Chapter IV — GENERAL EXCEPTIONS
Act not intended and not known to be likely to cause death or grievous hurt, done by consent
87. 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 18 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
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.
[Indian PC 1860, s. 87]
Act not intended to cause death done by consent in good faith for the benefit of a person
88. 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.
Illustration
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.
[Indian PC 1860, s. 88]
Act done in good faith for the benefit of a child or person of unsound mind, by or by consent of guardian
89. Nothing, which is done in good faith for the benefit of a person under 12 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 that this exception shall not extend to
(a) the intentional causing of death, or to the attempting to cause death;
(b) 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;
(c) 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;
(d) the abetment of any offence, to the committing of which offence it would not extend.
Illustration
A, in good faith, for the benefit of his child, being under 12 years of age, 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.
[Indian PC 1860, s. 89]
Consent given under fear or misconception, by person of unsound mind, etc., and by child
90. A consent is not such a consent as is intended by any section of this Code
(a) if the consent is given by a person Ñ
(i) under fear of injury or wrongful restraint to the person or to some other person; or
(ii) under a misconception of fact,
and the person doing the act knows, or has reason to believe, that the consent was given in consequence of such fear or misconception;
(b) if the consent is given by a person who, from unsoundness of mind, mental incapacity, intoxication, or the influence of any drug or other substance, is unable to understand the nature and consequence of that to which he gives his consent; or
(c) unless the contrary appears from the context, if the consent is given by a person who is under 12 years of age.
[51/2007]
[Indian PC 1860, s. 90]
Acts which are offences independently of harm caused to the person consenting, are not within the exceptions in sections 87, 88 and 89
91. 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.
[32/80]
Illustration
Causing miscarriage, unless it is authorised under the Termination of Pregnancy Act (Cap. 324) 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.
[Indian PC 1860, s. 91]
Act done in good faith for the benefit of a person without consent
92. 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 that this exception shall not extend to
(a) the intentional causing of death, or to the attempting to cause death;
(b) 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;
(c) the voluntary causing of hurt, or to the attempting to cause hurt, for any purpose other than
the preventing of death or hurt;
(d) 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) [Deleted by Act 51 of 2007]
(c) A, a surgeon, sees a child suffer an accident which is likely to prove fatal unless an operation is 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 house-top, 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.
Explanation .—Mere pecuniary benefit is not benefit within the meaning of sections 88, 89 and 92.
[Indian PC 1860, s. 92]
Communication made in good faith
93. No communication made in good faith is an offence by reason of any harm to the person to whom it is made, if it is made for the benefit of that person.
Illustration
A, a surgeon, in good faith, communicates to a patient his opinion that he cannot live. The patient dies in consequence of the shock. A has committed no offence, though he knew it to be likely that the communication might cause the patient’s death.
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