UNIT-1

- Culpable homicide 100 & 105

- Murder 101 & 103(1)
- Distinction between various clause inter se
- Distinction between culpable homicide and murder
- Death caused by negligent act 106 v. sec 304 A IPC.

UNIT-I
OFFENCES AGAINST HUMAN BODY-1

Intention- Deliberate & purposeful state of mind

Voluntariness of conduct + Foresight of consequences + Desire (passionate or
dispassionate)
Intention can be direct or oblique/ indirect. Ex- aircraft.
Direct- pointing a gun at someone and oblique intention- hijacking a plane and making it
crash. Where desire is not specific to a person.
Intention is a subjective inquiry. Judge has to look into the accused state of mind, whether he
actually intent to do the act or not. Prosecution has to establish the accused state of mind at
the time of commitment of crime. That the intention is flowing, can’t apply the reasonable
and prudent person standard. Accused centric inquiry- subjective

Knowledge – can be subjective or objective

Voluntariness of conduct + foresight of consequence- desire.
Circumstances will also determine the mens. Driving a car at 100 speed at a crowded place ,
it will amount to having knowledge of the consequence. But desire to kill is not their.
Death is a probable result. But in the intention it is a clear result that people are gonna die.

Recklessness/ rashness- always a objective enquiry

voluntariness of the conduct+ total indifference to the consequence, when u drive at a fast
speed. Risk is involved, then also the person takes the action. Board signs are objective
criteria. In United states it is known as wilful blindness.
Negligence- always an objective enquiry.
Voluntariness of the conduct + Inability to foresee the consequences + lack of due care.

The word homicide has been derived from Latin terms homi (man) and cido (cut). Literally,
the word “homicide” means the killing of a human being by another human being.
CULPABLE HOMICIDE
3 degrees of culpable homicide.
1. Murder- 101 & 103
2. Culpable homicide not amounting to murder- 105- para -1.
3. Culpable homicide not amounting to murder- 105 para- 2. (no intention- only
knowledge).
Sec 100 defined culpable homicide and 101 defines murder which is also a culpable homicide
with some special characteristics, which are set out in clauses 1 to 4 of sec 101, subject to
certain exceptions given there.
If any culpable homicide falls within any of these four clauses, then it will amount to murder.
All other instances including the owns which may fall within exceptions to section 101, will
be culpable homicide not amounting to murder.
Essential Ingredients of culpable homicide:
1. There must be a death of a person
2. The death should have been caused by the act of another person
3. The intention of causing such bodily injury as is likely to cause death
4. With knowledge that such act is likely to cause death.

Explanation-1: provides for a situation where the injured person is suffering from some
disorder, disease or bodily infirmity, which quickened his death. The fact that his death was
quickened or hastened by the disorder or disease he was already suffering from, will not
reduce the guilt or culpability of the person who caused the injuries. The person cant escape
criminal liability of culpable homicide by stating that if the person injured did not suffer from
the said disease or disorder, he would not have died.
Explanation-2 provides for a situation where the person who has been injured could have
recovered and escaped death , if he had been given proper treatment. in such situation the
person died because he could not avail of good medical treatment, cannot be a ground for
negating guilt or culpability of the person who inflicted the injury in the first place.
Expalnation-3 talks about the situation where death is caused to a child in the mother’s
womb. The law states that if the death is caused while the child is still in the womb then it
wont be amounting to culpable homicide but if any portion of the child comes out of the
mother womb and then the death is caused then it would amount to culpable homicide.
The connection between the primary cause and death should be proximate. The death must be
the direct consequence of the injuries inflicted on the deceased. Intervening or supervening
cause, if any, should not be independent or unconnected with the injuries sustained by the
deceased.

A man is expected to know the natural consequence of this act, so if a person in performing
some act either:
1. Expects death to be the consequence
2. Excepts a dangerous injury to be the consequence of his act
3. Knows that death is a likely consequence of his act
Renders the act a homicide. However, no hard and fast rule can be laid down for determining
the existence of intention and it is more of a question of fact. Intention can be gathered from
the action of the person and the surrounding circumstances, such as the motive of the
accused, the nature of the attack, the time and place of attack, nature of weapon used, the
nature of injuries caused to the deceased and so on.
For ex- when injuries are inflicted on vital parts of the body like the abdomen by a lethal or
sharp-edged weapon, the irresistible inference is that the accused intended to kill the
deceased.

MURDER
Sec 101 defines murder with reference to culpable homicide defined in section 100. If the
special requirement provided in clauses 1-4 of sec 101 are fulfilled, culpable homicide will
then amount to murder, provided that the act does not fall within any of the exceptions
provided in sec 101.
If an act, which falls within clause 1-4 of sec 101, also falls within one of the exceptions, then
it will be culpable homicide not amounting to murder.

Culpable homicide is murder, if it is done with:

1. Intention to cause death
2. Intention to cause bodily injury knowing that the injury is likely to cause death
3. Intention of causing such bodily injury sufficient in the ordinary course o fnature to
cause death
4. Knowledge that the act if
a. Imminently dangerous that in all probability it will cause death or bodily injury
which is likely to cause death
b. Done without any justification for incurring the risk of causing death or the injury.
Case A- women was beaten by her husband on the same night. Walked out of the house with
her 6 month old child, heard some footsteps- jumped in the well the child died.
Case B – women was beaten a day for the incident, walked out of the hosue, jumped in the
well with her child, the child died.
A had an excuse and hence the case was covered under culpable homicide whereas in case B
the women did the act without any excuse.
 Dhinajia case
 Gyarsibai case

Culpable homicide does not amount to murder, if it is:

(1) Committed on grave and sudden provocation, provided the provocation was not:
(a) voluntarily sought or deliberately caused by the accused;
(b) a result of any act done by public servant or in obedience to law; or
(c) given by any act done in the exercise of the private defence.
(2) Committed in the exercise of the right of private defence of body or of property by
exceeding, in good faith and without premeditation and without any intention of causing
harm more than that was necessary for exercising the right of private defence, the right of
self-defence.
(3) Committed by a public servant or a person aiding a public servant acting in advancement
of public justice by exceeding his powers conferred by las on him, provided:
(a) he believed, in good faith, that the act (leading to death) was lawful;
(b) he thought it was necessary for discharging his duty, and
(c) he had no ill-will towards the person whose death was caused.
(4) Committed, without premeditation, in a sudden fight in the heat of passion without taking
any undue advantage or acting in a cruel or unusual manner
(5) Caused to a person above eighteen years of age with his consent.

In Virsa Singh v State of Punjab, the Supreme Court laid down that in order to bring a case
within clause (3) of section 300, the prosecution must prove the following:
(1) It must establish, quite objectively, that a bodily injury is present.
(2) The nature of the injury must be proved.
(3) It must be proved that there was an intention to inflict that particular bodily injury, that is
to say, that it was not accidental or unintentional, or some other kind of injury was intended.
Once these three elements are proved to be present, the enquiry proceeds further, and
(4) It must be proved that the injury of the type just described made up of the three elements
set out above, is sufficient to cause death in the ordinary course of nature.

The apex court also stressed that:

(i) the existence and nature of bodily injury must be a matter of pure objective
investigation and
(ii) the sufficiency of injury to cause death in ordinary course of nature is a matter of
pure objective and inferential and it has nothing to do with the intention of the
offender. It does not matter there was no intention to cause death.
It does not matter that there was no intention even to cause injury of a kind that is
sufficient to cause death in the ordinary course of nature. It does not even matter that
there is no knowledge that an act of that kind will be likely to cause death. Once the
intention to cause the bodily injury actually found to be present is proved, the rest of the
enquiry is purely objective and the only question is whether, as a matter of purely
objective inference, the injury is sufficient in the ordinary course of nature to cause death.

Stages:
A practical approach to distinguish whether a particular situation would come under
murder or culpable homicide is to appreciate the facts and apply the law in stages as
indicated below.
(1) The first stage is to establish whether the accused had done an act, which has caused
the death of another person. This is obviously the most fundamental fact, which has to be
established before any further enquiry into the intention, and knowledge of the accused is
gone into.
(2) The second stage is to establish whether the act of the amount to culpable homicide. In
other words, it has to be accused would ascertained that a particular act, which has caused
the death of a person, is not as a result of accident or any other exceptions provided under
the IPC. It has to further established that the intention of the accused was not merely to
cause hurt or grievous hurt but homicide.
(3) Once it is established that an accused has caused death either with the intention of
causing it or with the intention of causing such bodily injury as is likely to cause death, or
with knowledge that his act is likely to cause death, then the next stage of enquiry is to
ascertain whether the act would fall under any of the four clauses of section 300, IPC.
 (4) If it is established that culpable homicide is murder and the act falls under any of the
four clauses of section 101, then there must be a further enquiry to consider whether the
act falls within any of the five exceptions under section 101, IPC. If it does not fall under
any of the exceptions, then the act is murder. If the act, however, falls under any of the
exceptions, then it will be culpable homicide not amounting to murder.

Exception 1-Grave and Sudden Provocation

Culpable homicide will not be murder, if, the offender, on account of grave and the
sudden provocation, is deprived of his power of self-control and causes the death of a
person. The person, whose death is caused, may be the person who gave the provocation
or any other person by mistake or accident.
The exception is itself subject to three exceptions:
(1) The provocation should not have been sought for voluntarily by the offender, as an excuse
for killing or doing any harm to any person.
(2) The provocation is not as a result of an act done in obedience of law or by the act of a
public servant in the lawful exercise of his powers.
(3) The provocation is not a result of anything done in the exercise of the right of private
defence.
In order that this exception should apply, the provocation should be both grave and sudden. If
the provocation is sudden but not grave, or grave but not sudden, then the offender cannot
avail of the benefit of this exception. The expression "grave" indicates that provocation be of
such a nature so as to give cause for alarm to the accused. "Grave provocation is where
judgement and reason take leave of the offender and violent passion takes over "Sudden
means an action which must be quick and unexpected so far as to provoke the accused.
Further, it should also be shown that the provocation was of such a nature that the offender
was deprived of the power of self-control.

In KM Nanavati v State of Maharashtra, the accused was a naval officer. He was married
with three children. One day, his wife confessed to him that she had developed intimacy with
the deceased. Enraged at this, the accused went to his ship, took a semi-automatic revolver
and six cartridges from the store of the ship, went to the flat of the deceased, entered his
bedroom and shot him dead. Thereafter, the accused surrendered himself to the police. The
question before the Supreme Court was whether the act of the accused could be said to fall
within Exception I of section 101. The Supreme Court laid down the following postulates
relating to grave and sudden provocation:
(1) The test of "grave and sudden" provocation is whether a reasonable man, belonging to the
same class of society as the accused, placed in the situation in which the accused was placed,
would be so provoked as to lose his self-control.
(2) In India, words and gestures may also, under certain circumstances, cause grave and
sudden provocation to an accused, so as to bring his act within the first exception to section
101, BNS.
(3) The mental background created by the previous act of the victim may be taken into
consideration in ascertaining whether the subsequent act caused grave and sudden
provocation for committing the offence.
(4) The fatal blow should be clearly traced to the influence of passion arising from that
provocation and not after the passion had cooled down by lapse of time, or otherwise giving
room and scope for premeditation and calculation
The Supreme Court held that the accused, after his wife confessed to her illicit relationship
with the deceased, may have momentarily lost control. He had thereafter dropped his wife
and children at a cinema, went to the ship, collected the revolver, did some official business
there, drove his car to the office of the deceased and later to his house. Three hours had
lapsed by then and therefore, there was sufficient time for him to regain his self-control.50 In
view of this, the court held that the provisions of Exception 1 to section 101 were not
attracted. The accused was convicted for murder and sentenced to life imprisonment.

Exception-2 Exceeding the Right of Private Defence.

Where one exceeds the public defence & cause the death of the other person.
It may be pointed out that the fact that a person has exceeded his right of private defence does
not totally exonerate a person under this exception. It merely is considered as a mitigating
factor to reduce the offence from that of murder to culpable homicide not amounting to
murder.
If a person acts in a bad faith the right of private defence cease to exist.
Also the act done must be without any premeditation- there should be no pre planning and
also the act must have been done without any intention of doing more harm then is necessary
for the purpose of coverage by the exception. In other words the act should have been done
unintentionally. And this can be decided on the basis of the facts and circumstances of each
case.
Accused has to prove:
1. Had a right of public defence- whether one has the right or falls under several defence
or not.
2. Was exercising it in good faith.
3. No pre- meditation on his part to cause death, without any cooling period, if the act is
planned one then it diminishes good faith.
4. Without any intention of doing more harm than was necessary for the purpose of
public defence.
Exception 3-Act of Public Servant
Exception 3,deals with situations where a public servant exceeds his lawful powers in the
discharge of his duties and thereby causes death.
The essential ingredients of this exception are:
(i) the offence must be committed by a public servant or by a person aiding a public
servant;
(ii) the act alleged must have been committed by the public servant in the discharge of
his official duties;
(iii) he should have exceeded the powers given to him by law;
(iv) the act should be done in good faith;
(v) the public servant should have believed that his act was lawful and necessary for
the due discharge of his duties and
(vi) he should not have borne-any ill-will towards the person whose death was caused.

- A suspected thief was arrested by a police constable and was being taken in a train.
The thief escaped from the running train. The constable pursued him. When he was
not in a position to apprehend him, he fired at him. But, in that process, he hit the
fireman and killed him. It was held that the case was covered by this exception.
- Where an order to shoot was given by the public servant and his subordinate carried
his orders, when there was no occasion to do so, it was held that the order of the
public servant was illegal and neither the public servant nor the person acting under
the order can be said to have acted in good faith. Obedience of a superior's lawful
order protects a subordinate. Causing death by the subordinate in pursuance of an ex
facie unlawful order, therefore, cannot be exonerated.

Exception-4 Sudden Fight.

The requisites of the fourth Exception are that:
(i) the murder should have been committed without premeditation;
(ii) it should have been committed in a sudden fight;
(iii) it should have been committed in the heat of passion;
(iv) it should have been committed upon a sudden quarrel and
(v) it should have been committed without the offender having taken undue advantage
or acted in a cruel or unusual manner.
All these conditions are required to be proved for bringing the case within the ambit of the
fourth Exception to section 101, BNS.

In Sukhbir Singh v State of Haryana, a sudden quarrel, over splashing of mud by the son of
the deceased while sweeping of the street on the accused, ensued between the accused and the
deceased along with his son. The deceased, for no fault of his, gave slaps to the accused.
Thereafter, the accused went home, which was at a very nearby place, and came back armed
in the company of others, including his relatives, though without telling his intention to
vehemently retaliate his slaps. He gave two blows with his bhala on the upper right chest of
the deceased. The deceased fell down and thereafter other persons, who had accompanied the
accused, assaulted the deceased with their respective weapons. The deceased, ultimately,
succumbed to his injuries. The Supreme Court, setting aside conviction of the accused under
section 103 by the Punjab High Court based on the fact that the accused acted in a cruel and
unusual manner, held that the homicide was caused in a sudden fight and the time gap
between the quarrel and the fight did not enable the accused to premeditate the death. It gave
benefit of Exception 4 to the accused. The court also held that sudden fight must follow
sudden quarrel. If there intervenes a sufficient time for passion to subside giving the accused
time to premeditate and the fight takes place thereafter, the accused may disqualify for getting
benefits of the Exception as the killing with premeditation amounts to murder.

In Manke Ram v State of Haryana," the Supreme Court gave benefit of exception 4 to a
police inspector who, in a set of peculiar facts, killed his subordinate. He invited the deceased
to drink in his room. When they were drinking the nephew of the deceased came to the room
and called him for dinner. As the deceased got up to leave the room, the appellant got
annoyed and started abusing the deceased in filthy language to which the deceased objected.
This further infuriated the appellant. A fight started between the two. The appellant picked up
his service revolver, which kept nearby, and fired two shots at the deceased. These shots
proved fatal. Reversing his conviction under section 302 of the Code by the Punjab High
Court, the Supreme Court held that the incident took place in a sudden fight in the heat of
passion and granted benefit of Exception 4 to the appellant. It held that the appellant, in the
totality of facts and circumstances of the case, did not take an undue advantage of the fight or
acted in a cruel or unusual manner.

Exception-5 Death by Consent:

Culpable homicide is not murder when the person whose death is caused, being above the age
of 18 years, suffers death or takes the risk of death with his own consent.
The points to be proved are:
(i) the death was caused with the consent of the deceased;
(ii) the deceased was then above 18 years of age and
(iii) the consent given was free and voluntary, and was not given through fear or
misconception of facts.

Ujagar Singh v/s Emperor

The accused killed his stepfather who was an infirm, old and invalid man, with the latter's
consent, his motive being to get three innocent men (his enemies) implicated. It was held that
the offence was covered by the Fifth Exception to section 101,BNS, and punishable under the
first part of section 105,BNS.
In Dashrath Paswan v State of Bihar, the accused, who was a student of the tenth class, failed
in his examination thrice in succession. He was upset and frustrated by these failures and
decided to put an end to his life and informed his wife, a literate girl of about 19 years of age.
The wife thereupon requested him to kill her first and then kill himself. In pursuance of the
pact, he killed his wife but was arrested before he could end his life. The Patna High Court,
relying upon Exception 5 to section 101,BNS, convicted him under section 105,of the BNS.

102. Culpable homicide by causing death of a person other than person whose death
was intended- Essentially, if someone acts with the intention or knowledge that their actions
are likely to cause death, and they end up killing someone different from their intended target,
they are still liable for culpable homicide. The punishment is based on the original intent or
knowledge, as if the intended victim had been killed.
Here's a more detailed breakdown:
 Transfer of Malice:
This section is often referred to as the "doctrine of transfer of malice," meaning that the intent
or knowledge of the offender to cause death is transferred to the actual victim, regardless of
whether the offender intended to harm that particular person.
 Example:
If someone poisons a meal intending to kill their spouse, but someone else eats the meal and
dies, they are still liable for culpable homicide, even though their intended victim was
someone else.
103- Punishment for murder-
1. Shall be liable with the punishment with death or imprisonment for life, and shall also
be liable for fine.
2. When 5 or more people act together , each will be held liable for with the punishment
with death or imprisonment for life, and shall also be liable for fine.
105- Punishment for culpable homicide not amounting to murder-

- Culpable homicide not amounting to murder, if act by which the death is caused is
done with intention of causing death, etc.: Imprisonment for life, or Imprisonment for
not less than 5 years but which may extend to 10 years and fine.
- If act be done with knowledge that it is likely to cause death, but without any
intention to cause death, etc.: Imprisonment for 10 years and with fine.

106- Rash and negligent act:

A rash act implies an act done by a person with recklessness or indifference as to its
consequences. The doer, being conscious of the mischievous or illegal consequences, does
the act knowing that his act may bring some undesirable or illegal results but without hoping
or intending them to occur.
A negligent act, on the other hand, refers to an act done by a person without taking sufficient
precautions or reasonable precautions to avoid its probable mischievous or illegal
consequences. It implies an omission to do something, which a reasonable man, in the given
circumstances, would not do.
The term "negligence" as used in this section does not mean mere carelessness. The rashness
or negligence must be of such nature so as to be termed as a criminal act of negligence or
rashness. "nothing is an offence which is done by accident or misfortune and without any
criminal knowledge or intention in the doing of a lawful act in a lawful manner by a lawful
means and with proper care and caution". It is absence of such proper care and caution, which
is required of a reasonable man in doing an act, which is made punishable under this action.
It is the degree of negligence that really determines whether a particular act would amount to
a rash and negligent act as defined under this section. It is only when the rash and negligent
act is of such a degree that the risk run by the doer of the act is very high or is done with such
recklessness and with total disregard and indifference to the consequences of this act, the act
can be constituted as a rash and negligent act under this section.
Negligence is the gross and culpable neglect or failure to exercise reasonable and proper care,
and precaution to guard against injury, either to the public generally or to an individual in
particular, which a reasonable man would have adopted. Negligence, thus, means omission to
do something which a reasonable and prudent person guided by the considerations which
ordinarily regulate human affairs would do or doing something which a prudent and
reasonable person guided by similar considerations would not do.
However, negligence is not an absolute term but is a relative one; it is rather a comparative
term. It is difficult to state with precision any mathematically exact formula by which
negligence or lack of it can be infallibly measured in a given case. Whether there exists
negligence per se or the course of conduct amounts to negligence will normally depend upon
the attending and surrounding facts and circumstances which have to be taken into
consideration by the Court.

Difference Between Rashness and Negligence

A rash act is primarily an overhasty act. Negligence is a breach of a duty caused by omission
to do something, which a reasonable man guided, by those considerations which ordinarily
regulate the conduct of human affairs would do.
In Bhalachandra Waman Pathe v State of Maharashtra,the Supreme Court explained the
distinction between a rash and a negligent act in the following manner:
There is a distinction between a rash act and a negligent act. In the case of a rash act, the
criminality lies in running the risk of doing such an act with recklessness or indifference as to
the consequence. Criminal negligence is the gross and culpable neglect or failure to exercise
that reasonable and proper care and precaution to guard against injury either to the public
generally or to an individual in particular, which, having regard to all the circumstances out
of which the charge has arisen, it was the imperative duty of the accused person to have
adopted. Negligence is an omission to do something which a reasonable man, guided upon
those considerations which ordinarily regulate the conduct of human affairs would do, or
doing something which a prudent and reasonable man would not do. A culpable rashness is
acting with the consciousness that the mischievous and illegal consequences may follow, but
with the hope that they will not, and often with the belief that the actor has taken sufficient
precautions to prevent their happening. The imputability arises from acting despite the
consciousness. Culpable negligence is acting without the consciousness that the illegal and
mischievous effect will follow, but in circumstances which show that the actor has not
exercised the caution incumbent upon him and if he had, he would have had the
consciousness. The imputability arises from the neglect of the civic duty of circumspection.
In the instant case, the appellant was driving his car at a speed of 35 miles an hour, the speed
permissible under the rules. No other circumstance was pointed out to show that he was
driving in a reckless manner. Therefore, he cannot be said to have been running the risk of
doing an act with recklessness or indifference as to the consequences. However, he was
undoubtedly guilty of negligence. He had a duty to look ahead and see whether there was any
pedestrian in the pedestrian crossing. It is likely that while driving the car, he was engrossed
in talking with the person who was sitting by his side. By doing so, he failed to exercise the
caution incumbent upon him. His culpable negligence and failure to exercise that reasonable
and proper care and caution required of him resulted in the occurrence. He was therefore held
guilty of the offence punishable under section 106.

In Ambalal D Bhatt v State of Gujarat, the accused was a chemist in charge of the injection
department of Sanitax Chemical industries Limited, Baroda. The company prepared glucose
in normal saline, a solution containing dextrose, distilled water and sodium chloride. The
sodium chloride sometimes contained quantities of lead nitrate, the permissible limit for lead
nitrate being five parts in one million. The saline solution, which was supplied by the
company, was found to have lead nitrate higher than the permissible limits and hence was
dangerous to human life. The bottles, which were sold by the company, were purchased by
different hospitals and nursing homes and were administered to several patients of whom 12
patients died. As per the Drugs Act, 1940, and the rules framed thereunder, a chemist of a
chemical company has to give a batch number to every lot to bottles containing preparation
of glucose in bd he normal saline. The accused, who was responsible for giving the batch
numbers, failed to do so. He gave a single batch number to four lots of saline. It was the
contention of the prosecution that had the appellant given separate batch numbers to each lot
as required under the rules, the chief-analyst would have separately analysed each lot and
would have certainly discovered the heavy deposits of lead nitrate in the sodium chloride and
the lot which contained lead would have been rejected. As the accused had been negligent in
conforming to the rules, the deaths were the direct consequence of the negligence. The
Supreme Court held that for an offence under section 106, the mere fact that an accused
contravened certain rules or regulations in the doing of an act which caused death of another,
does not establish that the death was the result of a rash or negligent act or that any such act
was a proximate and sufficient cause of the death. It was established in evidence that it was
the general practice prevalent in the company of giving one batch number to different lots
manufactured in one day. This practice was to the knowledge of the drug inspector and to the
production superintendent. The court held that the drug inspector himself knew fully well that
this was the practice, but did not lift a finger to prohibit the practice and instead turned his
blind eye to a serious contravention of the drug rules. To hold the accused responsible for the
contravention of the rule would be to make an attempt to somehow find the scapegoat for the
deaths of the 12 persons. Accordingly, the conviction of the accused under section 106 was
set aside.

In Suleman Rahiman Mulam v State of Maharashtra, the accused, who was driving a jeep
struck the deceased, as a result of which he sustained serious injuries. The accused put the
injured person in the jeep for medical treatment, but he died. Thereafter, the accused
cremated the body. The accused was charged under sections 106 . As per section 106, there
must be a direct nexus between the death of a person and rash and negligent act of the
accused that caused the death of the deceased. It was the case of the prosecution that the
accused had possessed only a learner's licence and hence, was guilty of causing the death of
the deceased. The Supreme Court held that there was no presumption in law that a person
who possesses only a learner's licence or possesses no licence at all does not know driving. A
person could, for various reasons, Ash act including sheer indifference, might not have taken
a regular licence. There was evidence to to show that the accused had driven the jeep to
various places on the previous day of the occurrence. So, before the accused is convicted
under section 106, there must be proof that the accused drove in a rash and negligent manner
and the death was a direct consequence of such rash and negligent driving. In the instant case,
there was absolutely no evidence that the accused had driven in a rash and negligent manner.
In the absence of such evidence, no offence under section 106 was made out. The accused
was acquitted of the charges.

In Cherubin Gregory v State of Bihar, the deceased was an inmate of a house near that of the
accused. The wall of the latrine of the house of the deceased had fallen down a week prior to
the day of occurrence, with the result that his latrine had become exposed to public view.
Consequently, the deceased, among others, started using the latrine of the accused. The
accused resented this and made it clear to them that they did not have his permission to use it
and protested against their coming there. The eral warnings, however, proved ineffective.
Therefore, the accused fixed a naked and uninsulated live wire of high voltage in the passage
to the latrine, to make entry into dangerous to live. The deceased managed to pass into the
latrine without contacting the wire, but as the came out, her hand happened to touch it, she
got a shock and died because of it. It was contended on behalf of the accused that he had a
right of private defence of property and death was caused in the course of the exercise of that
right, as the deceased was a trespasser. The Supreme Court rejected the contention stating that
the mere fact that the person entering a land is a trespasser does not entitle the owner or
occupier to inflict on him personal injury by direct violence. The court observed that it is no
doubt true that the trespasser enters the property at his own risk and the occupier owes no
duty to take any reasonable care for his protection, but at the same time, the occupier is not
entitled to wilfully do any act, such as setting a trap of naked live wire of high voltage, with
the deliberate intention of causing harm to trespassers or in reckless disregard of the presence
of the trespasser. It was held that since the trespasser died soon after the shock, the owner
who set up the trap was guilty under section 106. The Supreme Court upheld the conviction
of the accused.

Rash or Negligent Act in Medical Treatment

Courts have repeatedly held that great care should be taken before imputing criminal rashness
or negligence to a professional man acting in the course of his professional duties. A doctor is
not criminally liable for a patient's death, unless his negligence or incompetence passes
beyond a mere matter of competence and shows such a disregard for life and safety, as to
amount to a crime against the state.

In John Oni Akerele's case, a medical practitioner had administered a medical dose of sorbital
injection to a child, because of which the child died. The doctor was charged under section
106. The contention of the accused doctor was that the child was peculiarly susceptible to the
medicine and therefore unexpectedly succumbed to a dose which would have been harmless
in case of a normal child. The Privy Council held that the doctor was guilty of criminal
negligence.

In Juggan Khan v State of Madhya Pradesh, the accused was a registered homeopath who had
administered to a patient suffering from guinea worm, 24 drops of stramonium and a leaf of
dathura without properly studying its effect. The patient died as a result of the medicine given
by the accused. Stramonium and dathura are poisonous. So, giving the same without being
aware of its effects was held to be a rash and negligent act. The accused was convicted under
section 106, and sentenced to two years rigorous imprisonment.
When a hakim gave a procaine penicillin injection to a patient because of which he died, it
was held that the hakim was guilty under section 106.

However, during the recent past the Supreme Court has attributed a different standard to
"negligence" when it comes to a professional, particularly, a medical practitioner.
In Suresh Gupta (Dr) v Govt of National Capital Territory of Delhi, the Supreme Court held
that for fixing criminal liability of a doctor, the standard of negligence should not merely be
lack of necessary care, attention and skill. The standard of negligence required to be proved
should be so high as can be described as "gross negligence" or "recklessness". With this
perception, the court observed:
When a patient agrees to go for medical treatment or surgical operation, every careless act of
the medical man cannot be termed as 'criminal'. It can be termed 'criminal' only when the
medical man exhibits a gross lack of competence or inaction and wanton indifference to his
patient's safety and which is found to have arisen from gross ignorance or gross negligence.
Where a patient's death results merely from error of judgment or an accident, no criminal
liability should be attached to it. Mere inadvertence or some degree of want of adequate care
and caution might create civil liability but would not suffice to hold him criminally liable.The
act show negligence or rashness of such a higher degree can be described as punishable.
complained against the doctor must as to indicate a mental state which totally apathetic
towards the patient. Such gross negligence alone is punishable.

In Jacob Mathew v State of Punjab, the Supreme Court not only approved the principle laid
down in the Dr Gupta case but also opined that "negligence in the context of medical
profession necessarily calls for a treatment with a difference. a case of occupational
negligence is different from one of professional negligence." Delving into liability of a doctor
for his rash or negligent act leading to death of his patient, it ruled that:
[A] professional may be held liable for negligence on one of the two findings:
either he was not possessed of the requisite skill which he professed to have possessed, or, he
did not exercise, with reasonable competence in the given case, the skill which he did
possess. The standard to be applied for judging, whether the person charged has been
negligent or not, would be that of an ordinary competent person exercising ordinary skill in
that profession.

Section 106 (BNS) addresses causing death by negligence, with two sub-sections:

- 106(1) for general negligence and 106(2) for rash and negligent driving with escape.
- Section 106(1) carries a punishment of up to 5 years imprisonment and a fine for
causing death by rash or negligent act, with a reduced punishment of up to 2 years for
registered medical practitioners.
- Section 106(2) punishes drivers who cause death by rash and negligent driving and
then escape without reporting the incident, with imprisonment of up to 10 years and a
fine.