Introduction

 

In simple terms, act means to do any particular thing and omission means not to do any particular thing, either voluntarily or involuntarily.

Section 33 of the Indian Penal Code, 1860 defines act and omissions as:

 

“The word act denotes as well a series of acts as a single act :the word omission denotes as well a series of omissions as single omission.”

 

While section 3(2) of the General Clauses Act, 1897 defines act as:

 

“Act used with reference to an offence or a civil wrong shall include a series of acts, and words which refer to acts done extend also to illegal omissions.”

 

However the definition of the Indian Penal Code will only be applicable as far as offences are concerned. This is because an act or an omission will be an offence if they are prohibited by any provision of the IPC, 1860.

 

Now an act or omission can be voluntary and involuntary as well. If it is voluntary than the person doing the act, definitely has certain object in mind to achieve, which is nothing but his intention behind the act. While on the other hand if the act or omission is involuntary, this means the person does not have any intention behind the act or omission . It is in the second category where the concept of negligence comes. Negligence in words of William J is the absence of such care as it was the duty of the defendant to use. Thus in other words it could also be said that it is nothing but the involuntary omission to maintain the reasonable standard of care . Thus, though involuntary and unintentional due to the consequences which follows or due to the dangerous tendency of the act so performed, the rash or negligent act or omission is made punishable under sections: 279, 280, 283, 284,285, 286, 287, 288, 289 and 304A of the IPC.

 

However the point of conflict comes in the manner in which the death caused due to rash and negligent acts has been dealt. Section 304A IPC states that:

 

“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.”

 

Both rash and negligent acts are different from each other. What brings the difference between them is the mental state of mind involved in both the acts. While in negligence there is no intention involved while in rashness it is actually the intention to perform the act (not the intention of any final consequence out of that act. Thus it is the act which is the end of the intention to perform the act and not the final consequence is the final end of the intention to perform the act.).

 

Concise law dictionary defines rashness as:

 

“hasty, impetuous; acting without due consideration or regard for consequences.”

 

It means that a rash act is the act which is intended by the person to perform, though fully aware of the consequences it may follow, but adopt an indifferent attitude towards the end result. Thus, though the final consequence is not intended only the performance of the act is intended, the act should be stopped due to its dangerous nature.

 

A simple and most common example of it is the reckless driving of vehicles in crowded market place. This act of driving is intended not to hurt anyone but due to merely for the sake of adventure and excitement. The driver is fully aware that someone may be seriously hurt but he is indifferent towards the result as he thinks that nothing such will happen. Thus if the death occurs due to this kind of act so whether it will be a mere negligence or careless attitude towards the final result of the act?

 

Section 304A is actually equating the death caused due to rashness with the death caused due to negligence, which is something unjustified.

 

It cannot be doubted that death caused under 304A is also one of the specie of the genus culpable homicide. However it will neither come under culpable homicide amounting to murder or culpable homicide not amounting to murder just because of the inclusion of the phrase “not amounting to culpable homicide” in the provision.

 

However the purposes behind the inclusion of this phrase were two:

(i) To exclude all the acts covered under section 299 and 300 of the IPC, 1860; &

(ii) To deal exclusively with menace of death caused due to vehicular accidents .

 

Inequality in law in present laws

 

299- Culpable homicide –

Whoever causes 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.

 

Illustrations (a) A lays sticks and turf over a pit, with the intention of thereby causing death, or with the knowledge that death is likely to be thereby caused. Z, believing the ground to be firm, treads on it, falls in and is killed. A has committed the offence of culpable homicide.

 

(b) A knows Z to be behind a bush. B does not know it. A, intending to cause, or knowing it to be likely to cause Z's death, induces B to fire at the bush. B fires and kills Z. Here B may be guilty of no offence; but A has committed the offence of culpable homicide.

 

(c) A, by shooting at a fowl with intent to kill and steal it, kills B, who is behind a bush; A not knowing that he was there. Here, although A was doing an unlawful act, he was not guilty of culpable homicide, as he did not intend to kill B or to cause death by doing an act that he knew was likely to cause death.

 

Explanation 1.-A person who causes bodily injury to another who is labouring under a disorder, disease or bodily infirmity, and thereby accelerates the death of that other, shall be deemed to have caused his death.

 

Explanation 2.-Where death is caused by bodily injury, the person who causes such bodily injury shall be deemed to have caused the death, although by resorting to proper remedies and skilful treatment the death might have been prevented.

 

Explanation 3.-The causing of the death of a child in the mother's womb is not homicide. But it may amount to culpable homicide to cause the death of a living child, if any part of that child has been brought forth, though the child may not have breathed or been completely born.

 

Murder 300- Murder – Except in the cases hereinafter excepted, culpable homicide is murder, if the act by which the death is caused is done with the intention of causing death, or –

 

2ndly – If it is done with the intention of causing such bodily injury as the offender knows to be likely to cause the death of the person to whom the harm is caused. or

 

3rdly – If it is done with the intention of causing bodily injury to any person and the bodily injury intended to be inflicted is sufficient in the ordinary course of nature to cause death, or

 

4thly – If the person committing the act knows that it is so imminently dangerous that it must, in all probability, cause death, or such bodily injury as is likely to cause death, and commits such act without any excuse for incurring the risk of causing death or such injury as aforesaid.

 

Illustrations (a) A shoots Z with the intention of killing him. Z dies in consequence. A commits murder.

 

(b) A, knowing that Z is labouring under such a disease that a blow is likely to cause his death, strikes him with the intention of causing bodily injury. Z dies in consequence of the blow. A is guilty of murder, although the blow might not have been sufficient in the ordinary course of nature to cause the death of a person in a sound state of health. But if A, not knowing that Z is labouring under any disease, gives him such a blow as would not in the ordinary course of nature kill a person in a sound state of health, here A, although he may intend to cause bodily injury, is not guilty of murder, if he did not intend to cause death, or such bodily injury as in the ordinary course of nature would cause death.

 

(c) A intentionally gives Z a sword-cut or club-wound sufficient to cause the death of a man in the ordinary course of nature. Z dies in consequence. Here A is guilty of murder, although he may not have intended to cause Z's death.

 

(d) A without any excuse fires a loaded cannon into a crowd of persons and kills one of them. A is guilty of murder, although he may not have had a premeditated design to kill any particular individual.

 

Exception 1.-When culpable homicide is not murder.-Culpable homicide is not murder if the offender, whilst deprived of the power of self-control by grave and sudden provocation, causes the death of the person who gave the provocation or causes the death of any other person by mistake or accident. The above exception is subject to the following provisos –

 

Firstly – That the provocation is not sought or voluntarily provoked by the offender as an excuse for killing or doing harm to any person.

 

Secondly – That the provocation is not given by anything done in obedience to the law, or by a public servant in the lawful exercise of the powers of such public servant.

 

Thirdly – That the provocation is not given by anything done in the lawful exercise of the right of private defence. Explanation.-Whether the provocation was grave and sudden enough to prevent the offence from amounting to murder is a question of fact.

 

Illustrations (a) A, under the influence of passion excited by a provocation given by Z, intentionally kills Y, Z's child. This is murder, inasmuch as the provocation was not given by the child, and the death of the child was not caused by accident or misfortune in doing an act caused by the provocation.

 

(b) Y gives grave and sudden provocation to A. A, on this provocation, fires a pistol at Y, neither intending nor knowing himself to be likely to kill Z, who is near him, but out of sight. A kills Z. Here A has not committed murder, but merely culpable homicide.

 

(c) A is lawfully arrested by Z, a bailiff. A is excited to sudden and violent passion by the arrest, and kills Z. This is murder, inasmuch as the provocation was given by a thing done by a public servant in the exercise of his powers.

 

(d) A appears as a witness before Z, a Magistrate. Z says that he does not believe a word of A's deposition, and that A has perjured himself. A is moved to sudden passion by these words, and kills Z. This is murder.

 

(e) A attempts to pull Z's nose. Z, in the exercise of the right of private defence, lays hold of A to prevent him from doing so. A is moved to sudden and violent passion in consequence, and kills Z. This is murder, inasmuch as the provocation was giving by a thing done in the exercise of the right of private defence.

 

(f) Z strikes B. B is by this provocation excited to violent rage. A, a bystander, intending to take advantage of B's rage, and to cause him to kill Z, puts a knife into B's hand for that purpose. B kills Z with the knife. Here B may have committed only culpable homicide, but A is guilty of murder.

 

Exception 2.-Culpable homicide is not murder if the offender in the exercise in good faith of the right of private defence or person or property, exceeds the power given to him by law and causes the death of the person against whom he is exercising such right of defence without premeditation, and without any intention of doing more harm than is necessary for the purpose of such defence.

 

Illustrations Z attempts to horsewhip A, not in such a manner as to cause grievous hurt to A. A draws out a pistol. Z persists in the assault. A believing in good faith that he can by no other means prevent himself from being horsewhipped, shoots Z dead. A has not committed murder, but only culpable homicide.

 

Exception 3.-Culpable homicide is not murder if the offender, being a public servant or aiding a public servant acting for the advancement of public justice, exceeds the powers given to him by law, and causes death by doing an act which he, in good faith, believes to be lawful and necessary for the due discharge of his duty as such public servant and without ill-will towards the person whose death is caused.

 

Exception 4.-Culpable homicide is not murder if it is committed without premeditation in a sudden fight in the heat of passion upon a sudden quarrel and without the offender's having taken undue advantage or acted in a cruel or unusual manner.

 

Explanation.-It is immaterial in such cases which party offers the provocation or commits the first assault.

 

Exception 5.-Culpable homicide is not murder when the person whose death is caused, being above the age of eighteen years, suffers death or takes the risk of death with his own consent.

 

Illustration A, by instigation, voluntarily causes Z, a person under eighteen years of age, to commit suicide. Here, on account of Z's youth, he was incapable of giving consent to his own death; A has therefore abetted murder.

 

The common ingredients of section 299 and 300 are :

(i) Act done with the intention of causing death;

(ii) Act done with the intention of causing such bodily injury as is likely to cause death or the bodily injury inflicted is sufficient in the ordinary course of nature to cause death.

(iii) Act done with the knowledge that he is likely by such act to cause death or the act is so imminently dangerous that it must in all probability cause death or such bodily injury as is likely to cause death.

 

Section 300 begins with the phrase “except in cases hereinafter excepted”. Section 300 contains 4 explanations and 5 exceptions. Thus if the act causing death with the intention of causing death will come in any of the 5 exceptions of section 300, it will not be culpable homicide amounting to murder but will come within the category of culpable homicide not amounting to murder. However these acts can be done in any of the manner specified in the explanation of section 299.

 

Coming to the main point of conflict of difference between an act done with the knowledge that he is likely by such act to cause death (u/s 299) & if the person knows that the act is so imminently dangerous that it in all probability will cause death (u/s300).

 

The difference which has been marked by the judiciary and which has been referred by the law commission in its 42nd report is that: if in either case the probability of the death being caused is high than it will definitely be a case of culpable homicide amounting to murder and if the probability is low than it will be a case of culpable homicide not amounting to murder.

 

This proposition has been justified by the use of the words like ‘likely’, ‘in all probability’, or ‘which is so imminently dangerous’ in the provisions.

 

Thus the main points which emerge are:

(i) An act done with knowledge in the last part of both section 299 and fourthly of section 300, exclusively deal with the act caused only with the knowledge and not with the intention, because all the acts with intention has already been dealt in the other parts of the sections.

(ii) In the act causing death with the knowledge, the manner of deciding whether it should be a murder or not is determined on the basis of probability involved in the occurrence of death after the act.

 

So why there is a difference between the cases covered under last part of section 299 and fourthly of section 300 and the acts covered under section 304 A. Punishment under 299 and 300 is life term imprisonment or imprisonment for 10 years and under 304A it is imprisonment for 2 years. Why?

 

If it is the question of probability than it will be highly illogical to think that there is no probability involved in such acts. There can be high as well as low probability in all those acts covered under 304A. Only the means of doing the act has changed.

 

Violation of fundamental rights

 

This certainly violated the right to equal protection of law under Article 14 of the Constitution of India. This is because equal protection of law not only means equal protection to all class of people but also protection in terms of acts and conduct. The impact of present law is that: for an act a person is being imprisoned for 10 years (u/s 299 or 300) and for the same kind of act a person is being imprisoned for 2 years (u/s 304 A).

 

Also Article 21 of the Constitution of India which includes right to life also include with it right to safety. It is essential to live a healthy and safe life. The purpose of punishment, in any case is not only to punish the actor for his acts but also to create the fear in the minds of others not to repeat the same act. As per the recent report published in March 2011 by Ministry of Road Transport and Highways Transport Research wing, New Delhi, Government Of India, that the rate of road accidents in India has increased from 19.9 per cent in 2001 to 25.8 per cent in 2009. The magnitude of road accidents and fatalities is such high that every hour there are about 56 accidents (this means one accident every minute). Similarly, every hour more than 14 deaths occur due to road accidents i.e one death in every 4 mins.

 

Further, also sometimes the act is applied wrongly. The live example is Bhopal Gas Tragedy, the act which should have been covered under section 304 part II that is to say for culpable homicide not amounting to murder, it was covered under section 304A. How the punishment of 2 years is justified when the nature of the act covered under 304 part II is exactly same as that of the rash acts. Section 304 part II states that:

 

“Whoever commits culpable homicide not amounting to murder shall be punished 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.”

 

If we compare it with the nature of rash acts , where the difference lies? Thus it could be said that Section 304A in its present form has failed in achieving its end. The rising death rates due to accidents as well as wrong applicability of the provision itself is a proof that the present law is insufficient and is not able to confirm the preservation of life and thus is not able to meet the requirement for the protection of life under Article 21.

 

Thus the need of the hour demands an amendment in section 304A. The real meaning of the phrase “not amounting to culpable homicide” will come if it only covers the negligent act and not the rash act. Considering the same nature of the acts (as discussed above) the law commission in 42nd report has proposed to increase the punishment up to 5 years of imprisonment. But that is not the end, as the deterrence alone cannot be the only solution and also will fail in preventing its misuse, as has been done in Bhopal gas tragedy case.

 

The required amendment thus should be:

Firstly the deletion of the word “rash acts” from section 304A; &

Secondly section 304 A should only deal with negligent acts. Rash acts should be dealt in the same manner as the acts of culpable homicide not amounting to murder, covered under section 304 part II.

 

At the end I would like to conclude by saying that: “we cannot bring back the lost ones but we can certainly make an attempt to prevent such incidents again.”