THIS ARTICLE WAS WRITTEN BY ANKITA C. DHABU A STUDENT OF NATIONAL LAW UNIVERSITY ODISHA.

Introduction

A person who commits an offence shall not be held necessarily liable and thus convicted for that offence. The criminal law not only provides the definitions of various offences but also defenses which can be used by a person in order to prove that he was actually not guilty of committing that offence. The definitions of defenses make it clear that an act which would otherwise be a crime can be justified by a person and the accused can be excused. The criminal law in India has codified certain defenses that condone the criminal liability. Such defenses are principled on the premise that even though a person committed an offence, he shall not be held liable for the same. The reason for this is that while committing the crime, either the circumstances were such that the act of the person was justified or the condition of the person accused of the crime was such that he could not enroot the required mens rea. The defenses are divided into two categories, those being justifiable and excusable. As is rightly said by John Gardner “for committing a wrong, a person must be responsible for doing a wrongful act without having a justification or excuse for it”[1].

The Indian Penal Code, 1860 has recognized such defenses in chapter four of the code under the heading of ‘General Exception’. These defenses are covered under sections 76 to section 106 of the code. This primary aim of writing this project is to highlight the defenses available under sections 90 and 92 of the code.  That is, consent and goodwill or benevolence as defenses.

Consent is an act which is accompanied by a reason and proper deliberation to do a particular act. Thus, it involves mind weighing, which is to balance the good and evil and then act. Consent shows an active will present in the mind of the person committing the act, that is being complained of and, and also the presence of knowledge as to what was being done or the nature of the act is essential for consent.

Where consent deals with the knowledge as to whether the person is knowing about the consequences of the act or not, the other section, that is section 92 deals with acts which are done in a good faith that they would be beneficial for the person for whom they are being done, with or without the consent of the latter.

Sections 87 to 93 of the Indian Penal Code talk about consent being a general exception. Sections 91 and 87 put down consent as a defence , sections 88,89, 92 and 93 lay down lwas relating to the protection for the harm caused, in good will, with or without obtaining the consent of the person suffering from the harm, which is for his own benefit. Moreover, section 90 explains as to what is not consent for the purposes of this code.

Consent as a Defense

Consent in criminal law is similar to the defense of consent as used in tort law, where the victim is shown to have given consent to the defendant’s act. However, this defense can be used only when the defendant’s action wasn’t strictly forbidden by the statute, which is the case with the strict liability crimes or as generally called ‘consensual crimes’. Consent thus given may be oral or written. In some cases, silence can also amount to giving consent.

Consent shows the presence of a will in the mind of a person to commit the act that has been done, and the knowledge of the nature and result of the act that is being done is essential in consent for an act. The main aim of section 90 is to provide that if the consent of a person may allow him to take defense of the criminal charge pout against him, then, any such consent should not be vitiated by factors of immaturity, fear or fraud.

We first have to see as to what actually defines consent. “consent means something that is done deliberately and by free will. It is occurrence of wills”[2]. It involves deliberate use of intelligence having due knowledge of the moral and physical effect of the act. A free consent cannot be used as a defence, it was rightly stated in the case of Dilip Kumar v. State of Bihar that “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 mind”[3].

There lies a distinction between consent and submission. Every consent may follow submission but every submission does not necessarily have to involve consent. A submission made by a person who is unaware of the nature of the act done shall not be construed as consent. “A mere act of helpless resignation in the face of inevitable compulsion, acquiescence, non-resistance of passive giving in, when volitional faculty is either clouded by fear or vitiated by duress, cannot be deemed to be consent”[4]. If a submission lacks knowledge, then that would not amount to a valid consent.

Section 90 of the Indian Penal Code, 1860, talks about consent being used as a defense, states that-

“A consent is not such a consent as it intended by any section of this Code, if the consent is given by a person under fear of injury, or under a misconception of fact, and if the person doing the act knows, or has reason to believe, that the consent was given in consequence of such fear or misconception; or if the consent is given by a person who, from unsoundness of mind, or intoxication, is unable to understand the nature and consequence of that to which he gives his consent; or unless the contrary appears from the context, if the consent is given by a person who is under twelve years of age”[5].

Thus, we can see that the following might be the instances where consent would not be supposed to be taken, as, instead of defining as to what can qualify as consent, the code prescribes as to what does not amount to consent. Thus, the circumstances in which the consent would not be construed to be ‘true consent’ are:

1. If the consent is obtained from a person who is under a fear or has been injured;
2. If the consent is obtained from a person who is under a misconception of a fact;

• If the person from whom the consent is obtained is of unsound mind;

1. If the consent is obtained when the person is intoxicated;
2. By a person under 12 years of age.

Thus, we see consent that is obtained or is given under duress, from a child or by a person of unsound mind or insane person is not consent. Also, a consent given under a misconception would also not amount to a true consent. And also, a misrepresentation which amounts to the misconception of facts would also not be a valid consent. However, if there is an honest misconception on the side of both the parties then the consent would not necessarily stand invalid. These are certain circumstances which shall now be discussed in detail.

The above circumstances shall now be discussed in detail as to when does a consent is not considered to be a true consent.

Consent obtained from a Child- Not a ‘true consent’

Section 82 of the Indian Penal Code state that a child under seven years of age is presumed to be not guilty of committing the crime. This is because, below that age, an infant is presumed to be doli incapax, which means that someone who is incapable of committing the crime. Children below the age of discretion cannot be punished by any criminal prosecution.  Thus, a child under seven years of age enjoys absolute immunity from any criminal prosecution whatsoever.

Section 83 of the code, enshrines that when the accused is a child below twelve years of age but above seven, the incapability as to not to commit an offence only emanates when the child is not having sufficient maturity to judge the nature and consequences of the act that he has done, and such insufficiency or non-attainment of maturity would have to be specially pleaded and proved in a court of law. Thus, as was rightly decided in the case of Kalka Prasad v. State of UP[6] where a girl aged 10 was sent to one month simple imprisonment as she was convicted for the  crime of stealing a silver button belonging to her master. It was seen that under sections 82 and 83 of Indian Penal Code, that a child cannot be held guilty of committing an offence, unless it is proved that the child was having sufficient maturity and knew the nature and consequences that would follow the act. The fact that the girl had given the button to her mother after she picked it up proves that she was not having any malafide intention with regards to the commission of the act and was thus acquitted by the court.

The plain aim of the legislature is to refer to the exceptional immaturity of intellect that a child has and that would have to be proved in order to escape a criminal liability. Thus, a minor, above the age of 12 years can be said to have a criminal liability unless his case does not fall under section 82 and 83 of Indian Penal Code.

In order to apply section 83 of the code, it must be necessarily proved that the child was not aware of the nature and consequences of his conduct. However, if the child is above seven years and below 12 years of age, and discloses an intelligent brain, then the defense of immaturity cannot be taken into consideration and thus, he must be held liable as he very much had the knowledge of the act and still intended them to happen. Thus, in the case of Ulla Mahapatra[7] where a child around eleven years of age picked up a knife and threatened the deceased of cutting him into pieces and did actually cut him, can lead to only one inference that he did actually intend and had knowledge of the result of the act that he had committed.

Thus, we may conclude by saying that while an infant under seven years of age has absolute protection and cannot be prosecuted at all, a child above seven years and below twelve years of age, in order to have immunity via section 83 of the code shall have to prove that he or she is below twelve years of age and not only this but the fact that he has not attained the maturity of understanding the nature and consequences of the act will have to be specially pleaded and proved.

In common law, infancy was not recognized as a defense to the criminal prosecution. After a continuous refinement in the rules of the common law, it is now prevalent that, children below seven years of age are declared to be having no criminal capacity

Consent obtained from a person having an unsound mind

Section 84 of the Indian Penal Code States that no act done by a person who at the time of doing it because of the reason of an unsound mind could not judge the nature and consequences of an act. According to this section, a person is exempted from the criminal liability for committing an act because of the unsoundness of mind, if the person, at the time of commission of the act was either unaware or incapable to know the nature of the act or was unable to know that what was being done was contrary to the law.

Thus, we see that the accused can be protected not only when he was incapable to have the knowledge of the nature of the act but also when he was incompetent to know that the act thus committed was discordant with the laws of the land although, he might have been aware of the nature of the act being committed.  However, this defense cannot be used if the accused knew that what he was doing was erroneous or wrong, even though he did not know that it was contradictory to the law, and also if he was aware of the fact that the act being done was in contravention with the laws even though he was unaware of the act being wrong in itself. Also, the burden of proving the unsoundness of the mind lies on the accused. Every person is assumed to know the law and also the nature and consequences of an act and thus, it is not upon the prosecution to establish such facts. However, the prosecution does have the onus of proving that the accused had required mens rea to commit the act.

In the case of Dayabhai v. State of Gujarat, Hon’ble Supreme Court laid down the following factors which are relevant to show the insanity of a person are:

1. “The motive of the crime
2. The previous history of mental condition of the accused

• The evidence as to the state of his mind at the time of the offence

1. The evidence as to what happened immediately before and after the incident which throws a light on the state of his mind; and
2. The subsequent events pointing to the conduct of the accused”[8].

It must be necessarily and clearly proved that at the time of commission of the act, the accused was having an unstable mind and was suffering from this defect, and was unaware of the nature and quality of the act being committed by him, and even if he knew this then it has to be proved that he was unaware that such a act was wrongful in nature. If he knew both the parts, that is the nature as well as the wrongfulness of the act then he is to be held responsible for it without any doubt. The only point where the defense of insanity can be taken is the material time when the offence has taken place. If at that point, the person is seen to undergo such defect and has been found in an unstable state of mind and it can be construed that he did not know the nature or illegitimacy of the act, then this defense can be used from the side of the accused, in order to escape the criminal liability with regards to the act.

The English Common Law refused to consider insanity or an unsound mind as relevant to the guilt of an individual. It was only in the 13^th century that ‘madness’ was pronounced as a valid defense. Experts have cited three reasons as to why is consent obtained by an insane person not to be considered as an actual defense and as to why is insanity considered to be a defense:

“i) Free will- The defendant did not make a deliberate decision to violate the law. His or her criminal act resulted from a disability.

1. ii) Theories of Punishment- A defendant who is unable to distinguish right from the wrong or to control his or her conduct cannot be deterred by criminal punishment, and it would be cruel to seek retribution for acts that result from a disability.

iii) Humanitarianism- An individual found not guilty by reason of insanity may pose a continuing danger to the society. He or she is best incapacitated and treated by doctors in a non-criminal rather than in a criminal environment.”[9]

The burden of proof lies on the defendant to prove that while consenting for an  act or actually doing it, he or she were not in the right state of mind. In the federal systems, the defendant possesses the burden of establishing insanity beyond a reasonable doubt using clear evidence. This burden must be met by the defendant in order to present the issue of insanity in front of the jury.

Consent obtained under the effects of intoxication

Section 85 of the Indian Penal Code,  states that a person shall be vindicated from a criminal liability for the commission of an act while he was in the state of intoxication, if he was incapable to understand the nature and the wrongfulness of the act, while committing it, because of the effect of intoxication. Provided that the intoxication under which he committed the act was administered to him without his will and knowledge. Section 85 of the code states that-

“Act of a person incapable of judgment by reason of intoxica­tion caused against his will.—Nothing is an offence which is done by a person who, at the time of doing it, is, by reason of intoxication, incapable of knowing the nature of the act, or that he is doing what is either wrong, or contrary to law; provided that the thing which intoxicated him was administered to him without his knowledge or against his will.”

There lies a difference between the defense of insanity and the defense of intoxication which leads to the production of a situation in which the person who has been intoxicated, his mind, becomes weak and feeble to form a specific intention.

Section 85, being one of the provisions of chapter IV which deals with the general exceptions to criminal liability for establishing the constituents of an offence, it is upon the accused to prove that he was intoxicated without his consent which subsequently led to the loss of equilibrium of his mind.

Thus, we see that any consent taken while a person is in the state of intoxication will not be considered as a true consent because the person who has been intoxicated does not know the nature and consequences of the act that he is committing or the act for which he is consenting. However, the burden of proof lie on the accused, and this was rightly stated in the case of Dasa Kandha v. State of Orissa that “the onus to bring under the protection is squarely upon the accused who is to prove that the intoxication envisaged was such as would render the accused incapable of forming the specific intent essential to constitute the crime”[10]. Intoxication rather than an excuse is profoundly considered as the aggravating factor that raises the degree of social disapproval. Moreover, involuntary intoxication cannot be considered as a defense if there is a presence of mens rea.

Involuntary intoxication and the consent obtained under it can both be used as defenses in any and all the criminal offenses. Involuntary intoxication can take place in the following four ways:

1. Duress- when an individual is coerced to consume alcohol or any other intoxicant.
2. Mistake- If the person by mistake consumes a narcotic substance other than that has been medicated to him.

• Fraud- If a person consumes a substance or a drink because of a fraudulent misrepresentation of the substance.

1. Medication- An unanticipated reaction to the medication prescribed by the doctor might also lead to an extreme behavior of an individual.

Consent obtained under a Misconception Of Fact

Consent that is obtained under a misconception is not valid if the person taking the consent is aware of this is aware of the existence of a misconception. A consent given over misrepresented facts is a consent given under a misconception. However, if there has been an honest misconception on side of both the parties then the consent does not stand invalid. “Consent obtained by a false representation which leads to a misconception of facts will not be a valid consent”[11]. Thus, where in a case, a girl was raped by her singing master, who had a sexual intercourse with her proclaiming it to be a method of improving the voice quality, the act amounted to rape as the consent was taken on a deception of improving the voice, and since it was given under a misconception of fact, it could not amount to true consent under law[12].

The non-performance of a promise in future, because of reasons which were not very clear do not amount to misconception of fact at the outset of the act itself. In order to come under the ambit of misconception of fact, it should necessarily have an instantaneous pertinence. If the plaintiff was misled by a misstatement of fact then a deceit maybe founded on it. It is necessary that the fact that has been misstated must still exist.

Benevolence as Defense

Section 92 and 89 of the Indian Penal Code talk about benevolence and goodwill to be used as defenses. Section 92 of the code states that:

“Act done in good faith for benefit of a person without con­sent.—Nothing is an offence by reason of any harm which it may cause 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: —Provided—

First- That this exception shall not extend to the intentional causing of death, or the attempting to cause death;

Second- That this exception shall not extend to the doing of anything which the person doing it knows to be likely to cause death, for any purpose other than the preventing of death or grievous hurt, or the curing of any grievous disease or infirmi­ty;

Third- That this exception shall not extend to the voluntary causing of hurt, or to the attempting to cause hurt, for any purpose other than the preventing of death or hurt;

Fourth- That this exception shall not extend to the abetment of any offence, to the committing of which offence it would not extend”[13]

Nothing constitutes an offence by reason of any harm which it may inflict upon a person, for whose benefit, the act has been done in good faith, even without taking the consent of that person, if the circumstances provide that taking his consent was in-executable, or the person was incompetent or incapable to give consent, and has no other lawful person in charge of him from whom such consent can be obtained on his behalf.

Section 92 of the code deals with the cases that may be kept in the category of constructive consent, which means cases, in which, because of the certain urgent circumstances, consent, is  completely dispensed with, but, as ordered by law, the person causing harm is liberated from his liabilities. The main crux of section 92 lies in this. If  the consent is unobtainable from a person under section 88, or an incapable person cannot give his consent under section 89 and it is impossible to gain consent from his lawfully appointed guardian then, the person desiring to act with a good intention, in a bona fide manner, for the benefit of other person, may proceed to do so without receiving consent from the person.

The most frequently used illustration of this section is illustration (c) given in the code. It states that-

“A, a surgeon, sees a child suffer an accident which is likely to prove fatal unless an operation be immediately performed. There is no time to apply to the child’s guardian. A performs the operation in spite of the entreaties of the child, intending, in good faith, the child’s benefit. A has committed no offence.”

A consent obtained for a surgical operation liberates the surgeon or the operator from the criminal liability of assault, when it is given on a free will having the k knowledge of the purpose of operation and the purpose of the act is lawful and the operation that is being performed is done by professional diligence. Moreover, the trend of the legal opinions is such that no criminal liability should be levied on a surgeon “who, with proper care and skill, and for the physical benefit of a sick person performs on him a surgical operation even without his consent”[14].

The preliminary object underlying this section is to safeguard the medical practitioners for the larger interest of the society. According to the provisions of this section, a life may be risked for providing or for the purpose of saving a life, and the pain thus caused is done for the purpose of comforting the person.

Section 89 of the code also protects the harm caused to a person of unsound mind or a child below 12 years of age by himself or by his legal guardian, with consent in good faith for the benefit of the child or the person of unsound mind. The section states that-

“Act done in good faith for benefit of child or insane person, by or by consent of guardian.—Nothing which is done in good faith for the benefit of a person under twelve years of age, or of unsound mind, by or by consent, either express or implied, of the guardian or other person having lawful charge of that person, is an offence by reason of any harm which it may cause, or be intended by the doer to cause or be known by the doer to be likely to cause to that person: Provisos—Provided—

(Firstly) — That this exception shall not extend to the intentional causing of death, or to the attempting to cause death;

(Secondly) —That this exception shall not extend to the doing of anything which the person doing it knows to be likely to cause death, for any purpose other than the preventing of death or grievous hurt, or the curing of any grievous disease or infirmi­ty;

(Thirdly) — That this exception shall not extend to the voluntary causing of grievous hurt, or to the attempting to cause grievous hurt, unless it be for the purpose of preventing death or griev­ous hurt, or the curing of any grievous disease or infirmity;

(Fourthly) —That this exception shall not extend to the abetment of any offence, to the committing of which offence it would not extend. Illustration 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 the cure of the child”[15].

The consent may either be express or implied. A person, above the age of 12 years is capable of giving his consent under section 88 of IPC. Only the person having the lawful charge of that person, on whom the harm is to be caused, is permitted to inflict the harm. The person on whom, such harm is to be caused, must be a child under 12 years of age or a person of unsound mind as, the consent of such people are implied through their guardians.

In order to invoke the provisions of this section, it is obligatory to show that the act done was for the benefit of the person under 12 years of age or the person of unsound mind. However, the underlying principle of the section may also be made applicable to a child above 12 years of age.

Moreover, this section does not have any application to the acts which have already been declared as offences and are punishable under Indian Penal Code. All such section like, section 87, section 88, sections 89 are limited to acts which are offences by reason to harm.

Conclusion

The above discussion highlights that the defenses of consent and goodwill or benevolence can be used in order to defend the accused in a criminal case. However, there exist certain limitations to each and every facet of consent not being a true consent as given in the aforementioned chapters. A child above seven years of age may or may not be held liable for committing a crime, this depends upon the intelligence that his brain possesses. Only, voluntary intoxication may be used as a defense and there are different ways in which a person is coerced to consume intoxifying substance. Moreover, a person, incapable of giving his consent as a result of unsound mind cannot be charged with a criminal liability until and unless he does not have the mens rea to commit an act. All such limitations were studied in detail and we thus may conclude that defenses as mentioned in chapter IV of General Exceptions of the code, may be used at significant times to rescue the accused off the charge of criminal liability.

[1] John Gardner, Offences and Defense: Selected Essays in Philosophy of Criminal Law(Oxford University Press, 2007)

[2] PSA Pillai, Criminal Law,  12^th Edition Pg. 121

[3] Dilip Kumar v. State of Bihar,  AIR 2005 SC 203.

[4] Ratanlal & Dhirajlal, The Indian Penal Code, 31^st Edition, Pg. 393

[5] Indian penal Code, 1860, §90

[6] Kalka Prasad v. State of UP, AIR 1959 All 698

[7] Ulla Mahapatra v. The King, 1950 Cut 293

[8] Dayabhai v. State of Gujarat, AIR 1964 SC 1563

[9] Matthew Lippman , Contemporary Criminal Law- Concepts, Cases and Controversies, 2^nd Edition,  Pg.272

[10] Dasa Kandha v. State of Orissa, 1976 CrLJ 2010

[11] Parshottam v, State, (1962) 64 Nom LR 788

[12] R v. Williams, 1923 1 KB 340

[13] Indian Penal Code, 1860, §92

[14]SK Sarvaria, RA Nelsons Indian penal Code, Volume 1, 10^th Edition, Pg 672

[15]Indian Penal Code, 1860, §89