Introduction
The Indian Penal Code is considered to be the criminal act followed in India. It was introduced in the First Law Commission, formulated and headed by Lord Thomas Babington Macaulay in the year 1835. Later after subsequent changes, it was submitted to the Governor-General of Indian Council in 1837. It was brought into effect on 6th October, 1860. The Indian Penal Code is treated as the basic structure for all the crimes happening in the society. This code also deals with all the punishments for the commission of such crimes and also instances in which the accused is liable to a certain sum of charges. For a commission of a crime, the intention is an active element to determine an act to be criminal.
Consent
The two main ingredients for a crime are actus reus and mens rea. Actus reus means an act done by the wrongdoer and ‘mens rea’ is the intention of doing the said act. Mere requirement does not amount to a crime. Both the essentials must be satisfies to commit a crime. In a general context, consent is define as an act done by free will and deliberately without any compulsion. There must be an exercise of intelligence based on knowledge of its significance. The moral quality and there must be a choice between resistance and assent.[1] The consent given should be a real one. It should not be obtain under the influence of fear or terror. Consent given can be either an expressed or implied one.
Express consent is one that is directly given either in writing or given orally. Implied consents are the ones that are manifested by signs, actions, or by inaction or silence. Thus there always arises a presumption that the consent has been given. Consent obtained by intimidation, force, mediated imposition, circumvention, surprise or undue influence, therefore is a mere delusion and not a deliberate and free act of the mind.[2] Section 87 to 91 deals with consent used as an exception to criminal acts. However, there is no specific definition for the term “consent” under I.P.C. but section 90 of the Code explains as to what does not amount to consent.
Consent as a Defence
As mentioned earlier, section 90 of the Act deals with consent which is known to be given under fear or misconception.
Section 90 of I.P.C.
There are situations where a person giving consent does not amount to true consent. If a person gives his consent under fear of injury or misconception of facts or has a reason to believe that the consent given was due to consequences of such fear or misconception, it does not amount to consent. Further consent is said to be invalid if it is given by a person of unsound mind or an intoxicated one, who is at the time of giving consent unable to know the nature and consequences of an act. Unless any contrary appears a consent given by a child under twelve years of age does not amount to consent.
In Poonai Fattemah v. Emperor[3], the accused was a snake charmer who persuaded the deceased to believe that he has the power to cure a snake bite. Due to this misconception, the deceased was killed by a snake bite. The accused pleaded that the consent given was wilful but the Court held the accused to be liable. Further, he is not protected under consent as a defence.
Section 87 of I.P.C.
A doer cannot be held liable if an act is done which is likely to cause death or grievous hurt along with the consent of that person knowing the risk and harm of such act might lead to death or grievous injury. The person giving consent must be above eighteen years of age and that consent can be either expressed or implied.
In the case of Bishambher v. Roomal, the complainant was beaten by the self- constituted panchayat by giving him a shoe beating which resulted in blackened face. Later the Court held that the action of the accused in enforcing the decision of the panchayat is not an offence. They have acted in good faith to prevent the complainant from any other serious consequences.[4]
Section 88 of I.P.C.
This section is similar to the section 87 of the Code with the slight modification that the act which is not likely to cause death should be done in good faith with the consent of the person. The act must be done for the benefit of the person. The application of this section restricts itself to any medical circumstances or master-servant, pupil-principal relationships.
The headmaster of a school in good faith punishing a student for his wrongful act will not be held guilty under this section.[5] A parent exercising coercion to his child under good faith is for the benefit and well-being of the child and it cannot be questioned by law.
Section 89 of I.P.C.
Consent given by a guardian on behalf of a child or an insane person for their benefit under good faith is also considered as a true consent. Here the child refers to any person who is under the age of twelve.
Conclusion
From the above-mentioned sections, the doer can be protected from the criminal liability if the consent is sought in good faith and without any fear. The doer is held liable only if the consent sought is not true in its nature or it involves any misconception of facts. This defence can also extend to even causing the death of the person depending upon the circumstances.
References:
[1] State v. Schwab, 109 Ohio St. 532, 143N.
[2] Dilip Kumar v. State of Bihar, AIR 2005 SC 203.
[3] Poonai Fattemah v. Emperor, (1869) 12 W.R. (Cr.) 7.
[4] Bishambher v. Roomal, AIR 1951 All 500.
[5] Emperor v. Ghatge, AIR 1949 Bom 226.
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