Article on "Consent as a defence of crime under IPC" by Atishay Tripathi

By

Name: Atishay Tripathi

Course: BBA.LL.B.(H)

Semester: 6^th

College Name: Amity Law School, Jharkhand, Ranchi

 

Consent as a defence of crime under IPC

Consent Meaning

In general, consent method something completed deliberately or purposefully and with the aid of using loose will. It includes a planned intelligence exercising primarily based totally at the information of the price and felony impact of the act. It is an act of thought, accompanied with the aid of using deliberation, balancing the thoughts on every hand, as in a circle, the best and the bad. It assumes 3 things— a bodily power, a intellectual power, and their loose and critical use.

Provisions under IPC, 1860 for the acts completed with Consent

Section 90 in The Indian Penal Code

“Consent is thought to accept under worry or false impression. —A consent isn't this sort of consent because it supposed with the aid of using any phase of this Code if the consent is given with the aid of using someone worry of damage, or a false impression of truth, and if the character doing the act knows, or has motive to believe, that the consent changed into given in outcome of such worry or false impression; or Consent of insane character.

—if the consent is given with the aid of using someone who, from unsoundness of thoughts, or intoxication, is not able to recognize the character and outcome of that to which he offers his consent; or Consent of child.

Consequently, consent received thru intimidation, force, mediated imposition, circumvention, wonder or undue affect is simply a phantasm as opposed to a planned and loose act of the thoughts. There isn't any definition of the word ‘consent’ withinside the IPC.

The defence of consent is primarily based totally at the Roman Law maxim volenti non match injuria this means that that in which character has given consent to go through a damage or risk, he can't whinge of any damage that flows therefrom.

Although mens rea in such instances can be gift withinside the shape of goal or information, the identical is compounded with the aid of using the consent of the person that has suffered the damage.

 The consenting sufferer can also additionally have consented to the act in query both expressly, with the aid of using words, or impliedly, thru conduct. Consent is a defence to, in idea at least, all non- deadly offences or even homicides. The regulation rests at the coverage that precept of man or woman autonomy proceeds on the basis that anybody is the exceptional decide of his personal hobbies and in no condition will he/she consent to what he/she considers injurious to his private interest.

This defence of is primarily based totally at the concept that if able adults voluntarily consented to crimes towards themselves and knew what they have been consenting to, the damage emanating from the act so induced in outcome of the consent can't invite crook expenses towards the doer of the act. The coronary heart of the defence is the excessive price located on man or woman autonomy in a loose society. If mentally able adults need to be crime victims, so the argument for the justification of consent goes.

However, an obvious consent is invalid in which the character giving it's so young, intoxicated or mentally disordered or retarded that his information or know-how is such that he's not able to make a rational choice whether or not or now no longer to consent. In such unique instances, if the scenario demands, the consent should be received from the mother or father or some other character with the lawful rate of such incompetent character.

Consent performs a totally vital position in solving the legal responsibility in crook regulation for the motive that consent has position of exonerating or extenuating someone from the crook legal responsibility.

Conditions needed to plead consent as a defence:

Section 87, 88, 89 and 90 of the Code deals with various conditions which are needed to plead consent as a defence. These are mentioned below:

Person has consented for the risk.

The person must be above the age of 12 years unless the contrary appears from the context and must not be of unsound mind, if yes then the consent must be given by guardians or the person in charge of them on their behalf.

1.     Consent be given under no fear or misconception of facts.

2.     The said consent must be made expressly or impliedly.

3.     The consent was not intended to cause death or grievous hurt.

 

Case Laws:

1. Queen v. Poonai Fattemah 12 W.R. Crim. Rul., 7[1]  (Snake Charmer’s Case)

The accused, professing to be a snake charmer, persuaded the deceased to permit himself to be bitten with the aid of using a toxic snake under the influence of a perception that he possessed the powers to shield him from the chew which he couldn't subsequently. It changed into held that the deceased’s consent did now no longer excuse the accused from crook legal responsibility.

2. Bishambher v. Roomal  (Face Blackening Case)[2]

The accused, on this situation, were people of a self-constituted panchayat who, an excellent manner to keep the complainant from the attack of a furious mob (of hundred people) on account of him having made indecent assault on a chamar girl, blackened his face, tonsured his head and gave him a shoe-beating with the consent of the complainant (Bishambhar) made in writing with the resource of the usage of affixation of his signatures. Following this the complainant made a complaint toward the accused who've been charged below sections 323 and 506 of the Penal Code research with segment 114. Allowing the pleas of defence to the accused below sections 81 and 87, the court docket observed, “It is real that if an act is unlawful withinside the texture of being in itself a criminal act, it cannot be rendered lawful because of the reality the individual to whose detriment it's far finished is of the equal opinion to it; however, there are various acts the charge of which withinside the conditions stated withinside the segment (87) might not amount to an offence.

3. Rao Harnarain Singh Sheoji Singh v. State (1957) [3]

In this situation, the accused who changed into an recommend and Additional Public Prosecutor pressured his tenant to present his spouse for enjoyable the carnal lust of Rao Harnarain and his friends. They all ravished her all night time that led to her dying nearly immediately.

Upon being prosecuted, the accused pleaded that the deceased husband had consented for this and additionally the girl got here together along with her own, consequently they ought to now no longer be held liable. The Court made clean the difference among consent and submission.

 

The Court stated all consent entails submission however now no longer all submission is consent. Here, in this situation the deceased made her submission earlier than the accused due to the fact her husband changed into threatened with excessive consequences. The Court held they all chargeable for committing and rape and murder.

4. Poonai Fattemah v. Emp. (1869) [4]

In this situation, the accused, a snake charmer persuaded the deceased to permit himself to be bitten via way of means of a toxic snake, making him to accept as true with that he had the strength to shield him from the harm. Here, the consent given via way of means of the deceased changed into below the false impression of the reality that the accused had a talent to treatment snake bites. Therefore, the Court held that the accused changed into now no longer entitled to shield at the floor of consent of the deceased and held liable.

  

Conclusion:

Although consent serves as a valid ground of defence to a criminal rate, consent does now now no longer advocate absolute submission to any risky act whatsoever. Therefore, consent ought to be valid and an excellent manner to be so, it ought to now no longer be intertwined with the factors vitiating it. As such, if the he accused had sexual intercourse with the victim on a faux promise of marriage the courts have held that submission of the body with the resource of the usage of a female below fear or misconception of fact cannot be construed as consent and so conviction of the accused below sections 376 and 417 of the Indian Penal Code held proper.  However, if the prosecutrix herself starts off advanced to cohabit with the accused because of the cause that the respective families did now no longer comply with their nuptial knot, the consent on this form of case cannot be said to just accept below fear or misconception of fact Under English regulation, piercing, tattooing, etc. have been held to be acts which fall withinside the sweep of the defence of consent.

From the above discussion, we recognize why a doer is covered from crook legal responsibility while he reasons or takes the hazard of damage without or with the consent of the victim as he acted in precise religion and for the advantage of the individual harmed.

But in case of great physical accidents, crook regulation does now no longer comprehend consent as a defence. For example, a participant consented for a sure diploma of accidents in a soccer suit however if s/he obtained greater than that withinside the everyday behavior of the game, then it's far unlawful.

---

[1]  Queen v. Poonai Fattemah 12 W.R. Crim. Rul., 7

[2] Bishambher v. Roomal  AIR 1950 All 500

[3] Rao Harnarain Singh Sheoji Singh v. State (1957) 

[4] Poonai Fattemah v. Emp. (1869)