Self Defence, Private Defence and Law

Self Defence, Private Defence and Law 

Under S.35 of BNS, 2023 private defence is available to a person in respect of  his own body, and the body of any other person. 

Joint reading of S.38 and S. 41 of BNS, 2023 would show the situations under which one can cause death of the person while acting in private defence : 

an assault as may reasonably cause the apprehension that death will otherwise be the consequence of such assault. 

an assault as may reasonably cause the apprehension that grievous hurt will otherwise be the consequence of such assault. S.116 of BNS, 2023 would explain "grievous". 

an assault with the intention of committing rape.

an assault with the intention of gratifying unnatural lust.

an assault with the intention of kidnapping or abducting.

an assault with the intention of wrongfully confining a person, under circumstances which may reasonably cause him to apprehend that he will be unable to have recourse to the public authorities for his release 

an act of throwing or administering acid or an attempt to throw or administer acid which may reasonably cause the apprehension that grievous hurt will otherwise be the consequence of such act. 

Offence, the committing of which, or the attempting to commit which, occasions the exercise of the right, be an offence of robbery.

offence, the committing of which, or the attempting to commit which, occasions the exercise of the right, be an offence of house-breaking after sunset and before sunrise. House-breaking is defined in S.330 (2) of BNS, 2023. For specific offence see S.331 (2). 

offence, the committing of which, or the attempting to commit which, occasions the exercise of the right, be an offence of mischief by fire or any explosive substance committed on any building, tent or vessel, which building, tent or vessel is used as a human dwelling, or as a place for the custody of property.

Offence, the committing of which, or the attempting to commit which, occasions the exercise of the right, be an offence of theft, mischief, or house-trespass, under such circumstances as may reasonably cause apprehension that death or grievous hurt will be the consequence, if such right of private defence is not exercised. 

The previous section viz. S.96 of IPC was discussed in Munney Khan v. State of UP [1970] GCtR 6320 (SC) and it was held that according to S.97 of IPC "this right vests even in strangers for the defence of the body and property of other persons against offences mentioned therein."

Kashi Ram v. State of Rajasthan [2008] GCtR 6454 (SC) is another important decision on the issue of private defence under IPC, 1860. IPC, 1860 has been repealed by BNS, 2023. In that case when a person exceeds the right of private defence and causes death, then the impact on sentence was discussed. The phrase quoted from Kenny's Outlines of Criminal Law by J.C. Smith and Brian Hogan was this : "It is natural that a man who is attacked should resist, and his resistance, as such, will not be unlawful. It is not necessary that he should wait to be actually struck, before striking in self-defence." The observations made by Smith and Hogan are clearly in the context of pre-BNS era but support acting in private defence even if actual strike by assailant is done.