This article is written by SHARAT GOPAL, studying BALLB at Delhi Metropolitan Education College. In this article, he discusses the rash and negligent act and death caused by it, under section 304-A of IPC.


Homicide means killing of a human being by another human being. It is unlawful but in situations, like, death caused by a person, who is below the age of 7 yrs, or a person of unsound mind, or death caused in private defence, it is not punishable. Homicide is of its three types – Excusable, justifiable and unlawful or criminal homicide.

The Indian Penal Code, 1860 Chapter XVI, deals with offences affecting life. They are, culpable homicide not amounting to murder, culpable homicide amounting to murder, death by rash or negligent act and Dowry death.  To understand death caused by rash and negligent act, it is important to know what negligence is.

In law, negligence is defined as an act which is caused by a person due to carelessness, where he had a duty to take care.  Negligent act is not followed with an intention but is in itself a type of Mens Rea. Basically there are 4 elements which need to be fulfilled for an act to be a negligent act.

  1. Duty – For a causing a negligent act, there must always be some duty on the defendant towards the plaintiff. As a question of negligence cannot arise in a situation, where there was no duty fixed on the person in the first place. 
  2. Breach of duty- when a person had a duty fixed towards another and he breaches that duty, it is said to be being negligent or careless act. The court here focuses on the fact, did the defendant acted as a reasonable prudent man or not. This means if he didn’t have any knowledge for the outcome of his act then he can’t be held liable for being negligent but if he had an idea of the outcome of him not performing his duty and still he breaches that duty, then he will be held liable.
  3. Injury caused- Now in order to prove negligence, it is important for the plaintiff to prove that defendant by the breach of his duty, has caused injury to the plaintiff or his property.
  4.  Damages– If there is an injury caused to the plaintiff then, the defendant is liable to compensate the plaintiff.


When the Indian Penal Code, 1860 was enacted, it had no provision providing punishment on cases of death by rash and negligent acts. And it also fell outside the purview of section 299 and 300, as they dealt with offences of high intensity. Due to this problem, the Indian penal code was amended in, 1870 and section 304A was added to deal and punish the offences of rash and negligent act separately. This section introduced a new variant, which punished homicide, but the one which is caused without intention or knowledge. 

Section 304A 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.”

Essentials of section 304A

  1. Causes death to any person
  2. Death  caused by defendant
  3. By doing rash or negligent act
  4. Not amounting to culpable homicide

 These are the 4 main essentials of section 304A.

  1.  The first essential is the death of a person must have been caused. It is not applicable if, the death of a person hasn’t caused death and there is just injury. 
  2. The second essential is that death has been caused by the act of the defendant, i.e., the act of the defendant has a proximate nexus to the death of the defendant.
  3. The third essential is Rash or Negligent act, which means that the person who has performed this act should have no intention or knowledge about the result that will be caused due to the performance of such act and he was negligent or rash while doing that act.
  4. The last and foremost important essential is Not Amounting to culpable homicide. This means that the act performed by the person should not be amounting to culpable homicide. The essentials of section 299 should not be present in the act performed by the person. And if all these essentials are fulfilled, then the person shall be liable under section 304A of IPC. 

The term “not amounting to culpable homicide” has been emphasized and given a clear meaning in the case of Mahadev Prasad Kaushik v. State of UP, (AIR 2009 SC125), which stated that the term “Not amounting to homicide” means to the situation where there is neither intention nor knowledge that such act is likely to cause death or cause bodily injury that may cause death, and only then the case will be studied under section 304-A. This case also gave the interpretation of the term “negligence” as the omission of an act that a reasonable man would do in ordinary circumstances or perform any act which a prudent man in ordinary circumstances would not do. 

Negligent act can also be understood from the case of Cadenza vs. Smith 565 U.S. 1 (2011), the case concerned with the death of a 7-week old boy. The facts of the case are that the mother of the child was a working woman, who stayed with her mother and one maid. Mother of the child had to go to work for some urgent work and maid took the half-day leave, because of which child was left with his grandmother alone. She (the grandmother) put the baby to sleep, on the sofa before herself sleeping in another room. Several hours later, when the mother came back she saw that child was not moving. She took the child and went to her mother crying to see what has happened to the boy. Later it was discovered by the doctor that child died due to SIDS (sudden infant death syndrome) as he must have turned while sleeping and nose face to the sofa, got suffocated and died in sleep. Court held that there was no culpable homicide but death due to the negligent act of the grandmother as she had a fiduciary relationship to take care of the child.

To understand the concept of ‘Rash Act”, the case of Cherubin Gregory vs. State of Bihar plays an important role. As in this case, a neighbour started using the washroom of the accused even after many objections made by the accused, the neighbour didn’t stop. One day after getting frustrated with this act of the neighbour, accused placed naked wire of electricity at the entrance of the washroom to scare the neighbour. The lady came and touched the wire and died immediately. Court held accused liable for his rash act.  

Now the difference between negligent act and rash act can be understood from the case of Bhalachndra Wamam Pathe V. State of Maharashtra, where the accused was driving a car in a normal speed and accidentally hit two sisters on the pedestrian crossing of which one of them died. Now, in this case, the court held that the accused was guilty of being negligent as he was driving in normal allowed speed but was negligent to take care of pedestrian to whom he owed a duty to take care while driving. Now, if in the same case he was driving in high speed which was above the speed limit prescribed and hit the pedestrian or if he might have been driving drunk, then he would be held liable for being rash.


This section will have no applicability in the matters where the act did was criminal in nature. If an act did was criminal in nature and has caused death to a person, then it will be dealt under section 299 and 300 of IPC. This section will also have no applicability in the matters where the consequences of the act could have been anticipated before the performance of the act. This section will also have no applicability in the cases when death has been caused voluntarily. This implies that the person cannot take benefit of section 304A for escaping section 299 and 300 liability, which have greater punishments and are crimes with more gravity. Hence, in the matter where there was the intention or a little knowledge of the consequences of the act, it won’t be covered under section 304A. 

Idea of Negligence in Tort and Criminal LawDEA OF NE

In the case of Suresh Gupta v. NCT Delhi, the court differentiated between criminal negligence and tort negligence. It stated that criminal negligence is not any ordinary negligence but has to be understood as gross negligence. Mere failure to perform the technical operation or assignment work shall not lead to grossly negligent behaviour.  

As the facts of the case of Suresh Gupta Vs. NCT Delhi, is that the compounder in the hospital was assigned work to give the appointment to a lady at 10’O clock, which he negligently heard as 1’O clock. Because of which the lady kept waiting in the reception for the correct appointment time and died due to her serious state. Here the court held that the act of compounder was negligent but not grossly negligent. This was not directly certain. When doctor do something negligently while performing the operation or any treatment where they need to take due care and fails to do that can be held liable for gross negligent. 

Hence, negligence to be a criminal in nature needs to have grossness in its action. Minor negligent acts may constitute a tort but not a crime.

Court also held that for filing criminal liability on a doctor or any medical practitioner, the standard of negligence required has to be extremely high. Mere lack of necessary care, attention and skill cannot be considered as criminal negligence.

As in the case Jacob Mathew v. State of  Punjab, the court held that for imposing criminal liability to doctors or any medical practitioner, degree of care expected from them must be high and also issued guidelines for imposing criminal liability on them. That is that there must have been an absence of proper skill and care which that medical practitioner claimed to possess and second that that skill and care by him was not exercised with proficiency.


Negligence has its various types, it can be contributory negligence, medical negligence or legal negligence. It needs to be dealt with based on its gravity which differs from facts of one case to the other. Negligence had always been easily dealt under the law of tort but based on its gravity or grossness, amendment act of IPC, 1870 added section 304A, which has its own perks but had also been criticized by many professionals by saying that this section provides the license to kill to the people and it has lesser punishment. 

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