“Consent” a defense to a charge of crime? provisions relating to consent under IPC
Written By:- Hrishika Rawat
Meaning Of Consent
Under criminal law, Consent is an active expression of the word ‘intention.’ 1.Actua rea and 2.mens rea are two key factors of a crime. Actus refers to the act committed by the perpetrator, whereas mens rea refers to the purpose to commit that act. A person will be held criminally accountable for all activities that he performed with the intent or knowledge of doing so, and for which he was aware of the consequences.
The word ‘consent’ is nowhere defined in IPC. However, Section 90 of the IPC discusses what does not constitute consent. It uses a negative phrase to describe permission. It stipulates that agreement provided under duress, or based on a misunderstanding of facts, or due to insanity, intoxication, or by a child under the age of 12 who is incapable of understanding the nature and consequences of the consented conduct, is invalid.
Case: Dashrath Paswan v. State (1957)
In this instance, the defendant had failed an examination for three years in a row. He chose to end his life as a result of his constant failures. He talked to his wife, a 19-year-old literate lady, about his decision. His wife advised him to murder her first, then himself. As a result, the accused murdered his wife first and was apprehended before committing himself. It was held that the wife had not given her consent under the fear of injury or misconception of fact. Hence, the accused would not be liable for murder.
Burden Of Proof
- Generally, The prosecution must prove its case against the accused beyond a reasonable doubt.
- The prosecution had to prove that the case did not come under any exceptions prior to the execution of the Indian Evidence Act 1882, however section 105 of the Evidence Act moved the burden to the claimant.
- However, under Section 105 of the Evidence Act, a claimant must establish the presence of a general exception in crime.
Exceptions Of Consent
Although the word consent is not defined in the Code, it might be interpreted to imply “to agree.” According to Kenny in Outlines of Criminal Law, permission should be freely provided by a sane and sober individual capable of forming an informed judgment. Consent is an exemption under Sections 87 through 89 and Section 92 of the Indian Penal Code.
Finally, Section 90 stipulates that consent must be sincere and not tainted by intimidation, deception, or immaturity in order to be used as a basis for avoiding criminal culpability. Consent gained by threats or violence is obviously not real consent because it is provided “under danger of damage.”
Finally, Section 90 states that in order to be utilized as a foundation for avoiding criminal responsibility, consent must be genuine and untainted by intimidation, deceit, or immaturity. Consent obtained by threats or violence is plainly not genuine because it is given “under threat of harm.”
Section 87 Act not intended and not known to be likely to cause death or grievous hurt, done by consent–
Nothing which is not intended to cause death, or grievous hurt, and which is not known by the doer which is likely to cause death or grievous hurt, is an offense by reason of any harm which it may cause, or be intended by the doer to cause, to any person, above 18 years of age, who has given consent, whether express or implied, to suffer that harm; or by reason of any harm which it may be known by the doer to be likely to cause to any such person who has consented to that risk of harm.
Case: Poonai Fattemah v. Emp,
The accused, who claimed to be a snake charmer, convinced the dead that he has the power to shield him from any injury caused by the snake bite. The dead believed him and was bitten by the snake, dying as a result. The consent defense was rejected.
Section 88: Act not intended to cause death, done by consent in good faith for person’s benefit-
Nothing is an offense because of any harm it may cause, or be intended to cause by the doer, or be known by the doer to be likely to cause, to any person for whose benefit it is done in good faith, and who has given consent, whether express or implied, to suffer that harm or to take the risk of that harm.
Case : R.P Dhanda V. Bhurelal
With the patient’s agreement, the appellant, a medical practitioner, conducted a cataract surgery. Eyesight was lost as a result of the surgery. This defense shielded the doctor since he acted in good faith.
Section 89: Act done in good faith for the benefit of a child or insane person, by or by consent of the guardian.
Nothing done in good faith for the benefit of a person under the age of twelve or who is mentally ill, with or without the express or implied consent of the guardian or other person having lawful custody of that person, is an offense because of any harm that it may cause, be intended to cause or be known by the doer to be likely to cause to that person.
Section 92: Act done in good faith for benefit of a person without consent.
Nothing is an offense by reason of any harm which it may causes to a person for whose benefit it is done in good faith, even without that person’s consent, if the circumstances are such that it is impossible for that person to signify consent, or if that person is incapable of giving consent, and has no guardian or other person in lawful charge of him from whom it is possible to obtain consent in time for the thing to be done with benefit.
Illustration: A and B agree to go hunting for pleasure. Because there is a risk of damage, A and B’s agreement indicates that they are willing to endure any injury while hunting.
Section 91: Exclusion of acts which are offences independently of harm caused.
The exceptions in sections 87, 88, and 89 do not apply to activities that constitute crimes in and of themselves, regardless of any harm they may cause, be intended to cause or be known to be likely to cause to the person giving permission or on whose behalf the consent is provided.
Express Or Implied Consent
The section allows for express or implicit consent. As long as there is permission and the said is voluntary, it should not be expressed in such a complex or explicit manner. In criminal law, the phrase implied is used to imply or signify one of two things: (1) deeds and behaviour; or (2) inferred, but never given or expressed in any manner.
When a consumer enters a store and picks up exhibited products for sale, they are implying their permission to enter the store, touch the goods, and, if required, buy them. This is shown through acts and behavior.
The question of whether or not consent has been given is always a matter of fact to be determined by leading evidence before the court of the trial. As a result, questions of whether “consent” was given without the defendant’s awareness, by mistake or deceit, or if there was a prior implicit consent, are empirical problems that the defendant must establish if he or she wants to use sections 87,88, or 89.
We can see why a doer is immune from criminal responsibility whether he causes or accepts the risk of injury with or without the agreement of the victim, as long as he acts in good faith and for the benefit of the victim. Consent, on the other hand, is not a defense in the case of significant physical injury. For example, a player may have agreed to a specific level of injury in a football game, but it is illegal if the player receives more than that in the usual course of the game.