovered.
The Supreme Court held that for an offence under s 304A, the mere fact that an accused
contravened certain rules or regulations in the doing of an act which caused death of another, does
not establish that the death was the result of a rash or negligent act or that any such act was a
proximate and sufficient cause of the death.
It was established in evidence that it was the general practice prevalent in the company of giving
one batch number to different lots manufactured in one day. This practice was to the knowledge of
the drug inspector and to the production Superintendent. The court held that the drug inspector
himself knew fully well that this was the practice, but did not lift a finger to prohibit the practice and
instead turned his blind eye to a serious contravention of the drug rules. To hold the accused
responsible for the contravention of the rule would be to make an attempt to somehow find the
scapegoat for the deaths of the 12 persons. Accordingly, the conviction of the Accused under
section 304A was set aside.
10
AIR 1972 SC 1150
10
SATYA PARKASH V. STATE, 198611
In this case the accused was riding a motor cycle on which the deceased was occupying the pillion
seat. A bus which was going ahead of the motor cycle collided with an electric pole causing the live
electric wire passing over the road to break down. The accused avoided touching the snapped wire
by bowing down his head but the deceased could not do so and got entangled in it, fell down and
was electrocuted. It was held that the death of he deceased being the direct result of the rash or
negligent act of the bus driver, the accused could not be held guilty for the same.
MEDICAL NEGLIGENCE
Deaths because of medical negligence are quite common in India but some how a large number of
such cases do not reach the stage of trial. However, there is no doubt that if death by rashness or
negligence is proved, section 304-A of the Indian Penal Code is attracted.
BOLAM V. FRIERM HOSPITAL MANAGEMENT COMMITTEE, 195712
This is the landmark case, in negligence law in England. John Bolam suffered from depression. He
was advised by the consultants treating him that he should have electroconvulsive therapy (ECT).
Prior to this procedure he was not warned that there was a risk of fracture, nor was he physically
restrained or provided with relaxant drugs. During the procedure he suffered a fractured hip. He
claimed that the doctors treating him had been negligent by not warning him of the risk, nor,
offering relaxant drugs or restraints. The difficulty was that at the time it was not agreed upon
whether to warn the patient of the risk of fracture, nor was it agreed as to whether the patient
should be restrained or given relaxant drugs during the procedure to mitigate against the risk of
fracture.
In this case a test was given which was called Bolam's Test
Principles laid in this test were
• Duty of care
• Professional peers test
In JUGGAN KHAN V. STATE, 1965, Where a registered homeopathic Doctor administered to a
patient, suffering from guinea worm, twenty-four drops of Stramonium and a leaf of dhatura without
having first studied the effect of such a combination and the patient died of poisoning, it was held
that the doctor was guilty under this section as his act amounted to causing death by rashness.
11
2(1986) ACC15
12
(1957) 1 WLR 583
11
RAM NIWAS V STATE OF UTTAR PRADESH, 199813
In this case, the accused, an unqualified doctor, treated a five-year old boy who was suffering from
fever. He administered an injection to the boy upon which the boy turned blue and his condition
worsened. Thereafter, the boy died. According to the evidence, the accused did not administer the
injection after giving any test dose to the boy. In view of the fact that the accused was not a
qualified medical practitioner who had given an injection to the boy without giving any test dose, the
court held that he had acted with rashness, recklessness, negligence and indifference to the
consequences. It amounted to taking hazard of such degree that the injury was most likely to be
occasioned thereby. The court held that it was amply established that the accused caused the
death of the deceased by doing the said rash and negligent act which did not amount to culpable
homicide and held that the accused was guilty under s 304A, IPC.
However, during the recent past the Supreme Court has attributed a different standard to
‘negligence’ when it comes to a professional, particularly, a medical practitioner.
DR. SURESH GUPTA V. GOVERNMENT OF NCT OF DELHI & ANOR , 2004 14
In this case, the Supreme Court held that for fixing criminal liability of a doctor, the standard of
negligence should not merely be lack of necessary care, attention and skill. The standard of
negligence required to be proved should be so high as can be described as ‘gross negligence’ or
‘recklessness’.
With this perception, the court observed:…When a patient agrees to go for medical treatment or
surgical operation, every careless act of the medical man cannot be termed as ‘criminal’. It can be
termed ‘criminal’ only when the medical man exhibits a gross lack of competence or inaction and
wanton indifference to his patient’s safety and which is found to have arisen from gross ignorance
or gross negligence. Where a patient’s death results merely from error of judgment or an accident,
no criminal liability should be attached to it…. The act complained against the doctor must show
negligence or rashness of such a higher degree as to indicate a mental state which can be
described as totally apathetic towards the patient. Such gross negligence alone is punishable.
JACOB MATHEW V STATE OF PUNJAB, 200515
Brief Facts of the case were:
A patient named Jiwan Lal was admitted to a private ward in CMC Hospital, Ludhiana. At 11 pm of
the date 22-02-1995, the patient suddenly had difficulty in breathing. His elder son, Vijay Sharma
called the nurse and doctor after seeing his father’s condition. No doctor turned up for about 20-25
Minutes. After that, Dr. Jacob Mathew and Dr. Allen Joseph came to the room for the patient. The
13
1998 CRILJ635
14
AIR 2004 SC4091
15
AIR 2005 SC 3180
12
patient was immediately connected with an oxygen cylinder to his mouth but the problem
increased nevertheless. Apparently, the oxygen cylinder was found to be empty and no other
oxygen cylinder was available. Vijay Sharma went to the adjoining room and brought another gas
cylinder. In the midst of this, around 5-7 Minutes were wasted. During this, the doctor confirmed
that the patient is dead. The younger son, Ashok Kumar Sharma filed a First Information Report (FIR)
under Section 304A read with Sec. 34 of the IPC
Observations of the case:
The Supreme Court not only approved the principle laid down in the Dr. Gupta case but also opined
that ‘negligence in the context of medical profession necessarily calls for a treatment with a
difference…a case of occupational negligence is different from one of professional negligence.’
Delving into liability of a doctor for his rash or negligent act leading to death of his patient, it ruled
that, “A professional may be held liable for negligence on one of the two findings: either he was not
possessed of the requisite skill which he professed to have possessed, or, he did not exercise, with
reasonable competence in the given case, the skill which he did possess. The standard to be
applied for judging, whether the person charged has been negligent or not, would be that of an
ordinary competent person exercising ordinary skill in that profession”
Recently, in Martin F. D’Souza v Mohd. Ishfaq , 2009, 16
In this case, the Supreme Court, after making a survey of the judicial pronouncements on medical
negligence, reiterated, with approval, that the Jacob Mathew dictum holds good in handling cases
of medical negligence. It endorsed the concept of gross negligence delved in Jacob Mathew and
stressed that the degree of negligence sufficient to fasten criminal liability for medical negligence
has to be higher than that required to fasten civil liability. For holding a medical practitioner guilty
under se 304A, gross negligence on his part amounting to recklessness needs to be proved. For
judicial determination of such negligence, the court has to rely upon evidence of medical
professionals.
PUNISHMENT
The punishment prescribed under this section is Simple or Rigorous Imprisonment for a term up
to 2 years, or with Fine, or with Both. Sentence in cases arising under this Section is a matter of
discretion of the trial court. Sentence depends on the degree of carelessness seen in the conduct
of the accused. Though, contributory negligence is not a factor, which can be taken into
consideration on the question of the guilt of the accused, it can be a factor for consideration in
determination of sentence.
16
AIR 2009 SC 2049
13
CONCLUSION
Section 304A of the Indian Penal Code is not a license to kill. It pertains to causing death by
negligence, excluding intention or knowledge of causing death, making it distinct from culpable
homicide or murder. This section addresses cases where death results from a rash or negligent act,
emphasizing the absence of intent or knowledge of lethal consequences. Therefore, Section 304A
does not provide immunity for causing death but deals with negligent acts leading to fatalities,
ensuring accountability for such actions.
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BIBLIOGRAPHY
Primary source
• Constitution of India
• Indian Penal Code,1860
Secondary source
Book
• Indian Penal Code by Professor S. N. Misra
• Indian penal Code by Professor N. V. Paranjape
Websites
• https://blog.ipleaders.in/death-by-negligence-2/
• https://lawhunt.in/is-section-304a-of-ipc-a-
license-to-kill/
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