Contents of Article
INTRODUCTION
The legal code outlines different punishments for numerous crimes. however someone might not always be penalized for against the law that he/she has committed. The Indian penal code, 1860 acknowledges defenses in chapter four under the heading ‘General Exceptions.’ Sections 76 to 106 of the IPC cover these defenses. The law offers bound defenses that clear criminal liability. These defenses are based on the premise that although the person committed the offense, he can’t be command liable. this is often as a result of, at the time of the commission of the offense, either the prevailing circumstances were specified the act of the person was even or his condition was specified he couldn’t kind the requisite planning for the crime. The defenses are usually classified under 2 heads- justifiable and excusable. Thus, for committing a wrong, a person must be liable for doing a wrongful act without having any justification or excuse for it.
A even act is a one which otherwise, under traditional conditions, would are wrongful however the circumstances under which the act was committed make it tolerable and acceptable. The person fulfills all the ingredients of the offence however his conduct is held to be right under the circumstances. an excusable act is the one in which though the person has caused harm, it’s held that a person should be exempt because he can’t be blamed for the act. for example – if a person of unsound mind commits against the law, he cannot be command responsible for being mentally sick. in case of an excusable defense, the actor isn’t punished as he lacks the mandatory mens rea for the offence either by reason of an honest mistake of fact, infancy, insanity or intoxication. There must be a incapacity to cause the condition that excuses the conduct. A conduct is punishable not because the person acted in that manner but as a result of he chose to act in this manner. Excusable defenses are invoked when one cannot infer the bad character of someone from the act that he has committed. the different defenses options in IPC and in what category they fall have been discussed during this project. the next section expresses my views on conceive to classify these general exceptions.
Object of General Exception Under IPC
Every penal clause is subject to number of limitations and no offence can be absolute without any exceptions. An offence committed by a child cannot be treated as same as committed by an adult person. In order to avoid repetition, all the exceptions are codified in a single chapter. This can be inferred from sec 6 of IPC.
Burden of Proof
Fundamental Principle of criminal law is that a person is innocent until proved guilty.The prosecution has to prove the guilt of accused beyond reasonable doubt. But if the accused claims any defence available under general exception than the burden shifts on the accused that his case falls under one of the section given under Chapter IV of IPC.
Section 105 of Indian Evidence Act places the burden on the accused to prove that the case falls within one of the general exceptions.“When a person is accused of any offence, the burden of proving the existence of circumstances bringing the case within any of the General Exceptions in the IPC, is upon him, and the Court shall presume the absence of such circumstances.”
Eg: A, accused of murder, alleges, that by reason of unsoundness of mind, he did not know the nature of the act. The burden of proof is on A.
Applicability of this Chapter
Sec 40 paragraph 2 of IPC defines the word “offence” as denoting a thing punishable under IPC as well as under a special or local law. By reading sec 40 along with sec 6 of IPC it is clear that the chapter of general exception is applicable not only to IPC but also to the penal provision in special and local laws. The title “General Exceptions” is therefore adopted to convey that these exceptions are available to accused of all offences.
Classification of general exceptions
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| GENERAL EXCEPTIONS UNDER IPC, 1860 |
Excusable Act – Excusable General Exceptions Under IPC
- Mistake of fact (Section 76 and79)
- Accident (Section 80)
- Infancy (Section 82, 83)
- Insanity (Section 84)
- Intoxication
Justified Act
- Judicial Act (Section 77 and 78)
- Necessity (Section 81)
- Consent (Section 87 – 89 and 92)
- Duress (Section 94)
- Communication (Section 93)
- Trifles (Section 95)
- Private Defense (Section 96-106)
A.Excusable Act:
This is the first category of general exceptions where the law excuses certain acts even though it constitutes an offence. Here the act is excused for want of requirement of guilty mind.It treats the actus reus as non-criminal because of the absence of mens rea. Eg: Act of infant or insane person.
1.Mistake of Fact
Based on the maxim “Ignoratia facit doth excusat, ignoratia juris non excusat.”There are three ingredients for a mistake to be an excusable act.
⦁ The mistake must be of such a nature, that if the things as claimed is supposed to be true, it would excuse the act done.
⦁ Mistake must be a reasonable one.
⦁ Mistake must pertain to fact and not law.
Sec 76 (Bound by law) and sec 79 (Justified by law) of IPC deals with mistake of fact. Sec 76 of IPC gives immunity from criminal liability to a person who is bound by law. It states that nothing is an offence which is done by a person who is, or who by reason of a mistake of fact and not by reason of a mistake of law, in good faith believes himself to be, bound by law to do it.
Eg: A, a soldier, fires on a mob by the order of his superior officer, in conformity with the commands of the law. A has committed no offence.
Ingredients of sec 76:
⦁ The person was bound by law or has the belief that he was bound by law to do the act.
⦁ Such belief must be by reason of mistake of fact and not by reason of mistake of law.
⦁ Such belief must be in good faith.
State of West Bengal vs Shew Mangal Singh (AIR1981 SC 1917)
In this case, the police officers were on their patrol duty and they were suddenly attacked by some persons. So the Deputy Commissioner of Police gave the order to open fire. As a result of which the victim suffered injuries and died. Here the court held that as the order given by the superior officer was justified, so the accused gets the benefit u/s 76 of IPC and were acquitted.
Charan Das vs. State, ILR (1950) 1 P&H 354.
In this case, information was received that gambling was going on in a tent, so the tent was surrounded by Police. Order was given by the officer to the Constable to fire because of which one person died. Here the constable was charged with murder. He pleaded the defence that he acted upon the order of superior officer.
Here the Court held that in the tent no murder was being committed. The information merely was that gambling was going on. No violent mob had gathered there. Under these circumstances the order of the superior officer was illegal and he was not bound to follow such order. A soldier is not protected where the order, as in the present case, is grossly and manifestly illegal. So the court convicted him.
Gopalia Kaliaiaya vs. State (1923) 26 Bom LR 138
A, a police officer, was ordered to arrest a wrong-doer. A warrant was issued on the name of wrong-doer. The police officer made reasonable inquiries arrested the complainant, believing in good faith he was the wrong-doer.The complainant filed a case against the officer alleging that he was wrongfully confined. The Court held that the police officer was protected under Sec. 76.
Justified by Law
Sec 79 of IPC gives immunity from criminal liability to a person who is justified by law. It states that nothing is an offence which is done by any person who is justified by law, or who by reason of a mistake of fact and not by reason of a mistake of law in good faith, believes himself to be justified by law, in doing it.
Eg: A sees Z committing murder. A acting in good faith seizes Z in order to bring Z before the proper authorities. A has committed no offence, though it may turn out that Z was acting in self-defense.
Ingredients of sec 79:
⦁ The person was justified by law or has the belief that he was justified by law in doing it.
⦁ Such belief must be by reason of mistake of fact and not by reason of mistake of law.
⦁ Such belief must be in good faith.
R. vs. Tolson (1889 23 QBD 168)
The appellant married in Sept 1880. In Dec 1881 her husband went missing. She was told that he had been on a ship that was lost at sea. Six years later, believing her husband to be dead, she married another. 11 months later her husband turned up. She was charged with the offence of bigamy.
Held: She was afforded the defence of mistake as it was reasonable in the circumstances to believe that her husband was dead.
Harbhajan Singh vs State of Punjab, AIR 1966 SC 97.
In this case, the accused published a statement regarding the son of the then Chief Minister of Punjab, stating that he is the leader of smuggler and is responsible for large number of crimes. He was prosecuted u/s 500 of IPC for defamation.
Here the court relying on the evidence given by accused acquitted him and held that the accused made the statement in good faith and for public good.
2. Accident
Sec 80 exempts a person from liability if the act is done accidentally, without any criminal intention or knowledge.
Ingredients of sec 80:
⦁ The act must be done by accident or misfortune.
⦁ It must be done without any criminal intention or knowledge.
⦁ It must be;
⦁ In doing a lawful act.
⦁ In lawful manner.
⦁ By lawful means.
⦁ It must be done by proper care and caution.
To bring an act within the meaning of the word ‘accident’ used in sec 80, an essential requirement is that the happening must be one to which human fault does not contribute. It means an unintentional or unexpected act. An act is called accident when it is unintentional and the consequences of the act is not so probable that a person of ordinary prudence, under those circumstances would take reasonable precautions against it.
Tunda vs Rex (AIR 1950 Allah 95).
In this case, there were two friends who were fond of wrestling participated in a wrestling match. One of them sustained injuries which resulted in his death. The other person was charged u/s 304-A of IPC. The High Court held that when both agreed to wrestle with each other, there was an implied consent to suffer accidental injuries. In the absence of any foul play, it was held that the act was accidental and case comes within sec 80 of IPC.
Jogeshwar vs Emperor (1923) 24 CrLJ 789.
In this case, while A was beating B, B’s wife interfered taking the baby in her shoulder. A hit the woman but the blow struck the child in his head because of which the child died. Here the Court held that A was not protected u/s 80 because though baby was hit by accident, but at that time A was not doing lawful act. Here A was convicted.
Bhupendra Singh vs State of Gujarat, 1998 CrLJ 57 (SC).
In this case a constable shot another Head Constable while on the patrol duty. He took the defence that it was an accident and he has not done it intentionally. Here the court rejected the plea of the accused stating that the accused has acted without due care and attention and will not be able to claim immunity u/s 80 of IPC.
Sita Ram vs State of Rajasthan (1998) CrLJ 287 (Raj).
In this case, the accused was digging the earth with a spade. The deceased came to collect the mud. The spade hit the deceased on the head and he died. The accused pleaded that it was an accident. The High Court held that the accused was aware that other workers would come to pick up the mud. The accused did not take proper care and caution and he was convicted u/s 304-A of IPC.
3.Incapicity: These are of three types
A. Act done by Child
Sec 82 and 83 of IPC deals with offences committed by child.The Constitutional basis for different provisions for children is Art 15 (3), Art 39 (e) and (f) of Indian Constitution. Art 15 (3) empowers the state to make special provisions for women and children. Art 39 (e) and (f) are the Directive Principles of State Policy which provides that children should be given opportunities and facilities to develop in a healthy manner.
Sec 82 of IPC states that a child under seven years of age is not liable for offence. Law presumes that a child below seven years is ‘doli incapax’, i.e. he lacks the adequate mental ability to understand the nature and consequences of the act and thereby an ability to form the required mens rea. Sec 82 gives total immunity from criminal liability to a child who is below seven years of age.
Shyam Bahadur Koeri vs State of Bihar (AIR 1967 Pat 312)
In this case, a child below 7 years of age discovered a gold plate weighing 28 tolas. He did not report to the Collector. This fact when known to the Collector ordered to prosecute the child under the Indian Treasure Trove Act, 1878. Here the Court held that as the age of the accused is below 7 years he is entitled to the benefit u/s 82 of IPC, so the Court acquitted the accused.
Sec 83 of IPC deals with an act of child who is above 7 years and under 12 years of age.
Ingredients of sec 83:
⦁ The act must be done by a child.
⦁ The child must be above 7 years and under 12 years of age.
⦁ The child must not have attained sufficient maturity to understand the nature and consequences of his act.
Maturity of Understanding:
Sec 83 states that when a person is above 7 years and under 12 years, the court has to ascertain if the child has sufficient maturity of understanding the nature and consequences of his conduct.
The word ‘consequences of his conduct’ do not mean penal consequences but the natural consequences of his act. Proof of attainment of sufficient maturity can be arrived at by the court on the consideration of all the facts and circumstances of the case. It can be inferred from the nature of the act and his subsequent conduct and appearance in the court.
Hiralal Mallick vs State of Bihar (AIR 1977 SC 2236)
In this case, the accused was a 12 year old boy who was having dispute with the victim. Here the accused armed with the sharp weapon gave several blows to the victim on his neck and skull. Because of which the victim died. The accused was charged with murder. The accused pleaded defence u/s 83 of IPC.
Here the Court rejected the defence of the accused and convicted him stating that the act of the accused of stabbing the victim with sharp weapon shows that accused had attained sufficient maturity of understanding to judge the nature and consequences of his act.
A study of Juvenile Justice (Care and Protection of Children) Act, 2015 is essential for complete understanding of the law relating to criminal liability of children. It deals with the child up to eighteen years of age who has committed an offence. It provides that no child, who has committed offence, should be sentenced to death or life imprisonment. It states that a child who has committed an offence shall be sent to Special Home for a maximum period of 3 years.
Determination of Age: One of the major question which comes before the court is the determination of age.
Pratap Singh vs State of Jharkhand (2005) 3 SCC 551
In this case, there was a question before the court regarding relevant date, whether the date of commission of offence or the date on which the accused was produced before the court should be considered. Here the Supreme Court held that the date of the commission of the offence should be recognised as the date for determining the age of the accused.
B.Insanity
It is an important principle of criminal law that in order to hold a person legally responsible for a crime, it is necessary that the person who did the act had sufficient mental capacity to form a criminal intent. Insanity is a state of mind in which the person does not know that his acts are right or wrong.
Therefore, a person who is suffering from insanity would not be responsible for his criminal acts as per the criminal law. It is based on the maxim, “furiosus solo furore punitur” which means that a mad man is punished by his madness alone.
Ingredients of sec 84:
⦁ The accused must have been suffering from unsoundness of mind at the time of commission of the act.
⦁ The accused because of unsoundness of mind is incapable of knowing the nature of his act.
In this case, the accused felt that a gang of persons wanted to kill him and the then Prime Minister of England Sir Robert Peel was responsible for this entire situation. The accused was suffering from paranoid delusion. One day he shot Mr. Edward Drummond, the secretary of Prime Minister, thinking him to be Sir Robert Peel. He was arrested and charged with murder. He pleaded the defence of insanity.
At the time of trial, evidence was brought forward regarding the insanity of accused. Also the witnesses deposed that the accused was suffering from insanity.
So the Court accepted the defence and acquitted the accused.
R vs M’Naghten Cont..
The people of England opposed the judgment and so the House of Lords has enacted some rules relating to insanity as defence which are as follows:
Every person is presumed to be sane and the burden of proof lies on the party which claims defence under insanity.There should be a disease of mind which means malfunctioning of mind.
At the time of committing the act, the accused was under such a defect of reason, from disease of the mind, as not to know the nature and quality of the act he was doing. Even if he knows the act, he did not know that he was doing a wrong act.
Shrikant Anandrao Bhosale vs State of Maharashtra (AIR 2002 SC 3399)
In this case, the accused killed his wife when she was washing clothes. The accused was charged with murder. Here he pleaded defence u/s 84 of IPC. In support of his contention he relied on his past psychiatric treatment and the testimony of two medical specialists who stated that the accused is suffering from schizophrenia. Relying upon the evidence and circumstances of the case, the Court accepted the plea and acquitted the accused.
Jai Lal vs Delhi Administration (AIR 1969 SC 15)
In this case, the accused stabbed a child of one and half year old. He has hidden the knife and attempted to run from the back door. He raised the plea of insanity as a defence and stated that he was a schizophrenic patient. Here the court rejected the plea and had taken into consideration the subsequent behaviour of accused of attempting to prevent his arrest. Court held that his conduct displayed consciousness of guilt. So the Court convicted the accused.
C. Intoxication
Alcohol is strongly associated with the crimes of violence. The effect of alcohol is that it is a depressant which reduces the stimulation of brain and whereby a person loses control of his acts. It weakens the inhibitions and impairs the ability to foresee consequences. Sec 85 and sec 86 of IPC deals with offence committed by intoxicated person.
Ingredients of Sec 85:
⦁ The act must be done by a person who is incapable of knowing the nature of the act.
⦁ Such incapacity must be by reason of intoxication.
⦁ The incapacity must exist at the time of doing the act.
⦁ The thing which intoxicated him must have been administered to him without his knowledge or against his will.
Involuntary Intoxication:
Sec 85 protects the person from criminal liability when the thing which intoxicated him was administered to him ‘without his knowledge’ or ‘against his will’. The expression ‘without his knowledge’ means that the person is ignorant of the fact that what is consumed by him is an intoxicant or is mixed with an intoxicant. The words ‘against his will’ means that the person was forced or coerced into consuming an intoxicant.
Incapable of Knowing the Nature of the act:
For the defence of intoxication it is not only important to prove that it was involuntary intoxication, but also that due to intoxication the person lost his ability to understand the nature of the act committed by him.
Jethuram vs State of MP (AIR 1960 MP 242)
In this case, the accused who was intoxicated against his will caused death of the victim. The accused used an axe for inflicting six of the injuries and a stick for the other two. Out of the axe injuries, four were on the head. The stick injuries were also on the head. As all the injuries were on the vital part, therefore, the Court held that the accused was capable of knowing the nature of his act and could not claim any benefit under the provisions of Section 85 of the Indian Penal Code.
Voluntary intoxication is not considered as a defence under IPC. If voluntary intoxication was allowed to be a protective shield against criminal liability, it would obviously lead to a sort of license to commit crimes. However, sec 86 of IPC provides that if an offence requiring knowledge and intention is committed by self-induced intoxicated person, only knowledge on the part of accused will be presumed.
Basdev vs The State (1956 AIR SC 488)
The accused was a retired Jamedar, attended a marriage party, in which he drank liquor heavily. He wanted to sit on a chair, on which a boy already sat. The accused asked him to stand so that he would sit on it. The boy refused. The accused became annoyed, and shot the boy with his pistol. The boy died on the spot. The accused pleaded that he was heavily intoxicated.
Here the court held that as it is a case of voluntary drunkenness, the accused is not entitled to defence of intoxication. Also the court noted the fact that as the accused was able to talk and stand without any support at the time of offence so he has the capacity to form intention. And so the court convicted the accused for murder.
Mavari Surya Satyanarayana vs State of A.P. (1995) 1 CrLJ 689)
The accused suspected the character of his wife. One day he drank heavily. Some hot exchange of words took place between wife and husband. The accused poured the kerosene on his wife and set her on fire. She tried to escape from the fires and rushed outside the house. The accused again caught the victim, and again poured the kerosene and subsequently set her on fire resulting her death. He pleaded the defence of intoxication.
Here the court held that as the accused was aware that when for the first time he poured the kerosene it was not sufficient to complete his brutal act. To finish his heinous act, he poured the kerosene for second time. This was sufficient to prove his rational thinking and mens rea to fulfill his intended act. The Supreme Court converted his punishment from 304 Part-II to Section 302.
B.Justifiable Act:
This is the second category of General Exceptions where the acts committed, though are offences, are held to be justifiable under certain circumstances. Act done is justified on account of some other meritorious considerations neutralising the corresponding liability.
Eg: Act done out of necessity, act done in private defence.
1. Judicial Acts
Sec 77 and sec 78 of IPC gives immunity from criminal liability to Judges and its staff. The object of protection to Judges is to ensure the independence of the Judges and to enable them to discharge their duties without any fear of the consequences. The function of Judges creates a feeling of revenge in the mind of convicted person. So the Judges are given immunity from criminal liability. Sec 77 provides that nothing is an offence which is done by a Judge when acting judicially in the exercise of any power which is, or which in good faith he believes to be, given to him by law.
Ingredients of sec 77:
⦁ The act must be done by a Judge.
⦁ The Judge must be acting in exercise of power which is given to him by law; or
⦁ The Judge must be acting in exercise of power which in good faith he believes to be given by law.
Eg: Death sentence given by a Judge is protected under this section.
Sec 77 protects acts which are done by a Judge.The word Judge is defined u/s 19 of IPC as not only the person who is officially designated as a Judge, but also a person who is empowered by law to give a definitive judgment in any civil or criminal proceeding.
Eg: A Collector is empowered to hear the matters relating to land revenue.
The Judges (Protection) Act, 1985.
Sec 3 (1) of the above act states that no court shall entertain or continue any civil or criminal proceeding against any Judge or any act, thing or word committed, done or spoken by him when, or in the course of, acting or purporting to act in the discharge of his official or judicial duty or function.
Acting Judicially:
An important element of sec 77 of IPC is that it should not only be an act of Judge, but it should be done by him in the course of discharging his judicial powers.
Ram Pratap Sharma vs Dayanand (AIR 1977 SC 809).
In this case, a Judge of Punjab and Haryana High Court while addressing the members of the bar, criticised the government policy and openly attacked the government. The members wrote a letter to the President regarding the conduct of the Judge. So the High Court issued a notice of criminal contempt against the members of the bar. The members issued an apology. Later the matter was before the Supreme Court, which held that it is not part of the duty of the Judge to address a meeting on political matters. So a Judge does not gets Immunity u/s 77 of IPC.
Daya Shankar vs High Court of Allahabad (AIR 1987 SC 1469)
In this case, a judicial officer was found copying while writing his first semester LLM examination. The Supreme Court held that the conduct of the petitioner was unworthy of judicial officer. Here the person is not liable to get immunity u/s 77 of IPC. So the Court upheld the dismissal of the petitioner as judicial officer.
Sec 78 protects the members who executes the orders of the court.If such immunity is not given than it would be impossible to execute or implement the orders of the court. The protection extends even if the court does not have jurisdiction to issue such order, provided that the person executing the order believes in good faith that the court has jurisdiction to issue such order.
2.Necessity
Sec 81 of IPC recognises the doctrine of necessity as a defence against criminal liability. It is based on two maxims:
⦁ “Quod necessitas non habet legem” which means necessity knows no law.
⦁ “Necessitas vincit legem” which means necessity overcomes the law.
Necessity in legal context involves a judgment that evil in obeying a law is greater than evil of breaking it. In other words the law has to be broken to achieve a greater good. A close examination of the illustration given u/s 81 of IPC makes it clear that an act of running down a small vessel or pulling down houses is itself an offence. But when it is done without any intention of causing harm to passengers of the smaller vessel or without intention of destroying the neighboring houses but only to prevent greater harm, then, this section would apply.
Ingredients of sec 81:
⦁ The act must be done without any criminal intention.
⦁ It must be done in good faith.
⦁ It must be done for the purpose of preventing or avoiding other harm to person or property.
⦁ It is a question of fact in such a case whether the harm to be prevented was of such a nature as
to justify the risk of doing the act.
R vs Dudley and Stephens (1884) 14 QBD 273
In this case, the ship was damaged in open sea. The crew managed to get a life boat. The lifeboat was floating in open sea without direction away from sea coast. The crew consisted of a boy of 17 years of age. They were in life boat for 7 days without food. In order to survive, two of the adults killed the boy. They drank his blood and ate his flesh to survive. They were rescued by a passing by ship. After reaching the shore they narrated the facts and were arrested. The defence of the accused was that they did so for self-preservation out of the act of necessity. The court held them guilty of murder stating that killing an innocent life to save one’s own life does not justify murder even if it is under extreme necessity of hunger.
United States vs Holmes (1842) 26 Fed Case 360
In this case, an American ship was sinking after hitting an iceberg. The crew and some passengers managed to get away into the ‘long-boat’. The boat was over-loaded and so the accused person along with the crew threw 14 passengers into the sea. Here the accused was charged with murder. He took the defence of necessity. Here the court rejected the plea and convicted the accused.
3. Compulsion or Duress
Sec 94 of IPC recognises the principle that offences committed out of compulsion is a defence to criminal liability. The principle is founded on the well-known maxim, “Actus me invito factus non est mens actus,” which means an act which is done by me against my will is not my act.
Therefore it is highly justifiable that a man should be excused for his acts which are done through unavoidable force and compulsion. The offence of murder and offences against the state punishable with death are excluded from this section. The benefit of this section does not extend to the offence of murder and the offence against the state punishable with death.
The offence of murder is excluded from sec 94 under the principle that a man cannot kill another to save his own life. As regards the second exception , i.e. offence against the state punishable with death is excluded from sec 94 under the presumption that an individual should place the sovereignty of his country, even above his own life. Even at gunpoint, a person should refuse to wage war against the state.
Instant death:
For this Section to apply it is necessary to prove the existence of fear of instant death. Any other kind of fear, including fear of distant and not instant death, does not provide any protection under this Section.
Eg: if A threatens B that he would kill him in a week’s time unless he steals Z’s car by then, and B steals the car, B is not protected under this Section.
Emperor vs Autar (AIR 1925 All 315)
In this case the accused helped in the removal of the dead body of a person after the murder of the person by the master of the accused person, under the threat of the master to kill him if he refused him in the disposal of the dead body, the accused who would have otherwise been guilty u/s 201 of IPC was exempted from punishment under this section.
Mirza Zahid Beg vs Emperor (AIR 1938 All 91)
In this case, the accused killed the person and thereafter ordered other person to dispose off the body. Here the main accused left the spot and ordered other accused to dispose off the body showing the threat of instant death. Here the court held that if the threat of instant death ceases or does not continue to exist, at the time of actual commission of the offence, then this section will not apply.
4. Consent
The concept of consent implies that a person agrees to the act of another person after knowing the consequences of the act. It is based on the maxim “Volenti non fit injuria” which means that harm caused with consent cannot be considered as injury.Consent can be defined as an act of reason, accompanied by deliberation, the mind weighing, as in balance, the good and evil on each side.
Object of including Consent as defence:
The general presumption under criminal law is that if an adult person gives his consent to suffer harm it does not amount to an offence. It can be explained by an illustration that if Z, an adult and sane person directs that his valuable furniture shall be burned and his house shall be pulled down. However deeply Z may afterwards regret but it will be unjustifiable to punish the person who followed the order of Z and destroyed the property.
Consent is defined u/s 90 of IPC in a negative manner. It provides that a consent is not a consent if ;
⦁ It is given by a person under fear of injury.
⦁ It is given by a person who is under misconception of facts and the person who obtains the consent knows or has reason to believe this.
⦁ It is given by a person of unsound mind.
⦁ It is given by an intoxicated person.
⦁ It is given by a child below 12 years of age.
Sec 87 deals with consented acts which are not intended to cause death or grievous hurt.
Ingredients of sec 87:
⦁ Act must be without intention and knowledge to cause death or grievous hurt.
⦁ Act must be done to a person who is above 18 years of age.
⦁ The victim must have given consent.
⦁ Such consent must be to suffer the harm.
Absence of Knowledge:
Sec 87 states that there should not only be absence of intention to cause death or grievous hurt, but also absence of knowledge by the doer that the act is likely to cause death or grievous hurt.
The illustration to sec 87 deals with an agreement to fence with each other for amusement, but instead of fencing, if it was a competition with loaded pistols to hurt each other. Here the nature of the weapon clearly demonstrates that the party knows that their act would kill or hurt other person. Such an act will be an offence irrespective of the consent.
Tunda vs Rex (AIR 1950 Allah 95).
In this case, there were two friends who were fond of wrestling participated in a wrestling match. One of them sustained injuries which resulted in his death. The other person was charged u/s 304-A of IPC. The High Court held that when both agreed to wrestle with each other, there was an implied consent to suffer accidental injuries. In the absence of any foul play, it was held that the case comes under sec 87 of IPC.
Sec 88 provides that any act which is done in good faith for the person’s benefit and with his consent to suffer that harm, is not an offence.
Eg: A, a surgeon, knowing that a particular operation is likely to cause the death of Z, who suffers under a painful complaint, but not intending to cause Z’s death and intending in good faith, Z’s benefit performs that operation on Z, with Z’s consent. A has committed no offence.
Ingredients of Sec 88:
⦁ The act must be without intention to cause death.
⦁ The act must be done in good faith.
⦁ The act must be done for the benefit of the person.
⦁ The act must be done by the consent of the person to suffer that harm.
Dr. R.P. Dhanda vs Bhurelal, 1987 CriLJ 1316 MP
In this case, a eye operation for cataract was performed by a qualified doctor with patient’s consent resulting in loss of eye sight. On criminal proceeding being instituted against eye specialist, he claimed protection u/s 88 of IPC. The Court accepted the defence and held that the doctor was not liable as he had done the operation in good faith and with care and caution according to the Indian Medical System.
Sec 89 of IPC provides that if an act is done for the benefit of a person who is under 12 years of age or who is of unsound mind, by the consent of the guardian and causes harm to that person is not an offence. This section is subject to four provisions mentioned in the section itself.
⦁ The first proviso states that where the doer intentionally causes death or intentionally attempts to cause death, this section will not protect him. For example, where A, in good faith, for his daughter’s benefit intentionally kills her to prevent her from falling into the hand of dacoits, A is not within this exception.
⦁ According to the second proviso this section does not apply where the doer does something which he knows to be likely to cause death, for any purpose other than preventing of death or grievous hurt, or the curing of any grievous disease or infirmity. For instance, A, in good faith, for his child’s benefit without his child’s consent, has his child cut for the stone by a surgeon, knowing it to be likely that the operation will cause the child’s death, but not intending to cause the child’s death. A is within the exception, inasmuch as his object was to cure the child.
⦁ According to the third proviso this exception shall not extend to the voluntary causing of grievous hurt, or to the attempting to cause grievous hurt, unless the purpose of the doer be to prevent death or grievous hurt, or to cure any grievous disease or infirmity.
⦁ The fourth proviso states that this exception shall not extend to the abetment of any offence, to the committing of which offence it would not extend.
K.A. Abdul Vahid vs State of Kerala (2005) CrLJ 2054 (Ker)
When a school teacher, in this case, beats a student with a cane, who showed disobedience to the rules, whether he could be proceeded against under the provisions of the I.P.C., is the question that is before the court for consideration.
The Kerala High Court held that when a school teacher beats a student who shows disobedience to the rules, is protected within sec 89 of IPC. By admitting to school the guardian has given implied consent for such act. Also the teacher is acting in good faith.
Sec 91 is an exception to sec 87, 88 and 89.
It states a situation wherein, despite the consent given, an act constitutes an offence not by reason of the harm caused, but by reason that the act is itself illegal. Illustration to sec 88 states that an injury caused during fencing for which adults have consented does not amount to an offence. However if there is a law which makes fencing itself an offence, then irrespective of the consent it will still be an offence. The offences of Public nuisance or offences against public safety, morals are the examples where the act itself is an offence irrespective of the harm caused.
The illustration given u/s 91 of IPC relating to the offence of miscarriage has become somewhat inappropriate as pregnancy can now be terminated under Medical Termination of Pregnancy Act, 1971, on a number of grounds and not only on the ground of saving life of the woman.
Sec 92 states that if an act in good faith is done for the benefit of other person, and the circumstances are that it is not possible to obtain consent of that person, and if such act cause harm to another person than it is not an offence.
Ingredients of sec 92:
⦁ The act must be done for the benefit of other person to whom harm is caused.
⦁ The act must be done in good faith.
⦁ The circumstances are that it is impossible to obtain consent.
5.Communication
Sec 93 states that if a communication is made in good faith for the benefit of the person and it causes harm than it does not amount to an offence.
Ingredients of sec 93:
⦁ The communication must be made in good faith.
⦁ It must be made for the benefit of the person to whom it is made.
Eg: ‘A’ a surgeon in good faith, communicates to a patient his opinion that he
cannot live. The patient dies in consequence of the shock. A has committed no
offence, though he knew it to be likely that the communication might cause the
patient’s death.
6.Trivial Acts
Sec 95 of IPC deals with trivial acts. It is based on the Latin maxim, “de minimis non curat lex” which means that the law does not concern itself with trifles. Sec 95 states that an act is not an offence if done without any intention to cause harm and if that harm is so slight that no person of ordinary sense and temper would complain of such harm.
Rupan Deol Bajaj vs KPS Gill (AIR 1966 SC 309)
In this case, the accused was Director General of Police who patted the posterior of victim at a dinner party. Here the victim was an IAS officer who complaint of outraging modesty. The Supreme Court held that though the act looks like a minor act but it was done in presence of many people. So the harm caused to the victim is not a slight harm. Therefore the court rejected the defence of accused u/s 95 of IPC and the accused was convicted.
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