Study Notes by Akinchan Aggarwal, Advocate — B.A. (Hons.) Gold Medalist, LL.B., LL.M. (Disputes Resolution), UGC–NET, Ph.D. (pursuing)
Two men quarrel outside a shop. One picks up a knife and drives it into the other's chest. The man dies. Ask any first-year student what the offence is and the answer comes back instantly: murder.
Now change one fact. The blade goes into the thigh. It happens to sever the femoral artery, and the man bleeds to death in minutes. Same weapon, same quarrel, same dead man — and the Supreme Court has held that this is not murder.
The difference between the two is not the death. It is not the weapon. It is the precise mental state the law attaches to the injury that was actually intended. That distinction — between culpable homicide and murder — is the most technical, most litigated and most misunderstood boundary in Indian criminal law. Sir James Fitzjames Stephen called the provisions the weakest part of the Code. Generations of judges have called them confusing. They remain, word for word, in the Bharatiya Nyaya Sanhita, 2023.
The single most important thing to know about the BNS here: the definitions of culpable homicide and murder have been carried over from the Indian Penal Code, 1860 substantially unchanged. Only the numbers moved. Every judgment on ss 299 and 300, IPC — Virsa Singh, Nanavati, Rewa Ram, Ram Prasad — continues to govern ss 100 and 101, BNS. What did change is the punishment architecture, and that is where the real news is.
Contents
- The Section Map: IPC to BNS
- Homicide, Genus and Species
- Section 100, BNS — Culpable Homicide
- 'Causes Death': The Tests
- Intention and Knowledge Distinguished
- Transferred Malice — Section 102, BNS
- Section 101, BNS — Murder: The Four Clauses
- The Five Exceptions
- The Distinction, Clause by Clause
- The Four-Stage Method
- Punishment: Three Degrees
- Section 106, BNS — Death by Negligence
- What the BNS Actually Changed
- Points to Remember
- Frequently Asked Questions
1. The Section Map: IPC to BNS
Learn this table before anything else. In an examination hall or a courtroom, citing the wrong number is the fastest way to lose credibility.
| Provision | IPC, 1860 | BNS, 2023 | Status |
|---|---|---|---|
| Culpable homicide | s 299 | s 100 | Substantially unchanged |
| Murder | s 300 | s 101 | Substantially unchanged |
| Culpable homicide by causing death of a person other than the one intended | s 301 | s 102 | Unchanged |
| Punishment for murder | s 302 | s 103(1) | Unchanged in substance |
| Murder by a group of five or more on specified grounds | — | s 103(2) | NEW |
| Punishment for murder by a life-convict | s 303 | s 104 | Recast |
| Punishment for culpable homicide not amounting to murder | s 304 | s 105 | Minimum sentence introduced |
| Causing death by negligence | s 304A | s 106(1) | Punishment raised; medical carve-out added |
| Death by rash/negligent driving followed by escape | — | s 106(2) | NEW — not yet in force |
| Dowry death | s 304B | s 80 | Relocated to the chapter on offences against women and children |
| Attempt to murder | s 307 | s 109 | Substantially unchanged |
| Attempt to commit culpable homicide | s 308 | s 110 | Substantially unchanged |
2. Homicide, Genus and Species
Homicide simply means the killing of a human being by a human being. Not every homicide is a crime. The law recognises three categories: excusable homicide (accident, infancy, insanity), justifiable homicide (private defence, judicial acts), and unlawful or criminal homicide — homicide that is neither excused nor justified. Only the third concerns us here.
Within criminal homicide, the Sanhita creates four offences: culpable homicide not amounting to murder, culpable homicide amounting to murder, death by a rash or negligent act, and dowry death.
The foundational proposition, learn it verbatim: Culpable homicide is the genus; murder is its species. Every murder is culpable homicide, but every culpable homicide is not murder.
Section 100 defines culpable homicide simpliciter. Section 101 defines murder — which is also culpable homicide, but with special characteristics set out in its four clauses, and subject to five exceptions. If a culpable homicide falls within any of the four clauses of s 101, it is murder. Every other culpable homicide — including one that falls within any of the five Exceptions — is culpable homicide not amounting to murder.
3. Section 100, BNS — Culpable Homicide
Section 100, BNS, 2023 (formerly s 299, IPC):
"Whoever causes death by doing an act with the intention of causing death, or with the intention of causing such bodily injury as is likely to cause death, or with the knowledge that he is likely by such act to cause death, commits the offence of culpable homicide."
The three essential ingredients
- There must be the death of a person;
- The death must have been caused by the act of another person; and
- The act causing death must have been done with —
- (a) the intention of causing death; or
- (b) the intention of causing such bodily injury as is likely to cause death; or
- (c) the knowledge that such act is likely to cause death.
These are the three species or degrees of mens rea for culpable homicide. If none of the three is present, there can be no culpable homicide at all.
The three Explanations
| Explanation | Rule | Effect |
|---|---|---|
| Explanation 1 | A person who causes bodily injury to another who is labouring under a disorder, disease or bodily infirmity, and thereby accelerates that person's death, is deemed to have caused the death. | The accused cannot say "he would not have died but for his pre-existing illness." The thin-skull principle. |
| Explanation 2 | Where death is caused by bodily injury, the person who causes the injury is deemed to have caused the death, although proper remedies and skilful treatment might have prevented it. | Absence or failure of medical treatment does not break the chain. |
| Explanation 3 | Causing the death of a child in the mother's womb is not homicide. But it may amount to culpable homicide to cause the death of a living child if any part of that child has been brought forth, though the child may not have breathed or been completely born. | The threshold of legal personhood for homicide. Note: any part — not full delivery, not independent breathing. |
The illustrations, and what they teach
- (a) The covered pit. A lays sticks and turf over a pit intending or knowing death is likely. Z treads on it and dies. Culpable homicide. Teaches: an omission or a trap is as good as a blow.
- (b) The bush. A knows Z is behind a bush; B does not. A induces B to fire. B kills Z. B may be guilty of no offence; A has committed culpable homicide. Teaches: mens rea attaches to the person who has it, not to the hand that fires.
- (c) The fowl. A shoots at a fowl intending to steal it, and kills B behind a bush, not knowing he was there. Not culpable homicide, though the act was unlawful. Teaches: an unlawful act plus a death does not equal culpable homicide. The specific mens rea must be shown.
4. 'Causes Death': The Tests
The very first question — before any inquiry into the mind — is whether the accused's act caused the death. The relevant consideration is whether death resulted as a direct consequence of the act, and the connection between the primary cause and the death must not be too remote.
| Case | Facts and Holding |
|---|---|
| Moti Singh v State of Uttar Pradesh | The deceased received two gunshot wounds to the abdomen, dangerous to life, on 9 February. He was discharged; there was no evidence whether he had recovered. He died on 1 March, and the body was cremated without post-mortem. Held: the mere fact that the injuries were dangerous to life was not sufficient to hold that a death three weeks later was on account of them. Without evidence of the cause of death, causation failed. The connection must not be too remote. |
| Joginder Singh v State of Punjab | The accused chased the deceased, who jumped into a well, sustained head injuries and drowned. The accused were 15–20 feet away. Held: no evidence that they drove him into the well or left him no option. Causation not established; acquitted of murder. |
| Rewa Ram v State of Madhya Pradesh | Multiple knife injuries to the wife; operation; she then developed hyperpyrexia and died. The post-mortem attributed death to hyperpyrexia, not the injuries. Held (applying Explanation 2): the hyperpyrexia arose from her debilitated condition, which arose from the injuries and the post-operative starvation necessary for recovery. The supervening cause was not independent or unconnected. Conviction for murder upheld. |
The rule that emerges: a supervening cause defeats causation only if it is independent of the injury. If the supervening cause is itself traceable to the injury, the chain holds.
5. Intention and Knowledge Distinguished
Both words appear in ss 100 and 101, and they are used as alternative ingredients. They are not the same thing.
In Basdev v State of Pepsu, where an intoxicated accused shot a sixteen-year-old at a wedding feast, the Supreme Court drew the line:
"Motive is something which prompts a man to form an intention. Knowledge is an awareness of the consequences of the act. In many cases, intention and knowledge merge into each other and mean the same thing more or less and intention can be presumed from knowledge. The demarcating line between knowledge and intention is no doubt thin, but it is not difficult to perceive that they connote different things."
Three propositions worth memorising
- Intention does not require premeditation. The expectation that one's act is likely to result in death is sufficient. A person is presumed to intend the natural consequences of his acts.
- Knowledge is the minimum. Knowledge means consciousness — a bare awareness of the consequences of one's conduct. It is the least degree of mental element that makes a homicide culpable.
- 'Likely' shifts meaning between the sections. In s 100 (s 299), 'likely' denotes a lower degree of likelihood. The same word in s 101 (s 300) denotes a higher degree. This single interpretive move does most of the work in separating the two offences.
Proving intention
Direct proof is almost never available. Intention is inferred from the surrounding circumstances: motive, the nature of the attack, the time and place, the nature of the weapon, and above all the nature and situs of the injuries. Where injuries are inflicted on vital parts of the body with a sharp-edged or lethal weapon, the irresistible inference is an intention to kill. Whether intention exists is always a question of fact.
6. Transferred Malice — Section 102, BNS
Section 102, BNS, 2023 (formerly s 301, IPC) provides that where a person, by doing something he intends or knows to be likely to cause death, causes the death of someone whose death he neither intended nor knew himself to be likely to cause, the culpable homicide is of the same description as it would have been had he killed his intended victim.
This is the doctrine of transferred malice (or transferred mens rea). The mens rea travels with the act to the actual victim.
But note the qualification, which examiners love:
| Case | Holding |
|---|---|
| Gurmail Singh v State of Punjab | The accused raised a barchha to strike A; the blow fell on the deceased, who had intervened. Held: even if transmission of malice could be inferred, there was no evidence that the accused intended to cause the injury he actually inflicted. Conviction converted from s 302 to s 304 Part II. |
| Kashi Ram v State of Madhya Pradesh | The accused fired at a member of the adversary's party; the shot hit and killed another. Held: transferred malice applied, but as he neither aimed at nor intended the death of the deceased, he was guilty under s 304 Part II, not murder. |
The lesson: transferred malice fixes who the victim is. It does not upgrade the degree of the offence. The description of the homicide still depends on the mens rea actually established.
7. Section 101, BNS — Murder: The Four Clauses
Culpable homicide is murder if the act by which death is caused is done —
| Clause | Requirement | Nature of Test |
|---|---|---|
| Clause (a) / "Firstly" | With the intention of causing death | Subjective |
| Clause (b) / "Secondly" | With the intention of causing such bodily injury as the offender knows to be likely to cause the death of the person harmed | Subjective knowledge |
| Clause (c) / "Thirdly" | With the intention of causing bodily injury, and the injury intended is sufficient in the ordinary course of nature to cause death | Intention subjective; sufficiency purely objective |
| Clause (d) / "Fourthly" | With the knowledge that the act is so imminently dangerous that it must in all probability cause death or such bodily injury as is likely to cause death, committed without any excuse for incurring the risk | Knowledge, of the highest degree |
(a) Clause (1): Intention to cause death
The simplest and gravest species. Clause (1) of s 101 is identical to the first limb of s 100 — so an act falling within it satisfies both, and is murder unless an Exception applies.
Since intention is a state of mind, it is proved by external manifestation. Injuries on vital parts with sharp-edged instruments; setting a person alight after kerosene has been poured; a sword blow to the chest impairing the liver and aorta; a knife drawn downwards "as if to cut the body into two" — in each, intention to kill was inferred.
In Vasanth v State of Maharashtra, the accused, after a scuffle, ran to his jeep, drove it on the wrong side of a wide, deserted road at high speed, knocked the deceased down and ran over him. The Supreme Court held the intention to cause death established — there was no reason or necessity to drive on the wrong side.
(b) Clause (2): Intended injury plus subjective knowledge
The mens rea here is twofold: first, an intention to cause bodily harm; secondly, knowledge that death is the likely result of that intended injury. The knowledge is subjective — the accused's own personal perception of consequences.
This is the clause of special knowledge. Illustration (b) to the section explains it: A, knowing that Z is labouring under a disease such that a blow is likely to kill him, strikes him intending bodily injury. Z dies. A is guilty of murder — even though the blow would not ordinarily have killed a healthy person. But if A does not know of the disease, and gives a blow that would not ordinarily kill, he is not guilty of murder.
The distinction that carries marks: the second limb of s 100 ("intention of causing such bodily injury as is likely to cause death") does not require knowledge. Clause (2) of s 101 adds precisely that element. Knowledge is what separates them, and the word 'likely' in Clause (2), coupled with knowledge, imports near-certainty rather than mere probability.
(c) Clause (3): The Virsa Singh clause
This is the most heavily litigated provision in the whole of Indian criminal law, and the most frequently examined. It has two parts: (i) intention to inflict the particular injury; and (ii) that injury being sufficient in the ordinary course of nature to cause death. The essence is the sufficiency of the injury — meaning a very high probability of death.
In Virsa Singh v State of Punjab, the Supreme Court laid down the four-fold test. The prosecution must prove:
- It must establish, quite objectively, that a bodily injury is present;
- The nature of the injury must be proved;
- 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 that some other kind of injury was intended; and, once these three are proved,
- It must be proved that the injury of the type described is sufficient to cause death in the ordinary course of nature.
The crucial insight: the two parts are disjunctive
The Court stressed that the existence and nature of the injury is a matter of pure objective investigation, and that the sufficiency of the injury to cause death is a matter of pure objective inference having nothing to do with the intention of the offender.
Therefore:
- It does not matter that there was no intention to cause death.
- It does not matter that there was no intention to cause an injury of a kind sufficient to cause death.
- It does not even matter that there was no knowledge that an act of that kind would likely cause death.
Once the intention to cause the bodily injury actually found is proved, the rest of the enquiry is purely objective. The Court held the contrary requirement — that the accused must have intended or known the injury to be sufficient to cause death — to be fallacious.
But the particular injury must be intended
This is where the clause gives way, and it is the answer to the thigh-wound puzzle at the head of this article.
| Case | Holding |
|---|---|
| Harjinder Singh v Delhi Administration | The accused stabbed the deceased, who was in a crouching position while intervening. The knife entered the upper left thigh, cutting the femoral artery and vein. Held: it was not proved that the accused intended to inflict that particular injury at that particular place. Clause (3) inapplicable. Convicted under s 304 Part I. |
| Laxman Kalu Nikalje v State of Maharashtra | A stab to the chest near the shoulder — not a vital part — but the knife cut an artery inside, causing death. Held: no proof that the injury caused was the injury intended; but for the severing of the artery, death might not have ensued. Clause (3) inapplicable; convicted under s 304. |
| Addha v State of Madhya Pradesh | Sudden fight between two groups; attack with a lathi resulting in death. In the absence of evidence indicating intention to cause death, convicted under s 304, not murder. |
The practical takeaway for defence counsel: attack limb (3) of the Virsa Singh test. Was the accused positioned to aim at that spot? Was the victim moving, crouching, intervening? Was the fatal element (an artery, an organ) something the accused could have targeted? If the particular injury was not intended, Clause (3) collapses and the offence drops to culpable homicide not amounting to murder.
(d) Clause (4): Imminently dangerous acts
Here there need be no intention to kill anyone at all, and the act need not be directed at any particular individual. Illustration (d) sets the standard: A fires a loaded cannon into a crowd without excuse and kills one of them. A is guilty of murder, though he had no premeditated design against any individual.
Four ingredients
- The act must be imminently dangerous — the danger immediate and close at hand;
- The person must have knowledge that it is so imminently dangerous;
- That in all probability it will cause death, or bodily injury likely to cause death; and
- The act must be done without any reason or justification for running that risk.
In Thangaiya v State of Tamil Nadu, the Supreme Court held that Clause (4) applies where the offender's knowledge as to the probability of death approximates to a practical certainty — knowledge of the highest degree of probability.
In State of Madhya Pradesh v Ram Prasad, the accused poured kerosene over his wife during a quarrel and set her alight. The Court made an illuminating procedural observation: for Clauses (1)–(3), the enquiry into what injury the accused intended would be a matter of speculation; it was simpler to rely on Clause (4), which requires only knowledge and no intention. Though the clause is generally invoked where no particular person is targeted, it applies equally where there is such callousness towards the result and such a risk taken that the person must be said to know death is likely.
In Sehaj Ram v State of Haryana, a constable fired several shots at another; one hit below the knee, and he fired again after the victim fell. The contention that he meant only to frighten or cause grievous hurt was rejected; Clause (4) applied.
A subtlety on "without any excuse"
The phrase "without any excuse" in Clause (4) does not refer to the five Exceptions to the section. It contemplates situations other than, or falling short of, those Exceptions. Culpable homicide based on knowledge does not amount to murder if the accused had an "excuse" for incurring the risk, even where none of the five special Exceptions applies.
8. The Five Exceptions
Even where a case falls squarely within one of the four clauses, it ceases to be murder if it falls within any of the five Exceptions. It then becomes culpable homicide not amounting to murder.
Two propositions about their nature. First, these are special exceptions to murder alone — distinct from the General Exceptions in the Sanhita, which apply across offences and to special and local laws. Secondly, they do not exonerate. They convert murder into culpable homicide not amounting to murder and operate purely as mitigating factors.
Exception 1 — Grave and Sudden Provocation
Culpable homicide is not murder if the offender, whilst deprived of the power of self-control by grave and sudden provocation, causes the death of the person who gave the provocation, or of any other person by mistake or accident.
Three provisos. The Exception does not apply where the provocation was: (i) sought or voluntarily provoked by the offender as an excuse for killing; (ii) given by anything done in obedience to the law, or by a public servant in the lawful exercise of his powers; or (iii) given by anything done in the lawful exercise of the right of private defence.
The provocation must be both grave and sudden. Sudden but not grave will not do; grave but not sudden will not do.
KM Nanavati v State of Maharashtra — the four postulates
The naval officer whose wife confessed to an affair; who dropped his family at a cinema, went to his ship, drew a revolver and six cartridges, attended to some official business, drove to the deceased's office and then to his house, and shot him dead. The Supreme Court laid down:
- 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 self-control.
- In India, words and gestures may, in certain circumstances, cause grave and sudden provocation.
- 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.
- The fatal blow must be clearly traced to the influence of passion arising from that provocation, and not struck after the passion had cooled by lapse of time or otherwise giving room for premeditation and calculation.
Held: three hours had elapsed. There was sufficient time to regain self-control. Exception 1 was not attracted; conviction for murder upheld.
Contrast Hansa Singh v State of Punjab, where the accused saw the deceased committing sodomy on his son and killed him — grave and sudden provocation, conviction reduced from s 302 to s 304. And Dattu Genu Gaikwad v State of Maharashtra, where the accused killed a man who had attempted to outrage his wife's modesty a month earlier — the plea failed for want of suddenness.
Whether the provocation was grave and sudden is expressly a question of fact.
Exception 2 — Exceeding the Right of Private Defence
Where the offender, in the good faith exercise of the right of private defence of person or property, exceeds the power given to him by law and causes death without premeditation and without any intention of doing more harm than necessary for the purpose of that defence.
Exception 3 — Public Servant Exceeding Powers
Where a public servant, or a person aiding one, acting for the advancement of public justice, exceeds the powers given by law and causes death by an act he in good faith believes to be lawful and necessary for the due discharge of his duty, and without ill-will towards the person killed.
Exception 4 — Sudden Fight
Five requisites, all of which must be proved:
- Committed without premeditation;
- In a sudden fight;
- In the heat of passion;
- Upon a sudden quarrel; and
- Without the offender having taken undue advantage or acted in a cruel or unusual manner.
How Exception 4 differs from Exception 1
| Point | Exception 1 | Exception 4 |
|---|---|---|
| Loss of control | Total deprivation of self-control required | Loss of the power of reasoning due to heat of passion suddenly aroused |
| Who provoked | The offender must not have sought or voluntarily provoked it | "Sudden fight" implies mutual provocation and aggravation — it may be impossible to trace from which party the initial provocation came |
| Deliberation | Provocation must be grave and sudden | Absence of previous deliberation or determination to fight |
What is a "fight"?
- The word is not defined, but conveys something more than a verbal quarrel. It implies mutual attack in which both parties participate — an exchange of blows.
- An actual attack by one party and retreat by the other is not a fight. A one-sided attack cannot be a fight. Where an accused inflicted three fatal axe blows on an unarmed man, Exception 4 was held inapplicable — a fight postulates a bilateral transaction.
- But an attack by one and preparation to attack by the other does constitute a fight.
- "Sudden fight" or "upon sudden quarrel" indicates something in the nature of a free fight — where both sides mean to fight from the start and there is a pitched battle. Who attacks and who defends is then immaterial. There can be no free fight where the court finds one party was the aggressor.
- A sudden quarrel and absence of premeditation are not enough. It must also be shown that the accused took no undue advantage and did not act in a cruel or unusual manner.
Exception 5 — Consent
Culpable homicide is not murder when the person whose death is caused, being above the age of eighteen years, suffers death or takes the risk of death with his own consent.
The illustration is instructive: A instigates Z, a person under eighteen, to commit suicide. On account of Z's youth he was incapable of consenting to his own death; A has abetted murder.
9. The Distinction, Clause by Clause
The classic comparison, formulated by Melville J and repeatedly approved by the Supreme Court:
| Culpable Homicide — s 100, BNS (s 299, IPC) A person commits culpable homicide if the act by which death is caused is done: |
Murder — s 101, BNS (s 300, IPC) Subject to exceptions, culpable homicide is murder if the act is done: |
|---|---|
| (a) With the intention of causing death | (1) With the intention of causing death |
| (b) With the intention of causing such bodily injury as is likely to cause death | (2) With the intention of causing such bodily injury as the offender knows to be likely to cause the death of the person harmed |
| (3) With the intention of causing bodily injury, and the injury intended is sufficient in the ordinary course of nature to cause death | |
| (c) With the knowledge that the act is likely to cause death | (4) With the knowledge that the act is so imminently dangerous that it must in all probability cause death, or such bodily injury as is likely to cause death, and committed without any excuse for incurring the risk |
Reading the table
- Intention to kill — (a) and (1) are identical. An act under (a) is culpable homicide; it is also murder under (1) unless an Exception applies.
- Intention to injure — (b) versus (2) and (3). All deal with intended bodily injury. The difference is one of degree of likelihood. In (b), 'likely' means a mere probability or possibility. In (2), 'likely' coupled with subjective knowledge imports near-certainty. In (3), 'sufficient in the ordinary course of nature' imports certainty to a still greater extent, tested objectively.
- Knowledge — (c) versus (4). Both apply where there is no intention to cause death or injury, but knowledge that the act is risky. The question is the degree of risk to human life.
The one-line rule that decides most cases: if death is a likely result, it is culpable homicide; if death is the most probable result, it is murder.
10. The Four-Stage Method
Apply the law in stages. Do not leap to the conclusion.
- Stage 1 — Causation. Did the accused do an act which caused the death of another? Nothing else matters until this is established.
- Stage 2 — Is it culpable homicide at all? Ascertain that the death was not the result of accident or any other General Exception, and that the intention went beyond mere hurt or grievous hurt.
- Stage 3 — Does it fall within s 101? Test the facts against each of the four clauses.
- Stage 4 — Does an Exception apply? If it falls within a clause of s 101, ask whether it also falls within any of the five Exceptions. If not, it is murder. If it does, it is culpable homicide not amounting to murder.
11. Punishment: Three Degrees
The Sanhita, like the Code before it, recognises three degrees of culpable homicide — and this is where the BNS made real changes.
| Degree | Provision | Punishment under BNS | Change from IPC |
|---|---|---|---|
| First degree — murder | s 103(1) (s 302) | Death or imprisonment for life, and fine | Unchanged in substance |
| Murder by a group | s 103(2) — NEW | Where a group of five or more persons acting in concert commits murder on the ground of race, caste or community, sex, place of birth, language, personal belief or any other similar ground, each member shall be punished with death or imprisonment for life, and fine | New offence. No IPC equivalent |
| Second degree — culpable homicide with intention | s 105, first limb (s 304 Pt I) | Imprisonment for life, or imprisonment of either description for a term which shall not be less than five years but which may extend to ten years, and fine | A minimum of five years has been introduced. Section 304 Part I prescribed no minimum |
| Third degree — culpable homicide with knowledge only | s 105, second limb (s 304 Pt II) | Imprisonment of either description which may extend to ten years, and fine | Broadly comparable |
| Murder by a life-convict | s 104 (s 303) | Death, or imprisonment for life meaning the remainder of that person's natural life | Recast. The mandatory death sentence under s 303 had been struck down as unconstitutional in Mithu v State of Punjab |
12. Section 106, BNS — Death by Negligence
Section 106(1), BNS (formerly s 304A, IPC) punishes whoever causes death by a rash or negligent act not amounting to culpable homicide.
The provision does not create a new species of homicide. It addresses the class of case falling outside ss 100 and 101 — where neither intention nor knowledge is present. The moment either element appears, s 106 has no application.
Rashness and negligence distinguished
- Rashness conveys the idea of recklessness — doing an act without due consideration, with indifference to consequences.
- Negligence connotes a want of proper care.
What the BNS changed here
| Provision | Position |
|---|---|
| General punishment | Raised from two years under s 304A, IPC, to five years and fine under s 106(1), BNS. |
| Registered medical practitioner | A distinct, lower punishment — up to two years and fine — where the act is done by a registered medical practitioner while performing a medical procedure. "Registered medical practitioner" is defined by reference to qualifications recognised under the National Medical Commission Act, 2019 and entry in the relevant medical register. |
| s 106(2) — the hit-and-run provision | A new offence: causing death by rash and negligent driving of a vehicle not amounting to culpable homicide and escaping without reporting the incident to a police officer or Magistrate soon afterwards — punishable with imprisonment which may extend to ten years and fine. This sub-section has not been brought into force. Following nationwide protests by transport unions, its commencement was withheld, and it remains unnotified; the Delhi High Court dismissed a public interest litigation seeking its enforcement in July 2026. Verify the current position before relying on it. |
13. What the BNS Actually Changed
Strip away the renumbering and four substantive changes remain:
- Mob lynching became a distinct offence. Section 103(2) targets murder by a group of five or more acting in concert on identity-based grounds, and fixes liability on each member. This is the most significant addition to the homicide chapter.
- A minimum sentence entered s 105. The first limb now carries a floor of five years' imprisonment. Judicial discretion to award a nominal sentence for intentional culpable homicide has been removed.
- Negligent death became substantially more serious — two years to five — while a protected category was carved out for doctors at the old two-year level.
- A hit-and-run offence was created but not commenced, leaving s 106(2) on the statute book and off the field.
What did not change is more important than what did. Sections 100 and 101 reproduce ss 299 and 300 in substance — the same three limbs, the same four clauses, the same five Exceptions, the same illustrations, the same Explanations. The entire corpus of precedent survives intact. When you cite Virsa Singh today, you cite it for Clause (c) of s 101, BNS. The test has not moved an inch.
14. Points to Remember
- Genus and species. Every murder is culpable homicide; every culpable homicide is not murder. Open any answer with this.
- Three limbs, four clauses, five Exceptions. If you remember nothing else, remember the counting.
- 'Likely' is a sliding word. Lower degree in s 100; higher degree in s 101. Most of the distinction lives inside this single adjective.
- Clause (2) is subjective; Clause (3) is objective. Clause (2) asks what this accused knew about this victim. Clause (3) asks what the injury would do to anyone, as a matter of medical fact.
- Virsa Singh limb 3 is the battleground. Intention to inflict that particular injury — not any injury. Harjinder Singh and Laxman Kalu Nikalje are the illustrations.
- Explanation 2 defeats the medical-treatment defence. Failure of treatment does not break causation; only an independent supervening cause does (Rewa Ram).
- Transferred malice transfers the victim, not the grade. Gurmail Singh and Kashi Ram both ended in s 304 Part II.
- The Exceptions mitigate; they do not exonerate. Distinguish them sharply from the General Exceptions.
- Nanavati's fourth postulate decides most provocation cases — the fatal blow must be traceable to the passion, before it cools.
- Exception 4 needs a bilateral fight. A one-sided attack is not a fight, however sudden the quarrel.
- Section 106 requires the absence of both intention and knowledge. The moment either appears, you are back in s 100.
- Always give both numbers. "Section 101, BNS (formerly s 300, IPC)" — courts, examiners and clients are all still working across both.
15. Frequently Asked Questions
What is the difference between culpable homicide and murder under the BNS?
Culpable homicide (s 100) is the genus; murder (s 101) is a species of it. The difference lies entirely in the degree of intention or knowledge. Where the offender's mental state is of a higher degree — knowledge amounting to near-certainty, or an injury objectively sufficient in the ordinary course of nature to cause death — the offence is murder. A lower degree makes it culpable homicide not amounting to murder. If death is a likely result it is culpable homicide; if death is the most probable result it is murder.
Which section is murder under the BNS?
Section 101 defines murder (formerly s 300, IPC). Section 103(1) provides the punishment — death or imprisonment for life, and fine (formerly s 302, IPC).
Is the definition of murder different under the BNS from the IPC?
No. Section 101, BNS reproduces s 300, IPC in substance — the same four clauses and the same five Exceptions. The case law under s 300 continues to apply.
What is the Virsa Singh test?
A four-fold test for Clause (c)/(3): (1) a bodily injury must be objectively established; (2) its nature must be proved; (3) it must be proved that there was an intention to inflict that particular injury — not accidental, not unintentional, not some other injury; and (4) that injury must be sufficient to cause death in the ordinary course of nature. Once the intention to cause the injury actually found is proved, the rest of the enquiry is purely objective.
Does a mother's womb child count for culpable homicide?
Explanation 3 to s 100 provides that causing the death of a child in the mother's womb is not homicide. But it may amount to culpable homicide if any part of the child has been brought forth, even if the child has not breathed or been completely born.
What is the punishment for culpable homicide not amounting to murder under the BNS?
Under s 105: where the act is done with intention, imprisonment for life or imprisonment of not less than five years extending to ten years, and fine. Where it is done with knowledge only, imprisonment which may extend to ten years, and fine. The five-year minimum for the intention limb is new — s 304 Part I, IPC prescribed no minimum.
What is Section 103(2), BNS?
A new provision with no IPC equivalent. Where a group of five or more persons acting in concert commits murder on the ground of race, caste or community, sex, place of birth, language, personal belief or any similar ground, each member of the group is punishable with death or imprisonment for life, and fine. It is the Sanhita's response to mob lynching.
Has the hit-and-run provision come into force?
Section 106(2), which prescribes up to ten years for causing death by rash and negligent driving and escaping without reporting, has not been brought into force. Its commencement was withheld after protests by transport unions, and it remains unnotified. Readers should verify the current position, since the situation may change.
What is the punishment for causing death by negligence under the BNS?
Under s 106(1), up to five years and fine — raised from two years under s 304A, IPC. Where the act is done by a registered medical practitioner while performing a medical procedure, the punishment is up to two years and fine.
Do the five Exceptions to Section 101 result in acquittal?
No. They are special exceptions to murder alone and operate purely as mitigating factors. They convert murder into culpable homicide not amounting to murder, punishable under s 105. They do not exonerate the accused, unlike the General Exceptions.
Conclusion
Return to the two stabbings. In the first, the blade goes into the chest — a vital part, a sharp weapon, an injury the accused plainly meant to inflict where he inflicted it, and one objectively sufficient in the ordinary course of nature to cause death. Clause (3) of s 101 is satisfied, and unless the man can bring himself within an Exception, it is murder.
In the second, the blade goes into the thigh. On Harjinder Singh and Laxman Kalu Nikalje, the prosecution must prove he intended that injury in that place — and where the victim was crouching, or intervening, or the fatal element was an artery no assailant could have aimed for, that proof fails. Clause (3) collapses. The offence falls to s 105.
Nothing in the Bharatiya Nyaya Sanhita has changed that analysis. The numbers are new; the reasoning is a hundred and sixty years old and still, on any fair view, the most demanding piece of statutory interpretation an Indian criminal lawyer is asked to perform.
Disclaimer: These notes are prepared for educational purposes for law students, judiciary and AIBE aspirants, and practitioners, and do not constitute legal advice. Statutory provisions have been summarised and, in places, paraphrased for clarity; readers must verify the exact language against the enacted text of the Bharatiya Nyaya Sanhita, 2023 and the Indian Penal Code, 1860 before relying on it in argument or examination. Section numbering, commencement notifications and punishment provisions are subject to amendment — the position regarding Section 106(2) in particular should be checked afresh. Case holdings are stated in summary form; readers should consult the full reports before citation.
