If the attacker can't be punished (like a child or insane person), the victim isn't allowed to fight back.

The law says the opposite: the victim keeps the full right of private defense regardless of whether the attacker is legally guilty.

Private defense only applies against 'criminals.'

It applies against any dangerous act, even one committed by someone who is legally excused from criminal liability due to age, mental state, intoxication, or mistake.

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.§

(a) 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.§

(b) 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.§

Why this exists

Indian criminal law excuses certain people—children, the insane, the intoxicated, or those acting under genuine misunderstanding—from criminal liability because they lack the mental capacity or knowledge needed for guilt. However, this legal excuse for the attacker doesn't mean the victim must simply endure the attack. This provision, carried forward from Section 98 of the old Indian Penal Code, ensures that the right to self-defense is tied to the nature of the act itself (is it dangerous or threatening?), not to whether the attacker can be personally punished for it. It protects real people from real harm regardless of the attacker's legal innocence.

How courts read it

Indian courts have consistently held that the right of private defense depends on the objective threat posed by an act, not on the subjective culpability or legal responsibility of the person committing it. Judgments interpreting the equivalent IPC provision emphasized that a victim facing danger from a person who cannot be convicted (due to insanity, infancy, intoxication, or mistake) is not left defenseless — the law separates the question of 'is this dangerous conduct' from 'is this person legally guilty.' Courts have applied this principle in cases involving attacks by minors and mentally unsound persons, affirming that the defender's rights remain intact.

Common misconceptions

Myth: If the attacker can't be punished (like a child or insane person), the victim isn't allowed to fight back.
Fact: The law says the opposite: the victim keeps the full right of private defense regardless of whether the attacker is legally guilty.
Myth: Private defense only applies against 'criminals.'
Fact: It applies against any dangerous act, even one committed by someone who is legally excused from criminal liability due to age, mental state, intoxication, or mistake.