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Part 304(A): What constitutes negligence?

Section 304(A): What constitutes negligence? written by Prapti Kothari student of Institute of Law, Nirma university



The appellant was the R.T.C. bus driver and was driving the bus to Vanaparthy from Kurnool. On 01/01/1966, the bus left Kurnool around 6.15 a.m. and arrived at the Railway Level Crossing Gate between 6.30 or 7.00 a.m. When the appellant with his bus approached the level crossing, the gate was open, which was in control of a gateman.

When a Freight train unexpectedly struck the bus on the rear side, the appellant plunged through the gate and traversed the railway track gauge, causing severe casualties to the travelers. Of the 43 commuters, one died at the scene, three died subsequently in the hospital, and there were more or less significant injuries to about twenty-one commuters. When a freight train was going to reach the gate, the charge against the appellant was that he was reckless or negligent in traversing the railway track.

In addition, a few more facts need to be taken into consideration. Owing to the rugged terrain close to the crossing, the bus was not driven and could not be driven speedily. The level crossing gate, which is a manned gate, was open, signaling that no train was due to arrive at the time and welcoming vehicles to cross. Babool trees covered the railway track and thus a passing train approaching from a range was not noticeable from the bus. Since it was not equipped with a silencer, the bus made a significant noise. Some of the bus window screens were brought down for the convenience of the passengers on the bus as a strong wind was swirling. There is no indication that any sirens or whistles were issued by the train while entering the level crossing. In any event, there is no proof that any of the passengers of the bus heard any whistles.


Whether the appellant was negligent in traversing the railway track when the Freight train was about to pass the gate?


Section 304(A) of the Indian Penal Code, 1860 (hereinafter referred to as IPC).


The decree of conviction and punishment were set aside and the appellant was discharged as a consequence of the success of the appeal.


The case of SN Hussain v. State of Andhra Pradesh, majorly deals with section 304(A) of IPC, regarding causing death by negligence. The term ‘negligence’ as used in this section does not mean sheer carelessness. The rashness or negligence must be of such form so as to be called a criminal act of negligence or rashness. In both cases, though, the death caused does not constitute a culpable homicide. It is the degree of negligence that really decides whether a specific act would as described under this section amounts to a rash and negligent act.

The act can be constituted as a rash and negligent act under this section only when the rash and negligent act is of such a nature that the danger faced by the doer of the act is very severe or is committed with such recklessness and with utter disregard and callousness to the consequences of this act. It is necessary to determine, in order to enforce criminal liability under this clause, that death must be the direct result of the accused’s reckless and careless act. It must be the intimate or immediate cause, and it is not adequate for it to be the subsequent or rather proximate cause.

In general, it is assumed that an individual driving a motor vehicle will always be in control of his/her vehicle in such a way that he or she will avoid hitting any other vehicle or running over any pedestrian who may be on the road.

For example, A (the accused) had run over B (the deceased) while B was trying to cross over the road. A did not attempt to save the deceased by diverting it to the other side of the road when there was enough space to do so. This is a consequence of his rash and negligent driving. Thus, under s 304A, of IPC, A would be held guilty and would be convicted.


If a railway crossing is unchecked or rather unmanned, it might be correct to ensure that the driver of the vehicle should halt the vehicle, check in both directions, and then drive his vehicle only after ensuring himself that there was no risk of approaching the railway track. But if a gateman guards a railway crossing and the gateman opens the gate allowing the vehicles to proceed, it would be unusual to ask any rational and vigilant driver to halt his vehicle and watch out for any incoming train.

Negligent misconduct resides in the inability to conduct a reasonably fair and proper caution, whose degree of cogency will vary from case to case. Here the appellant cannot even anticipate at what phase of time the freight train will be arriving while taking plausible care. The appellant was therefore not liable for criminal negligence. Owing to the gateman’s failure in holding the gate open and allowing the vehicles to proceed, this was a simple case of an inevitable event.

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