Chapter IV of the Indian Penal Code provides for the general exceptions which is based on the absence of a guilty mind i.e. mens rea.
General exceptions can be further classified into two types of defences; excusable and justified defences.
1. Excusable Defences
- Mistake of fact (S. 76 & 79)
- Accident (S. 80)
- Infancy (S. 82 & 83)
- Insanity (S. 84)
- Intoxication (S. 85 & 86)
2. Justified Defences
- Judicial Acts (S. 77 & 78)
- Necessity (S. 81)
- Consent (S. 87-89 & 92)
- Communication (S. 93)
- Trifle Acts (S. 95)
- Duress (S. 94)
- Private Defence (S. 96- 106)
Consent under Chapter IV
The word consent is not defined in the Code, but a general meaning to the word can be to agree. According to Kenny in Outlines of Criminal Law, consent should be given freely by a sane and sober person who is able to form a reasonable opinion. S. 87 to 89 and S. 92 of the Indian Penal Code provide for the exception of consent.
S 87 states that, any act done which is not done with intent or knowledge that it may cause death or grievous injury and done with consent will not be an offence provided that the person giving the consent (express or implied) is above 18 years of age and has suffered harm.
The ingredients of S.87 are;
- No intention or knowledge of hurt or death.
- The harm is done to a person who has given consent.
- Consent should exist in either express or implied form and by a person who is above 18.
88 states for any act which is done in good faith for a person’s benefit and with the consent (express or implied) of the person said person, such an act will not be an offence if the act causes or is likely to cause harm to the person.
The point of this section is that consent cannot justify death. S. 87 and 88 differ on the fact that, under S.88 any harm but death is accepted whereas in S. 87 any harm other than death or grievous hurt is accepted.
The ingredients of S. 88 are;
- Done for the benefit of the person.
- Consent exists, whether express or implied.
- Good faith.
- No intention of death.
89 states any act which causes harm or is likely to cause harm to a child of under 12 years or to an insane person,done with the consent (express or implied) of the guardian or in good faith or for the benefit of the child or insane personto not be an offence. This section has four provisos, which are;
1. Does not cover intentional causing of death or an attempt.
2. Does not cover any act which is likely to cause death.
3. Does not cover the voluntary causing of grievous hurt.
4. Does not cover abetment to any offence.
The ingredients of S. 89 are;
- Must be done for the benefit of a person of unsound mind or a child of under 12 years of age.
- Good faith.
- Done by the guardian or by the consent of the guardian.
- The consent must be express or implied.
Sec. 92states for any act which is done without consent provided that the act is done in good faith or for the benefit of the person and the person was either unable or incapable to give consent or it was not possible to attain consent from the guardian of the person in question. S. 92 holds the same provisos as S. 89.
The ingredients of S. 92 are;
- For the benefit of the person.
- Good faith.
- Done without the consent of the person due to incapability of the person to give consent or inability to get consent.
Illustration: A and B want to hunt for sport agree to do so. As there is a possibility of harm, the agreement between A and B implies the consent to suffer any harm in the course of hunting.
Case:
Poonai Fattemah Case1
The accused, a snake charmer persuaded the deceased to allow himself to be bitten by a poisonous snake inducing him to believe the snake had the power to protect him. It was held that the consent arose out of misrepresentation and the deceased gave consent under such misconception.
Case:
Sukaroo Kaviraj Case2
The accused performed an operation on the patient for internal piles by cutting the patient with an ordinary knife due to which the patient died of profuse bleeding, it was held that the accused acted in a rash and negligent manner and not in good faith.
Burden of Proof
The burden of proof lies on the defendant/accused. S.105 of the Indian Evidence Act states that if a person desires to avail anyof the exceptions, he must prove that his case falls within any of theexceptions
Frequently Asked Questions
1. Sec. 92 does not cover/extend to which circumstances?
1. Intentional causing of death
2. Any act which is likely to cause death
3. Voluntarily causing hurt or an attempt to cause hurt other than for the purpose of preventing death or grievous hurt
4. Abetment
2. What is implied consent?
Implied consent occurs when a person consents to something by his or her actions. Although the person has not givenwritten or verbal consent, but the actions have caused a reasonable beliefof consent.
3. In which cases is consent not considered as free?
a. Consent by a person under fear of injury or death
b. Consent under misconception of fact
c. Consent by a minor under 12 years of age
d. Consent by an unsound person
e. Consent by an intoxicated person
4. Is the maxim volenti non fit injuria applicable in the concept of consent?
Volenti non fit injuria is a legal maxim and a defence which means, when any person engages in any event andis aware of the risks of or in that event, they have voluntarily accepted the injury which may occur. This is closely related to the concept of implied consent.
5. What is express consent?
Express consent is the exact opposite of implied consent. Where any consent has taken place in a verbal or written form, such a consent would be deemed as express consent.
Edited by Shikhar Shrivastava
Approved & Published – Sakshi Raje
References
1. PoonaiFattemah Case, (1869) 12 W.R. (Cr.) 7
2. SukarooKavirajCase, (1887) 14 Cal. 566
3. S.N. Misra, Indian Penal Code, 167-179, (20th ED. 2016) Central Law Publications, Allahabad
