Death by Negligence, Including Rash Driving Under the BNS

Causing death by a rash or negligent act, where the act does not amount to culpable homicide, is an offence under Section 106(1) of the Bharatiya Nyaya Sanhita, 2023 (BNS), which replaced Section 304A of the IPC from 1 July 2024. The maximum punishment is five years with fine, or two years with fine for a registered medical practitioner during a medical procedure. Section 106(2), the new hit and run clause with up to ten years, was kept on hold when the BNS came into force, so readers must check whether it has since been notified.

This explainer is for B.A. LL.B. and LL.B. students preparing for criminal law papers, and for citizens who want to understand what happens after a fatal road accident or a death blamed on carelessness. Road deaths, building collapses and hospital deaths all raise the same question: was this a crime, or only a civil wrong?

What does Section 106 BNS actually say?

Section 106 sits in the chapter on offences affecting the human body. It has two parts.

• Section 106(1): whoever causes the death of any person by doing any rash or negligent act not amounting to culpable homicide is punishable with imprisonment of either description up to five years, and is also liable to fine. If the act is done by a registered medical practitioner while performing a medical procedure, the maximum is two years and fine.
• Explanation: a "registered medical practitioner" means one who holds a qualification recognised under the National Medical Commission Act, 2019 and whose name is on the National Medical Register or a State Medical Register.
• Section 106(2): whoever causes death by rash and negligent driving of a vehicle, not amounting to culpable homicide, and escapes without reporting it to a police officer or a Magistrate soon after the incident, is punishable with imprisonment up to ten years and is also liable to fine.

Old pointer: Section 304A IPC carried a maximum of two years. The BNS raised the general maximum to five years and kept two years only for doctors.

Is the hit and run clause in force?

Not on 1 July 2024. Comparison tables published by the Uttar Pradesh Police and the Kerala Prisons Department both record that Section 106(2) would not come into force with the rest of the BNS and was kept on hold. In practice, a fatal accident is still charged under Section 106(1), often with Section 281. We could not confirm from an official source whether Section 106(2) has been notified since, so check the current notifications on India Code or the Gazette of India before you rely on it in an answer or a case.

Which other BNS sections apply to rash driving?

A road accident charge sheet rarely carries one section. Know these together:

• Section 281 (old IPC 279): driving or riding on a public way so rashly or negligently as to endanger human life or be likely to cause hurt. Punishment: up to six months, or fine up to one thousand rupees, or both.
• Section 125 (old IPC 336): any act done so rashly or negligently as to endanger human life or the personal safety of others. Up to three months, or fine up to two thousand five hundred rupees, or both.
• Section 125(a) (old IPC 337): where hurt is caused, up to six months, or fine up to five thousand rupees, or both.
• Section 125(b) (old IPC 338): where grievous hurt is caused, up to three years, or fine up to ten thousand rupees, or both.

Take an example. A bike rider in Nagercoil speeds through a crowded junction and knocks down two pedestrians. One dies and one suffers a fracture. The likely sections are 106(1) for the death, 125(b) for the grievous hurt and 281 for the manner of riding. Compensation for the families is a separate civil claim under the Motor Vehicles Act, 1988 before the Motor Accidents Claims Tribunal, which this article does not cover.

Rash or negligent: what is the difference?

The two words are not the same, and examiners like students who separate them.

• Rashness is acting with awareness of the risk but with indifference to it, hoping the harm will not happen.
• Negligence is failing to take the care a reasonable person would take in the situation, often without thinking about the risk at all.
• Neither involves an intention to cause death or knowledge that death is likely. Once intention or that knowledge is proved, the case moves to culpable homicide under Section 105 or murder under Section 101.

How has the Supreme Court read this offence?

The leading case is Jacob Mathew v. State of Punjab, (2005) 6 SCC 1, decided on 5 August 2005 by a three judge bench led by Chief Justice R.C. Lahoti. It concerned a patient's death allegedly linked to an empty oxygen cylinder. The Court quashed the prosecution under Section 304A and laid down points that still guide Section 106(1):

1. Criminal negligence must be gross. The words "rash or negligent act" are to be read as qualified by the word "grossly". Negligence that is enough for a civil claim may not be enough for a prosecution.
2. The act must be the direct cause of death. Relying on Kurban Hussein (1965), the Court said the act must be the "causa causans", not merely the "causa sine qua non".
3. Res ipsa loquitur is only a rule of evidence with limited application in criminal trials. A Section 304A case cannot be decided on that rule alone.
4. For doctors, a private complaint should be supported by a credible opinion from another competent doctor, the police should take an independent medical opinion, and a doctor should not be arrested in a routine manner.

The Section 106(1) proviso for registered medical practitioners now places the lower ceiling for doctors in the statute itself. If you want a High Court example from Tamil Nadu, search the Madras High Court's judgments by section number and read the full order before citing it.

How should you write about this in an exam?

1. Start with the text of Section 106(1), the punishment and the old pointer to Section 304A IPC.
2. List the ingredients: death of a person, caused by the accused's act, the act being rash or negligent, and the act not amounting to culpable homicide.
3. Explain rashness and negligence separately, then the gross negligence and direct cause tests from Jacob Mathew.
4. Mention the doctor proviso and the Explanation.
5. Discuss Section 106(2) and state its commencement position honestly.
6. Add the companion sections 125 and 281 for road accident problems.
7. Close by applying the law to the facts given, step by step.

Students who want to see how fatal accident cases reach court can volunteer with the college legal aid clinic, where families often ask what the police charge means.

Sources

• India Code: Bharatiya Nyaya Sanhita, 2023: official record of the Act, Act No. 45 of 2023, in force from 1 July 2024.
• PRS Legislative Research: text of the BNS, 2023: full text including Section 106.
• AdvocateKhoj: BNS Section 106: bare text of Section 106, including the doctor proviso, the Explanation and sub-section (2).
• AdvocateKhoj: BNS Section 125: bare text and punishments for endangering life, hurt and grievous hurt.
• AdvocateKhoj: BNS Section 281: bare text of the rash driving offence.
• Kerala Prisons Department: BNS to IPC comparison: notes that Section 106(2) was kept on hold.
• Uttar Pradesh Police: BNS and IPC comparative table: maps Sections 106, 125 and 281 to the old IPC sections.
• Indian Kanoon: Jacob Mathew v. State of Punjab (2005): full judgment on criminal negligence under Section 304A IPC.