By: Madhav Sharma

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“Ambiguity lurks in generality and may thus become an instrument of severity” ~ Felix Frankfurter

INTRODUCTION

The distinction between rashness and negligence is one of the most contentious legal issues in cases related to negligent homicide under s. 106 of the Bharatiya Nyaya Sanhita (hereinafter ‘BNS’). The entire jurisprudence of rashness and negligence is in dire need of reconsideration, both conceptually and practically. The issue stems not only from the judicial missteps but also from the vague phrasing of the provision, which omits crucial definitions and creates ambiguity. The legislature had the opportunity to address these ambiguities while enacting the BNS. Instead, it compounded the issue by increasing the punishment from two to five years, deepening the rift between the state and its citizens, by upholding vague definitions for stringently punished offences. It is argued that The offence has developed inconsistently through ill-informed actions by judges, jurists, academics and legislators. Consequently, the fundamental question as to the basis of rashness and the scope of negligent homicide remains largely unanswered.

To address these problems, I firstly examine the relevant provisions relating to negligent homicide under the BNS, particularly the continuum between s. 100(c), s. 101(d), and s. 304A. Secondly, I specifically dive into s. 304A and analyse the interpretation of the word ‘Rash’ as mentioned in the section. Thirdly, I conflate the interpretation of rash with the parallel and competing requirement of ‘negligent’.

This article is the first in a two-part series examining the jurisprudential ambiguities surrounding rashness and negligence under s. 106 BNS. It focuses on the definitional uncertainty of rashness, its relationship with recklessness, and its place within the broader framework of involuntary homicide. The second article will further explore the conflation of rashness with negligence and its impact on judicial interpretation.

A READING OF SECTION 106 BNS

Prior to the 1870s, there was no provision on negligent homicide, and the English law punished inadvertent deaths during the commission of an offence as murder. Several reformers, including Macaulay, tried to introduce a separate provision for involuntary homicide. Under such a provision, the accused could only be held guilty for a purely accidental death if it was shown that the death was caused in a rash and negligent manner. This mirrors the English common law offence of involuntary manslaughter, where no murderous intent is necessary. However, the Select Committee rejected Macaulay’s progressive proposals and instead adopted a more conservative approach advocated by the English Commissioners. Thus, the closest provision, before the amendment, addressing involuntary deaths was s. 299(c). It stated:

“Whoever causes death by doing an act with the knowledge that he is likely by such act to cause death, commits the offence of culpable homicide.”

Clause (c) of Section 299 refers to a person who has actual knowledge that their conduct is likely to cause death. In contrast, the offence of murder requires both actual knowledge and the intention to cause death. In a way, s. 299(c) introduced the concept of Reckless Homicide or causing death with the knowledge of a distinct probability of such consequence, even in the absence of intent. Another provision addressing death caused by reckless acts is also found under s. 300 (fourthly) [s. 101(d) under the BNS], which applies when the act is known to be imminently dangerous and likely to result in death or severe bodily harm. Additionally, in Punnayya, the court distinguishes between s. 299(c) and s. 300 (fourthly) – both dealing with involuntary homicides – thereby establishing a broader family of offences pertaining to varying degrees of reckless homicide.

It was only after the 1870 legislative amendment that s. 304A, addressing involuntary homicide, was formally incorporated into the Indian Penal Code (hereinafter ‘IPC’). It stated:

“Whoever causes the death of any person by doing any rash or negligent act not amounting to culpable homicide, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both.”

So, when offences related to reckless homicide already exist, what then falls under the ambit of negligent homicide as defined under the s. 304A of the IPC? The inclusion of s. 304A also raises interpretive questions about its harmonisation with s. 299(c) and 300 (fourthly). Is s. 304A merely an additional provision addressing lesser culpability in involuntary homicide, or does it lay down a general principle encompassing both reckless homicide and negligent deaths?

INTERPRETATION OF RASHNESS

Definitional Uncertainty of Rashness

To understand the broader spectrum of offences within involuntary homicide, it becomes essential to understand the common thread uniting the three offences, which is the rash nature of the death caused. I believe that while Rashness is central to s. 304A, it also constitutes a major part of the other two provisions. The term rashness is largely undefined in the IPC. Courts often acknowledge negligence but have ‘virtually ignored’ the distinct culpability attached to rashness. At times, the courts have erroneously equated the two very distinct concepts of rashness and negligence, indicating a lack of conceptual clarity.

Is Rashness Recklessness?

The widely accepted definition of rashness was laid down in Nidamarti Nagabhushanam, where Holloway, J. defined culpable rashness as:

“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.”

A rash act is primarily a careless and overhasty act, which contains the element of recklessness. Rashness as a concept entails some form of consciousness that the act may bring some undesirable or illegal outcomes, but with the belief that they likely won’t occur. Broadly speaking, rashness becomes a strictly subjective test involving the assessment of the accused’s ‘consciousness’ and ‘foresight’ of harm. These definitions of Rashness align with the largely similar concept of recklessness under English law, which also provides for a consciousness of risk and is established through a subjective test.

However, rashness must be distinguished from recklessness. Conflating the two dilutes the nuanced differences between s. 299(c) and 300(fourthly) of the IPC. Rashness, instead, must be understood as a subcategory within the broader family of offences dealing with recklessness. Thus, it becomes crucial to understand how the concept of Rashness is distinct from other forms of involuntary homicides as laid down in the IPC.

In this regard, scholars have presented a scheme of what can be termed as reckless homicides, differing in degrees of culpability and severity of punishment. What differs in these homicides is the standard of recklessness required to establish the offence. The first is what might be called gross recklessness, represented by s. 300(fourthly) of the IPC. The gross nature of this offence is shown by the fact that it carries the ‘highest degree of possibility’ as to the death of the person, almost to a practical certainty. The second is substantial recklessness, represented by s. 299(c), which connotes a lower degree of risk than that under s. 300. As held by the Supreme Court, the degree of risk required here is not the highest but merely a distinct possibility of death, thus connoting a lower level of culpability. This distinction is further strengthened by Reg. v Govinda, where the court differentiates between death as a likely result and most probable result, amounting to culpable homicide (s. 299(c)) and murder (s. 300 fourthly), respectively.

Lastly, in this family of offences, we have rashness, where death is caused by a rash act, which neither constitutes murder nor culpable homicide. This section contains the element of recklessness carrying the lowest possible degree of risk, and thus, culpability after s. 299 and s. 300. Rashness is by far the least serious out of all three, and thus, while the knowledge as to the wanton nature of the act might be present, the degree of risk here is minimal.  For instance, when intent or knowledge is the direct motivating force of the act, s. 304A makes way for the graver charge of culpable homicide. Equating rashness with the broader recklessness, oversimplifies complex and nuanced concepts and may lead to disastrous consequences. However, the tendency to equate rashness extends beyond recklessness and also includes negligence, a misconception that requires further examination in the next section.

CONCLUSION

The jurisprudential confusion surrounding rashness and negligence continues to create inconsistencies in judicial interpretation. A clearer conceptual framework is required to distinguish these terms meaningfully. In the next part of this series, we examine how courts have further blurred these distinctions by conflating rashness with negligence and explore the implications of this interpretive gap.

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