If the attacker is legally 'not guilty' (like a child or mentally ill person), you're not allowed to defend yourself against them.

Section 98 makes clear the opposite: your right to private defence stays fully intact even when the attacker cannot be criminally punished for their act.

You must first figure out if the attacker is sane, sober, or an adult before deciding whether you can defend yourself.

The law doesn't require this. You judge the *act* — if it would be an offence when done by a normal responsible person, you may defend yourself against it, regardless of the attacker's actual condition.

Indian Penal Code, 1860

Section 98

repealed

Right of private 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 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.§

Why this exists

Indian criminal law excuses certain people from criminal liability (children, the insane, the intoxicated, or those acting under a genuine mistake) because they lack the mental capacity or intent the law requires for guilt. But a victim facing a knife-wielding child or a delusional attacker is in just as much physical danger as if the attacker were a fully responsible adult criminal. Section 98 was drafted by the framers of the IPC (1860) to ensure that the *victim's* right to self-protection does not depend on the *attacker's* criminal responsibility. The law separates two questions: whether the attacker can be punished, and whether the defender may protect themselves — the answer to the second is always yes if the act would otherwise qualify as an offence.

How courts read it

Indian courts have consistently treated Section 98 as confirming that private defence is judged from the perspective of the person under threat, not the mental state of the attacker. Courts assess whether the act — if done by a normal, sane, sober adult with full understanding — would have been an offence (like assault or hurt); if yes, private defence is available regardless of the attacker's actual capacity. This has been applied in cases involving attacks by minors and mentally unstable individuals, reinforcing that the defender need not first determine or prove the attacker's mental state before acting to protect themselves.

Common misconceptions

Myth: If the attacker is legally 'not guilty' (like a child or mentally ill person), you're not allowed to defend yourself against them.
Fact: Section 98 makes clear the opposite: your right to private defence stays fully intact even when the attacker cannot be criminally punished for their act.
Myth: You must first figure out if the attacker is sane, sober, or an adult before deciding whether you can defend yourself.
Fact: The law doesn't require this. You judge the *act* — if it would be an offence when done by a normal responsible person, you may defend yourself against it, regardless of the attacker's actual condition.