Study Notes by Akinchan Aggarwal, Advocate — B.A. (Hons.) Gold Medalist, LL.B., LL.M. (Disputes Resolution), UGC–NET, Ph.D. (pursuing)
There are seven situations in which Indian law permits you to kill another human being, and it is not a crime. Not mitigated. Not reduced to culpable homicide. No offence at all.
Section 34 of the Bharatiya Nyaya Sanhita, 2023 says it in eleven words: "Nothing is an offence which is done in the exercise of the right of private defence."
Most people know this right exists. Almost nobody knows its shape — that it is a closed list, that it evaporates the instant the danger passes, that it is unavailable to whoever started the fight, and that the burden of proving it sits on the accused. Those limits are where real cases are won and lost, and they are the reason so many self-defence pleas fail in trial courts every year.
The BNS position: the entire law of private defence was carried over from ss 96–106 of the Indian Penal Code into ss 34 to 44 of the Sanhita, substantially unchanged. Only the numbers moved. The clause lettering changed from "First, Secondly, Thirdly" to (a), (b), (c) — and that is very nearly the whole of it.
Contents
- The Section Map
- Defensive, Never Punitive
- What You May Defend — Section 35
- Defence Against the Insane, the Child, the Intoxicated
- The Three Restrictions — Section 37
- The Seven Situations — Section 38
- When It Stops Short of Death — Section 39
- When the Right Begins and Ends — Section 40
- Harm to Innocent Bystanders — Section 44
- Defence of Property — Sections 41 to 43
- No Right for the Aggressor
- Burden of Proof
- Points to Remember
- Frequently Asked Questions
1. The Section Map
| Provision | IPC, 1860 | BNS, 2023 |
|---|---|---|
| Things done in private defence | s 96 | s 34 |
| Right of private defence of body and property | s 97 | s 35 |
| Defence against acts of persons of unsound mind etc. | s 98 | s 36 |
| Acts against which there is no right (the restrictions) | s 99 | s 37 |
| When defence of the body extends to causing death | s 100 | s 38 |
| When it extends to harm other than death | s 101 | s 39 |
| Commencement and continuance — body | s 102 | s 40 |
| When defence of property extends to causing death | s 103 | s 41 |
| When it extends to harm other than death — property | s 104 | s 42 |
| Commencement and continuance — property | s 105 | s 43 |
| Deadly assault with risk of harm to an innocent person | s 106 | s 44 |
All eleven sit in Chapter III of the BNS — the General Exceptions. That placement matters: unlike the five special exceptions to murder, these apply across the Sanhita and to offences under special and local laws, and they result in a complete acquittal, not a reduced conviction.
2. Defensive, Never Punitive
Everything in this chapter flows from one idea. The right exists to repel unlawful aggression — never to punish the aggressor for what he has done.
- It is preventive in nature, not punitive.
- It is neither a right of aggression nor of reprisal.
- Its exercise cannot be vindictive or malicious.
- A right to defend does not include a right to launch an offensive — least of all when the need to defend no longer survives.
- A person is not entitled to use violence disproportionate to the injury to be averted or reasonably apprehended.
The line to remember: the moment a defender exceeds what the situation required, he commits an offence — and by doing so disentitles himself from the right altogether.
3. What You May Defend — Section 35
Section 35, BNS (formerly s 97, IPC) gives every person, subject to the restrictions in s 37, the right to defend:
- His own body, and the body of any other person, against any offence affecting the human body; and
- Property, movable or immovable, of himself or any other person, against theft, robbery, mischief or criminal trespass — or an attempt to commit any of those four.
Two features deserve emphasis, because both surprise people.
First, the right extends to strangers. You may defend "the body of any other person." There is no requirement of relationship, and no duty to be personally under threat. A bystander who intervenes to stop an assault on someone he has never met is exercising the same right as the victim.
Second, for property the list is closed. The right arises only against theft, robbery, mischief or criminal trespass (or an attempt at one of them). If the interference with your property is not one of those four offences, this chapter gives you nothing.
4. Defence Against the Insane, the Child, the Intoxicated
Section 36, BNS (formerly s 98, IPC) answers an elegant problem. A person of unsound mind who attacks you commits no offence — he has a defence of his own. Does that mean you have no right to defend yourself, because there is no "offence" to defend against?
No. Where an act would otherwise be an offence but is not, by reason of the youth, want of maturity of understanding, unsoundness of mind or intoxication of the person doing it, or by reason of any misconception on his part, every person has the same right of private defence that he would have had if the act were an offence.
The logic is sound. The right is about the danger you face, not the culpability of the person creating it. A knife in the hands of a person of unsound mind is exactly as dangerous as a knife in anyone else's.
5. The Three Restrictions — Section 37
This is the section that decides cases, and the one most often skipped. Section 37, BNS (formerly s 99, IPC) sets three limits, and they govern every other provision in the chapter.
| Restriction | Rule |
|---|---|
| (1) Acts of public servants | There is no right against an act done, or attempted, by a public servant acting in good faith under colour of his office — or by a person acting on such a public servant's direction — even though the act may not be strictly justifiable by law. The right revives only where the act reasonably causes apprehension of death or grievous hurt. |
| (2) Time to reach the authorities | There is no right in cases in which there is time to have recourse to the protection of the public authorities. |
| (3) Proportionality | The right in no case extends to inflicting more harm than is necessary to inflict for the purpose of defence. |
The two Explanations
The protection given to public servants is not absolute. A person is not deprived of the right of private defence against an act done by a public servant unless he knows, or has reason to believe, that the person is a public servant. And where the person is acting on a public servant's direction, the same applies — unless he states the authority under which he acts, or, if he holds written authority, produces it when demanded.
Why the public-servant restriction exists. Partly because acts of public servants are probably lawful, so resistance would be unlawful; partly because resistance is unnecessary, since the law will set right whatever is wrongly done in its name; and partly because it is good for society that a public servant be protected in the execution of his duty even where he is in error.
The three conditions, compressed: (i) the public servant's act must not cause reasonable apprehension of death or grievous hurt; (ii) there must be no sufficient time to reach the authorities; and (iii) no more harm than necessary may be caused. Fail any one and the plea collapses.
6. The Seven Situations — Section 38
Now the provision this article opened with. Section 38, BNS (formerly s 100, IPC) provides that the right of private defence of the body extends — under the restrictions in s 37 — to the voluntary causing of death or any other harm to the assailant, if the offence occasioning the right is of any of these descriptions:
| Clause | The assault must be — |
|---|---|
| (a) | such as may reasonably cause the apprehension that death will otherwise be the consequence |
| (b) | such as may reasonably cause the apprehension that grievous hurt will otherwise be the consequence |
| (c) | with the intention of committing rape |
| (d) | with the intention of gratifying unnatural lust |
| (e) | with the intention of kidnapping or abducting |
| (f) | with the intention of wrongfully confining a person, in circumstances reasonably causing him to apprehend that he will be unable to have recourse to the public authorities for his release |
| (g) | an act of throwing or administering acid, or an attempt to do so, which may reasonably cause the apprehension that grievous hurt will otherwise be the consequence |
Clause (g) is the newest addition to this list. It entered the Penal Code by the Criminal Law (Amendment) Act, 2013, in the legislative response that followed the December 2012 Delhi case, and has been carried into the Sanhita.
Grouping the seven
Pillai groups them into four categories, which is the cleanest way to hold them in memory:
- Assault to kill or cause grievous hurt — clauses (a), (b) and (g);
- Assault to commit rape or gratify unnatural lust — clauses (c) and (d);
- Assault to kidnap or abduct — clause (e); and
- Assault to commit wrongful confinement in the specified circumstances — clause (f).
What the defender must prove
Where death is caused in the exercise of this right, the defender must establish that the offence fell within one of the enumerated descriptions, and that the assault caused a reasonable and immediate apprehension of death or grievous hurt in his mind.
Note the two words doing all the work: reasonable and immediate. Not a fear the defender happened to hold; a fear the situation objectively justified. And not a fear of something that might happen later; a fear of something happening now.
7. When It Stops Short of Death — Section 39
Section 39, BNS (formerly s 101, IPC) handles everything the previous section does not. If the offence is not of any description enumerated in s 38, the right of private defence of the body does not extend to voluntarily causing death — but it does extend, subject to the s 37 restrictions, to causing the assailant any harm other than death.
The architecture is therefore a ladder. A slap does not license a killing. But it does license whatever force short of death is proportionate to repelling it.
8. When the Right Begins and Ends — Section 40
Section 40, BNS (formerly s 102, IPC): the right of private defence of the body commences as soon as a reasonable apprehension of danger to the body arises from an attempt or threat to commit the offence — though the offence may not have been committed — and it continues as long as such apprehension of danger continues.
On commencement
- You do not have to wait to be struck. A mere threat is sufficient to bring the right into existence.
- But the right does not commence until there is a reasonable apprehension. The danger, or the apprehension of it, must be present, real or apparent.
- The right is available where one is suddenly confronted with the immediate necessity of averting an impending danger not of his own creation.
On continuance — and this is where most pleas die
The right is co-terminus with the apprehension of danger. When the danger ends, the right ends with it — in the same instant.
The illustration from the case law is unforgettable. After a grappling incident, the accused murderously assaulted a fleeing party. It was held that the supposed danger came to an end when he attacked the deceased; when the danger was over, his right was over too. He had no right to chase and kill.
The practical rule for counsel: in almost every failed self-defence case, the fatal fact is a pursuit. The moment your client moves from repelling to chasing, from defending to settling the score, he has stepped outside s 40 — and no amount of provocation earlier in the incident brings him back inside it.
9. Harm to Innocent Bystanders — Section 44
Section 44, BNS (formerly s 106, IPC) deals with a genuinely hard case. If, in exercising the right against an assault reasonably causing apprehension of death, the defender is so situated that he cannot effectually exercise that right without risk of harm to an innocent person, his right extends to the running of that risk.
The illustration is stark. A is attacked by a mob attempting to murder him. He cannot effectually defend himself without firing on the mob, and he cannot fire without risk of harming young children mingled with the mob. A commits no offence if by so firing he harms any of the children.
In Wassan Singh v State of Punjab, the accused — who had himself received nine injuries in a fight between two groups — fired at his assailants. The shot hit and killed an innocent woman bystander. The Supreme Court held he had the right of private defence, and acquitted him.
Two limits. The section applies only to assaults causing apprehension of death — not grievous hurt, not the other clauses of s 38. And although s 37's restrictions are not mentioned in it expressly, they apply to it by virtue of s 35.
10. Defence of Property — Sections 41 to 43
When you may kill to defend property — Section 41
Section 41, BNS (formerly s 103, IPC) extends the right of private defence of property, subject to s 37, to causing death, where the offence committed or attempted is:
- Robbery;
- House-breaking by night;
- Mischief by fire committed on any building, tent or vessel used as a human dwelling or as a place for the custody of property; or
- Theft, mischief or house-trespass, in circumstances that may reasonably cause apprehension that death or grievous hurt will be the consequence if the right is not exercised.
Note how much narrower this is than the body provision, and how the fourth head does most of the real work: ordinary theft never justifies killing, but theft that carries a reasonable apprehension of death or grievous hurt does.
Everything else — Section 42
Where the offence is theft, mischief or criminal trespass not of the descriptions in s 41, the right does not extend to causing death — but does extend, subject to s 37, to causing the wrongdoer any harm other than death.
Beginning and end — Section 43
Section 43, BNS (formerly s 105, IPC) is the most under-read provision in the chapter, and it repays close reading because the right ends at a different moment for each offence.
| Against | The right continues until — |
|---|---|
| Commencement (all) | It begins when a reasonable apprehension of danger to the property commences. |
| Theft | the offender has effected his retreat with the property, or the assistance of the public authorities is obtained, or the property is recovered. |
| Robbery | the offender causes or attempts to cause death, hurt or wrongful restraint, or as long as the fear of instant death, instant hurt or instant personal restraint continues. |
| Criminal trespass or mischief | the offender continues in the commission of the trespass or mischief. |
| House-breaking by night | the house-trespass begun by such house-breaking continues. |
The theft rule is the one to internalise. Once the thief has completed his retreat with the property, your right of private defence is gone. What remains is a complaint to the police, not a pursuit. This single sentence disposes of a great many "I caught him running away" defences.
11. No Right for the Aggressor
The right presupposes an attack by the person against whom it is claimed. It follows that:
- Where the person attacked by the accused was not the aggressor, the accused can claim no right of private defence.
- An act done in the exercise of the right cannot itself give rise to a right of private defence in favour of the aggressor in return.
- No aggressor can claim the right — and this holds even where the person exercising the right has the better of him, provided that person does not exceed his right. The moment he exceeds it, he commits an offence, and the position changes.
The courts have been warned to be careful that nobody, on the mere pretext of exercising the right, takes sides in a quarrel between others and inflicts injury.
Two illustrations from the reports:
| Case | Holding |
|---|---|
| Mannu v State of Uttar Pradesh | The deceased were waylaid and attacked with dangerous weapons on their way to market. Although the accused party also suffered injuries and a death, the plea of self-defence was rejected — the accused being the aggressors were not entitled to it. |
| State of Uttar Pradesh v Ram Swarup | A dispute over a market contract, an exchange of hot words, and the accused's father leaving in a huff — only to return an hour later with three sons and weapons. The interval and the arming are what destroy the plea: this is a return to attack, not a defence. |
12. Burden of Proof
Under s 105 of the Indian Evidence Act, 1872 — carried forward into the Bharatiya Sakshya Adhiniyam, 2023 — where a person is accused of an offence, the burden of proving circumstances bringing the case within a General Exception is on him, and the court shall presume the absence of such circumstances.
But the presumption is rebuttable, and the burden is far lighter than the prosecution's. The principles, as settled by the Supreme Court:
- The burden is on the accused who sets up the plea. Absent proof, the court cannot presume the truth of it — it shall presume the absence of the circumstances.
- The burden is discharged by showing a preponderance of probabilities in favour of the plea on the material on record — the civil standard, not proof beyond reasonable doubt.
- The accused need not plead self-defence in so many words. Adopting a different plea does not foreclose judicial consideration of the right.
- He need not call evidence to substantiate the plea. He may establish it from circumstances transpiring in the prosecution's own evidence, including by cross-examination of prosecution witnesses.
- He is entitled to acquittal if, on the whole of the evidence, a reasonable doubt is created in the court's mind about his guilt.
- Where witness evidence conflicts — some compatible with private defence, some supporting the prosecution — the evidence favouring the accused has to be accepted.
The classic statement is from Salim Zia v State of Uttar Pradesh:
"…the burden on an accused person to establish the plea of self defence is not as onerous as the one which lies on the prosecution… the accused need not establish the plea to the hilt and may discharge his onus by establishing a mere preponderance of probabilities, either by laying basis for that plea in the cross-examination of the prosecution witnesses or by adducing defence evidence."
13. Points to Remember
- Private defence results in acquittal, not mitigation. "Nothing is an offence." Distinguish it sharply from Exception 2 to s 101 (exceeding the right), which only reduces murder to culpable homicide.
- Seven clauses for the body (s 38); four heads for property (s 41). Both are closed lists.
- Section 37 governs everything. Public servants, time to reach authorities, no more harm than necessary. Quote it in every answer.
- You may defend a stranger. Section 35 says "any other person."
- Property defence lies only against four offences — theft, robbery, mischief, criminal trespass — or an attempt at one.
- A threat is enough to start the right; you need not wait to be struck (s 40).
- The right dies with the danger. Pursuit of a fleeing assailant is the single most common reason the plea fails.
- Against theft, the right ends when the retreat is complete (s 43) — the most-missed rule in the chapter.
- No aggressor may claim it, and exercising the right lawfully gives the aggressor no right in return.
- Section 36 preserves the right against the insane, the child and the intoxicated — the danger is what matters, not the attacker's culpability.
- Section 44 covers unavoidable harm to innocents — but only against an assault apprehending death.
- Burden on the accused, at the civil standard, dischargeable out of the prosecution's own evidence.
- Give both numbers. "Section 38, BNS (formerly s 100, IPC)."
14. Frequently Asked Questions
Can you legally kill someone in self-defence in India?
Yes, in seven defined situations under s 38, BNS (formerly s 100, IPC) — where the assault reasonably causes apprehension of death or of grievous hurt, or is with intent to commit rape, gratify unnatural lust, kidnap or abduct, or wrongfully confine you where you cannot reach the authorities, or is an acid attack or attempted acid attack causing apprehension of grievous hurt. In each case the killing is no offence at all, provided the restrictions in s 37 are satisfied.
Which BNS sections replaced IPC 96 to 106?
Sections 34 to 44 of the Bharatiya Nyaya Sanhita, 2023, in the same order. Section 96 became s 34, s 99 became s 37, s 100 became s 38, s 103 became s 41, and s 106 became s 44.
Can I kill to protect my property?
Only in the four situations in s 41, BNS (formerly s 103, IPC): robbery; house-breaking by night; mischief by fire on a building, tent or vessel used as a dwelling or for the custody of property; and theft, mischief or house-trespass in circumstances reasonably causing apprehension of death or grievous hurt. Ordinary theft does not justify killing.
Can I defend someone who is not related to me?
Yes. Section 35 extends the right to the body of any other person, and to the property of any other person. No relationship is required.
Can I chase and attack someone who is running away?
No. Under s 40, the right continues only as long as the reasonable apprehension of danger continues. Once the assailant flees and the danger passes, the right ends. Attacking a fleeing party is not private defence — and it is the commonest reason such pleas fail.
What if there was time to call the police?
Then there is no right at all. Section 37 states there is no right of private defence in cases in which there is time to have recourse to the protection of the public authorities.
Do I have any right against the police?
Generally not. There is no right against an act done by a public servant acting in good faith under colour of office, even if the act is not strictly justifiable by law. The right revives only if the act reasonably causes apprehension of death or grievous hurt. And you are not deprived of the right unless you know or have reason to believe the person is a public servant.
What if an innocent bystander is hurt?
Section 44 protects the defender. Where he faces an assault reasonably causing apprehension of death and cannot effectually defend himself without risk to an innocent person, his right extends to running that risk. In Wassan Singh, the accused's shot killed an innocent woman and he was acquitted.
Who has to prove self-defence?
The accused — but only to the standard of a preponderance of probabilities, not beyond reasonable doubt. He need not plead it in terms, need not lead evidence, and may establish it from the prosecution's own witnesses in cross-examination.
Did the BNS change the law of private defence?
No. Sections 34 to 44 carry over ss 96 to 106 of the IPC in substance. The clause lettering changed from "First, Secondly, Thirdly" to (a), (b), (c), and the numbers moved. The doctrine, and the case law on it, are untouched.
Conclusion
The law of private defence is more generous than most people expect, and much narrower than most people assume. It will let you kill a man to stop a rape, an acid attack, an abduction, or an assault you reasonably fear will kill or maim you — and call it no offence at all. It will let you do that to protect a total stranger. It will forgive you for harming a child in the crowd if that was the only way to save your own life.
And then it will take all of it away the second the danger passes.
That is the shape of the right: wide at the moment of peril, and gone the instant peril ends. Which is why the question in a self-defence trial is almost never "was he entitled to defend himself?" — it is "at the moment he struck the fatal blow, was he still in danger?" Everything in Sections 34 to 44 is an elaboration of that one question.
Disclaimer: These notes are prepared for educational purposes for law students, judiciary and AIBE aspirants, and practitioners, and do not constitute legal advice. Nothing here should be read as guidance on how to act in a confrontation; whether a particular act falls within the right of private defence is an intensely fact-specific question decided on the evidence in each case, and the burden of establishing it lies on the accused. 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 is subject to amendment and should be checked afresh. Case holdings are stated in summary form; readers should consult the full reports before citation.
