Answer By law4u team
Bharatiya Nyaya Sanhita, 2023 - Section 36: Right of private defence against 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 youth, the want of maturity of understanding, the unsoundness of mind, or the intoxication of the person doing that act, or by reason of any misconception on the part of that person, every person has the same right of private defence against that act which he would have if the act were that offence.
Illustrations:
- Z, a person of unsound mind, attempts to kill A; Z is guilty of no offence. But A has the same right of private defence which he would have if Z were sane.
- A enters by night a house which he is legally entitled to enter. Z, in good faith, taking A for a house-breaker, attacks A. Here Z, by attacking A under this misconception, commits no offence. But A has the same right of private defence against Z, which he would have if Z were not acting under that misconception.
Brief Detail
BNS Section 36 addresses the right of private defence when the person committing an act is not legally responsible due to factors like youth, unsoundness of mind, intoxication, or misconception. It ensures that individuals have the same right to defend themselves as if the act were an actual offence. Illustrations demonstrate that even if the aggressor is not legally culpable due to their condition or misunderstanding, the person attacked retains the right to self-defence.
Question & Answers
Q1: What does BNS Section 36 state about the right of private defence?
A1: BNS Section 36 states that if an act, which would otherwise be an offence, is not considered an offence due to factors like youth, unsoundness of mind, intoxication, or misconception, the person affected has the same right of private defence as if the act were indeed an offence.
Q2: How does BNS Section 36 apply if the person committing the act is of unsound mind?
A2: If a person of unsound mind commits an act that would typically be an offence, they are not held criminally responsible. However, the person affected by this act has the same right of private defence as if the person were sane and committing a real offence.
Q3: What happens if someone attacks another person under a misconception according to BNS Section 36?
A3: If someone attacks another person under a misconception, they are not committing an offence due to their mistaken belief. Nevertheless, the person being attacked has the same right of private defence as if the attacker were not acting under that misconception.
Example
- Example 1: Z, who is mentally ill, tries to harm A. Z is not guilty of an offence due to his unsound mind. However, A can still defend himself as if Z were fully responsible for the offence.
- Example 2: A legally enters a house at night. Z, mistaking A for a burglar, attacks A. Z is not committing an offence due to his misconception. A can still defend himself as if Z were attacking with criminal intent.
