Right of Private Defence of Body 

Section 35(a) provides that every person has a right subject to the restrictions contained under Section 37, to defend his own body and the body of any other person against any offence affecting human body. 

Offences affecting human body are defined and made punishable under Chapter 6 Section 100 - Section 146 of the BNS. 


• ROPD of Body extends to causing death 


Section 38 of the BNS provides that the right of private defence of body extends to the voluntary causing death or any other harm to the assailant subject to the restrictions contained in Section 37 of the BNS. 


Section 38 bare act: 


Yashwant Rao Vs State of Madhya Pradesh (rape, unnatural lust)


Vishwanath Vs State of Uttar Pradesh (kidnapping, abduction)


The accused's sister was staying with her father and brother (accused) because she did not want to live with her husband. One day, the deceased husband came to the house of the accused and tried to drag away his wife. The wife caught hold of the door as she was being taken out and a tug of war followed between her and her husband. At this stage, the brother of the wife took out the knife and deceased once. The knife penetrated the heart and he fell down senseless and thereafter died.


The accused put up the plea that his case would come under 5th clause of Section 100 of IPC (Section 38 BNS). The prosecution contended that IPC did not make abduction a pure and simple offence. As abduction coupled with certain intent such as murder, wrongful confinement etc is alone an offence. So, the ROPD of Body under 5th clause of Section 100 will be available only when the abduction is with some other intent. It is not just abduction, the benefit of Section 100 is not available.


The SC while rejecting the contention of prosecution held that abduction in 5th clause of Section 100 meaning abduction simpliciter as defined in the Section 362 IPC (Section 138 BNS) i.e where a person is compelled by force to go from any place. 


The SC further ruled that the moment there is an assault with the intention to abduct, the ROPD is available and therefore the brother is not held liable and acquitted. 


• ROPD of Body extending to harm other than death (Section 39) 


• Commencement and continuance of ROPD of Body (Section 40) 


In exercise of ROPD against a deadly assault effectual exercise of Right is permissible even when there is a risk to an innocent person (Section 44)

Comments

Post a Comment

Popular posts from this blog

Origin and Development of Human Rights

Origin and Development of Human Rights. Abstract. Human rights represent the inherent dignity, liberty, and equality of all individuals. Their roots lie in ancient natural law and religious traditions, later strengthened by milestones like the Magna Carta (1215), the American Declaration of Independence (1776), and the French Declaration (1789). After World War II, the Universal Declaration of Human Rights (1948) gave them global recognition. In India, these rights are enshrined in the Constitution through Fundamental Rights and Directive Principles, supported by judicial activism. Table Of Contents. Introduction Ancient Origin of Human Rights Medieval Origin of Human Rights Modern Development of Human Rights (17th–18th Century + Revolutions) 19th Century Developments 20th Century Development of Human Rights Human Rights in India Contemporary Development of Human Rights Conclusion Author’s Note Introduction to Human Rights. Human Rights are the basic rights and freedoms that belong to ...
Read more

Law of Contract I

 General Introduction. The word Contract is derived from Latin word Contractus which means “to work on a contract.” The law of contract is based on principle laid down on Pacta Sunt Servanda which means “Agreement to be kept” or pact must be kept. According to Sir William. The law of contract is intended to ensure that what has led to expect shall come to pass and what has been promised to him shall be performed. The law of contract thus not only lay down a number of rights and duties which the law will enforce, it consists of a number of limiting principles subject to which the parties may create rights and duties for themselves which the law will uphold. The parties to a contract in a sense make a law for themselves. Essentials of a Valid Contract. Section 2(h) of the Indian Contract Act 1872 defines the term contract as an “agreement enforceable by law.” As per section 2(e) every promise and every set of promises forming the consideration with each other is called an agreement. ...
Read more

Schools of Jurisprudence

 Introduction.  Jurisprudence, often known as the philosophy of law, studies the nature, origin, and purpose of legal systems. Different jurists explained law through various perspectives, forming distinct schools of thought. The five major schools are: Analytical School Historical School Sociological School Philosophical School Realist School. Analytical School/Imperative/Austinian/Positivist School. Central Idea: Law is the command of the sovereign, enforced by sanctions. Key Jurists: Jeremy Bentham (founder), John Austin (famous proponent). Main Points: Law = Command of sovereign + backed by force. Distinguishes between “law as it is” (positivism) and “law as it ought to be” (morality). Main Points: Law is man-made, not dependent on customs or morality. Criticism: It ignores justice, morality, and social aspects of law. Historical School. Central Idea: Law develops organically from customs, usages, and traditions of people. Key Jurist: Friedrich Karl von Savigny. Main Point...
Read more