BNS Section 38: When right of private defence of body extends to causing death.

Amit Kapoor05 mins

When the right of private defence of the body extends to causing death

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.

Example:
A kidnapper assaults Anita with the intention to abduct her. She inturn kills him by use of a deadly weapon. Here, Anita has acted in private defence and is proctected under law. 

Key Situations Where Private Defence Extends to Causing Death or Harm:

  1. Apprehension of Death:
    • If an assault reasonably causes fear of death, lethal force can be used in defense.
  2. Apprehension of Grievous Hurt:
    • If there is a reasonable fear of serious bodily injury, force can be used, potentially leading to death.
  3. Assault with the Intent to Commit Rape:
    • A person may use lethal or harmful force to defend against an assault aimed at rape.
  4. Assault with the Intent to Gratify Unnatural Lust:
    • In cases of assault meant for unnatural sexual aggression, defensive force can be used, even if it causes death.
  5. Kidnapping or Abduction:
    • Force can be used to prevent kidnapping or abduction, even leading to death if necessary.
  6. Wrongful Confinement:
    • If a person is wrongfully confined and unable to access legal help, they may use force to escape, including lethal force.
  7. Acid Attacks:
    • Defense is justified against acid attacks or attempts, with lethal or harmful force allowed if there’s a fear of grievous harm.

Key Definitions:

  • Apprehension of Death or Grievous Hurt: The reasonable fear that an attack will result in death or severe injury.
  • Unnatural Lust: Coercive or non-consensual sexual acts that deviate from natural sexual practices.
  • Wrongful Confinement: Illegally holding someone against their will, obstructing access to authorities.

Conclusion:

BNS-38 allows for the use of lethal or harmful force in situations of extreme threat such as death, serious injury, rape, abduction, or acid attacks, but the use of force must still comply with the restrictions of proportionality and legality outlined in BNS-37.

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