The provisions of the above section apply to cases where there is no intention to cause death, and knowledge that the act done in all probability would cause death. It only applies to cases in which, without any intention or knowledge, death is caused by rash or negligent act.
If a person suddenly crosses a road without taking note of an approaching bus there is every possibility of his dashing against the bus without the driver of the bus becoming aware of his crossing till it was too late. In such a case the bus driver, however, slowly he may be driving, may not be in position to avoid the accident.
Therefore, it will not be possible to hold the bus driver to be negligent. [Mahadeo Hari Lokre v. Stale of Maharashtra, (1972)1 S.C.J., 485]. The mere fact that a pedestrian had been knocked down by a vehicle and has died does not justify the inference that the driver of the motor vehicle that knocked him down has been guilty of rashness or negligence. [Sachidananda Bhitria v. State of Orissa. (1975)41 C.L.T. 158].
(b) The doctrine of contributory negligence does not apply to criminal liability where the death of a person is caused partly by the negligence of the accused and partly by his own negligence.
The doctrine has no place in a charge for criminal negligence. Where the accused is charged with the offence of causing loss of life by a negligent omission, he cannot rely on the plea of contributory negligence, which is distinctly recognized in the law of torts, but finds no place in an indictment for criminal negligence.
It has been held that a driver cannot absolve himself from the consequences of rash driving by merely showing that the person to whom or to whose property he has caused injury was himself negligent.
Explanation 2 to Section 299, I.P.C. provides that 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. But the injury caused by the accused must not be too remote to the immediate cause of death.
In determining the crime of the accused 138 Indian Penal Code only such negligence is punishable as caused the death which means that it was proximate and practically the only cause. In order to determine where negligence was of such a degree, contributory negligence might become relevant.
(c) A is guilty of the offence of causing death by negligence punishable under Section 304-A, I.P.C. There was neither the intention to cause death, nor the knowledge that the act done in all probability would cause B’s death. But he was grossly negligent in not waiting to see what was moving before firing the shot.
(d) On similar facts it was held in Waziruzama Khan, I.A.W.N. 156 that A was guilty of a most rash act under Section 304-A of the Code.
(e) On similar facts in Abdul Qayyum, (1940) Lah. 616, it was held that A was guilty of a rash and negligent act under Section 304- A, I.P.C. The Court observed that when there is heavy vehicular traffic on the road and the road is invisible in a cloud of dust, it ought to be clearly recognized that it is the duty of all motorists under these conditions to stop their cars. To continue driving must obviously be dangerous when it is impossible to see anything at all in the neighbourhood.