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Bharatiya Nyaya Sanhita, 2023 Chapter III · General Exceptions
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Bharatiya Nyaya Sanhita, 2023 — Section 38

When Right of Private Defence of Body Extends to Causing Death

Section 38 lists the seven categories of assault so serious that the right of private defence of the body extends all the way to voluntarily causing death (or any lesser harm) to the assailant — subject always to Section 37's restrictions. The list runs from assaults reasonably threatening death or grievous hurt, through rape, unnatural lust, kidnapping, abduction, and wrongful confinement with no recourse to authorities, to acid attacks.

Please note: This page reflects our understanding of the law as of the date it was last reviewed. Parliament, the State Legislatures, and the courts continue to amend and interpret this law, and this page may not yet reflect the most recent change. Please verify the current text of the law independently, and consult a licensed advocate for advice on your own matter, before relying on this page.

Corresponding Provision Under Prior Law

Verified against the National Crime Records Bureau's official BNS–IPC concordance (Sankalan Portal) and cross-checked directly against the bare text of both Acts. Section 38 is marked Exact:

BNS 38CoversIPC, 1860 equivalentCategory
38When right of private defence of body extends to causing deathS.100 (all seven clauses identical, including the acid-attack clause)Exact

Comparing the bare text directly: BNS clauses (a) through (f) reproduce old IPC Section 100's six numbered grounds ("First" through "Sixthly" — death-threatening assault, grievous-hurt- threatening assault, rape, unnatural lust, kidnapping/abducting, and wrongful confinement without recourse to authorities) without substantive change, only reformatted from unlettered ordinal prose into lettered clauses. BNS clause (g) — the acid-attack ground — reproduces IPC Section 100's own clause (g), inserted into the IPC by the Criminal Law (Amendment) Act, 2013 (with effect from 3 February 2013), following the Justice Verma Committee's recommendations after the December 2012 Delhi gang-rape case; that amendment also introduced IPC Sections 326A and 326B on acid-attack offences specifically. All seven clauses of BNS 38 therefore correspond exactly to the seven clauses of IPC Section 100 as it currently stands; an earlier draft of this page compared against a local copy of the IPC text that predated the 2013 amendment and so wrongly treated clause (g) as having no IPC counterpart — corrected here after independent verification.

Quick Reference

Section 38 is a General Exception — it extends the right of private defence of the body, in specified serious situations, all the way to causing death. It carries no BNSS First Schedule entry and no cognizable/bailable/compoundable/triable-court classification of its own.

What it requires: the assault or act facing the defender must fall within one of the seven listed descriptions (clauses (a) through (g)), and the exercise of the right remains subject to Section 37's restrictions (no excess harm, no exclusion under the public-servant or recourse-to-authorities rules).
Effect where it applies: the right of private defence of the body extends, in these situations only, to the voluntary causing of death, or any lesser harm, to the assailant — not merely to warding off or restraining the assault.
How this differs from Section 35: Section 35 establishes that a right of private defence exists at all; this section defines how far that right can go, in the gravest category of threats to the body.

Statutory Text (Verbatim)

The right of private defence of the body extends, under the restrictions specified in section 37, to the voluntary causing of death or of any other harm to the assailant, if the offence which occasions the exercise of the right be of any of the descriptions hereinafter enumerated, namely:—

(a) such an assault as may reasonably cause the apprehension that death will otherwise be the consequence of such assault;

(b) such an assault as may reasonably cause the apprehension that grievous hurt will otherwise be the consequence of such assault;

(c) an assault with the intention of committing rape;

(d) an assault with the intention of gratifying unnatural lust;

(e) an assault with the intention of kidnapping or abducting;

(f) 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;

(g) 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.

Source: Bharatiya Nyaya Sanhita, 2023 (Act No. 45 of 2023), as published in the Gazette of India Extraordinary.

Explanation & Illustration (Lexovia's Commentary — Not Statutory Text)

Clause (a) — Assault reasonably threatening death

Explanation (Lexovia's Commentary)

Where an assault would reasonably lead the person facing it to apprehend that death will otherwise result, the right of private defence extends to using lethal force in response, since the threat itself is of the gravest kind.

Illustration (Lexovia's Own Example)
An attacker lunges at a person with a raised knife aimed at their chest, in circumstances that reasonably suggest the attacker intends to kill. The person, unable to escape, strikes the attacker with a heavy object, killing them. Because the assault reasonably caused the apprehension that death would otherwise result, Section 38(a) extends the right of private defence to this response.

Clause (b) — Assault reasonably threatening grievous hurt

Explanation (Lexovia's Commentary)

Even short of a threat to life, an assault that would reasonably cause apprehension of grievous hurt — serious, lasting bodily injury — also justifies the right extending to lethal force, reflecting the law's recognition that some non-fatal injuries are severe enough to warrant the strongest defensive response.

Illustration (Lexovia's Own Example)
An assailant swings a heavy iron rod at a person's head with clear force, in a manner that reasonably suggests permanent disfigurement or serious injury will follow if the blow lands. The person, with no other means of escape, uses force sufficient to stop the assailant, resulting in the assailant's death. Because the assault reasonably caused apprehension of grievous hurt, Section 38(b) extends the right of private defence to this response.

Clause (c) — Assault with intent to commit rape

Explanation (Lexovia's Commentary)

Where the assault is accompanied by an intention to commit rape, the right of private defence extends to lethal force regardless of whether the assault itself would separately threaten death or grievous hurt, reflecting the gravity the law attaches to this particular intent.

Illustration (Lexovia's Own Example)
An attacker seizes a person with clear intent to commit rape. The person fights back with whatever force is needed to stop the attack, causing the attacker's death in the struggle. Because the assault was made with the intention of committing rape, Section 38(c) extends the right of private defence to this response.

Clause (d) — Assault with intent to gratify unnatural lust

Explanation (Lexovia's Commentary)

Similarly, where an assault is made with the intention of gratifying unnatural lust, the right of private defence extends all the way to causing death, placing this category alongside rape as among the gravest forms of sexual violence the law recognises for this purpose.

Illustration (Lexovia's Own Example)
An attacker seizes a person with the clear intention of gratifying unnatural lust. The person resists forcefully, and the attacker dies from the injuries sustained in the resulting struggle. Because the assault was made with that intention, Section 38(d) extends the right of private defence to this response.

Clause (e) — Assault with intent to kidnap or abduct

Explanation (Lexovia's Commentary)

An assault made with the intention of kidnapping or abducting the victim also triggers the extended right, reflecting the serious danger such an act poses even before any further harm to the body actually occurs.

Illustration (Lexovia's Own Example)
An assailant grabs a child and attempts to forcibly carry the child away against the will of the child's guardian. A bystander intervenes with whatever force is necessary to stop the abduction, resulting in the assailant's death. Because the assault was made with the intention of kidnapping or abducting, Section 38(e) extends the right of private defence to this response.

Clause (f) — Assault to wrongfully confine, with no recourse to authorities

Explanation (Lexovia's Commentary)

This clause applies only where the wrongful confinement is accompanied by circumstances that would reasonably make the victim apprehend they will have no way to seek help from public authorities to secure release — an isolated, helpless confinement, rather than an ordinary restraint that could soon be reported or escaped.

Illustration (Lexovia's Own Example)
An assailant seizes a person and attempts to lock them inside an isolated, remote structure, in circumstances that reasonably suggest the victim would have no way to summon help or reach public authorities once confined. The victim fights back and, in the struggle, causes the assailant's death. Because the assault was made with the intention of wrongful confinement under circumstances reasonably suggesting no recourse to public authorities, Section 38(f) extends the right of private defence to this response.

Clause (g) — Throwing or administering acid, or an attempt to do so

Explanation (Lexovia's Commentary)

This clause covers an act of throwing or administering acid, or an attempt to do so, that reasonably causes apprehension of grievous hurt. It reproduces IPC Section 100's own clause (g), which Parliament inserted in 2013 specifically to recognise the severe and often permanently disfiguring harm acid attacks cause, giving the right of private defence its full extent — up to causing death — against such an attack.

Illustration (Lexovia's Own Example)
An assailant approaches a person with a container of acid and attempts to throw it at the person's face, in circumstances reasonably suggesting grievous hurt will otherwise result. The person intervenes with force sufficient to stop the attempt, causing the assailant's death. Because the act was an attempt to throw acid reasonably causing apprehension of grievous hurt, Section 38(g) extends the right of private defence to this response.
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Judgment(s) Applicable to This Section (Lexovia's Commentary — Quoted Paragraphs Verbatim)

These judgment(s) relate to Section 38 as a whole rather than to one specific sub-section, and so are presented together here rather than alongside a particular clause above.

Ratheeshkumar @ Babu v. State of Kerala & Anr., Criminal Appeal No. 1049 of 2018 (Supreme Court of India, decided 9 January 2025, J.B. Pardiwala & R. Mahadevan, JJ.)

Quoted Paragraph (Verbatim)
Para No. 18
“18. This Court in Darshan Singh v. State of Punjab and another… has summarised the following principles regarding the right of private defence: … (vi) In private defence the force used by the accused ought not to be wholly disproportionate or much greater than necessary for protection of the person or property. … (x) A person who is in imminent and reasonable danger of losing his life or limb may in exercise of self defence inflict any harm even extending to death on his assailant either when the assault is attempted or directly threatened.”
What This Judgment Means (Lexovia's Commentary)

The accused stabbed the deceased to death during a dispute over a boundary fence between neighbouring properties, claiming he acted in defence of his father and his property. Applying the ten-point summary of private-defence principles from Darshan Singh v. State of Punjab, (2010) 2 SCC 333, the Supreme Court upheld the conviction, finding first that there was no reasonable apprehension of imminent danger to justify using a knife at all (the accused could not even explain what threat to the property he was defending), and second that even assuming some initial threat existed, continuing the assault after two stab wounds showed force "wholly disproportionate" to what self-defence required — a shift from protection to "inflicting harm and wrecking vengeance". The exception for exceeding the right of private defence in good faith (old IPC S.300, Exception 2) was rejected on the same footing, since the excess here was not a good-faith overreach but a loss of any genuine defensive purpose.

Currency check: decided January 2025, applying settled authority (Darshan Singh, 2010; V. Subramani, 2005) that remains good law; carries over directly to BNS Section 38, which reproduces IPC Section 100 exactly, clause for clause; no overruling found in this review.

Source: copy of the judgment obtained from the Supreme Court of India's official website.

Related / Cross-Referenced Sections

FAQs

Does the right under this section apply outside the seven listed situations?

No. Section 38 extends the right of private defence of the body to causing death only where the assault or act falls within one of the seven listed descriptions, clauses (a) through (g).

Is the right under this section still subject to any limits?

Yes. It remains subject to the restrictions in Section 37 — including the necessity cap, which means even here, no more harm than necessary for the purpose of defence is permitted.

What happens if the threat is serious but does not fall within any of these seven categories?

The right of private defence of the body may still exist, but it would not extend as far as causing death under this section; Section 39 addresses the extent of the right in such cases.

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