In this research article, we will understand how death by consent acts as an exception to murder. In order to understand this it is important firstly to have an understanding about what is consent and what is murder and then we’ll be able to understand how death by consent comes under the exceptions of murder.
What is Consent?
In general, consent means something done intentionally or purposefully and by free will. It involves a deliberate intelligence exercise based on the knowledge of the value and legal effect of the act. It is an act of thought, followed by deliberation, balancing the mind on each hand, as in a circle the good and the bad. It assumes three things, that is, there is a physical power, a mental power and the free and serious use of both of them.
However the word ‘Consent’ is not defined anywhere in the Indian Penal Code, but Section – 90 of IPC describes what is not consent. It says as follows –
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.
This Section regulates the operation of Section – 87, 88 and 89 of the IPC. It gives four cases where a consent given by person is not a consent.
Person giving consent under the fear of injury– Under criminal law, consent obtained by threat and violence would not be a defence.
Person giving consent under the misconception of facts– if consent is obtained under a misconception of facts, then it will have no value in the eyes of law. For example, a woman had a consent sexual intercourse with a doctor on the belief that he was making a medical examination of her. The doctor would be held guilty as he made her believe that he was doing a medical examination of her.
Consent given by insane people– People who are of unsound mind, or in an intoxicated state of mind, incapable to understand the nature and consequences of their acts.
Consent given by child- The last para of section 90 says consent given by a child under the age of 12 years has no value in the eyes of law. In this case, the consent will be given by the child’s guardians or person in charge of him.
Thus, we can understand that when a person gives his consent without any fear, misconception of fact and the person is in the normal state of mind and is of above 12 years of age is a Consent as under IPC.
Section 87, 88, 89 and 90 of the IPC 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.
Consent be given under no fear or misconception of facts.
The said consent must be made expressly or impliedly.
The consent was not intended to cause death or grievous hurt (child or insane person).
After understanding what is consent and in which cases it can be pleaded as defence, we’ll now understand what is murder and how this term, that is, ‘Consent’ acts as an exception to murder.
What is Murder?
Section - 299 and Section – 300 of the Indian Penal Code deals with murder. It is said that all murders are culpable homicides but all culpable homicides are not murders.
The word “homicide” is derived from a Latin word “homo” meaning man/human being and “cide” which denotes an act of killing.
Culpable homicide is punishable by law, it can be lawful or unlawful. It is divided into two categories:
Culpable homicide amounting to murder.
Culpable homicide not amounting to murder.
The reason why culpable homicide is divided into two categories is because of the degree of intention.
For example – A wanted to kill B in order to seek revenge and kills B by shooting a gun at him. Here, intention of A is very clear that he wanted to kill B and thus, it is Culpable Homicide amounting to murder, in simple words it is a ‘murder’.
On the other hand if A accidently hits B with his car and B dies on the spot. Here, A had no intention of killing B but he died because of A’s negligence and thus it culpable homicide not amounting to murder.
Section – 300 of IPC defines murder. As per this section of the code, culpable homicide is considered murder if it satisfies the following conditions:
The act is committed with the intention of causing death, that is, there should be an intention of causing death, of there is no intention, it won’t be considered as murder.
The act is done with the intention of causing such bodily injury which the offender has knowledge that it would result in death, that is, there should be an intention of causing such bodily injury which is likely to cause death.
The person has the knowledge that his act is dangerous and would cause death or bodily injury but still commits the act, it means, if the act of killing is done with the knowledge that the act is likely to cause death of the person.
A shoots W with an intention of killing him. As a result, W dies in that consequence, murder is committed by A.
D intentionally gives a sword-cut to R that was sufficient to cause the death of anyone in the ordinary course of nature. As a consequence, R dies. Here, D is guilty of murder though he didn’t intend to cause R’s death.
Now we have understood the meaning of both the terms, that is, murder and consent. We’ll now see how consent is an exception to murder.
There are 5 exceptions of murder given in Section – 300 of Indian Penal Code. Following are the cases when the death of person by another is considered as culpable homicide not amounting to Murder:
Sudden & Grave Provocation - If the offender is deprived of the power of self-control due to sudden and grave provocation, and his act causes the death of the person who provoked or death of any other person by accident or mistake. This exception is subject to a certain limit, that is:
That the provocation is not sought or is voluntarily provoked by the offender to be used as an excuse for killing or causing any harm to the person.
That the provocation is not given by anything that is done in obedience to the law, or by a public servant while exercising the powers lawfully of a public servant.
That the provocation is not done while doing any lawful exercise of the right of private defence.
Where the act is committed to defend them from further harm. If the accused intentionally exceeds his right to private defence, then he is liable to murder. If it is unintentional, then the accused will be liable to culpable homicide not amounting to murder.
Example - X attempts to flog Y, not in a manner to cause grievous hurt to Y. A pistol is drawn out by Y, X persists the assault. Y believes that he had no way to prevent himself from being flogged by X, Y fires at X. X is liable to culpable homicide not amounting to murder.
The act is done by a public servant who is acting to promote public justice. If the public servant commits an act which is necessary to discharge his duty as is done in good faith and he believes it to be lawful.
Example - If the police officer goes to arrest a person, the person tries to run away and during that incident, if the police officer shoots the person, the police officer will not be guilty of murder.
The sudden fight is when the fight is unexpected or premeditated. Both the parties don’t have any intention to kill or cause the death of another. The fact that which party had assaulted or offered a provocation first is not important.
If the act/death is committed with the consent of the victim. The consent should be unconditional, unequivocal and without any sort of reservation.
Example - A, by instigation, voluntarily causes Z, a person under eighteen years of age to commit suicide. Here, on account of Z's youth, he was incapable of giving consent to his own death; A has therefore abetted murder.
We have seen in what cases death of a person is considered as Culpable Homicide not amounting to Murder. We’ll discuss “Consent as an exception to Murder” in detail.
Consent as an exception to Murder
As mentioned above Exception -5 of Section – 300, that is, Murder says that if the death of a person is caused by his/her consent and he/she should be of 18 years of age and above.
In order to plead this as Defence, there are various conditions needed to be fulfilled as discussed earlier in order to know that the consent given by person is legally obtained or illegally.
“Culpable homicide is not murder when the person whose death is caused, being above the age of eighteen years, suffers death or takes the risk of death with his own consent.”
A consent given by person to cause his/her death will be considered as legal consent or valid consent in the eyes of law only when it fulfils the following conditions-
Consent is given without any fear of injury.
Consent is given without any misconception of fact.
Consent given by person of unsound mind or intoxicated state of mind is not valid, in simple words consent of the person who is of sound/normal prudent mind and is not intoxicated is considered valid.
Consent of person below 12 years of age has no importance in the eyes of law as per Section – 90 of IPC but Exception- 5 of Section – 300 states that the consent is valid only when it is given by a person who is of 18 years of age and above.
Let us see an example when Death of a person by his/her consent does not amount to murder:
A (a surgeon) knows that a particular operation is likely to cause death of Z who is suffering from painful complaint, A however don’t want to cause the death of Z, and Z has given his consent to perform the injury. A performs the injury and Z dies. Here, A won’t be liable.
X killed Y, to which Y has given his consent and he was in normal state of mind and was of above 18 years of age. Here, X won’t be held liable for murder as Y had given his consent.
Dasrath Pawan v. State (1957)
In this case, the accused has failed at an examination for three consecutive years. By getting disappointed due to these continuous failures he decided to end his life. He discussed his decision with his wife who was a literate woman of 19 years of age. His wife said to kill her first and then kill himself. Accordingly, the accused killed his wife first and was arrested before he could kill 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.
Sukaroo Kaviraj v. The Empress (1887)
In this case, Mr. Kaviraj, a qualified doctor performed an operation of internal piles by cutting the vital part with an ordinary knife. The patient died because of copious bleeding. He was prosecuted for causing death by rash and negligent act. The Court held him liable as he did not act in good faith though the patient had given him the consent.
Rao Harnarain Singh Sheoji Singh v. State (1957)
In this case, the accused who was an advocate and Additional Public Prosecutor forced his tenant to give his wife for satisfying the carnal lust of Rao Harnarain and his friends. They all ravished her all night that resulted in her death almost immediately.
Upon being prosecuted, the accused pleaded that the deceased husband had consented for this and also the woman came with her own, therefore they should not be held liable. The Court made clear the distinction between consent and submission.
The Court said all consent involves submission but not all submission is consent. Here, in this case the deceased made her submission before the accused because her husband was threatened with severe consequences. The Court held all of them liable for committing rape and murder.
Poonai Fattemah v. Emperor (1869)
In this case, the accused, a snake charmer persuaded the deceased to allow himself to be bitten by a poisonous snake, making him to believe that he had the power to protect him from the harm. Here, the consent given by the deceased was under the misconception of the fact that the accused had a skill to cure snake bites. Therefore, the Court held that the accused was not entitled to protect on the ground of consent of the deceased and held liable.
Conclusion & Suggestions
In this article, we understood the meaning of various terms as per Indian Penal Code, 1860, that is, Consent and Murder and learned about how the consent given by a person to cause his/her death does not amount to murder. Lastly the article has laid down various case laws in which we understood when and where consent of a person to cause his/her death can be pleaded as defence.
In the Indian Penal Code, there is no proper definition of “Consent” instead it has been defined under Section – 90 “What is not consent?” also in Section – 90 it says that consent of child below 12 years of age is not considered valid whereas in the Exception-5 of Section – 300 the consent is considered valid only when it is given by the person of 18 years of age or above.
There is mismatch of the age in the definitions of the consent in IPC which should be rectified also it becomes very difficult to understand the purview of Consent due to various interpretation of Section – 90. Hence, a proper definition of “What is Consent” should be put in the Indian Penal Code and the mismatch between the ages should be rectified as to what is the age of a person whose consent is considered valid in the eyes of the law.
Intern at S.Bhambri & Associates, Delhi
Student of Dharmashastra National Law University, Jabalpur (M.P.)