IPC 304 in the new BNS 2023

If you have been named in an FIR or notice under this section, the section number alone does not decide the outcome — the facts, the evidence and the procedure do. Many cases turn on procedural lapses, bail strategy and the exact ingredients of the offence.

Culpable homicide not amounting to murder is the charge that sits immediately below murder, and the difference between the two decides whether a person faces a mandatory life sentence or a term that may be as short as five years. Under the BNS it is punished by Section 105, and it is one of the provisions where the punishment genuinely changed.

What the section requires

For the offence to be made out, these ingredients have to be established:

• the accused caused the death of a person
• the act was done either with the intention of causing death or of causing bodily injury likely to cause death, or with the knowledge that it was likely to cause death but without any such intention
• the case does not amount to murder, either because the required intention or knowledge for murder is absent or because one of the statutory exceptions applies

What changed from the IPC

The BNS introduced a mandatory minimum where the IPC had none. Under IPC 304 Part 1, an act done with the intention of causing death or bodily injury likely to cause death attracted imprisonment for life, or imprisonment of either description for a term which could extend to ten years, with no floor — a court could impose a short sentence. Under BNS 105 the corresponding punishment is imprisonment for life, or imprisonment for a term which shall not be less than five years but which may extend to ten years, together with a fine. The second limb, where the act was done with knowledge that it was likely to cause death but without the intention, remains punishable with up to ten years and a fine and carries no minimum.

How this section is distinguished from related offences

The boundary with murder is the single most litigated question in Indian criminal law. Culpable homicide becomes murder under BNS 101 unless one of the exceptions applies, and those exceptions are what convert a murder charge into this one: grave and sudden provocation, exceeding the right of private defence in good faith, a public servant exceeding lawful powers in good faith, a sudden fight in the heat of passion without premeditation and without the offender taking undue advantage or acting in a cruel manner, and death caused with the consent of a person above eighteen. Below this provision sits causing death by negligence under BNS 106, which applies where there was neither the intention to cause death nor the knowledge that death was likely.

How the case proceeds

The offence is cognizable and non-bailable and is tried by a Court of Session. In practice the FIR is very often registered for murder under BNS 103, with the question of whether the case falls within an exception left to be decided at the stage of framing charges or at trial. That means an accused facing a murder charge may well be contesting for a conviction under Section 105 rather than for an acquittal, and the evidence that supports that argument — provocation, a sudden quarrel, the absence of premeditation — has to be built into the record from the beginning.

Evidence that usually decides these cases

Because the fact of death is rarely disputed, the evidence that decides these cases is the evidence about how the incident unfolded. The post-mortem report is central: the number, depth and location of injuries indicate whether the assault was sustained and directed at vital parts or was a single blow in a scuffle. Whether the weapon was carried to the scene or was something available there is often the decisive fact on premeditation. Eyewitness accounts of how the quarrel began, and how much time passed between the trigger and the fatal act, determine whether the sudden-fight and provocation exceptions are available. Evidence of a prior dispute cuts both ways: it supplies motive for the prosecution but can also establish that emotions were already inflamed.

How courts approach sentencing

Where the act was done with the intention of causing death or bodily injury likely to cause death, the punishment is life imprisonment, or a term of not less than five years extending to ten years, and a fine. Where it was done with the knowledge that death was likely but without that intention, the maximum is ten years and a fine, with no minimum. Courts weigh premeditation, the extent of provocation, the number of injuries, the weapon used and whether the accused took undue advantage of the deceased.

Defences that commonly apply

The defences here are mostly about placing the case within an exception rather than denying the act. A sudden fight in the heat of passion, without premeditation and without the accused taking undue advantage or acting cruelly, is the most commonly invoked. Grave and sudden provocation requires that the provocation was serious, that it was sudden, and that the accused acted while deprived of self-control rather than after time to reflect. Exceeding the right of private defence in good faith is available where the accused was entitled to defend but went further than necessary. Where the prosecution cannot establish even the knowledge that death was likely, the case falls to negligence under BNS 106 instead.

How a case under this section typically progresses

The case begins with an FIR, an inquest and a post-mortem. Investigation covers the recovery of the weapon, forensic examination and witness statements, followed by a charge sheet. The matter is committed to a Court of Session, and the framing of charges is the critical stage, because whether the accused is tried for murder under Section 103 or for culpable homicide under Section 105 is often decided there. Trials of this kind are long, and the outcome frequently turns on whether the evidence at the close of the prosecution case supports one of the exceptions.

Documents worth gathering early

Obtain the post-mortem report, the inquest papers and the complete FIR, and read the post-mortem alongside the eyewitness accounts, since inconsistencies between them are where these cases are won. The seizure memo and forensic report on the weapon establish whether it was carried or improvised. Collect the details of every witness to the start of the incident, not merely to the fatal act, because the exceptions depend on how the confrontation began. Where a prior dispute exists, keep the papers relating to it. Photographs of the scene taken before it was disturbed, and any CCTV covering the approach to it, should be secured immediately.

Note on bail and cognizability. Whether an offence is cognizable, and whether it is bailable, is set by the First Schedule to the Bharatiya Nagarik Suraksha Sanhita (BNSS) 2023, not by the BNS section itself. Because that classification decides whether police can arrest without a warrant and how bail is approached, check it for your specific section with an advocate rather than relying on a general summary.

If you have been named under this section

The most important early decision is what the defence is actually aiming at. Where the fact of causing death is not seriously in dispute, the contest is over which provision applies, and the material that matters is everything bearing on how the incident began: who started it, whether there was a prior plan, whether a weapon was carried to the scene or picked up there, and how much time passed between the provocation and the act. That material is gathered from witnesses and circumstances rather than documents, and it degrades quickly.

Common misunderstandings

"There is still no minimum sentence."
Under BNS 105 the first limb now carries a minimum of five years. IPC 304 Part 1 had no floor, so a sentence below five years was possible; under the BNS it is not.

"Culpable homicide and murder are different offences."
Every murder is culpable homicide; not every culpable homicide is murder. Murder is the aggravated form, and the exceptions in BNS 101 are what bring a case back down to Section 105.

"Any provocation reduces murder to culpable homicide."
The provocation must be both grave and sudden, and the accused must not have sought it out or acted after a cooling-off period. Ordinary anger or an old grievance does not qualify.

"An unintended death is automatically culpable homicide."
Where there was neither intention nor knowledge that death was likely, the offence is causing death by negligence under BNS 106, not culpable homicide.

Related BNS sections

• BNS 105 — Culpable homicide not amounting to murder
• BNS 103 — Murder (IPC 302)
• BNS 101 — Culpable homicide and the exceptions
• BNS 106 — Causing death by negligence (IPC 304A)

Which code applies to your case

The Bharatiya Nyaya Sanhita 2023 replaced the Indian Penal Code 1860 with effect from 1 July 2024, and the change is not retrospective. The date the offence is alleged to have been committed decides which code governs it. An offence alleged to have occurred on or after 1 July 2024 proceeds under the BNS. An offence alleged to have occurred before that date continues to be investigated, tried, appealed and punished under the IPC, even where the FIR was registered later. Cases from the transition period frequently cite both numbering systems, which is why the old section number remains worth knowing.

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General information for understanding the IPC→BNS change, not legal advice. The BNS restructured many offences — confirm the exact section, sub-section and punishment with a licensed advocate.