Cherubin Gregory v State of Bihar (1964) and S.N. Hussain v State of A.P. (1972) — the negligence pair

Section 106(1) punishes causing death by a rash or negligent act "not amounting to culpable homicide". Every exam problem on it asks the same two questions: was the act rash or negligent at all (Hussain), and does a tort-law excuse — the victim was a trespasser — take the act out of the criminal law (Cherubin Gregory). Read together, the pair gives you the definition of rashness and negligence in the Court's own words and the reminder that the Sanhita defines its own offences.

The appellant's neighbour, Madilen, lived in a house near his. About a week before 16 July 1959, the wall of her latrine fell down, leaving it exposed to public view, and she and others began using the appellant's latrine. He resented this, told them they had no permission, and protested — but the oral warnings proved ineffective. He then fixed a naked copper wire at the back of his house, charged with electric current, to prevent entry. Madilen touched it and died. He was convicted under IPC s. 304-A by the Sessions Judge, Champaran; the Patna High Court dismissed his appeal; he came to the Supreme Court by special leave.

The defence ran a tort-law point: the deceased was a trespasser; an occupier owes no duty to a trespasser; she would have had no cause of action for damages; and if the act was not a tort, it could not be a crime. Rajagopala Ayyangar J. found "no substance in this line of argument". Where there is a Code like the Penal Code defining offences, criminal liability turns on the Code's own definitions, not on whether the victim could have sued. The voltage fed into the wire "precludes any contention that it was merely a reasonable precaution for the protection of private property": a live wire of that kind was set either with the deliberate intention of causing harm to trespassers or in reckless disregard of their presence. The appeal was dismissed and the conviction stood.

The appellant drove an R.T.C. bus from Kurnool towards Vanaparthy on 1 January 1966. At about 6.30–7.00 a.m. it reached a railway level crossing between Alampur Road and Manopad stations. The crossing was in the charge of a gateman, whose duty it was to close the gate when a train was expected. It was admitted that when the bus arrived the gate was open. The driver went through and the bus was struck by a train on the metre-gauge line. The Munsif Magistrate acquitted him; the High Court, on the State's appeal, convicted him under IPC ss. 304-A, 338 and 337 and sentenced him to two years' rigorous imprisonment.

Palekar J. laid down the distinction that examiners quote: "Rashness consists in hazarding a dangerous or wanton act with the knowledge that it is so, and that it may cause injury. The criminality lies in such a case in running the risk of doing such an act with recklessness or indifference as to the consequences. Criminal negligence on the other hand 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." A driver who finds a manned gate open is entitled to proceed on the footing that no train is due; the omission of the gateman was the operative default, not any rashness or negligence of the driver. The Supreme Court set aside the conviction.

1. Rashness is conscious risk-taking — knowing the act is dangerous and running the risk anyway. Negligence is gross failure of the care it was the actor's imperative duty to take. Both are judged against all the circumstances (Hussain).
2. A criminal charge is answered by the Code's definitions; a defence available in tort (no duty to a trespasser) does not convert a rash act into an innocent one (Cherubin Gregory).
3. A lethal precaution against trespassers — a live wire at mains voltage — is not "reasonable protection of property"; the gravity of the means proves the recklessness (Cherubin Gregory).

• IPC s. 304-A is BNS s. 106(1): death by a rash or negligent act not amounting to culpable homicide — the maximum rose from two years to five years and fine; a registered medical practitioner acting in the course of a procedure faces up to two years.
• s. 106(2) is new: a rash or negligent driver who causes death and escapes without reporting to a police officer or Magistrate faces up to ten years — Hussain's driver, who stayed, would not be touched by it.
• The tort-excuse point in Cherubin Gregory is now reinforced by s. 3(1): every offence definition is read subject to the Chapter III exceptions and to nothing else. Private defence of property (ss. 41–43) never extends to a fixed lethal device; s. 41 lists the offences that justify causing death, and a neighbour using a latrine commits none of them.
• Hussain's distinction is the standard gloss on "rash or negligent" in s. 106(1) and on "voluntarily" in s. 2(33): knowledge that harm is likely, versus mere inattention.