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Section 39: When Right of Private Defence of Body Extends to Causing Harm Other Than Death

Bharatiya Nyaya Sanhita • Chapter III: General Exceptions • Official Statutory Text & Legal Guide

Chapter III: General Exceptions
Trial Court
Complete Defence
Non-Applicable
Formerly Sec 101 IPC
Section 38 All 358 Sections of Bharatiya Nyaya Sanhita Section 40

Legal Commentary & Landmark Judgments: Section 39

Section 39 establishes that if the offence be not of any of the descriptions enumerated in section 38, the right of private defence of the body does not extend to the voluntary causing of death, but extends, subject to the restrictions in section 37, to the voluntary causing of any harm other than death.

  • Harm Other Than Death: Where the assault does NOT threaten death, grievous hurt, rape, or abduction, the defender can inflict any bodily harm short of death.
  • Simple Assault Calibration: A slap or push cannot be countered by stabbing with a sword; the defender may use reasonable force to disarm or restrain the aggressor.
  • Exceeding Private Defence: If death is caused where only harm short of death was authorized, the offence is reduced from murder to culpable homicide under Section 105 BNS.
Key Landmark Precedents:
  • Laxman Sahu v. State of Orissa (1986) Supp SCC 555: The Supreme Court held that where the accused was subjected to simple assault, inflicting a fatal blow exceeded the right of private defence under Section 101 IPC (Section 39 BNS), converting murder into culpable homicide not amounting to murder.
  • Mohinder Pal Jolly v. State of Punjab (1979) 3 SCC 30: Held that factory workers throwing brickbats did not justify the factory owner firing a revolver causing death; the right extended only to harm short of death under Section 101.
Courtroom Practice & Strategic Litigation Guidance:

If your client caused death during a minor scuffle where Section 38 does not strictly apply, use Section 39 BNS to argue Exception 2 to Section 101 BNS: the accused acted in good faith in exercise of private defence without premeditation, reducing the conviction to Section 105 BNS.

Section 38 All 358 Sections of Bharatiya Nyaya Sanhita Section 40