GENERAL EXCEPTION UNDER IPC- PART 3
This article will deal with section 85 to 92 of IPC.
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. Sec 85 states that
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.
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.
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.
Sec 86 states that:- In cases where an act done is not an offence unless done with a particular knowledge or intent, a person who does the act in a state of intoxication shall be liable to be dealt with as if he had the same knowledge as he would have had if he had not been intoxicated, unless the thing which intoxicated him was administered to him without his knowledge or against his will.
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.
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 states that:- Nothing which is not intended to cause death, or grievous hurt, and which is not known by the doer to be likely to cause death or grievous hurt, is an offence by reason of any harm which it may cause, or be intended by the doer to cause, to any person, above eighteen 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 take the risk of that harm.
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.
Sec 88 provides that:- Nothing, which is not intended to cause death, 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 any person for whose benefit it is done in good faith, and who has given a consent, whether express or implied, to suffer that harm, or to take the risk of that harm. 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.
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.
1. 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.
2. 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.
3. 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.
4. 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.
Sec 91 is an exception to sec 87, 88 and 89. It states that
The exceptions in sections 87, 88 and 89 do not extend to acts which are offences independently of any harm which they may cause, or be intended to cause, or be known to be likely to cause, to the person giving the consent, or on whose behalf the consent is given.
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 se 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.
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