Causing Death by Negligence

BNS S.106 punishes causing death by a rash or negligent act not amounting to culpable homicide; sub-section (1) distinguishes medical practitioners (lower maximum of 2 years) from other persons (up to 5 years); sub-section (2) adds an enhanced penalty of up to 10 years for rash and negligent driving causing death where the driver escapes without reporting.

BNS S.106 is the provision for causing death by a rash or negligent act that does not amount to culpable homicide. It occupies the space below S.100 (culpable homicide): where there is no intention to cause death and no knowledge that death is likely, but the actor's rashness or negligence causes it.

BNS 2023 Renumbering

BNS S.106 = IPC S.304A (causing death by negligence). The BNS version is substantially expanded: it splits the offence into two sub-sections, creates a separate and lower ceiling for registered medical practitioners, and introduces a new sub-section (2) for hit-and-run deaths with enhanced punishment.

BNS S.106: Structure

Sub-section	Content	Punishment
(1) first part	Causing death by any rash or negligent act not amounting to culpable homicide	Up to 5 years + fine
(1) second part	If the act is done by a registered medical practitioner while performing a medical procedure	Up to 2 years + fine
(2)	Causing death by rash and negligent driving of a vehicle, not amounting to culpable homicide, and escaping without reporting to police or Magistrate soon after	Up to 10 years + fine

Key Changes from IPC S.304A

Feature	IPC S.304A	BNS S.106
Maximum punishment (general)	2 years	5 years (increased)
Medical practitioners	No separate provision	Capped at 2 years (lower)
Hit-and-run	No specific provision	S.106(2): up to 10 years
Registered medical practitioner defined	Not defined	Explanation: means a practitioner under the National Medical Commission Act 2019

Why the medical practitioner gets a lower ceiling: Jacob Mathew v State of Punjab (2005) held that doctors should not be subjected to criminal prosecution for mere errors of judgement, and that only gross negligence should attract criminal liability. The BNS codifies this policy by capping the punishment at 2 years, reflecting the legislative judgment that medical professionals in emergency situations should not face the same penal tariff as reckless drivers.

Elements of the Offence

Element	Content
Death of a person	The consequence must be death (not merely hurt)
Rash or negligent act	Rashness (conscious risk-taking) or negligence (failure to exercise due care)
Not amounting to culpable homicide	No intention to cause death, and no knowledge that death is likely (otherwise S.100 applies)
Causation	The death must be the direct result of the rash or negligent act

Rashness vs Negligence (Restated from CRIM-1.3)

Basis	Rashness	Negligence
Mental state	Conscious of the risk but proceeds	Does not advert to the risk a reasonable person would foresee
Culpability	Higher	Lower
Example	Driving at 120 km/h through a school zone	Failing to check mirrors before reversing

Hit-and-Run: S.106(2) (New)

This is entirely new in the BNS. It targets the specific mischief of a driver who:

Causes death by rash and negligent driving, AND
Escapes without reporting to a police officer or Magistrate soon after the incident.

The enhanced punishment (up to 10 years) addresses the additional wrong of flight, which obstructs justice and denies the victim timely medical aid.

Medical Negligence: The Jacob Mathew Framework

**Jacob Mathew v State of Punjab (2005)** Supreme Court of India

Facts: A patient died allegedly due to negligent treatment. The doctor was charged under IPC S.304A (now BNS S.106).

Issue: When does a doctor's negligence attract criminal liability?

Held: A medical professional is liable only for gross negligence or recklessness, not for a mere error of judgement or an inadvertent act. The standard is the Bolam test: a doctor is not negligent if he acts in accordance with a practice accepted as proper by a responsible body of medical opinion, even if another body of opinion takes a different view. Criminal prosecution should not be initiated without an independent expert opinion.

Relevance: The governing framework for medical negligence cases. BNS S.106(1) second part codifies the lower ceiling that Jacob Mathew demanded.

**Alister Anthony Pareira v State of Maharashtra (2012)** Supreme Court of India

Facts: A person driving under the influence of alcohol at high speed on a public road killed seven persons sleeping on the pavement.

Issue: Whether this was culpable homicide (S.299/300 IPC) or death by negligence (S.304A IPC).

Held: Where the driving is so reckless and the risk of death so obvious that the driver must have been aware of it, the case crosses the line from S.304A into culpable homicide (S.299/300). The accused was convicted under S.304 Part II (culpable homicide with knowledge).

Relevance: Establishes the line between S.106 and S.100/S.101. Extreme recklessness with near-certain death moves the case out of negligence into culpable homicide.

The Boundary Between S.106 and S.100/S.101

Factor	S.106 (Negligence)	S.100/S.101 (Culpable Homicide / Murder)
Intention to cause death	Absent	Present (S.100(a), S.101(a))
Knowledge that death is likely	Absent	Present (S.100(c), S.101(d))
Consciousness of risk	May be present (rashness) but not to the degree of near-certainty	So high that death is virtually certain
Example	Driving at excessive speed	Driving a truck deliberately into a crowd
Authority	Jacob Mathew (S.106 territory)	Alister Pareira (crossed into culpable homicide)

Recall Check

What are the two sub-sections of S.106 and how do they differ in punishment?
What is the new provision for hit-and-run under S.106(2)?
When does medical negligence attract criminal liability?
At what point does rash driving cross from S.106 into culpable homicide?

Key Cases

Jacob Mathew v State of Punjab (2005) Jacob Mathew v State of Punjab 2005
Issue: Standard for criminal medical negligence.
Rule: Only gross negligence, not mere error of judgement, attracts criminal liability. Bolam test applies.
Held: Guidelines for when prosecution may be initiated.

Alister Anthony Pareira v State of Maharashtra (2012) Alister Anthony Pareira v State of Maharashtra 2012
Issue: Whether extreme rash driving causing seven deaths was S.304A or culpable homicide.
Rule: Where the driver must have known death was virtually certain, the case is culpable homicide, not negligence.
Held: Convicted under S.304 Part II (culpable homicide with knowledge).

Distinctions

Basis	S.106(1) General	S.106(1) Medical Practitioner	S.106(2) Hit-and-Run
Maximum	5 years	2 years	10 years
Actor	Any person	Registered medical practitioner during a medical procedure	Driver of a vehicle
Additional element	None	Must be performing a medical procedure	Must escape without reporting
Rationale	General negligence causing death	Lower ceiling per Jacob Mathew policy	Flight enhances the wrong

Basis	S.106 (Death by Negligence)	S.100 (Culpable Homicide)
Intention	Absent	Present (to cause death or bodily injury likely to cause death)
Knowledge	Absent (or present but not to the degree of "likely")	Present: knows the act is likely to cause death
Standard	Objective: would a reasonable person have foreseen death?	Subjective: did this person intend or know?
Punishment	Up to 5 years (or 10 for hit-and-run)	Life imprisonment, or 5 to 10 years + fine
Crossing point	Alister Pareira: when knowledge reaches near-certainty	That is where S.100/S.101 begins

Flashcards

What is the maximum punishment for causing death by negligence under S.106(1)?

5 years imprisonment plus fine (general). 2 years for a registered medical practitioner.

What is new in S.106(2)?

Enhanced punishment (up to 10 years) for rash and negligent driving causing death where the driver escapes without reporting to police or Magistrate.

When does a doctor's negligence become criminal?

Only for gross negligence or recklessness, not for mere error of judgement. Standard: Bolam test (Jacob Mathew v State of Punjab, 2005).

When does rash driving cross from S.106 into culpable homicide?

When the risk of death is so obvious and the driving so reckless that the driver must have been aware death was virtually certain (Alister Pareira, 2012).

Does S.106 require intention to cause death?

No. If intention or knowledge of likely death is present, the offence is culpable homicide under S.100, not S.106.

Exam Scenario

Problem: Dr. Anil, a surgeon, performs an emergency appendectomy. Due to fatigue after a 36 hour shift, he leaves a sponge inside the patient's abdomen. The patient develops peritonitis and dies a week later. Separately, Farhan, driving his car at 140 km/h on a highway at night while texting, hits a cyclist and kills him. Farhan does not stop and drives away. He is found the next day. Advise on the charges.

Step 1: Test Dr. Anil under S.106(1) second part

Element	Dr. Anil
Death	Yes, from peritonitis caused by the retained sponge
Rash or negligent act	Leaving a sponge inside is a failure of the counting protocol, which is standard surgical practice. This is negligence
Not amounting to culpable homicide	No intention to cause death; no knowledge that death was likely
Registered medical practitioner performing a medical procedure	Yes

Apply Jacob Mathew (2005): is this gross negligence or a mere error of judgement?

Factor	Assessment
Was there a departure from accepted practice?	Yes: sponge counting is a basic standard
Was it due to fatigue rather than incompetence?	Fatigue after 36 hours, but the standard is objective
Would a reasonable body of medical opinion condone it?	No; no responsible surgeon would omit the count

This is gross negligence. Criminal liability under S.106(1) second part is attracted. Maximum: 2 years + fine.

Step 2: Test Farhan under S.106(2)

Element	Farhan
Death	Yes, the cyclist died
Rash and negligent driving	140 km/h at night while texting is both rash (conscious risk) and negligent (failure of care)
Not amounting to culpable homicide	Must be tested: was the risk so obvious that Farhan must have known death was virtually certain?
Escaped without reporting	Yes, drove away and found next day

Is this S.106 or culpable homicide? Apply Alister Pareira (2012).

Factor	Assessment
Speed	140 km/h at night is extremely dangerous but does not by itself establish knowledge of near-certain death
Texting	Increases the risk but is a failure of attention, not a deliberate act towards death
Target	A cyclist encountered on a highway at night is not the same as driving into a crowd
Conclusion	This is at the upper end of S.106, not culpable homicide. The risk, while high, does not cross into "must in all probability cause death"

Charge under S.106(2): up to 10 years (enhanced for hit-and-run).

Step 3: Test whether Farhan could be charged higher

If the prosecution argues Alister Pareira, it would need to show that driving at 140 km/h while texting is so imminently dangerous that death is virtually certain. On a highway (not a crowded pavement), this is a harder argument. The safer charge is S.106(2).

Two traps in this problem

Do not charge Dr. Anil under the general S.106(1) first part. The second part (medical practitioner) applies specifically and caps the punishment at 2 years. Charging under the first part (5 years maximum) is wrong where the accused is a registered medical practitioner performing a procedure.

Do not automatically upgrade Farhan to culpable homicide. Alister Pareira involved driving into people sleeping on a pavement (virtually certain death). Farhan hit a cyclist on a highway at night (highly dangerous but not virtually certain). The distinction matters for the charge.

Conclusion. Dr. Anil: S.106(1) second part, maximum 2 years. Farhan: S.106(2), maximum 10 years (hit-and-run enhancement).