GENERAL EXCEPTIONS (C HAPTER 3: SECTIONS 14 - 44)

Why This is Important?

Section 3(1) Throughout this Sanhita every definition of an offence, every penal provision,
and every Illustration of every such definition or penal provision, shall be understood
subject to the exceptions contained in the Chapter entitled “General Exceptions”
As per Section 2(24)(a) for the purpose of General Exceptions “offence” means a thing
punishable under this Sanhita, or under any special law or local law

What is it?
These are Defenses which absolve the accused from any criminal liability.
Even if the accused does not plead these defenses the court will apply them if it is clear by evidence
that any of them are applicable.
General exceptions are rule of evidence, which provide conclusive and rebuttable presumptions of
law. These presumptions once established extinguish the criminal liability.

Burden of Proof – As per Section 108 of Bharatiya Sakshya Adhiniyam,2023 the burden of
proving plea that the case of the accused falls under General Exception, lies upon the accused.
K.M. Nanavati v. State of Maharashtra (1962)
Accused has to establish these circumstances, there lies a default presumption of
absence of such mitigating circumstances, he has the burden to rebut that presumption
and establish the existence of such circumstances.

T.N. Lakshmaiah v. State of Karnataka (2002)

The Standard of proof for establishing that the case of the accused falls under any of
the General Exceptions, is not the same as standard of proof for prosecution to
establish the guilt. It is sufficient that the accused establishes his plea by preponderance
of probability.

Types: There are two categories of general exceptions

 Excusable (where the necessary mens rea is lacking), and
 Justifiable (where the circumstance that existed at the time of occurrence provide legal
justification.)
It is to be understood here that all necessary requirements to constitute the offence have been
fulfilled but the act of the accused does not amount to an offence either because his act is
excusable, or there existed some circumstances because of which his act becomes justified.

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 Divided into 7 Categories-
1. Mistake of Fact (Sections 14 and 17)
2. Juridical Acts (Sections 15 and 16)
3. Accident (Section 18)
4. Absence of Criminal Intent (Sections 19-24, 30-32)
5. Consent (Sections 25-29)
6. Trifles (Section 33)
7. Private Defence of Person or Property (Section 34 – 44)

MISTAKE OF FACT (Section 14 & 17)

Mistake: Mistake is not mere forgetfulness. It is a slip made, not by design, but by
mischance. Mistake is an erroneous mental condition, conception or conviction induced by
ignorance, misapprehension or misunderstanding of the truth, and resulting in some act or
omission done or suffered erroneously by one or both of the parties to a transaction, but
without its erroneous character being intended or known at that time.
Mistake of Fact: Misconception about the existence/absence of a fact in someone’s mind.
Ignorantia facti excusat, ignorantia juris non excusat
Ignorance of the fact excuses; ignorance of the law excuses not

‘Ignorance of law excuses no man, not that all men know the law,
but because it is an excuse every man will plead’ – John Selden

It is a legal fiction that raises irrebuttable presumption of knowledge of law. It is a rule of

convenience and necessity and not a rule of absolute justice.

M.H. George v. State of Maharashtra (1965)

On 24th November, 1962, India had passed a law prohibiting the carrying of gold beyond a
certain amount through India.
On 28th November, 1962, M.H. George was trying to smuggle 34kg of gold through India by
hiding it in his jacket and was caught.
He pleaded that he did not know that the law had changed. However, Court stated that
ignorance of law is no excuse and held him liable under the relevant provision.

R v. Prince (1875)
Prince Henry was tried for having unlawfully taken away an unmarried girl, below the age of
16 years, out of the lawful custody and against the will of her father, under the belief that
she was 18 years old.
Court held: “A mistaken belief, even though based on reasonable grounds is no defence to a
charge of kidnapping-a statutory offence of taking a girl under sixteen years of age out of
possession and against the will of her parents or guardian”
The Acts which constitute a crime were divided in two categories
Malum Prohibitum – wrong only as per statute
Malum in se – Wrong in itself, immoral per se

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 Section 14 – Act done by a person bound, or by mistake of fact believing himself
bound, by law.
Nothing is an offence which is done by a person who is, or who by reason of a
mistake of fact and not by reason of a mistake of law in good faith believes himself to
be, bound by law to do it.
The acts of subordinate officer are protected under this Section.
Concept of Respondent Superior – let the senior answer for the acts
committed by subordinate, when the latter was bound by his command.
For example: A, a soldier, fires on a mob by the order of his superior
officer, in conformity with the commands of the law. A has committed
no offence.

Section 17 – Act done by a person justified, or by mistake of fact believing himself,

justified, by law.
Nothing is an offence which is done by any person who is justified by law, or who by
reason of a mistake of fact and not by reason of a mistake of law in good faith,
believes himself to be justified by law, in doing it.

State of Andhra Pradesh v. Venu Gopal (1994)

Police (one sub inspector, one head constable and one constable) arrested a person
on suspicion that he had received some stolen property and was involved in house
breaking. Later the person was found dead with injuries on his body.
The prosecution alleged the police wrongfully confined and tortured the person for
taking a confession out of him. Trial court convicted the police.
High court acquitted the police accepting the defence of Section 79 – whatever
policemen do during investigation is justified by law.
Supreme court said that “this view of High Court is wholly unwarranted in law”.
Beating and torturing a person has absolutely no relation to the process of
investigation.

The difference between Section 14 and Section 17 is that in the former, it is legal compulsion, and in
the latter, it is legal justification, which the doer of the act believed he had.
Both Section 14 and 17 talk about ‘good faith’ so to invoke section 14 or 17 of the BNS, due
care and attention are essential.

State of Orissa v. Ram Bahadur Thapa (1960)

The respondent Ram Bahadur Thapa, who believed in ghosts, mistook the flickering lights for
ghosts and attacked them without even taking a moment to use his torch to determine
whether they were ghosts or humans. This demonstrates that he did not have any mens rea,
that it was a misunderstanding of the facts, and his actions could be reasonably considered
‘in good faith’ under section 79 of the IPC.

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 State of Orissa v. Bhagaban Barik (1987)
The respondent claimed that he was on a lookout for a thief when he mistook the deceased
for the thief. He saw a person coming inside his premises and thinking him to be a thief he
dealt a lathi blow which caused the death.
Court after examining all the evidence was of the opinion that the respondent was waiting
for an opportunity to settle the account when he struck the deceased with the lathi blow.
This is not a case where a person being ignorant of the existence of the relevant facts or
mistaken as to them. Even if he was a thief, that fact by itself would not justify the
respondent dealing a lathi blow on the head of the deceased.
Court could not conclude from the evidence that the respondent had any intention to kill the
deceased, but still he must in the circumstances be attributed with KNOWLEDGE of the fact
that he struck the deceased on the head with a lathi that it was likely to cause his death. The
respondent was therefore guilty of culpable homicide not amounting to murder
under Section 304 Part II of the Indian Penal Code.

So, in Conclusion we can say that Mistake as a defence can be applied provided
(1) the state of things believed to exist would, if true, have justified the act done; and
(2) the mistake must be reasonable; and
(3) that the mistake relates to fact and not to law.

JURIDICAL ACTS (Sections 15 – 16)

Section 15. Act of Judge when acting judicially
Nothing is an offence which is done by a Judge when acting judicially in the exercise
of any power which is, or which in good faith he believes to be, given to him by law.

Section 16. Act done pursuant to judgment or order of Court

Nothing which is done in pursuance of, or which is warranted by the judgment or
order of, a Court; if done whilst such judgment or order remains in force, is an
offence, notwithstanding the Court may have had no jurisdiction to pass such
judgment or order, provided the person doing the act in good faith believes that the
Court had such jurisdiction.

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 ACCIDENT (Section 18)
‘Men are expected to guard against reasonable possibilities and not extra
ordinary probabilities’ – Pollock
Section 18. Accident in doing a lawful act.
Nothing is an offence which is done by accident or misfortune, and without any
criminal intention or knowledge in the doing of a lawful act in a lawful manner by
lawful means and with proper care and caution.
Accident is something which is unintentional and unexpected which no man of ordinary
prudence can anticipate. Accident implies injury to another; Misfortune implies injury
to others as well as the author of the act

Illustration: A is at work with a hatchet; the head flies off and kills a man who is
standing by. Here, if there was no want of proper caution on the part of A, his act is
excusable and not an offence.

Jageshar v. Emperor (1923)

There is no defence of accident available when the original act which was being done
while the accident happened was itself illegal.

ABSENCE OF CRIMINAL INTENT (Sections 19 – 24 & 30 – 32)

Actus Non Facit Reum Nisi Mens Sit Rea
the act is not culpable unless the mind is guilty

Necessity
Necessitas non habet legem - Necessity knows no law

Section 19. Act likely to cause harm, but done without criminal intent, and to prevent
other harm.
Nothing is an offence merely by reason of its being done with the knowledge that it is likely
to cause harm, if it be done without any criminal intention to cause harm, and in good faith
for the purpose of preventing or avoiding other harm to person or property.

Illustration: A, in a great fire, pulls down houses to prevent the fire from spreading. He
did this to prevent the fire in good faith and therefore is not guilty of the offence.

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 Re Gopal Naidu (1923)
The principle of necessity has been devised for situations of extreme and sudden emergency
where the occurrence of one or the other of two evils is inevitable, thus it is lawful so to direct
events that the smaller, of the two evils, only shall occur.

Necessity is based on the Doctrine of Self Preservation

Regina v Dudley & Stephen (1884)
Dudley and Stephen (defendants) murdered a fellow young seaman (Parker) to save their own
lives from starvation when they were stuck in a sea storm. The 5 Judges Queen’s Bench laid
down that necessity is no defense for murder, and they were found guilty of murder, but with a
reduced punishment of life imprisonment. The Following principles were laid down:
 Self-preservation is not an absolute necessity,
 No man has a right to take other’s life to preserve this own. Killing of a person
howsoever great the temptation cannot be justified.
 There can be no necessity that can justify a homicide.

Young Mind
Section 20. Act of child under 7 years, is not an offence.
doli incapax - Incapable of deceit
Section 21. Act of a child of 7-12 years, of immature understanding.
Malitia Supplet Aetatem - Malice supplies defect of years
Nothing is an offence which is done by a child above seven years of age and under twelve
years of age, who has not attained sufficient maturity of understanding to judge of the
nature and consequences of his conduct on that occasion.
In case there is no evidence to prove “immature understanding”, court will assume that the
child above 7 and below 12 understood the nature of his acts.

Ulla Mahapatra v. the King (1950)

The boy below 12 years shouted ‘I will cut you to pieces’ and did so to the victim. He
was convicted under Section 302.

Hiralal Mallick v. State of Bihar (1977)

If the child is proved to be under 7 years of age then it is conclusive proof of innocence.
A child of exactly 7 years will also get the benefit of Section 82 IPC. For a child who is
above 7 years of age and has not completed 12 years, the circumstances have to be
examined to see if he had sufficient maturity as required under Section 83.

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 Unsound Mind
Section 22. Act of a person of unsound mind.
Nothing is an offence which is done by a person who, at the time of doing it, by
reason of unsoundness of mind, is incapable of knowing the nature of the act, or that
he is doing what is either wrong or contrary to law.

INCAPABLE of knowing the nature of the act

Lakshmi v. State (1958)
If someone knows what's right and what's wrong but still does something wrong,
they can’t blame their beliefs. The law only helps if you can't understand right from
wrong at all. If you make a mistake because you believed something wrong, you're
still responsible for what you did. The law doesn't protect people who get confused
by their own wrong ideas. What we believe is based on our feelings, but what we
really know comes from thinking and reasoning.

The concept of ‘insanity’ as a legal defence originated from the case of R v

Arnold (1724) and the ‘Wild Beast Test’ was devised and later in R v Hadfield(1800)
the ‘Insane Delusion test’ was devised, both tests were later declared Arbitrary, the
foundational principle by which Insanity as a defence is judged now is
‘McNaughton’s Rule’ also known as ‘Right and Wrong test’ which was devised in the
following case law:
R v. M’Naughten Case (1843)
Daniel M’Naughten suffered from a delusion and killed Edward Drummond
(Secretary of PM). Medical evidence also showed that he was delusional which
carried him away from self-control over his acts. He was acquitted which attracted
criticism by public. Principles devised from this case are -
1. Presumption of Sanity: Every person would be assumed sane until contrary
is proved.
2. Defect of Reason or Lack of Knowledge: Whether the accused at the time of
doing the act, knew the difference between right and wrong or was unaware
of the nature of his acts and the consequences it holds.

Queen v. Kadar Nayar Shah (1896)

Medical Insanity Legal Insanity
Mental disease or disorder of such degree The Existence of such a disease or
that it is capable of taking away rational disorder at the time of commission of
thinking. The person loses control over his the offence, which makes the author
body. It can be proved by medical incapable of knowing the nature of the
certificate of a doctor. act or what he is doing is wrong or
contrary to law.

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 Drinking or Intoxication
Section 23 - Involuntary Intoxication
Nothing is an offence done by an intoxicated person, incapable of knowing the nature of the
act. Provided that the thing which intoxicated him was administered to him without his
knowledge or against his will.

Section 24. Voluntary Intoxication

If you are intoxicated voluntarily, you will be dealt with as having the same knowledge as
you would have had if you were not intoxicated. But it does not assume that you have the
same intention that you would have had if you were not intoxicated.
So, if you are voluntarily drunk and stab your friend, then it will be assumed that you had
knowledge that it will kill him, but if you can prove that you didn’t have intention at that
time then you might be given lesser punishment (say for culpable homicide instead of
murder).

DPP v. Beard (1920)

The defendant, Beard, was accused of murdering a girl during an attempted rape. Beard
was intoxicated at the time of the crime, and the defense argued that his drunkenness
negated the mens rea (intentional or knowing state of mind) required for murder.
The House of Lords held that intoxication could not serve as a defense to a crime of basic
intent, like manslaughter. However, it could be considered when determining if the
defendant had the specific intent necessary for a crime of specific intent, such as murder.
It distinguished between specific and basic intent crimes, stating intoxication does not
negate liability for basic intent crimes.

Attorney General for Northern Ireland v. Gallachen (1961)

The accused, a psychopath, after forming the intention to kill his wife, took to drinking
and killed her(also brought a knife).
Lord Denning J. (House of Lords) held that this case does not fall under the exceptions as
the intention was formed prior to intoxication. If he had changed his mind before
drinking, he could have been excused. He was held liable for murder.

Basdev v. State of Pepsu (1956)

In a wedding party, the accused was intoxicated. He asked a young boy to vacate the seat
for him, to which the boy refused. The accused took out his pistol and shot the boy dead.
The Hon’ble Supreme Court talked about varying degrees of intoxication and held that
the accused was not intoxicated to such an extent to be incapable of forming the
necessary intent.
The evidence showed that the accused was able to move independently and did not need
help from anyone. Moreover, he did make a choice in selecting a seat, which indicates
that the accused could make informed decisions. Additionally, he pleaded with the
witnesses after the act, which suggests that he understood the nature of the act and
knew the consequences that would follow.
Keeping in view all of the above, the accused was held liable for murder.

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 Act Done in Good Faith/Threat

Section 30. Act done in good faith for benefit of a person without consent.
Only if the circumstances are such that:
1. It is impossible for that person to signify consent;
2. The person is incapable of giving consent; and no guardian or other person in charge of
giving consent is available.
Provided that this exception shall not extend to –
(a) the intentional causing of death, or the attempting to cause death;
(b) the doing of anything which the person doing it knows to be likely to cause death, for
any purpose other than the preventing of death or grievous hurt, or the curing of any
grievous disease or infirmity;
(c) the voluntary causing of hurt, or to the attempting to cause hurt, for any purpose other
than the preventing of death or hurt;
(d) the abetment of any offence, to the committing of which offence it would not extend.

Section 31. Communication made in good faith.

No communication made in good faith is an offence by reason of any harm to the person to
whom it is made, if it is made for the benefit of that person.

Section 32. Act to which a person is compelled by threats.

Actus me invito fatus est nisi actus - An act done by me against my will is not my act.
Except murder, and offences against the State punishable with death, nothing is an offence
which is done by a person who is compelled to do it by threats.
The requirements for this section to be applicable are:
1. The person committing the act should have the apprehension that instant death to him
will be the consequence if he does not commit the act;
2. The person committing the act should not place himself in the situation by which he
became subject to such constraint.
Explanation 1: Joining a group of dacoits voluntarily (or by reason of a threat of being
beaten) and then being compelled by such dacoits to commit an offence is not covered
under this Section.
Explanation 2: Being seized by a gang of dacoits and being forced to do something by threat
of instant death is covered under this Section.

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Criminal Law YG Law General Exceptions

CONSENT IS GIVEN (Sections 25 – 29)

Volenti non fit injuria - To a willing person, it is not a wrong

Section 25. Act not intended and not known to be likely to cause death or grievous
hurt, done by consent.
This section gives immunity to a person for acts which may cause harm to another, if the
latter has accepted the risk of such act by giving consent to it. Provided that-
1. The act is not intended and is not likely to cause death or grievous hurt;
2. The person consenting (express or implied) to such act must be 18 years or above.

Tunda v. R (1950)
Two persons agreed to wrestle with each other, and an accidental injury was caused to one.
The court held that when they agreed to wrestle there was implied consent on their part to
suffer consequential injuries. Therefore, the accused is not liable.

Section 26. Act not intended to cause death, done by consent in good faith for
person's benefit.
This section extends the operation of consent to all cases except intentional causing of
death. Provided that the act –
1. should not be intended to cause death;
2. must be for the benefit of that person and done in good faith;
3. should be with the person’s consent (express or implied).
Illustration: A surgeon who operates on B and knows that the operation is likely to cause
death, but still operates in good faith to cure B shall not be held liable for any injury
caused to B.

Section 27. Act done in good faith for benefit of child or person of unsound mind, by,
or by consent of guardian.
Nothing is an offence which is done in good faith for the benefit of a person under 12
years of age, or of unsound mind, by, or by consent (express or implied) of the lawful
guardian.
This section extends the operation of section 26 to minors < 12 years and to persons
of unsound mind when consent is given by the guardian.
Provided that this exception shall not extend to –
(a) intentional causing of death, or to the attempting to cause death;
(b) the doing of anything which the person doing it knows to be likely to cause
death, for any purpose other than preventing of death or GH, or the curing of any
grievous disease or infirmity - RISK OF DEATH ALLOWED;

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 (c) the voluntary causing of GH, or to the attempting to cause GH, unless it be for
the purpose of preventing death or GH, or the curing of any grievous disease or
infirmity;
(d) the abetment of any offence, to the committing of which offence it would not
extend.

Illustration: A, in good faith, for his child's benefit without his child's consent, has his
child cut for the stone by a surgeon, knowing it to be likely that the operation will cause
the child's death, but not intending to cause the child's death. A is within the exception,
in as much as his object was to cure the child.

Section 28. Consent known to be given under fear or misconception.

Consent is not defined in BNS Definitions given under Section 2 of the Sanhita.
However, Section 28 defines Consent negatively in the following way:
A consent is not such a consent as is intended by any section of this Sanhita if:
(a) the consent is given under fear of injury, or under a misconception of fact; And
the doer of the act knows, or has reason to believe, that the consent was given
in consequence of such fear or misconception; or
(b) the consent is given by a person who, from unsoundness of mind, or
intoxication, is unable to understand the nature and consequence of that to
which he gives his consent; or
(c) the consent is given by a person who us under 12 years of age.

Dilip Kumar v. State of Bihar (2004)

If consent to sexual intercourse was given owing to false promise to marry then such
consent is vitiated by misconception of fact, and thus it is nullified under Section 90.
Such intercourse will amount to offence of Rape.

Section 29. Exclusion of acts which are offences independently of harm cause.
The exceptions in sections 25, 26 and 27 do not extend to acts which are offences
independently of any harm which they may cause, or be intended to cause, or be known
to be likely to cause, to the person giving the consent, or on whose behalf the consent is
given.
Illustration – Causing miscarriage (unless caused in good faith for the purpose of saving
the life of the woman) is an offence independently of any harm which it may cause or
be intended to cause to the woman, because causing miscarriage is also an offence
against the child. Therefore, it will not be covered under sections 25, 26 and 27.
Other acts on which defences of 25, 26 and 27 do not extend are offences affecting
public health, safety, convenience, decency, morals etc.
TRIFLES (Section 33)
De Minimis Non Curat Lex - Trifles are not to be treated as crime

Section 33. Act causing slight harm

Nothing is an offence by reason that it causes, or that it is intended to cause, or that
it is known to be likely to cause, any harm, if that harm is so slight that no person of
ordinary sense and temper would complain of such harm.

Amish Devgan v. Union of India (2021)

The petitioner relied upon the defence of trifle under Section 95 of the Penal Code.
The court said that we are not inclined at this stage to entertain this defence of the
Petitioner. Section 95 prevents the penalization of negligible wrongs or offences of
trivial nature. To see if the act is of trivial nature the nature of act, injury caused,
knowledge or intent of accused and other relevant circumstances are to be
considered.
RIGHT OF PRIVATE DEFENCE (Section 34 – 44)
Section 34. Things done in private defence.
Nothing is an offence which is done in the exercise of the right of private defence.

Munney Khan v. State (1971)

All sections (34 – 44) to be read together to know the scope and limitation of this
defence. The following limitations will apply to the right of private defence:
(a) It is not applicable if there is sufficient time for recourse to public authorities;
(b) The force used and harm caused should be only as much as reasonably necessary;
(c) There should be reasonable apprehension of hurt, grievous hurt or death to
person, or of damage to property.

Rafiq v. State of Maharashtra (1979)

The deceased was attacking the accused with a lathi, but the accused took out a knife
and stabbed him to death. The medical reports showed that the wound was deep and
the knife pierced through the heart with great force, resulting in death.
It was held that it was self-defense. However, the accused used excessive force, so he is
liable for ‘culpable homicide not amounting to murder’.

Section 35. Right of private defence of body and of property.

Every person has a right, subject to the restrictions contained in section 37, to
defend -
(a) his own body, and the body of any other person, against any offence
affecting the human body;
(b) the property, whether movable or immovable, of himself or of any other
person, against any act which is an offence falling under the definition of
theft, robbery, mischief or criminal trespass (or attempt of any of them).

Section 36. Right of pvt. defence against the act of a person of unsound mind, etc.
When an act, which would otherwise be a certain offence, is not that offence, by
reason of the following circumstances:
(a) Youth of the offender (Act of child under 7 years of age – Section 20)
(b) Want of maturity of understanding of the offender (Act of child between 7 to
12 years – Section 21)
(c) Unsoundness of mind of the offender (Section 22)
(d) Intoxication of the offender (Section 23)
(e) Misconception on the part of offender (Section 14 & 17)

Every person has the same right of private defence against that act which he would
have if the act were that offence.
 Section 37. Acts against which there is no right of private defence.
(1) There is no right of private defence, -
(a) Against act/attempt of public servant acting in good faith + no apprehension of
death or GH;
(b) Against act/attempt by another in pursuance of the direction of a public servant
acting in good faith + no apprehension of death or GH;
(c) When there is time to have recourse to public authorities.
(2) The right of private defence in no case extends to the inflicting of more harm than it
is necessary to inflict for the purpose of defence.

RIGHT OF PRIVATE DEFENCE OF BODY (Sections 38 – 40)

Section 38. When right of private defence of body extends to causing death.
Subject to the restrictions given under Section 37, there are 7 situations when right of
private defence extends to the voluntary causing of death or any other harm to the
assailant:
(a) assault with the apprehension of death;
(b) assault with the apprehension grievous hurt;
(c) assault with the intention of committing rape;
(d) assault with the intention of gratifying unnatural lust;
(e) assault with the intention of kidnapping or abducting;
(f) assault with the intention of wrongfully confining a person, under circumstances
which cause him to apprehend that he will be unable to have recourse to public
authorities;
(g) act of throwing or attempting to throw acid which may reasonably cause the
apprehension of grievous hurt or death.

Vishwanath v. State of UP (1959)

Section 362 (abduction) outlines that forceful or deceitful inducement to go from any place
is abduction, yet not a Penal Code offense by itself—only with specific intents.
Section 364: Intent for murder or life endangerment.
Section 365: Intent for secret, wrongful confinement.
Section 366: Female abduction for forced marriage or sexual coercion.
Section 367: Intent for grievous harm, enslavement, or unnatural lust.
Section 369: Abducting a child under ten for theft.
Section 100 does not require contemplation of further intent beyond the defined abduction
when using force, allowing for lethal self-defense.
Court Said: ‘It would in our opinion be not right to expect from a person who is being
abducted by force to pause and consider whether the abductor has further intention as
provided in one of the sections of the Penal Code quoted above, before he takes steps to
defend himself, even to the extent of causing death of the person abducting.’
 Section 39. When such right extends to causing any harm other than death.
If the offence be not of any of the descriptions specified in section 38, the right of private
defence of the body does not extend to the voluntary causing of death to the assailant,
but does extend, under the restrictions specified in section 37, to the voluntary causing
to the assailant of any harm other than death.
`
Section 40. Commencement and continuance of right of private defence of body.
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 to the body continues.

RIGHT OF PRIVATE DEFENCE OF PROPERTY (Sections 41 – 43)

Section 41. When right of private defence of property extends to causing death.
Subject to the restrictions specified in section 37, if the offence which is
committed/attempted is one of the following:
(a) robbery;
(b) house-breaking after sunset and before sunrise;
(c) 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;
(d) theft, mischief, or house-trespass + apprehension of death or grievous hurt.

Section 42. When such right extends to causing any harm other than death.
In case of theft, mischief, or criminal trespass (or attempt of any of them) which does not
fall within Section 41, and subject to the restrictions specified in section 37, the right of
private defence extends to causing any harm other than death.

Section 43. Commencement and continuance of right of private defence of property.

The right of private defence of property, -
(a) commences when a reasonable apprehension of danger to the property commences;
(b) against theft continues till the offender has effected his retreat with the property or
either the assistance of the public authorities is obtained, or the property has been
recovered;
(c) against robbery continues as long as the offender causes or attempts to cause to any
person death or hurt or wrongful restraint or as long as the fear of instant death or of
instant hurt or of instant personal restraint continues;
(d) against criminal trespass or mischief continues as long as the offender continues in the
commission of criminal trespass or mischief;
(e) against house-breaking after sunset and before sunrise continues as long as the house-
trespass which has been begun by such house-breaking continues.
Can you cause harm to an innocent person in process of private defense?
Section 44. Right of private defence against deadly assault when there is risk of
harm to innocent person.
If in the exercise of the right of private defence against an assault which reasonably
causes the apprehension of death, the defender be so situated that he cannot
effectually exercise that right without risk of harm to an innocent person, his right of
private defence extends to the running of that risk.

Kishan v. State of MP (1973)

T`he appellant along with his three brothers went to the house of Bucha, pulled him
out of his house upto the neem tree and there subjected him to punching and
kicking. So they were aggressors. They took the law in their own hands. Bucha
contrived to escape from their grip, caught hold of the khutai and struck three blows
on the head of one of them. Bucha' was then acting in exercise of the right of self-
defence. Therefore, he was not an aggressor. The appellant could not claim to have
beaten Bucha in exercise of the right of self-defence after being the aggressors first.
Gist - The offender cannot claim private defence against acts committed in private
defence.
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