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TMI Blog2007 (11) TMI 688X X X X Extracts X X X X X X X X Extracts X X X X ..... 4 bus bearing No. MPO 10588 was going from Aurally towards Kailaras. While it was near a railway crossing, an accident took place. A train hit the bus at the railway crossing. In the accident the bus which was being driven by the appellant was badly damaged and as a result of the accident several passengers got injured and two persons namely Bhagoli @ Bhagwati and Ankush died. First information report was lodged by Brijmohan Sharma, Constable. After completion of investigation charge sheet was filed. Charges were framed in relation to the offences punishable under Section 302 and alternatively under Section 304, 325 and 323 of the Indian Penal Code, 1860 (in short the 'IPC'). Questioning correctness of the charges framed, the rev ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h are rash and negligent and are directly the cause of death of another person. Negligence and rashness are essential elements under Section 304A. 7. Section 304A carves out a specific offence where death is caused by doing a rash or negligent act and that act does not amount to culpable homicide under Section 299 or murder under Section 300. If a person willfully drives a motor vehicle into the midst of a crowd and thereby causes death to some person, it will not be a case of mere rash and negligent driving and the act will amount to culpable homicide. Doing an act with the intent to kill a person or knowledge that doing an act was likely to cause a person's death is culpable homicide. When the intent or knowledge is the direct motiva ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... which ought to be done either in a different manner or not at all. Where there is no duty to exercise care, negligence in the popular sense has no legal consequence, where there is a duty to exercise care, reasonable care must be taken to avoid acts or omissions which can be reasonably foreseen to be likely to cause physical injury to persons or property. The degree of care required in the particular case depends on the surrounding circumstances, and may vary according to the amount of the risk to be encountered and to the magnitude of the prospective injury. The duty of care is owed only to those persons who are in the area of foreseeable danger, the fact that the act of the defendant violated his duty of care to a third person does not e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uch blameworthy inadvertence, and the man who through his negligence has brought harm upon another is under a legal obligation to make reparation for it to the victim of the injury who may sue him in tort for damages. But it should now be recognized that at common law there is no criminal liability for harm thus caused by inadvertence. This has been laid down authoritatively for manslaughter again and again. There are only two states of mind which constitute mens rea and they are intention and recklessness. The difference between recklessness and negligence is the difference between advertence and inadvertence they are opposed and it is a logical fallacy to suggest that recklessness is a degree of negligence The common habit of lawyers to q ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... "where negligence is an essential ingredient of the offence, the negligence to be established by the prosecution must be culpable or gross and not the negligence merely based upon an error of judgment. As pointed out by Lord Atkin in Andrews v. Director of Public Prosecutions (1937) (2) AER 552 simple lack of care such as will constitute civil liability, is not enough; for liability under the criminal law a very high degree of negligence is required to be proved. Probably, of all the epithets that can be applied 'reckless' most nearly covers the case. " 12. According to the dictionary meaning `reckless' means 'careless', 'regardless' or heedless of the possible harmful consequences of one's acts ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... slight that the ordinary prudent individual on due consideration of the risk would not he deterred from treating it as negligible, could the accused be described as reckless in its ordinary sense, if, having considered the risk, he decided to ignore it. (In this connection the gravity of the possible harmful consequences would be an important factor. To endanger life must be one of the most grave). So, to this extent, even if one ascribes to 'reckless' only the restricted meaning adopted by the Court of Appeal in Stephenson and Briggs, of foreseeing that a particular kind of harm might happen and yet going on to take the risk of it, it involves a test that would be described in part as 'objective' in current legal jargon. Q ..... X X X X Extracts X X X X X X X X Extracts X X X X
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