Section 38 of the Bharatiya Nyaya Sanhita, 2023 (BNS) states when the right of private defence of the body extends to voluntarily causing death - the provision an accused invokes when a fatal act is claimed to have been done in self-defence. It carries forward Section 100 of the Indian Penal Code, with only a drafting change: the old-fashioned "First, Secondly ... Seventhly" list becomes clauses (a) to (g).
What Section 38 BNS provides
The right of private defence of the body extends to voluntarily causing death, or any other harm, to the assailant - but only if the offence which occasions the exercise of the right is of one of these descriptions:
- (a) an assault that reasonably causes the apprehension that death will otherwise result;
- (b) an assault that reasonably causes the apprehension that grievous hurt will otherwise result;
- (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, in circumstances which reasonably cause the apprehension that the person will be unable to have recourse to the public authorities for release;
- (g) an act of throwing or administering acid, or an attempt to do so, reasonably causing the apprehension that grievous hurt will otherwise result.
The essentials in plain language
Private defence is a shield, not a sword. Killing the assailant is justified only when the attack itself is of the gravest kind - one that reasonably makes the defender fear death, grievous hurt, rape, acid attack or the other listed offences. The apprehension must be reasonable, judged from the position of the person attacked in the heat of the moment, not with the hindsight of a courtroom. The right is also subject to the general restrictions on private defence - the defender must not inflict more harm than necessary, and the right does not arise where there is time to have recourse to the protection of the public authorities (see Section 37 BNS).
In Darshan Singh v. State of Punjab (2010), the Supreme Court gathered the governing principles: the right of private defence is a valuable, inherently defensive right, available against a reasonable apprehension of the listed harms, and the person facing imminent peril is not expected to weigh the force of the response in golden scales.
What changed from Section 100 IPC
Nothing of substance. The official comparison table records only a drafting modernisation: the enumeration "First, Secondly, Thirdly, Fourthly, Fifthly, Sixthly, Seventhly" is replaced with clauses (a), (b), (c), (d), (e), (f) and (g). The grounds themselves, and the case law built on Section 100 IPC over more than a century, continue to apply to Section 38 BNS.
Was a death caused in claimed self-defence? Whether a killing is protected by this section is an intensely fact-specific question that must be built into the defence from the first statement onwards. Talk to a criminal lawyer in your city or browse advocates in the Free Law directory.