The meaning of ‘death by negligence’ | The Daily Star
12:00 AM, January 28, 2020 / LAST MODIFIED: 12:13 AM, January 28, 2020

Crime and Punishment

The meaning of ‘death by negligence’

Section 304A of the Penal Code has direct bearing on deaths resulting from street accidents. The section says that whoever causes the death of any person by doing any rash or negligent act not amounting to culpable homicide, shall be punished. It is to be noted that the offence of culpable homicide is committed when death is caused 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 an act would cause death. Death caused by negligence or rashness as is envisaged by section 304A is tantamount to neither culpable homicide nor murder. Death by negligence or rashness is the least serious if compared with murder and culpable homicide and it gets reflected in the punishment that section 304A prescribes (which is imprisonment for a term which may extend to five years, or fine, or both).

A significant word of the section is ‘act’ which can be either rash or negligent. The import of the word act is sweeping. The contribution of the person who died also becomes worthy of pondering over. However, in Abdur Rashid v State 9 DLR it was made clear that in cases of rash and negligent driving, the responsibility cast on the driver of the vehicle is more than that cast on the pedestrian. Another significant word is ‘or’. The culpable act does not need to be both rash and negligent (conjunctive) rather either rash or negligent (disjunctive or as alternatives) and therefore, under this section, proving any one of the two suffices (Rashidullah v State 21 DLR).

The case of Tika Ram v Emperor (1950) decided by Indian High Court highlighted the distinction between the two notions of negligence and rashness. According to the case, a rash act is a negligent act done precipitately. Negligence is the genus, of which rashness is the species. Furthermore, the Indian Supreme Court case of Balachandra Waman Pathe v State (1968) made the distinction clearer by saying that criminal negligence is the gross and culpable neglect or failure to exercise that reasonable and proper care and precaution to guard against injury. On the other hand, culpable rashness is acting with the consciousness that the mischievous and illegal consequences may follow, but with the hope that they will not follow, and often with the belief that the actor has taken sufficient precautions to prevent their happening. Case laws make it clear that the criminal negligence or rashness as the section sees it, are the subjective state(s) of mind of persons committing acts leading to death. In order to hold people vicariously liable for negligent driving resulting in death, private torts and constitutional torts can come as rescuers.

The landmark judgments handed down in Catherin Masud case and Bangladesh Beverage case are examples where private torts helped the court hold owners of respective vehicles involved in accidents resulting in deaths, vicariously liable. Mostly when it can be shown that owners of vehicles had knowledge about the vehicles’ running without fitness certificates or in conditions that can result in rash driving, vicarious liability can be pressed upon. CCB Foundation case or the case popularly known as Zihad case set an example for constitutional tort where the tortfeasors were public authorities (WASA and Railway authority). The Zihad case was not a road accident case as such but was a case where negligence of respective authorities resulted in a child’s death. The principle enunciated in the case therefore holds the potential of holding public authorities liable for their negligence (either vicariously or otherwise). For example, with regard to railway accidents (for instance, ones occurring as a result of negligent driving) resulting in deaths, this precedent can certainly come of help.

 

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