Criminal Law

BNS 106: Causing Death by Negligence

The BNS 106 deal with causing death by Negligence and its punishment. This section speaks about the punishment for causing death by negligence.

What is BNS 106 ?

“Whoever causes the death of any person by doing any rash or negligent act not amounting to culpable homicide, shall be punished for this offence.

Essential ingredients of Section 106 BNS

Essential ingredients of section 106 BNS are the following:

(i) Death of a person

(ii) Death was caused by accused during any rash or negligence act.

(iii) Act does not amount to culpable homicide.

And to prove negligence under Criminal Law, the prosecution must prove:

(i) The existence of duty.

(ii) A breach of the duty causing death.

(iii) The breach of the duty must be characterized as gross negligence.

What is scope of Section 106 BNS?

In order that a person may be guilty under this section, the rash or negligent act must be the direct or proximate cause of the death. The section deals with homicide by negligence.

BNS 106(1) is Bailable or Not 

Section 106(1) BNS talks about causing death by negligence by registered medical practitioner. This is Cognizable and Bailable Offence and its punishment is Imprisonment for 5 years and fine.

BNS 106(2) is Bailable or Not 

Section 106(2) BNS talks about causing death by negligence by Causing death by rash and negligent driving of
vehicle and escaping. This is Cognizable and Non-Bailable Offence and its punishment is Imprisonment for 10 years and fine. The accused can apply for anticipatory bail for this non-bailable offence.

Negligence in Civil law and Criminal Law

Civil and criminal laws define negligence differently. Courts recognize that negligence under civil law does not automatically qualify as negligence under criminal law.

To treat negligence as a criminal offence, one must prove the presence of mens rea (guilty mind). The law requires a much higher degree of negligence to establish criminal liability.

In civil cases, a lesser degree of negligence may allow the injured party to file a claim for damages. However, that same act may not justify criminal prosecution.

To criminally prosecute a medical professional for negligence, one must show that the doctor acted or failed to act in a way that no reasonable and competent professional would consider acceptable under similar circumstances.

Judges have consistently ruled that only gross negligence not just ordinary carelessness can form the basis of a criminal charge. Thus, the legal system sets a higher threshold for criminal negligence than for civil liability.

Death Caused by Negligence, Not Culpable Homicide

Section 106 BNS applies to cases where a person causes death through a rash or negligent act, without intention or knowledge unlike offences under Sections 100 and 101 of BNS.

The law clearly excludes intentional or wilful acts of violence. It punishes only those acts that lead to death but do not amount to culpable homicide.

This section does not cover all unjustified killings; instead, it specifically targets negligent behavior that results in death while falling short of murder or manslaughter.

Contributory Negligence Does Not Affect Criminal Liability under BNS 106

Criminal law does not recognize the doctrine of contributory negligence. If an accused person’s negligence contributes to someone’s death, the law holds the accused criminally liable, even if the deceased also acted carelessly.

Courts do not excuse the accused simply because the victim was negligent, drunk, deaf, or partly responsible for their own death. In criminal cases, the focus remains on the accused’s own negligent conduct, regardless of the victim’s behavior.

Mens Rea Is Essential in Criminal Negligence u/s BNS 106

Courts must consider Mens Rea when dealing with charges of criminal negligence. The law treats guilty intent or a culpable mental state as a necessary element.

A person cannot be held criminally liable for negligence unless the prosecution proves that their conduct showed a reckless disregard for human life or safety. Thus, mens rea remains a crucial factor in establishing criminal negligence.

Courts Reject Mechanical Failure as a Defence in BNS 106 Cases

Courts have consistently rejected the defence of mechanical failure when the evidence shows that the driver acted recklessly or negligently. In one case, the accused claimed that the vehicle overturned due to a hydraulic system failure.

However, the way the trailer detached and the distance the tractor moved clearly indicated high-speed reckless driving. The accused did not even present the mechanical failure claim during the initial investigation, so the court dismissed the plea.

In another case, the accused claimed that the accident occurred because a scooter tyre burst. The court found that tyres usually burst due to overuse or poor maintenance.

The Orissa High Court ruled that poor maintenance amounts to negligence, and it rejected the accused’s defence. Courts treat mechanical failure from poor upkeep as evidence of negligence, not an excuse.

High Speed Alone Does Not Prove Negligence for BNS 106

Courts have clarified that driving at high speed alone does not amount to negligence. In Ravi Kapur v. State of Rajasthan, the Supreme Court held that one must assess the driver’s conduct, not just the speed.

A person may drive slowly yet recklessly or negligently, which still amounts to rash driving. Conversely, high speed does not automatically prove that the driver was negligent.

The Court emphasized that speed is not the sole criterion for determining rash or negligent driving. What matters is whether the driver ignored signals, failed to observe caution, or endangered others on the road.

In one case, the accused drove a canter recklessly at high speed, hit two girls, and caused one death. The court relied on the complainant’s testimony and convicted the accused under Section 106.

In another instance, the accused ignored a police officer’s signal to stop, despite clear road visibility. The vehicle struck the officer, causing his death.

The Bombay High Court ruled that the accused’s negligence and disregard for signals led to the accident, justifying the conviction.

Thus, courts look at the overall behavior and caution exercised by the driver, not just the speed, when determining criminal liability for rash or negligent driving.

Medical Negligence Requires a Higher Standard of Proof for BNS 106

In Dr. PB Desai v. State of Maharashtra, the Supreme Court held that doctors bear a greater responsibility than other service providers because of the critical nature of their profession.

To hold a medical professional criminally liable, courts require proof of gross or culpable negligence, not just an error of judgment. The Court emphasized that in criminal cases, the prosecution must prove a higher degree of negligence than what is required in civil cases.

While civil liability may arise from ordinary negligence, criminal liability demands conduct that shows a blatant disregard for patient safety. Additionally, courts must consider the presence of mens rea, or a guilty mind, when deciding criminal negligence cases against medical professionals

Investigating Officer Must Exercise Caution Before Arresting a Doctor for Negligence under BNS 106

The law requires the investigating officer to act responsibly while dealing with allegations of medical negligence.

The officer should not arrest a doctor routinely just because someone has made an accusation.

Unless the arrest is necessary to advance the investigation, gather crucial evidence, or ensure that the doctor does not evade prosecution, the officer must avoid making an arrest.

The legal principle emphasizes that the arrest must serve a clear investigative purpose, not be a reaction to mere allegations.

Court Requires Expert Opinion to Entertain Private Complaint Against a Doctor under section 106 BNS

Courts do not entertain private complaints of medical negligence unless the complainant produces prima facie evidence, such as a credible opinion from another competent doctor. This requirement ensures that frivolous or baseless allegations do not lead to criminal prosecution. In a case where a complainant accused a doctor of negligence in treating her husband, the absence of expert medical opinion led the court to dismiss the complaint, ruling that criminal proceedings were not maintainable.

Burden of Proof in Medical Negligence Cases under Section 106 BNS

In criminal cases involving medical negligence, the complainant must first establish a basic case of negligence by showing lack of proper care or attention by the doctor or hospital.

Once the complainant meets this initial burden, the burden shifts to the hospital or doctor, who must then prove they acted with due care and diligence. This legal principle ensures a balanced approach that protects both the rights of patients and the professional autonomy of doctors.

Courts Set Conditions to Establish Individual Liability of Doctors in Medical Negligence

To hold a doctor individually liable for medical negligence or deficiency in service, courts follow specific principles:

Doctors do not guarantee a cure. The law recognizes that treatment outcomes may vary, and no doctor can promise complete recovery.

Doctors must apply reasonable skill and care. Courts expect doctors to demonstrate a fair, reasonable, and competent level of skill, even if it’s not the highest available.

Choosing one acceptable mode of treatment is not negligence. When multiple valid treatment options exist, a doctor does not commit negligence by choosing one and administering it with due care and caution.

Courts do not treat every failure as negligence. If the doctor uses reasonable and standard medical practices of the time even if treatment fails the court may not hold them negligent. However, if the doctor fails to diagnose properly and provides the wrong treatment, that constitutes negligence.

Courts avoid blaming doctors in complex cases. When the case involves complications and the doctor has performed his duties to the best of his ability, the court is usually reluctant to assign negligence.

Courts Decline to Hold Drivers Negligent in Absence of Rash or Careless Conduct

Courts have emphasized that not every unfortunate accident results from rash or negligent conduct. In several cases, they have refused to impose criminal liability under negligence laws when drivers acted reasonably under the circumstances.

In one case, the driver did not blow the horn due to traffic rules prohibiting it. The court held that this did not indicate negligence, as the driver simply followed the law.

In another incident, a pedestrian dashed into the path of a moving bus without warning. The court ruled that the driver could not be blamed for the death, as he had no chance to avoid the accident.

A bus driver who tried to cross a level railway gate that appeared safely open (with no train scheduled) collided with a goods train. The court held that the driver had no reason to anticipate the train, so it did not amount to criminal negligence.

In a separate case, corrugated sheets fell from a bus roof, injuring passersby. However, the investigating officer failed to seize the sheets or determine who loaded them. The court held that without clear evidence, the driver could not be held liable.

In another incident, a child suddenly ran across a narrow road, and the bus driver tried his best to swerve and save her. Unfortunately, the bus still struck the girl, who died on the spot.

The Supreme Court overturned the driver’s conviction, ruling it was a case of human error, not rash or negligent driving. The Court also clarified that the doctrine of res ipsa loquitur (let the facts speak for themselves) does not apply in criminal trials.

Court Holds Builder Liable for Death at Construction Site Due to Negligence

In a case involving a fatal construction site accident, the Delhi High Court upheld the conviction of the petitioner under Section 106 of the BNS (formerly 304 IPC).

The deceased, a labourer, died from injuries sustained during a house demolition under the petitioner’s supervision. Despite repeated warnings and caution notices, the petitioner ignored safety protocols and continued work without exercising reasonable care.

The Court found that a reasonable and prudent person would have acted with greater caution, and thus held the petitioner criminally negligent.

Court Acquits Accused in Accidental Rifle Fire Case

In another case, the accused’s rifle accidentally discharged while he attempted to retrieve metal powder from under his cot. The victim suffered a head injury and fell onto the cot, while the accused was found unconscious nearby.

Witnesses offered two differing versions of the events. Given the conflicting testimonies and the lack of clear evidence, the High Court favored acquittal, ruling that the prosecution failed to establish criminal negligence beyond a reasonable doubt.

Supreme Court Clarifies: Drunken Driving Death May Attract Negligence

In the landmark case of State of Maharashtra v. Salman Salim Khan, the issue concerned whether drunken driving causing death should be tried under Section 106 BNS (Old IPC 304A - Causing death by negligence) or Section 304 IPC, Part II (culpable homicide not amounting to murder) of the IPC (now reflected in Section 106 of BNS, 2023).

The accused allegedly drove a car under the influence of alcohol, hit persons sleeping on a footpath, caused the death of one person, and injured four others.

Initially, the authorities filed a charge sheet under Section 106 BNS (formerly 304A IPC), which deals with death by negligence. However, after a supplementary statement from the complainant, the police replaced the charge with Section 304, Part II, which involves knowledge that the act was likely to cause death.

The Sessions Court framed charges under Section 304, Part II, but the High Court later quashed this charge, ruling that it was appropriate to try the matter under Section 304A. The High Court directed the Magistrate's Court to reframe charges de novo, i.e., from the beginning, under the relevant sections including 304A.

When the State appealed, the Supreme Court clarified that framing of charges under either section would not prejudice either party, except that the trial forum would differ Sessions Court for Section 304, and Magistrate’s Court for Section 304A. The Court affirmed that the trial court has discretion to alter charges based on the evidence presented during trial.

Thus, the ruling highlighted that the decision between Section 304A and Section 304, Part II depends on the degree of knowledge and intention proved by the prosecution, and not merely on the initial framing of charges.

BMW Case: Supreme Court Emphasizes Community Service and Victim Compensation

In the BMW Hit-and-Run Case, the Supreme Court adopted a reformative approach to sentencing, shifting focus from mere incarceration to compensation for victims and community service.

Instead of enhancing the accused's jail term, the Court directed:

Payment of ₹50 lakh to the Union of India within six months, to be used exclusively for compensating motor accident victims in hit-and-run cases where the culprit is untraceable.

The Court instructed that this amount be deposited under a separate fund, earmarked solely for this purpose.

If the accused failed to pay, he would have to undergo one year of simple imprisonment.

The Court also mandated the accused to undertake community service for two years, which the Ministry of Social Justice and Empowerment was tasked to arrange within two months.

If he defaulted on this obligation, he would face two years of simple imprisonment.

The Court clarified that compensation under Section 357(3) of CrPC, meant for victims of crime, cannot always substitute an adequate sentence. It emphasized that sentencing must serve the interests of justice, while still addressing rehabilitation, accountability, and victim compensation.

This judgment marks a notable shift towards restorative justice, especially in cases involving vehicular negligence and public safety violations.

Probation of Offenders Act Not Readily Applicable to Section 106 BNS  Cases

Courts must exercise caution in extending the benefit of probation under Section 4 of the Probation of Offenders Act, 1958 in cases under Section 304A of the IPC, especially those involving death caused by rash or negligent driving.

Given the alarming rise in road accidents and the severe impact on victims and their families, criminal courts must prioritize deterrence in sentencing. The trial courts, in particular, play a crucial role in reducing road fatalities by imposing appropriate punishments that underscore the seriousness of reckless driving.

While sentencing should reflect a policy of correction and rehabilitation, the courts have emphasized that careless drivers must be educated about traffic laws and made aware of their moral and legal responsibility towards human life and safety.

The judiciary has consistently reiterated that Section 304A IPC offences, especially those involving motor vehicle accidents, should not be lightly treated, and thus the benevolent provisions of the Probation of Offenders Act should not be automatically applied.

Frequently Asked Questions

What does Section 304A IPC penalize?

Answer: Section 106 BNS penalizes any person who causes the death of another by doing a rash or negligent act that does not amount to culpable homicide.

Does contributory negligence of the victim excuse the accused from criminal liability under Section 106 BNS ?

Answer: No, the court does not excuse the accused simply because the victim contributed to the accident through negligence, drunkenness, or recklessness.

What role does mens rea play in offences under Section 106 BNS ?

Answer: The prosecution must prove the presence of criminal negligence, and although mens rea (guilty mind) is not as direct as in intentional offences, the degree of negligence must be gross or culpable.

Can high speed alone amount to negligence under Section 106 BNS ?

Answer: No, the court does not treat speed alone as negligence. It examines whether the accused drove recklessly or carelessly, regardless of the speed.

Does poor maintenance of a vehicle amount to negligence?

Answer: Yes, if an accident occurs due to mechanical failure caused by poor maintenance, the court treats that as negligence under Section 106 BNS.

How does the court handle medical negligence under Section 106 BNS?

Answer: The court requires the prosecution to prove gross negligence, not mere error of judgment. It also considers expert opinions from competent doctors before proceeding with prosecution.

Can Police arrest doctors accused of medical negligence without necessity?

Answer: No, courts advise against routine arrests of doctors unless their arrest is essential for investigation or preventing their evasion of trial.

What conditions must a private complaint alleging medical negligence meet?

Answer: The complainant must present a prima facie case, usually supported by a credible medical opinion from another qualified doctor.

Can courts impose alternative sentences like community service in negligence cases?

Answer: Yes, as seen in the BMW case, the Supreme Court directed community service and compensation payment instead of extending the jail sentence.

Do courts readily apply the Probation of Offenders Act to such cases?

Answer: No, courts discourage applying probation in motor accident cases under Section 106 BNS due to the rising rate of road deaths and the need for deterrence.

Can the court frame charges under Section 105 BNS instead of 106 BNS in certain negligence cases?

Answer: Yes, if the accused acted with knowledge that their act was likely to cause death, the court may frame charges under Section 105 instead of Section 106 BNS.