NATIONAL UNIVERSITY OF STUDY AND RESEARCH IN LAW ,

RANCHI

TOPIC NAME: DEATH BY NEGLIGIENCE SECTION 304A

SUBMITTED BY SUBMITTED TO
Dr. Julian Seal Pasari
Associate Professor, Law of Crimes
NUSRL, Ranchi
TABLE OF CONTENTS

ABSTRACT…………………………………………………………..........................................3

INTRODUCTION ……………………………………................................................................3

CHAPTER 1: DEATH BY NEGLIGENCE: 304

A………………………….............................4

BACKGROUND AND CASE LAWS..................................................................................................

CHAPTER 2: NEGLIGENCE AND ITS VARIOUS ASPECTS…………………………7

CHAPTER 2.1 : MEDICAL NEGLIGENCE………………………………………………7

CHAPTER 2.2: Artificial Intelligence and Cases of Negligence…......................................8

CONCLUSION………………………………………………………....................................11

ABSTRACT:

The present section talks of rash and negligent Act, and if the act does not fall within culpable
homicide, it falls within the present provision. ‘Rash Act’ refers to an act done in hurry without
proper thinking and action. ‘Negligent Act’ refers to a breach of duty imposed by law or
omission of anything which a man of ordinary prudence should have done. IPC is applicable on
citizens and non-citizens, natural and artificial persons, etc. would it be possible to make AI
liable under it? This study would address the issues of medical negligence by AI and legal
liability. This project would focus on the legal liability arising out of AI's negligence.

INTRODUCTION

The original Indian Penal Code had no provision for punishment in those cases where a person
causes the death of a person by negligence. Liability for causing death was limited only to cases
of murder and culpable homicide not amounting to murder. To fill in the gap, Section 304-A 1 was
1 Indian Penal Code , 1860 , Section 304A
inserted in the Indian Penal Code (Amendment) Act 27 of 1870 to cover those cases wherein the
person causes the death of another by such acts as are rash or negligent but there is no intention
to cause death and no knowledge that the act will cause death. Section 304-A of Indian Penal
Code, 1860 deals with homicide by rash and negligence. An offence falls under the section (304
A), if intention and knowledge of causing death is not be there. Section 304A was added in the
year 1870 by the Indian Penal Code (Amendment) Act, 1870. Section 304A is quite good
addition by the policymakers in the Indian penal Code, 1860 as it separates the cases in which
neither the intention nor the knowledge of the accused was there but the act causes death. The
present punishment under this section is often subject to criticism because of its weaker nature.
The Supreme Court, on several instances favoured a harder punishment and at it has also asked
the legislature to amend the provision. In the present scenario, there is a need of harsher
punishment up to a minimum imprisonment of five years as suggested by Law Commission
Report. The number of cases of medical negligence is increasing day by day. Although the
Supreme Court has framed guidelines for a case of medical negligence to come until 304A, there
needs to be a clear and concise provision for medical negligence; medical courts need to be
established where the medical experts should be appointed to assist the judges.

RESEARCH PROBLEM

• Would it be possible to make AI liable under IPC?

• Medical Negligence by AI and legal liability

CHAPTER 1: DEATH BY NEGLIGENCE-304A

Section 304A i.e., causing death by negligence reads as follows: “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.” The offence under present section is a Bailable, cognizable and a
noncompoundable offence.

The essential ingredients of the section are as follows:

 A. There must be death of person in question;
B. The death must be caused by the accused;
C. The death must be caused due to rash or negligent act of accused; and
D. Act of the accused must not amount to culpable homicide.

The section applies when there is a direct connection of the rash or negligent act of accused to
the death of the person in question. The act must lead to the immediate cause for the death.

Rash or Negligent Act

The current part refers to reckless and careless acts, and if the act does not qualify as culpable
homicide, it comes under this category. Before proceeding, it is critical to comprehend the
meanings of the terms "rash" and "negligent." A 'Rash Act' is an action taken in a haste without
sufficient thought or action. A 'negligent act' is a violation of a legal responsibility or the failure
to perform something that a reasonable person would do. In the case of Bala Chandra v. State of
Maharashtra2, criminal negligence was defined as "complete or partial negligence or failure to
exercise reasonable and proper care and precaution in protecting any particular person or the
public in general, which would have resulted in injury to that person or the public in general."

‘Rash Act’ can be understood clearly by the case Cherubin Gregory v. State of Bihar 3, In this
case, a neighbour started using the washroom of the accused. The accused objected, but despite
she carried on using his washroom. On one day, the accused placed naked wire carrying
electricity at the entrance of washroom and the lady touched the wire and died. Here, the accused
was held liable for ‘rash act’.

Act not amounting to culpable homicide

There must be no knowledge and no purpose for an act to fall under this provision. The topic of
the accused's motive was raised in Sarabjeet Singh and Ors. versus State Of Uttar Pradesh 4. The
accused lifted a toddler and flung him to the ground, causing the child's death. Though his
intention was not present, knowledge was there, and he was not held accountable under 304A

2 AIR 1968 SC 1319.

3 AIR 1964 SC 205.

4 AIR 1983 SC 529.
(as his lawyers had requested, because the act was reckless), but he was held liable under 304.
(Part II).

Death must be the direct result

An act to fall under this section, the death must be caused as a direct result or in consequence
with act of the accused. The principle of causa causans i.e., immediate cause or last link of the
chain applies. In the case of State of Punjab v. Amrit Lal Jain 5, Amrit Lal Jain, the principal of a
school was held liable under 304A because of death of two teachers and sixteen students because
of falling debris of adjacent Shyamlal’s building. It was held that the death was not a direct
consequence as he had not done repairs since long time and building was in a bad condition.
Also, Amrit Lal had removed some soil last year which led to the act. Since it was not a direct
consequence, principle of causa causans applied and the accused was acquitted.

Rash and Negligent Driving

For an act of rash and negligent driving, the factors of knowledge and intention of the accused
should not be there. Principle of Res Ipsa Loquitur i.e, things speak for itself. In the case of State
of Rajasthan v. Hari Singh6, AIR 1969 Raj 86, it was held that only driving at a faster rate do not
make out the offence as under 304A. It must be proved that the collision was either mainly or
entirely due to the fault of the accused.

RELEVANT CASE LAWS:

1. Juggankhan v. State of Madhya Pradesh7

Supreme Court held a medical practitioner accused under 304A for discharging a poisonous
drug into the body of a patient suffering from guinea warm without even knowing the effect
of same. The act of the accused was considered as ‘negligent act’.
2. Parmananda Katara v. Union of India8
5 Cr. Appeal No. 412-DBA of 1989.

6 AIR 1969 Raj 86.

7 AIR 1965 SC 831.
8
(1989) 4 SCC 286
 The Supreme Court observed that the duty of the doctor is to save lives and courts should
assist in the same. Also, the duty of the court is to have a check that the doctors are not being
harassed in performance pf their duties.
3. Alister Anthony Periara v. State of Maharashtra8
A lady driving on Mumbai’s seafront carter road was accused of killing of seven people.
The Supreme Court held that although the driving was rash and negligent, the accused must
have had knowledge that such kind of act of her could lead to death, only then she will be
considered punishable under 304 Part II of IPC and not under Section 304A.
4. Suleman Rehiman Mulani & Anr v. State of Maharashtra9
A person driving a jeep hit a person. Then, he took him up, made him sit in the jeep and
took him to a doctor. He refused to give treatment, and directed to go to a different place.
But the accused took him somewhere else and the person died. It was found that though the
accused was negligent as he had learning license and was driving without a person having
license[x], but it was held that hitting by vehicle of the accused was not the direct
consequence of the death of the person in question and hence, accused cannot he held liable
under 304A.

5. Jagdish Chander v. State10

The accused was driving a scooter and suddenly he took a right turn without looking in the
mirror and a truck was coming and he lost his control. He crashed and minor injuries were
caused to the lady and some major injuries to his child. The court considered the act as rash
and negligent took a turn without paying attention and his conviction was also upheld by the
Supreme Court.

CHAPTER 2: NEGLIGENCE AND ITS VARIOUS ASPECTS

CHAPTER 2.1: MEDICAL NEGLIGENCE Doctors are revered as second gods in our
country. If any of us has a medical problem, we consult a doctor, who cures us by prescribing

8 AIR 0212 SC 3802

9 1968 AIR 829

10 (1974) 1 SCR 204

appropriate medications or performing the necessary procedures. In numerous occasions, doctors
save people's lives. However, it is an unfortunate reality that many large hospitals have begun to
profit from treatments. In addition, cases of medical negligence are on the rise, in which a person
is harmed as a result of a doctor's or medical staff's negligence. Every year, over 5 million
individuals in India die as a result of medical malpractice. Under the Consumer Protection Act of
1986, the Law of Torts, and Indian law, doctors can be held accountable for medical negligence.
In the case of Indian Medical Association v. VP Shantha 11, the Supreme added medical
profession in the term ‘service’ as under CP Act, 1986. In criminal law, medical practitioners get
the immunities of Sections 87, 88, 89 and 92 of the IPC, 1860, who act for patients benefit in
good faith.

Essentials of medical negligence are as follows:

There is a duty to take care of the other party;

There is a breach of duty of care; and

The other party suffered a legal injury due to breach of duty.

In the case of Jacob Mathew v. State of Punjab & Anr. 12, it was held that for imposing criminal
liability against the medical practitioner, a high degree of negligence is required. The guidelines
for imposing criminal liability for medical negligence are:

There must be absence of proper skill which the medical practitioner claimed to possess; or The

skill possessed by him were not exercised with due care and proficiency.

CHAPTER 2.2: ARTIFICIAL INTELLIGENCE and CASES Of NEGLIGENCE

• What is Artificial Intelligence?

Artificial Intelligence is taking over in every field today. “Artificial intelligence (AI) has the
potential to significantly transform the role of the doctor and revolutionize the practice of
medicine.” Artificial Intelligence has made many actions convenient and effortless. People prefer
Artificial Intelligence over human labor. AI has evolved and covered almost every field. AI has
11 AIR 1996 SC 550
12 (2005) 6 SCC 1.
now taken over in nearly every aspect of our life. “The modern definition of artificial intelligence
(or AI) is "the study and design of intelligent agents" where an intelligent agent is a system that
perceives its environment and takes actions that maximize its chances of success 13. John
McCarthy, who coined the term in 1956, defines it as "the science and engineering of making
intelligent machines14."

• Negligence by AI

Since its beginning, artificial intelligence has come under scrutiny from scientists and the public
alike. One common theme is the idea that machines will become so highly developed that
humans will not be able to keep up, and they will take off on their own, redesigning themselves
at an exponential rate. Another is that machines can hack into people's privacy and even been
weaponized. Other arguments debate the ethics of artificial intelligence and whether intelligent
systems such as robots being treated with the same rights as humans. It could be argued that the
general principles of negligence can apply to the widespread use of AI. Liability in negligence
arises where there is a duty of care. It seems logical that a person who has suffered loss because
of a decision made by AI may owe a duty of care. However, it may be unclear who has this duty.
The AI is not responsible for its actions because it is not a legal person. Liability could therefore
rest with the owner, the manufacturer, the user, or the service provider. While there is potential
for recovery of loss when AI malfunctions, using the negligence route, the exact method is not
yet clear. There is some debate as to what extent AI could be given legal personality. It could be
held accountable for its actions similar to an individual or a company. It also would mean that the
individuals in charge of the AI could be legally responsible for the AI’s actions through vicarious
liability (in the same way that the employer is responsible for the actions of their employees in
the course of their employment). Some sort of criminal liability may be attributable to AI should
it take the form of a legal person. For example, a company can be liable for corporate
manslaughter under the Corporate Manslaughter and Corporate Homicide Act 2007.

It is relatively simple to attribute an actus reus to an AI system. If a system takes action that
results in a criminal act, or fails to take an action when there is a duty to act, then the actuaries of
an offense has occurred. In the context of defenses against liability for AI systems, it is important

13 “Artificial Intelligence”, https://www.sciencedaily.com/terms/artificial_intelligence.htm, Accessed on: 13 March

2020.
14 McCarthy, John. "Professor John McCarthy", jmc.stanford.edu. Accessed on: 13 March 2020.
to mention several cases where a defendant accused of cybercrime offences have successfully
offered the defense that his computer had been taken over by a Trojan or similar malware
program, which was committing offenses using the defendant's computer but without the
defendant's knowledge. The case in the United Kingdom when a computer containing indecent
pictures of children were also found to have eleven Trojan programs on it, and another UK case
where a teenage computer hacker’s defense to a charge of executing a denial-of service attack
was that the attack had been performed from the defendant’s computer by a Trojan program,
which has subsequently wiped itself from the computer before it was forensically analyzed. The
defendant’s lawyer successfully convinced the jury that such a scenario was not beyond
reasonable doubt. When software is defective, or when's injured as a result of using software, the
resulting legal proceedings normally allege the tort of negligence rather than a criminal liability.
The key limitation is that AI systems lack general knowledge. Humans carry a great deal of
knowledge that is not immediately relevant to a specific task, but that could become relevant. For
example, if someone is bullying a person walking down a street, AI may not be able to
understand what to do. Still, a normal human being, having an ethical nature, would be able to
decipher the situation and act in a certain way. There are many problems in making Artificial
Intelligence liable for the wrongs committed by it as it has not been recognized as a legal entity.
AI is based on algorithms, so, therefore, it could be checked if the algorithms are correct or not,
the machinery are working or not, the primary test has to be done before relying on Artificial
Intelligence. These are the duties of the manufacturer to check that the sample is up to the
standard to determine if they can be used without any harm or not. The most feasible option left
is to make the manufacturer or the owner liable for its malfunction which has occurred due to
malfunction that could have been avoided.

It has been established that the legal liability of AI systems depends on at least three factors:
Whether AI is a product or a service, or if a criminal offense is being considered, what mens rea
is required, it seems unlikely that AI programs will contravene laws that require knowledge that a
criminal act was being committed; but they might contravene laws for which ‘a reasonable man
would have known that a course of action could lead to an offense, and it is almost certain that
they would contravene strict liability offenses; or whether the limitations of AI systems are
communicated to a purchaser. Since AI systems have both general and specific limitations, legal
cases on such issues may well be based on the specific wording of any warnings about such
limitations.” Another great limitation of Artificial Intelligence is that the software and algorithms
that it is based on are inserted in its memory by human beings, so technically, Artificial
Intelligence can only assist humans in some places, but it cannot replace them in everything.
After all, an Artificial Intelligence based program is just a machine which can malfunction
anytime and put someone’s life in danger. There is a need to realize that AI cannot be trusted
with everything and that AI cannot and should not take over us in all the aspects of our life, it is
just creation of human beings that should only be used to help them in their works, not to replace
them. Another big concept is morality and ethics, which would be very difficult to induce in an
Artificial Intelligence program; and people’s life is surrounded by these two in every scenario.
Everywhere we go our morals and ethics are put in question. When a doctor knows that there is
only 15% chance of a patient surviving after certain surgery, he would know how to act
according to the situation and would be able to understand the emotional situation of his family,
etc.

NEGLIGENCE UNDER IPC:

It is evident that death by negligence of AI is not considered or covered under IPC built this
could led to a scenario where AI would be used by humans a s an excuse to avoid law
enforcement. With upcoming developments in technology some attribution should be given to
the person in control of AI, even if the mens rea is hard to be established behind the mask of
‘technical issues or internal defects in machine’. Certain regulations and ground rules have to
maintained to show that AI can be held liable and no human can misuse it as a shield.

CONCLUSION

Negligence has always been a tricky concept and it's not an easy task to prove the gravity of
intention in death cases. The judges have to rely on the basic principles and ingredients to
determine and yet the difficulty seems to remain. The confusion is yet to be clarified, and wirth
the the upcoming developments and cases new aspects like death by negligence through AI
might get attention. Section 304A is quite good addition by the policymakers in the Indian penal
Code, 1860 as it separates the cases in which neither the intention nor the knowledge of the
accused was there but the act causes death. The present punishment under this section is often
subject to criticism because of its weaker nature. The Supreme Court, on several instances
favoured a harder punishment and at it has also asked the legislature to amend the provision. In
the present scenario, there is a need of harsher punishment up to a minimum imprisonment of
five years as suggested by Law Commission Report. The number of cases of medical negligence
is increasing day by day. Although the Supreme Court has framed guidelines for a case of
medical negligence to come until 304A, there needs to be a clear and concise provision for
medical negligence; medical courts need to be established where the medical experts should be
appointed to assist the judges. There are clear challenges for the adoption of AI in health for
health services, organizations, and governments, and a need to develop a policy framework
around this issue. As doctors and health leaders, we need to start preparing the profession to be
supported by, partnered with, and, in future, potentially be replaced by AI and advanced robotics
systems.” We have to adapt ourselves to the upcoming world of AI and amend our laws
accordingly. We need to make new laws, give AI space in our constitution; the rights of citizens
against AI has to be recognized. The state needs to establish regulations for the use of AI. AI is
no more a new concept, in upcoming years, it will become a part of our lives, and the basic need
of any new entity is a law that determines its rights, duties, and liabilities. Therefore, AI has to be
recognized by law, and its responsibilities have to be determined.

REFERENCES

• Negligience ,B&B Associates http://crlreview.in/sec-304a-ipc-causing-death-

bynegligence2/
• Asmita Chakraborty(2018),Death by Negligience,
https://bnblegal.com/article/negligenceunder-indian-law/
• Shubham Prakash(2017),”Causing Death by
Negligience” ,https://blog.ipleaders.in/deathby-negligence/
STATUTES
• Indian Penal Code , 1860.
• The Indian Constitution, 1947.