IPC 304A 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.

This is the section that covers fatal road accidents, workplace and construction deaths, and deaths arising from professional negligence. It is the provision under which a very large number of Indian prosecutions arise, and under the BNS it carries by far the most significant punishment increase of any commonly charged offence. It now sits at Section 106.

What the section requires

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

• the death of a person was caused
• the death resulted from a rash or negligent act of the accused
• the act does not amount to culpable homicide, meaning there was neither an intention to cause death nor the knowledge that death was likely

What changed from the IPC

This is a substantial change, not a renumbering. Under IPC 304A the maximum punishment was two years. Under BNS 106(1) it is five years — more than double. The BNS also introduced two things the IPC did not have. First, a carve-out for registered medical practitioners: where the act is done by a registered medical practitioner while performing a medical procedure, the maximum is two years rather than five. Second, a separate and much harsher provision at Section 106(2) for a person who causes death by rash or negligent driving and then escapes without reporting the incident to a police officer or magistrate soon afterwards, carrying up to ten years. Section 106(2) was not brought into force on 1 July 2024 and has been kept in abeyance following protests by transport operators, so at present the operative provision for a fatal road accident is Section 106(1) with its five-year maximum. Anyone relying on this should confirm the current notification position, since abeyance is a policy decision that can be reversed.

How this section is distinguished from related offences

The boundary that matters most is between negligence under BNS 106 and culpable homicide. If the accused intended to cause death, or knew that death was the likely result, the offence is not negligence at all but culpable homicide under BNS 105, or murder under BNS 103, and the punishment is of a wholly different order. Courts have on occasion held that driving of an extreme and obviously dangerous kind crosses from negligence into knowledge. Below BNS 106 sit the endangerment provisions, principally rash driving on a public way, now BNS 281, which applies where dangerous driving occurred but no death resulted. Motor Vehicles Act offences and the compensation claim before the Motor Accident Claims Tribunal run separately from the criminal case and are not affected by its outcome.

How the case proceeds

The five-year maximum places the offence in the bracket where the Supreme Court's directions in Arnesh Kumar v State of Bihar apply, so arrest should not be mechanical and a notice of appearance is ordinarily the correct first step. In road accident cases the investigation typically centres on the mechanical inspection report, the site plan, the post-mortem and the statements of eyewitnesses. It is important to keep the criminal prosecution separate in your mind from the claim before the Motor Accident Claims Tribunal: the tribunal decides compensation on a different and lower standard, and an acquittal in the criminal case does not defeat a compensation claim.

Evidence that usually decides these cases

In road cases the documents generated in the first days usually decide the outcome: the site plan showing the position of the vehicles and the point of impact, the mechanical inspection report on both vehicles, the post-mortem report, and photographs of the scene before it was cleared. Skid marks, debris fields and the resting positions of the vehicles are the material from which speed and rashness are reconstructed, and all of it disappears quickly. Eyewitness accounts are common but frequently inconsistent with the physical evidence, and where they conflict the physical evidence generally prevails. In workplace deaths the safety records, statutory registers and the inspecting authority's report carry the weight. In medical cases the case sheet, consent form and expert opinion are central.

How courts approach sentencing

The maximum under BNS 106(1) is five years and a fine, and two years where the act was that of a registered medical practitioner performing a medical procedure. Section 106(2), which would carry up to ten years for causing death by rash or negligent driving and then escaping without reporting, is not currently in force. Sentencing takes account of the degree of rashness, whether the accused stopped and assisted, and whether compensation has been paid, though payment does not by itself dispose of the prosecution.

Defences that commonly apply

The central question is always whether the act was in fact rash or negligent, and the most effective defences attack that directly: mechanical failure that could not reasonably have been anticipated, a road defect, sudden and unforeseeable conduct by the deceased or a third party, or visibility conditions that made the incident unavoidable. Contributory conduct by the deceased is relevant to whether the accused was negligent at all. Where the prosecution case rests on eyewitness assertions of high speed that are inconsistent with the physical evidence, the contradiction is usually the strongest point available. In medical cases the defence is that the treatment met the standard of a reasonably competent practitioner, which is established through expert evidence rather than outcome.

How a case under this section typically progresses

A fatal accident case begins with an FIR, an inquest and a post-mortem, followed by the mechanical inspection and the preparation of the site plan, usually within days. The charge sheet follows the completion of these steps. Trial is before a magistrate given the five-year maximum. The parallel compensation claim before the Motor Accident Claims Tribunal proceeds on its own timetable and is often resolved before the criminal trial concludes, since the tribunal applies a lower standard of proof and does not wait for the criminal outcome.

Documents worth gathering early

Obtain the FIR, the site plan, the mechanical inspection report for every vehicle involved, the post-mortem report and the inquest papers. Photographs of the scene taken before the vehicles were moved are extremely valuable and are usually only in the hands of those present, so collect them immediately from whoever took them. Keep the vehicle's registration, insurance, fitness certificate, permit where applicable and the driving licence together, since their absence or expiry is routinely relied on to suggest negligence independent of the accident itself. Request CCTV from any premises along the road in writing at once. In a workplace death, secure the safety records and statutory registers; in a medical case, the complete case sheet and consent documentation.

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

Do not treat a fatal accident case as a formality because the offence is described as negligence; the punishment has more than doubled and it is now a serious matter. Preserve the vehicle in the condition it was in immediately after the incident until the mechanical inspection has been completed, because a defect that caused or contributed to the accident cannot be established once the vehicle has been repaired. Where the allegation is professional or medical negligence, the standard applied is that of a reasonably competent practitioner in the field, and expert opinion is usually decisive.

Common misunderstandings

"The maximum is still two years."
It is five years under BNS 106(1). The two-year maximum belonged to IPC 304A and now applies only to offences committed before 1 July 2024, and to registered medical practitioners acting in the course of a medical procedure.

"The ten-year hit-and-run provision is in force."
Section 106(2) was kept in abeyance and was not brought into force on 1 July 2024. Fatal road accidents are currently prosecuted under 106(1). The position can change by notification, so it should be checked rather than assumed.

"Settling with the family ends the case."
A settlement may resolve the compensation claim, but the criminal prosecution is brought by the State. Whether it can be compounded or quashed is a separate question to be taken to an advocate.

"If the accident was unavoidable there is no case."
That is a defence, not an automatic outcome. The prosecution has to establish rashness or negligence, and evidence of road conditions, mechanical failure or the deceased's own conduct is how that is contested.

Related BNS sections

• BNS 106 — Causing death by negligence
• BNS 105 — Culpable homicide not amounting to murder (IPC 304)
• BNS 281 — Rash driving on a public way (IPC 279)
• BNS 103 — Murder (IPC 302)

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.