DHARMASHASTRA NATIONAL LAW UNIVERSITY

JABALPUR, MADHYA PRADESH

CRIMINAL LAW- I (I.P.C)

CONSENT UNDER INDIAN PENAL CODE

SUBMITTED TO:

Mr. Animesh Jha,

Assistant Professor of Law

SUBMITTED BY:

Tanish Gupta

BAL/047/2019

II Year- III Semester

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 Acknowledgement

The success and final outcome of this project required a lot of guidance and assistance from
many people and I am extremely privileged to have got this all along the completion of my
project. All that I have done is only due to such supervision and assistance and I would not
forget to thank them.

I would like to thank the Vice Chancellor of our university, Prof. Balraj Chauhan for giving
me this golden opportunity to learn and gain knowledge by doing research projects which
would further enhance my research skills. I am feeling obliged in taking the opportunity to
sincerely thank Dr. Shilpa Jain (Associate Professor Of Law and H.O.D.).

I respect and thank Mr. Animesh Jha (Assistant Professor, Law) for providing me an
opportunity to do this research project work and giving all the support and guidance which
made me complete the project duly.

I extend my heart-felt gratitude to my parents and my friends for supporting me and aiding
me for accomplishment of this project.

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Contents
1. Introduction-.......................................................................................................................4
1.1 Objective of study-...........................................................................................................4
1.2 Research questions-..........................................................................................................4
1.3 Research methodology-....................................................................................................5
1.4 Sources of data-................................................................................................................5
1.5 Limitation of the study:....................................................................................................5
1.6 Scope of study:.................................................................................................................5
2. Defining Consent................................................................................................................6
3. Types of Consent................................................................................................................7
4. Situation where consent is invalid......................................................................................7
4.1 Fear of injury-...................................................................................................................7
4.2 Misconception of facts-....................................................................................................8
4.3 Consent of persons-..........................................................................................................9
5. Acts done by Consent.........................................................................................................9
6. Benevolent Acts With Or Without Consent.....................................................................11
6.1 Consent...........................................................................................................................14
6.2 No Criminal Intention to Cause Death...........................................................................14
6.3 Good Faith......................................................................................................................14
6.4 Corporal Punishment by School Teachers.....................................................................15
6.5 For Benefit of the Person................................................................................................15
7. Where Consent Does Not Absolve A Doer......................................................................16
8. Conclusion, criticism and suggestion...............................................................................17
9. BIBLIOGRAPHY.............................................................................................................19

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 1. Introduction-

Volenti non-fit injuria, an old roman law maxim, signifying that harm caused with consent
cannot be considered an injury, plays some role in criminal law. Consent of a victim, subject
to some limitations that are imposed in social interest, operates as an extenuating factor.
However, modern criminal law, generally does not absolve a person from criminal liability
for acts posing threat or causing to human life. Nevertheless, a doer is protected from
criminal liability if he, in good faith, causes or takes risk of causing injury, with or without
consent, for the benefit of the sufferer.

Under criminal law, the mens rea has much importance in judicial system of every country
rather it is the basis of punishing or acquitting a person. If an offence is committed in the
presence of mens rea, the act is punishable and if absence of mens rea is found, the alleged
person is acquitted honourably. Upon this criterion the whole criminal law is based. Chapter
IV (General Exceptions) of Indian Penal Code, 1860 (IPC) is based on absence of mens rea.
Consent is one of such exception.

The word consent is not defined under the general clauses act of IPC. But it is defined in
indirect manner. It means consent is defined under Indian penal code in negative sense covers
the sections from 87-92. Sec. 87 to Sec. 92 explains about the provisions of Consent. When a
person wilfully consents an injury, he cannot blame the person, who inflicted the injury.
Especially in case of medical treatment, the doctor gives injection. It gives pain. We bear it.

1.1 Objective of study-

 To know the defence of the consent.
 To study in which conditions the consent is said to be invalid.
 To study how the consent is defined in negative sense under IPC.

1.2 Research questions-

 What are cases when even a valid consent will not absolve the criminal liability?
 What is the importance of difference of 'knowledge' and 'intention' to avail the defence
of consent?

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 1.3 Research methodology-
The researcher will do doctrinal type of research in which she will go through the primary as
well secondary sources. The researcher through this methodology will be able to get an exact
picture of the problem in question. This methodology helps in going through not only the
work of one eminent person but of many other too. This helps in getting the bird’s eye view
of the subject.

To satisfy the need of the project, the researcher will go through section by section and clause
by clause of each section in question. This methodology will be the most effective way in
preparing the project.

1.4 Sources of data-

The researcher will collect data from both primary as well as secondary sources.

i. The primary source:

 Indian penal code.

ii. The secondary sources are:

 Books and bare acts.

1.5 Limitation of the study:

The researcher having read the commentary on the IPC could understand the problem clearly
but it would have been clearer if he would have read commentary of more writers. The
researcher has limited time for the project. The historical need and background is also
necessary for having a bird’s eye view of the particular topic and it gets developed only by
effective and extended reading over a long period of time.

1.6 Scope of study:

The researcher will begin by briefly dealing with definition of consent and defences of the
consent along with these legal maxims and other supplementary sections which assists these
sections will also be explained using case laws and illustrations in furtherance of the same
and then conclude with explaining the points where the demarcation lies.

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 2. Defining Consent

Generally speaking, consent means something that is done deliberately and by free will.
Consent is a deliberate and voluntary act involving the understanding of effect of such
consent.1 Consent is different from submission as consent involves a submission but not
every submission includes consent.2 Consent obtained by intimidation, force, mediated
imposition, circumvention, surprise or undue influence, therefore, is mere a delusion and not
a deliberate and free act of the mind. A mere act of submission, or knowledge of the risk
involved, therefore, does not amount to consent. Consent is nowhere defined in IPC but what
is not consent is given in section 90 of the IPC. It states:

90. Consent known to be given under fear or misconception.— A consent is not such a
consent as is 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

Consent of insane person.— 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

Consent of child.— unless the contrary appears from the context, if the consent is given by a
person who is under twelve years of age.

A plain reading of section 90 reveals that consent given by a person ‘under fear of injury’ or
‘under a misconception of fact’ is not ‘consent’ at all. Similarly, consent given by a person of
unsound mind or a person who intoxicated, who is incapable of understanding the nature and
consequences of the consented act, and a person below 12 years of age, unless contrary
appears from the context, is not a valid consent. Section 90, ultimately, provides that consent
to be a ground for avoiding criminal responsibility is required to be a real consent and not
vitiated by fear, fraud or immaturity.

1
Tulshidas Kanolkar v State of Goa, (2003) 8 SCC 590
2
Ibid.

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 3. Types of Consent

Consent under the section may be express or implied. As long as there is consent, and the
said consent is free, it is not necessary that the consent should be expressed in so many words
or specifically articulated.

The term ‘implied consent’ in so far as the criminal law is concerned, is used to signify
either:

 consent by acts and conduct; or

 consent presumed, though never given or in any way signified.
An example could be, “A, being on friendly terms with Z, goes into Z’s library in Z’s
absence, and takes away a book without Z’s express consent for the purpose merely of
reading it, and with the intention of returning it. Here, it is probable that A may have
conceived that he had Z’s implied consent to use Z’s book. If this was A’s impression,
A has not committed theft.”3

4. Situation where consent is invalid

4.1 Fear of injury-

Consent obtained by threats or violence, obviously, is not a real consent as it is given ‘under
fear of injury’. According to section 44 of the Code the word ‘injury’ denotes any harm
whatever illegally caused to any person in body, mind, reputation or property. It is not
necessary that the person whose consent is obtained should be ‘put under fear of injury’.
Putting any other person in whom the person who gave consent is interested in ‘under fear of
injury’ also will lead to invalidation of consent. Consequently, consent given under fear of
injury is not limited to physical injury even though in most of the cases which come up
before the Courts the question of consent given under fear of physical injury is involved. In
Dasrath Paswan v. State,4 the accused was quite upset mentally after having failed in the
annual examination for three years in a row. He told his wife, a literate woman of about
nineteen years, that he wanted to die. The wife asked him to kill her first and then kill
himself. The accused killed her and then before he could kill himself, he was arrested. The
Supreme Court held that the deceased wife had given her free consent to be killed by her
3
S 378 Illutration (m) IPC
4
Dasrath Paswan v. State, AIR 1958 PAT 190

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husband and, therefore, the accused was guilty of culpable homicide not amounting to murder
only under section 304, Part I and not of murder under section 302 of the Code. A lenient
view was taken and he was sentenced to five years’ rigorous imprisonment.

4.2 Misconception of facts-

The phrase ‘misconception of fact’ used in s 90 refers to ‘misconception’ regarding the true
nature of the act, that is, in reference to the effect and consequence of the act. In a situation
the deceased allowed himself to be bitten by a snake on the misconception created in his
mind by the accused that the snake would do no harm, it was held that the deceased had
consented to be bitten by a snake under a misconception of fact based on assurance of the
accused. 5 Consequently, it was not a valid consent under this section.

A misconception of fact may arise out of fraud or misrepresentation of facts. Consent given
on misrepresentation of facts, therefore, is not a valid consent and subsequently, does not
afford a defence to the accused. However, misrepresentation of facts, to bring it within the
ambit of section 90 needs to associate with deception or deceit. Consent obtained on a
promise to be fulfilled at a future uncertain date, therefore, does not ipso facto, vitiate the
consent.

In Hari Majhi v. State of West Bengal, 6 the accused promised to marry the prosecutrix and
has sexual intercourse with her. The accused continued to have sexual intercourse with the
prosecutrix till a year lapsed and she finally became pregnant. The prosecutrix alleged that
her consent is not a valid consent as it was induced by a false assurance. She contended that
her consent was based on a misconception of a fact that the accused will marry her and,
therefore, the accused should be held guilty of rape. The court held that to hold the accused
guilty, it has to be shown that his intention was dishonest at the time of making the promise.
Such a dishonest intention cannot be inferred from the mere fact that he could not
subsequently fulfil the promise. Section 90 cannot be called in aid in such a case to pardon
the act of the girl and fasten criminal liability on the other, unless the Court can be assured
that from the very inception the accused never really intended to marry her.

However, this is not adequate to vitiate the consent unless the person who obtained the
consent knew or had reason to believe that the consent was given by the victim in
consequence of such ‘fear of injury’ or ‘misconception of fact’. In other words, two
5
Queen v. Poonai Fattemah (1869) 12 WR 7(Cri)
6
Hari Majhi v State of West Bengal, 1990 CriLJ 650

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conditions need to be satisfied for application of the first part of s 90, namely, first, the
consent was given under ‘fear of injury’ or ‘a misconception of fact, and secondly, the
accused was conscious of the fact or had reason to think that the consent was given under fear
or misconception. The first factor, namely ‘consent given under fear of injury or
misconception of fact, is set out from the point of view of the victim, while the latter, i.e.
knowledge on the part of the accused that the consent emanated from any of the first factor, is
set out from the point view of the accused.

4.3 Consent of persons-

Consent given by an insane or an intoxicated person and by an infant (below under 12 years
of age) is not a valid consent under the IPC.7 It, therefore, does not absolve the doer of the
consented act. The rule, obviously, is based on the premise that a lunatic, an intoxicated
person and a child are immature to understand the consequences of the consented act.

Under section 82 and 83 children under age of 7 and 7-12 are considered and rule of doli
incapax, doli capax are applicable respectively. Insane person are protected with certain
conditions defined under section 84. Intoxicated persons are protected with certain conditions
explained under section 85 and 86.

5. Acts done by Consent

Sections 87, 88 and 89 of the Code deal with various aspects of acts done with consent,
which, but for the consent given, would amount to offences.

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 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.

Illustration

7
PSA Pillai: Criminal Law, ch. 12, p. 3 (ed. 12, Lexis Nexis)

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A and Z agree to fence with each other for amusement. This agreement implies the consent of
each to suffer any harm which, in the course of such fencing, may be caused without foul
play; and if A, while playing fairly, hurts Z, A commits no offence.

In a case,8 the complainant molested a girl. About 200 people armed with lathis were
determined to punish him. At that time, three persons of the locality intervened and tried to
bring about a settlement. They, along with others, who were relatives of the girl, assembled
before the panchayat. The complainant consented to submit to the decision of the panchayat.
In order to avoid other harm to the complainant, the panchayat decided to take him around
the village with a blackened face and beat him with a shoe. The decision of the panchayat
having been carried out in this manner, the three persons who intervened and the other
relatives of the girl were prosecuted for offences punishable under ss 323 and 503 of the
Code. The Allahabad High Court held that the accused were entitled to the benefit under ss
81 and 87 of the Code. It observed that in a case like this when the accused persons acted
bona fide, without any criminal intent in order to save the complainant from the serious
consequences resulting from his own indecent behaviour, with his consent, obtained in
writing and for his benefit, then it may not amount to an offence.

The consent under s 87 must not only be to the act, but also to the harm or risk of harm that is
likely to be caused by the act. Section 87 opens with the words ‘Nothing which is not
intended to cause death or grievous hurt’. These words signify that mens rea or intention to
cause death or grievous hurt on part of the doer should be completely absent, in order to
obtain the benefit of the section. It does not permit a man to give his consent to anything
intended, or known to be likely to cause his own death or grievous hurt. Consent does not
justify either causing intentional death or grievous hurt. It puts an absolute or unconditional
restriction on intentional death by consent. However, there can be intention to cause hurt,
which is short of grievous hurt.

So, consent as a defence to criminality is available in cases where:

(1) harm, short of grievous hurt, is caused by consent;

(2) harm resulting even in death, if, it was not so intended or it was without knowledge that it
is likely to cause death.

8
Bishambar v Roomal AIR 1951 All 500

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Section 87 stipulates not only 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. In a
case,9 the deceased, a middle-aged man, believed himself to have been rendered dao-proof or
proof against any harm resulting from any attack by a sharp instrument by means of a charm,
asked the accused to try a dao on his right arm. The accused believed in the assurance of the
deceased and inflicted a moderate blow with his dao as requested, with the result that his
arteries were cut and the deceased bled to death. He was convicted under s 304, but on
appeal, his conviction was set aside on the strength of s 87 and s 90. The court held that the
accused neither intended to cause or knew that he was likely to cause any hurt, much less the
death, of the deceased. It may be noted that in the case of the dao injury, the accused
concerned did not have intention to cause death or grievous hurt, nor did they even remotely
had knowledge that the act done by them was likely to cause death or grievous hurt.

As per s 87, the consent must be given by the person suffering the harm and such person
should be above 18 years of age. Consent obtained from a person below 18 years of age and
acted thereupon does not exempt the accused from criminal liability.

The exemption from criminal liability under s 87 by reason of giving consent to the harm
caused, is applicable only to offences of a personal nature. Consent has no relevance in
respect of offences that are grave and are public in character. Where offences are of a public
character, consent does not make it any less an offence nor does it grant immunity from
punishment to the person doing the act. Another area in which consent to take the risk will
not exonerate the person concerned from civil and criminal liability, is in the case of
industrial accidents. For instance, the fact that the workers have agreed to work in hazardous
industry does not take away the liability of the employer under the Workmen’s Compensation
Act 1923.

6. Benevolent Acts With Or Without Consent

Section 88. Act not intended to cause death, done by consent in good faith for person's
benefit.— 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.

9
Nga Shwe Kin v Emperor (1916) Cr LJ 581(Bom)

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Illustration

A, a surgeon, knowing that a particular operation is likely to cause the death of Z, who suffers
under the 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.

Section 89. 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: Provided—

Provisos. First.— 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.

92. 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

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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—

Provisos. First.—That this exception shall not extend to the intentional causing of death, or
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 hurt, or to the
attempting to cause hurt, for any purpose other than the preventing of death or hurt;

Fourthly.—That this exception shall not extend to the abetment of any offence, to the
committing of which offence it would not extend.

Illustrations

(a) Z is thrown from his horse, and is insensible. A, a surgeon, finds that Z requires to be
trepanned. A, not intending Z's death, but in good faith, for Z's benefit, performs the trepan
before Z recovers his power of judging for himself. A has committed no offence.

(b) Z is carried off by a tiger. A fires at the tiger knowing it to be likely that the shot may kill
Z, but not intending to kill Z, and in good faith intending Z's benefit. A's ball gives Z a mortal
wound. A has committed no offence.

(c) A, a surgeon, sees a child suffer an accident which is likely to prove fatal unless an
operation be immediately performed. There is not 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.

(d) A is in a house which is on fire, with Z, a child. People below hold out a blanket. A drops
the child from the housestop, knowing it to be likely that the fall may kill the child, but not
intending to kill the child, and intending, in good faith, the child's benefit. Here, even if the
child is killed by the fall, A has committed no offence.

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Explanation.—Mere pecuniary benefit is not benefit within the meaning of sections 88, 89
and 92.

6.1 Consent

Under s 88, consent is required from the person harmed. Under s 89, since it deals with harm
caused for the benefit of a child below 12 years or a person of unsound mind, consent must
be obtained from the guardian or other person having lawful charge of that person. As far as s
92 is concerned, it deals with emergency situations where it may not be practical or possible
to obtain the consent of either the person harmed or the guardian, if the person harmed is a
minor or a person of unsound mind. The illustrations to s 92 clearly denote the situations
contemplated under this provision.

6.2 No Criminal Intention to Cause Death

All the three sections stipulate that the doer of the act causing the harm should not have the
intention to cause death. Section 88 provides that ‘Nothing, which is not intended to cause
death, is an offence...’ As far as ss 89 and 92 are concerned, they deal with situations where
the persons to whom the harm is caused are not in a position to give consent. Section 89 deals
with acts done for the benefit of children under 12 years of age and of persons of unsound
mind, where the guardian or person having charge of the person can act or give the consent.
In these two sections, the first proviso to the sections provides that ‘this exception shall not
extend to the intentional causing of death, or to the attempting to cause death’. These words
really mean that there should be no intention or mens rea to cause death, in order to avail of
the defence against criminal liability under these sections.

However, a distinction is made between ‘intention’ and ‘knowledge’. In all these sections,
there should be no intention to cause death, though the doer might have the knowledge that
the act is likely to cause death.

6.3 Good Faith

All the three sections provide that the doer of the act causing the harm must not have any
intention to cause death or grievous injury, but must also act in good faith. A thing, by virtue
of s 52 of the IPC, is said not to be done in good faith if it is done or believed without due
care and attention. In order to get the benefit of s 88, s 89, and s 92, it is necessary for the

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accused to prove that the act charged as an offence was done by him with ‘due care and
attention’.

6.4 Corporal Punishment by School Teachers

The position with regard to corporeal punishment that can be inflicted by teacher on person
of the pupil is precisely described in M Natesan v State of Madras, 10 wherein, the Madra High
Court held:

“When a child is sent by its parent or its guardian to a school, the parent or guardian must
be held to have given an implied consent to its being under the discipline and control of the
school authorities and to the infliction of such reasonable punishment as may be necessary
for the purpose of school discipline or for correcting the child. The above principle
applicable in respect of children under 12 years of age will also be applicable in the case of
children over 12 and when a child over 12 comes to school it may be assumed that the child
gives an implied consent to subject itself to the discipline and control of the school
authorities and to receive reasonable and moderate corporal punishment as may be
necessary for its correction or for maintaining school discipline.”

6.5 For Benefit of the Person

Under all these three sections, if, an accused wants to avail of the exemption from criminal
liability, he has to establish that the act was done for the ‘benefit’ of the person concerned.
The explanation to s 92 stipulates that ‘mere pecuniary benefit is not benefit within the
meaning of ss 88, 89 and 92.’ The words ‘mere pecuniary benefit’ denote that while the act
cannot be only for pecuniary benefit, it may be for pecuniary benefit along with some other
benefit. However, if the harm caused resulted only in a pecuniary benefit, then it will not
amount to ‘benefit’ as contemplated under ss 88, 89 and 92. For instance, if a beggar desired
that his hand be amputated, to enable him to beg successfully, the harm caused would have
conferred only a ‘mere pecuniary benefit’ on the sufferer.11

10
M Natesan v State of Madras AIR 1962 Mad 216
11
PSA Pillai: Criminal Law, ch. 12, p. 9 (ed. 12, Lexis Nexis)

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 7. Where Consent Does Not Absolve A Doer

Section 91. Exclusion of acts which are offences independently of harm caused.— 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.

Illustration

Causing miscarriage (unless caused in good faith for the purpose of saving the life of the
woman) is an offence independently of any harm which it may cause or be intended to cause
to the woman. Therefore, it is not an offence ‘by reason of such harm’; and the consent of the
woman or of her guardian to the causing of such miscarriage does not justify the act.

Section 91 carves out an exception to the exceptions in ss 87, 88 and 89. In no unclear terms,
it says that consent will condone the act causing harm to the person giving the consent which
will otherwise be an offence, and not the acts which are offences independently of the
consented harm. As per ss 87, 88, and 89, harm caused to persons with their consent, or for
their benefit with their consent, does not constitute an offence, as long as such harm is not
likely to cause death or grievous hurt to the person who has given consent.

Under ss 87, 88 and 89, the acts complained should cause harm or be intended to cause harm.
Such acts would be offences but for the consent given by the person to whom the harm is
caused. So under ss 87, 88 and 89, the acts of the doer, but for the consent given, would
constitute an offence by reason of any harm, which it may cause or be intended to cause.
However, s 91 contemplates a situation wherein, despite the consent given, an act constitutes
an offence not by reason of the harm caused or intended to be caused, but by reason that the
act consented to is per se illegal.

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 8. Conclusion, criticism and suggestion

Consent has been defined negatively in Section 90 of I.P.C. as a consent is not such a consent
as is 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

The above discussion highlights that the defences 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 defence and there are different ways in which a
person is coerced to consume in toxifying 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 defences 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.

The following amendments should be made-

Section 90 should be redefined in positive manner as “Definition of consent” - When two or

more persons agreed upon the same thing in the same sense, they will be presumed to have
consented to do an act or omission agreed provided that such consent should not have been
adversely affected by -

(I) Fear of injury or

(ii) Misconception of fact or

(iii) When due to insanity or intoxication or age oldness he was unable to understand the
nature and consequence of that to which he gave consent or

(iv) Infancy, when consent was given by a child under 12 years of age unless the contrary
appears from the context or

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(v) Undue influence or

(vi) Fraud, or

(vii) Mistake of fact.”

2. Age oldness should be recognised as adversely affecting factor to the valid Consent.

3. Undue' influence should be considered the adversely affecting factor invalidating a legal
consent.

4. Fraud should be treated as invalidating the legal consent as it cheats the mind of consenting
person.

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 9. BIBLIOGRAPHY
Cases

 Tulshidas Kanolkar v State of Goa, (2003) 8 SCC 590

 Dasrath Paswan v. State, AIR 1958 PAT 190

 Queen v. Poonai Fattemah v. (1869) 12 WR 7(Cri)

 Hari Majhi v State of West Bengal, 1990 CriLJ 650

 Bishambar v Roomal AIR 1951 All 500

 Nga Shwe Kin v Emperor (1916) Cr LJ 581(Bom)

 M Natesan v State of Madras AIR 1962 Mad 216

Books

 PSA Pillai, Criminal Law, 12th Edition.

Bare Act

 The Indian Penal Code, 1860.

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