Dissertation On Consent in Penal Liability

A Dissertation
on
The Concept of Consent
in Penal Liability:
An Appraisal
Supervised by:- Submitted by:-
Dr.Suneel Yadav, Rajan ,
_____________ Ref: No.
Department of Law, LL.M. Final,
Kurukshetra. Kurukshetra.
Kurukshetra University
Kurukshetra
ACKNOWLEDGMENTS
This is to acknowledge my deep sense of
gratitude to Prof. Raj Pal Sharma, Dean, Faculty of
Law, Kurukshetra University, Kurukshetra, who
taught me the art of writing on legal subjects and has
been always a source of inspiration for my academic
pursuits. His academic discussions and valuable
suggestions have helped me in polishing the felicity
of this dissertation and to my colleagues who have
always been my well-wishers and have given me
friendly advice from time to time. I wish to express
thanks to all of them. I am grateful to my family who
has relieved me from my domestic liabilities, as
without their co-operation, this dissertation could not
have been completed in due course.
Kurukshetra Neeraj Januha

12.09.2016
SUPERVISOR CERTIFICATE
This is certified that this dissertation title as

THE CONCEPT OF CONSENT IN PENAL
LIABILITY-AN APPRAISAL has been
completed by Mr.Rajan. It is to be submitted for
the partial fulfilment of requirement for the
award of LL.M degree. This Dissertation is his
original work and has been prepared by him
after exercising due diligence and hard work
under my guidance.
This is very well and appropriate for
submission and evaluation.
Dr.Suneel Yadav
_______________
Department of Law,
Kurukshetra
University,
Kurukshetra
RATIONALE OF TOPIC
The relevancy of consent in penal liability revolves around the
basic principles of Public Policy and Individuals Personal Liberty. The
purpose of the topic is to learn about the extent of harm to which
consent can be given and the restriction thereof.
Modernization of Indian society and emerging influence of

western liberal ideas demands a review in penal polices as individuals
seeks more liberties in dealing with their rights. The concept of consent is
eroding criminal liability in many areas involving social morality. There is
a demand of decriminalization of many offences in view of the consensual
nature of the offence & involving the personal injury. Offences like
prostitution, gambling, adultery offences relating to gays and lesbians fall
in this category. There are many so called civilized and developed States
where these kinds of activities have been decriminalized. Though, as yet
this approach has not made any serious inroads in the Penal Jurisprudence
of India. However, strong voices to that effect can be heard even in
different corners of Indian society. How long can we stale this
development is a big question mark?
Recently in a case before Delhi High Court, validity of Section

377 of I.P.C was challenged as discriminating on basis of sex and
homosexual act are demanded to be declared legal. Consensual element
present in relationship of gays and lesbians shall be considered as
justification of unnatural offences. Moreover, the right to take ones owns
life (Euthanasia) is a challenging concept for reconciling the individual
liberties and social interest. Euthanasia is defined as an "intentional killing
by an act/ omission of person whose life is felt is not to be worth living."
Euthanasia, Physician Assisted Suicide (PAS), Suicide, though
conceptually different, are species of the same genre.
In some rape cases also sexual intercourse is committed on the

ploy/promise of solemnization of marriage and offender claim justification
on that alleged ill-conceived consent of prosecutrix. The validity and
relevancy of such consent made under misconception of facts is also to be
ascertained. Even in consensual extra-marital relationship such as live in
relationship, are regarded as illegal and immoral trafficking and
punishable as such. The consent of a ward and mode of taking such
consent is researchable in interoperating terms taking or enticing in the
offence of Kidnapping. The defence of consent also comes into picture
where a medical practitioner or a teacher does anything, in good faith and,
for the benefit of his patient or student as the case may be, and it resulted
in some harm to respective person. Offences with strict liability requiring
no mens rea, offences against State or White-Collar crimes are also to be
studied in determining relevancy of consent in these crimes.
The consent of victim also plays its role after commission of

offence. The liability of accused can be relieved absolutely by
compounding the offence by the victim with or without the permission of
court. The latest proposed amendment in Cr.P.C in 2008 suggests the
legislature is leaning towards the idea of making more and more offences
compoundable. The insertion of chapter of Plea-Bargaining also
supports that assertion.
In this work an attempt to study the relevancy of consent in penal

system of UK, USA, Germany and Australia in comparison to India will
be made. Although, there are basic differences in pertaining condition in
social structure in India & these countries, but still the values of
individual liberties and its expansion in modern World are helpful in
studying the possibility of decriminalization of certain offences on the
basis of consent.
This research will concentrate on the pros and cons of right to die
& need of legalizing homosexual relationships. An attempt will also be
made to find out validity and effectiveness of consent of prosecutrix when
her consent was taken on the false promises or under misconception of
facts. The research will also be of worth in studying the compoundability
of offences and concept of Plea-Bargaining in Indian Criminal System.
Plea-Bargaining is used as an instrument to compensate the victim by
monetary damages and providing opportunity to accused to buy consent of
victim by giving bargained sum. It is hoped that this study will help other
researchers.
METHODOLOGY OF RESEARCH
The study needs a through perusal of Penal laws in India and

relevant case laws decided by various High Courts and Honble Supreme
Court on this topic. The research work will mainly be done by adopting
Doctrinal research methodology which involves analysis of case law,
arranging, ordering and systematizing legal propositions and study of
relevant legal concepts. So, the focus will be on relevant statutory
provisions, their objectives as to prevent private wrongs as well as public
wrongs, and to find significance of consent in mitigating or neutralizing
criminal liability in the light of judicial interpretation. For better
understanding, books of various jurists will also be consulted.
The material will be collected from Bare Acts, law libraries, and law
websites. Law Journals, Articles, Commentaries & various law reporters
will also be gone through to complete this work. To know the objectives of
any penal provisions, the recommendations and reports of Law
commission of India and various committees shall also be considered.
Law websites will be accessed to find out relevant respective

provisions of other counterparts of India.
INDEX
CHAPTER I
INTRODUCTION-
1. Consentits meaning
2. Consent and Nature of Rights
3. Consent and Liability
4. Consent as defencePrinciple explained
5. Comparative relevance in facet of time
6. Comparative Study in various legal systems
7. Indian Law
CHAPTER II
CONSENTA DEFENCE IN CRIMINAL LAW
1. General Description
2. Punishment: Aims and Objects
3. Exceptions under Indian Penal Code
CHAPTER III
CONSENT UNDER OFFENCES RELATING TO
HUMAN BODY
1. Sections 299 & 300 of Indian Penal Code
Culpable Homicide and Murder
2. Consent attached to Explanation 300 of Code
3. KidnappingSection 361 of Code
4. AbductionSection 362 of Code
5. AbortionSections 312 to 316 of Code
CHAPTER IV
RELEVANCY OF CONSENT IN SUICIDE
AND EUTHANASIA
1. SuicideMeaningSection 309 of Code
2. Constitutional Validity of Section 309
3. The Indian Perspective
4. Hunger Strike
CHAPTER V
NATURE OF CONSENT & THE POTENTIAL
CRIMINAL LIABILITY FOR EXCEEDING CONSENT
1. The Law Underpinning the Doctor - Patient Relationship

2. Point at Which Liability for Non-Consensual Contact Arises
3. Consent in the Doctor-Patient Relationship
4. Right of Self-Determination/Autonomy is enshrined in Moral
Theory and in Law.
5. Summary of the Nature of Consent
6. Background
7. Valid consent is consent given by an autonomous person
8. Criminal Liability on account of Non-Consensual Medical
Treatment
9. Crime of causing grievous bodily harm
10. Crime of maim
CHAPTER VI
RELEVANCY OF CONSENT IN SEXUAL OFFENCES
1. General Description
2. Meaning of Rape
3. Meaning of Consent in that reference
4. Consent Obtained Under Fear of Death or Of Hurt or Threat
5. Consent obtained by fraud
6. Capacity to Consent : Minors
7. Mental Incapacity
8. The Burden of Proof
9. Evidence of Prosecutrix
10. Rape in special cases and exaggerative punishment
11. Unnatural Offences
12. Validity/Constitutionality of Section 377 IPC
13. Details of landmark Judgment of Honble Delhi High Court
with reference to section 377 IPC
14. Laws on Child Sex Abuse in India
CHAPTER VII
OFFENCES AGAINST PROPERTY
1. Theft
2. Extortion
3. Robbery
4. Criminal misappropriation of property
5. Cheating
CHAPTER VIII
Relevancy of consent in Socio-Economic Offences
CHAPTER IX
COMPOUNDING OF OFFENCES & WITHDRAWAL
FROM PROSECUTION
EPILOGUE
BIBLOGRAPHY
CHAPTER-I
INTRODUCTION
CONSENT: ITS MEANING:-
Consent generally means; a concurrence of minds; actual

willingness that an act or an infringement of an interest shall occur.
Consent assumes a physical power to act and a reflective, determined, and
unencumbered exertion of these powers. It is an act unaffected by Fraud,
duress, or sometimes even mistake when these factors are not the reason
for the consent. Section 90 of IPC defines consent in negative term.
Criminal law has mainly been concerned with the protection of the
elementary social interest in the integrity of life, liberty and property. A
criminal wrong is a wrong against the society and not only against an
individual. A criminal act harms not only the individual against whom it is
committed but it also disturbs the peace & harmony in a society. In
criminal prosecutions, the State is the controlling authority & can alone
exercise the high prerogative of giving pardon to the criminals. But, there
are certain rights of individuals regarding their property and to some
extent to their person, which they enjoy absolutely. They can consent to
harm or violation of such rights and law allows compounding of such
offences. Consent can be a good defence to the causing of injury as it is
assumed that every one is the best judge of his own interest and therefore,
no one consent to that which is hurtful to that interest.
The concept of crime has always been dependent on public
opinion and tolerance power of a society. According to Stephen, crime is
said to be an act which is both forbidden by law and against moral
sentiments of the society. Moral sentiments are varying concepts and
depend upon the different culture, atmosphere and necessity of a society at
a given time and place. If a society tolerates a certain behavior or act and
gives assent to it; it cant be a crime at all. This is evident from the fact
that the same act is not declared crime in different countries or societies
while in others it attracts penal liabilities being a crime. For example
polygamy is prohibited among Hindus as per law; but there is no such law
for Mohammedans. So the consent of society at large to approve or
disapprove a behavior is one of the major factors to declare an act or
behavior as crime.
From the Roman law comes the maxim volenti non fit injuria
meaning thereby 'one who consents suffers no wrong.' Opinion is divided
as to whether this maxim expressed a general principle, that the consent of
the victim precluded punishment. According to the modern viewpoint, at
least, such a rule cannot be accepted absolutely. There are several reasons
which may induce society to prohibit an act, even though the one, who
primarily suffers from it, consents to it. Specially, in serious crimes, a
concern for the consenter himself is likely to cause society to deprive the
consent of legal significance; society does not have sufficient confidence
in the consenter's ability to make a correct evaluation of his own interests.
In many cases, other people, such as the consenter's relatives, have an
important interest in seeing to it that the act is not done. Purely moral
considerations can also come into play, such as in the case of consent to
homicide or sexual operations.
CONSENT & NATURE OF RIGHTS:

Rights may be divided into two classes, alienable and inalienable.
All offences against property are offences against alienable rights. True, it
is impossible to restrain men of mature age & sound understanding from
destroying their own property, their own comfort without restraining them
from an infinite number of solitary or innocent actions. If Z, a grown man,
in possession of all his faculties, directs that his valuable furniture shall be
burned, that his picture shall be cut to rags that his fine house shall be put
down, those who obey his orders, however capricious those order may be,
however deeply Z may afterwards regret that he gave the, ought not, as it
seems to us, to be punished for injuring his property. Therefore, consent is
a complete answer in cases of offences against property. But, offence
against human body stands on a different footing. Up to certain stage the
right is an alienable right, but beyond that stage it is inalienable & no
amount of consent would exempt the accused form criminal liability.
CONSENT & LIABILITY:

Law is regarded as rules of conduct & there are different liabilities
for violation of different norms of conduct. Salmond says liability or
responsibility is the bond of necessity that exists between the wrongdoer
& the remedy of the wrong. Liability is either civil or criminal, or,
remedial or penal. Restitution in integrum (restoration to the original
position) is one of the basic principles of remedial or civil liability. On the
other hand, the object of penal procedure is always punishment, which is
inflicted on him not for the sake of redress, but for the sake of example.
Criminal liability is almost always penal, civil liability, on the other hand,
is sometimes penal & other time it may be remedial. Liability to pay
compensatory damages is remedial liability but when the defendant is
made to pay exemplary damages his liability may be termed as penal.
Penal liability resolves itself into two aspects, the act and the nature of
mind behind an act. The second condition of penal liability i.e. guilty
mind is the most essential & when the victim consents to the act & the
doer does it in good faith then the act lost its criminality & there arises no
liability at all.
CONSENT AS DEFENCE: PRINCIPLE EXPLAINED:-

Consent has always been recognized as a good defence in both
common law & canonical law. Consent (express or implied) of the
injured person, indicating that he waives protection of his interest, in this
case the rationale of justification is an 'absent interest'.
Both common law & canonical law assume that:
1. Everyone is the best judge of his own interest.
2. No one will consent to what he thinks is harmful to himself.
The doctrine so far is simple and perfectly intelligible

and it is, indeed, the outcome of that natural liberty to which every man is
entitled and the curtailment of which, to be justifiable, must proceed from
the manifest public policy or obvious necessity.
The Drafts Commission of Indian Penal Code explained that, It is

by no means true that, in the vast majority of cases men can judge better
their own interest than any law giver, or any tribunal, which must
necessarily proceed on general principles, and which cant have within its
contemplation the circumstances of particular cases and the tempers of
particular individuals, can judge for them. It is difficult to conceive any
law which should be effectual to prevent men from wasting their substance
on the most chimerical speculation, and yet which should not prevent the
construction of such works as the Duke of Bridgewaters canals. It is
difficult to conceive any law which prevent a man from capriciously
destroying his property, and yet which should not prevent a philosopher, in
a course of chemical experiment from dissolving a diamond, or an artist
from taking ancient pictures to pieces, as Sir Jashua Reynolds did , in
order to learn the secrets of coloring. It is difficult to conceive any law
which should prevent a man from capriciously injuring his own health,
and yet which should not prevent an artisan from employing himself in
callings, which are useful & indeed necessary to society, but which tend to
impair the constitutions of those who follow them, or a public spirited
physician from inoculating himself with the virus of a dangerous disease.
It is chiefly, we conceive for this reason, which almost all governments
have thought it sufficient to restrain men from harming others, and have
left them a liberty to harm themselves. But, though in general we would
not punish an act on account of any harm which it might cause to a
person who had consented to suffer that harm, we think that these are
exception to this rule, and that the case in which death is intentionally
inflicted is an exception1.
Consent as a good defence to all offences against property and to all
offences which do not involving the causing of death or grievous hurt.
Consent does not justify causing of death or grievous hurt. As to the first,
the restriction is absolute and unconditional, except that by statutory
provisions in some cases consent has the effect of reducing the gravity of
offences. For instance, the fifth exception to section 300 provides that
1
Report of Law Commission, n B, pp 108-109 quoted in A.N. Saha, Basus Individual
Code, vol. 1 8th edition 1998,pp 214-215
culpable homicide is not murder when the person whose death is caused
being the age of eighteen years suffers death or takes the risk of death with
his own consent.
General justifications, which apply to nearly all offences, may be

reduced to the following heads:-
1. Consent.
2. Repulsion a greater-evil.
3. Medical-practice.
4. Self-defence.
5. Political-power.
6. Domestic power.
How do these circumstances furnish justifications? We shall see that

sometimes they import proof of the absence of evil; and sometimes they
evince that the evil has been compensated i.e. a good, more equivalent has
resulted from it. .
What more natural than to presume that there is in fact no evil, or

that it is perfectly compensated, where there is such consent? We
therefore admit the general rule of the lawyers, that he who consents
suffers no injury. This rule is founded upon two very simple propositions:
one, that every person is the best judge of his own interest; the other that
no man will consent to what he thinks hurtful to himself.
This rule admits many exceptions of which the reason is palpable;
such as coercion, fraud, concealment, consent out of date or revoked,
madness, drunkenness, childhood.
COMPARATIVE RELEVANCE IN FACET OF TIME
In the ancient time, when enforcement of criminal law was not the
States liability, the consent was a complete answer to a criminal charge
even to that of murder. At that stage, every man carried his life in his own
hands. In those days, every man was constituted a judge in his own cause,
and Might was the sole measure of Right.
Under the law of the Romans, who had borrowed their ethics from
the Greeks, consent was a complete answer to any of charge including
even murder. This remained the law till the advent of Christianity, which
taught the sanctity of human life, the doctrine of which was echoed by the
Prophet of Islam. Christianity in its turn had borrowed the tradition from
Jews who regarded suicide as a crime and committed the suicides body to
an unhallowed grave. However, in England, the denial of the right of
Christian burial to suicide has been, abrogated by statute. (1882 45 & 40
vict, c. 19, sec. 2)
Sir Henry Maine in his celebrated book Ancient Law has stated
that the penal law of ancient communities was not the law of crimes; but
was law of private wrongs. In support of this view, we may cite the ancient
practices of compounding murder by payment of blood money to the
heirs of person killed. In countries, where Mohammedan law is strictly
followed; even now a homicide may be purged by payment of blood
money to the relations of the deceased, provided they agree. The idea that
all the crimes are wrongs against the state or aggregate community, and
that it is the proper function of the state to pursue crimes without reference
to the person wronged is a conception of comparatively modern growth.
Now a day, with the development of society, the human life is deemed to
be subordinate to the state which prescribes that it is one of the duties of
the citizen to preserve &conserve their lives.
Locke, in his essay on civil government says, As he cant take
away his own life, so he cant give power to another to take it. It seems
to us clear, therefore, that no consent ought to be a justification of the
intentional causing of death.
COMPARATIVE STUDY IN VARIOUS LEGAL SYSTEMS:
GERMAN CRIMINAL LAW
Consent of the victim: Whoever commits bodily harm with the consent of
the victim acts unlawfully only if his conduct, despite the existence of
consent, is contrary to good morals.
"Consent as 'negative element...German criminal law scholarship

sharply distinguishes between elements of an offence ("Tatbestand") and
reasons for justification ("Rechtfertigungsgrnde"). Occasionally the
victim's consent is seen as a "negative" element of an offence, thus
belonging to the first category (labelled "Einverstndnis"); sometimes it is
viewed a reason for justification (labelled "Einwilligung"). Whether this
distinction is necessary is a controversial issue, yet most scholars at least
accept the general scheme as a helpful systematization."
AMERICAN LAW
(1) In General: The consent of the victim to conduct charged to

constitute an offence or to the result thereof is a defence if such consent
negatives an element of the offence or precludes the infliction of the harm
or evil sought to be prevented by the law defining the offence.
(2) Consent to Bodily Injury: When conduct is charged to constitute

an offence because it causes or threatens bodily injury, consent to such
conduct or to the infliction of such injury is a defence if:
(a) The bodily injury consented to or threatened by the

conduct consented to is not serious; or
(b) The conduct and the injury are reasonably foreseeable hazards of
joint participation in a lawful athletic contest or competitive sport or other
concerted activity not forbidden by law; or
(c) The consent establishes a justification for the conduct under Article 3
[General Principles of Justification] of the Code.
(3) Ineffective Consent. Unless otherwise provided by the Code or by the

law defining the offence, assent does not constitute consent if:
(a) It is given by a person who is legally incompetent to authorize the
conduct charged to constitute the offence; or
(b) It is given by a person who by reason of youth, mental disease or

defect or intoxication is manifestly unable or known by the actor to be
unable to make a reasonable judgment as to the nature or harmfulness
of the conduct charged to constitute the offence; or
(c) It is given by a person whose improvident consent is sought to be

prevented by the law defining the offence; or
(d) It is induced by force, duress or deception of a kind sought to be

prevented by the law defining the offence.
GREAT BRITAIN :- The word 'consent' in sections 123, 124, and 125 of
code2 means a consent given by a sober and rational person able to form a
rational judgment on the matter to which he consents and not procured by
force, fraud, or threats of whatever nature.
SECTION 123 Injuries by Consent.
The act of inflicting on any person by his own consent bodily injury
not amounting to a maim is not an offence, unless it is so inflicted as to
amount to a breach of the peace, as in a prize fight or any similar
exhibition.
2
(Parliament, House of Commons, Bill 178, Criminal Code (Indictable Offences) Bill, 1878 in
Sessional Papers [British Parliamentary Papers] (1878), vol. 2, pp. 5-249; Research Note: Bill
178 was drafted by Sir James Fitzjames Stephen;
SECTION: 124. Surgical operations.
No one commits an offence by inflicting on another any bodily injury

in the nature of a surgical operation performed either by the patient's own
consent, or if he is incapable of consenting, then by the consent of any
person who has a lawful right to consent thereto, or if no such person's
consent can be had, then if it is inflicted in good faith for the benefit of the
patient, provided that this section shall be subject to the provisions herein-
after contained as to culpable negligence, and to the provisions of Section
159.
SECTION-125. No right to consent to death.
If any person inflicts death upon another person by his consent, he

commits the same offence as if such consent had not been given.
SECTION 159: Maiming One Self or Another by Consent
Every one shall be guilty of an indictable offence, and shall be liable

upon conviction thereof to two years imprisonment and hard labor, which,
for any purpose injurious to the public, maims himself, or maims any other
person by his consent."
A 'maim' is a bodily harm, whereby a man is deprived of any member

of his body or permanently deprived of the use of it or of any sense or
faculty.
INDIAN LAW
To what extent one can consent to the causing of injury upon oneself
is provided under the general exception contained in Section 87 to 93 of
Indian Penal Code. The drafters of IPC opted for negative definition of
consent because it would be difficult to describe all the facets of consent
and , as negative definition is shorter than positive definition and enhances
the scope of the terms. In civil law consent has been defined as an
agreement of two or more persons upon the same thing in the same sense.
That is to say, the parties should be at ad-idem.
There are certain offences in which, the existence of consent of the

deceased may go to mitigate the punishment i.e. sec. 300 exception 5,
suicide pact, dangerous acts, miscarriage under sec. 312 314 of IPC. So
relevancy of consent can be read under the following headings:-
(1) Offences against human body==== Murder, abortion, kidnapping etc.
==== Sexual offences i.e. rape, sodomy
etc.
==== Suicide, euthanasia etc. (self-
inflicted harms).
(1) Offences against property===theft, extortion, robbery, cheating etc.

(2) Socio- economic offences (strict liability)
(3) Relevancy of consent after commission of offence i.e. compounding
of offences, withdrawal of prosecution & plea bargaining.

RESTRICTIONS
There are two major restrictions in the eyes of the law, firstly if a
person is not competent to judge and to protect his interests; his consent is
for that reason of no consequence. ...The other restriction relates to the
nature of the harm. If the harm in question is serious, and if the risk-laden
conduct producing it is not privileged by social acceptance, consent is
ineffective to relieve from criminal liability. While it is true that the injury
we suffer might be only our business, the conduct producing it is a social
concern. In spite of the consent of the victim, such conduct may exceed
the bounds of decency....
The Government further contended that the criminal law should seek
to deter certain forms of behavior on public health grounds but also for
broader moral reasons. The State was moreover entitled to prohibit
activities because of their potential danger.
In some cases of serious and unprivileged harm-doing there is

another reason for disallowing consent as a defence to criminal charges.
Sometimes the harm done extends beyond the victim to those who depend
on him and to those upon whom he must depend.
=====================
CHAPTER -II
CONSENT: A DEFENCE IN CRIMINAL LAW
Consent is a good defence to all offences against property and to all
offences which do not involving the causing of death or grievous hurt. A
man cant only consent to the causing of his own death by another, but he
cannot also consent to his eyes being blinded or his legs to be amputated
or other offences of the same kind which are included in the definition of
grievous hurt.3
Consent plays a diminishing role in ascertaining the punishment
for an offence. Sometime it abolish the punishment altogether and
justify the said offensive act and sometime it mitigate the punishment
for alleged criminal act.
PUNISHMENT: AIMS AND OBJECTS:-
3
Sec. 320 IPC, Huda, S.S principle of law of crimes in British India(T.L.L 1902), p 326-327
Punishment might be roughly defined as the authoritative infliction
of suffering of an offence. There are then three major elements involved in
the notion of punishment. The first element is that it is imposed by some
one in authority over the person punished. So, for example, parents may
punish their child, but the child cannot be said to punish his parent; in this
case the childs lack of authority over the parents would prevent his action
being described as punishing. Secondly, punishment involves the
infliction of something unpleasant on the victim, whether consisting of
positive physical pain or of deprivation of something which the victim
desires such as his liberty. Thirdly, the notion of punishment entails the
actual or supposed commission of an offence. This is one side of the
restrictive nature of punishment: punishment in the abstract is
meaningless; punishment can only be inflicted for an offence4.
Punishment is the sanction imposed on a person for the infringement
of the rule of society. Punishment is generally inflicted on a person or on
property of an accused according to law. Punishment aims to protect
society from mischievous element, by deterring potential offenders and
preventing actual offenders from committing further offences, to eradicate
evils and to reform criminals and turn them in to law abiding citizen. 5
The object of punishment has been well summarized by Manu, the
great Hindu law giver, in the following words:
4
P.J. Fitzgerald, Criminal Law and Punishment, Oxford at the Clarendon press, 1962. p. 199
5
K.D. GAUR, Criminal law cases & Materials, N.M. Tripathi pvt. Lim., Bombay, 2nd ed. 1985 p. 334
punishment governs all mankind, punishment alone preserves
them; punishment wakes while their guards are asleep; the wise consider
the punishment (danda) as the perfection of justice6
The purpose of punishment is to reduce crime, inter alia. It can be
accomplished in two ways- by preventing further criminal acts by the
offender and by discouraging criminal acts by others.
The policy behind condonation from criminal liability in cases of
consent is based upon the maxim volenti non fit injuria (he, who
consents, suffers no injury) this maxim is founded upon two very simple
propositions.
1. Every person is the best judge of his own interest.
2. No man will consent to what he thinks hurtful to himself.
Consent does not justify causing of death or grievous hurt. As to the

first, the restriction is absolute and unconditional, except that by statutory
his own consent. Section 314 furnishes another of the same kind. As to
the second effect of causing grievous hurt, the restriction is removed under
certain conditions. The law does not recognize that death, though it may
be a relief in many cased, can be under any circumstances a benefit to a
man. A man suffering from extreme or unbearable torture or pain may
prefer death to his suffering and may implore another to shoot him, but if
6
Institute of Hindu law (translated by Haughton, G.C) 1825 Ch. 7 Para 18 p. 189.
that other does shoot him he will be held guilty, though under exception V
to section 300 the offence will be reduced from murder to culpable
homicide not amounting to murder.
Sections 87, 88 and 89 do not refer an offence against property. The
reason is obvious that the very definition of those offences excludes the
existence of consent. The definition of all such offences provides that
there should be intention to cause wrongful loss to one or wrongful gain to
another. There is no wrongful loss or wrongful gain when the act is
assented by the owner of the property himself, and even where instead of
the word dishonestly the words fraudulently is used to denote the mens
rea of an offence the same result follows. Therefore want of consent is
implied in all offences against property, and apart from this, such offences
against property as involve extortion or theft in all its aggravated forms,
necessarily exclude consent, because extortion is inconsistent with
consent, and theft by its definition involves removal of property without
the consent of possessor. Section 87, 88 and 89, in speaking of harm
done to another, refers apparently to bodily harm and not to injury in its
wider sense. The operation of consent mentioned in those sections thus
relates to offences against human body with the restriction provided by
section 91.
Section 87 gives protection to a man from criminal liability on the
ground of consent in general, whereas section 88, 89 and 92 provides
immunity in those cases only where harm is caused during the course of
doing an act for the benefit of the consenting party or the person on whose
behalf consent was obtained by the person empowered to do so. The later
three sections have been enacted to safeguard the interests of doctors etc.,
against the acts done for the benefit of the man injured with or without his
consent.7
Section 87 of Indian Penal Code envisages:
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.
Section 87 is based upon the maxim volenti non fit injuria (he, who
propositions.
Every man is free to inflict any suffering or damage he chooses on his own
person and property; and if instead of doing this himself. He consents to
its being done by another, the doer commits no offence. We can conceive
the general rule to be, that nothing ought to be an offence by reason of any
harm which it may cause to a person of ripe age who undeceived has given
a free and intelligent consent to suffer that harm or to take the risk of that
harm. The reason on which the general rule is based is this, that it is
7
Gaur, K.D., Criminal law cases and Materials, forward by M. Hidayatullah,
impossible to restrain men of mature age and sound understanding from
destroying their own comfort, without restraining them from an infinite
number of salutary and innocent actions.8
Illustration:
A and Z agrees 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
Consent of a person above 18 years of age will justify under this section
any harm resulting from an act which is not known by the doer to be likely
to cause death or grievous hurt. The protection thus extended even to
injury which actually causes death or grievous hurt provided it was not
intended. It is essential, however, that the act consented to though not
intended to cause death or grievous hurt, should by one which from its
nature is not likely to have such a result. But no consent will authorize any
act which is intended to cause death or grievous hurt. No amount of
consent would protect a person who entered in to a fencing match,
however friendly, which was conducted with naked swords9.
A person cannot consent to suffer death, or to run the risk of death,

under this section; but to cause death with such consent, though an
offence, will not amount to murder, but only to culpable homicide 10. This
section does not permit a man to give his consent to anything intended or
8
Rattan lal & Dirajlals Law of crimes.
9
R vs. Denoven, (1934) 2 KB 498
10
Section 300, exception 5.
known to be likely to cause his own death or grievous hurt. It only justifies
any harm short of grievous hurt.
Ordinarily games such as fencing, boxing, and football and like are
protected under this section. But even in such games the defence to the
accused is available only when no foul play is attributed to the accused.
Thus where the accused and deceased were friends and engaged
themselves in a friendly wrestling match during which the accused friend
received, by accident an injury or his skull and no foul play was attributed
to the accused, the accused was not held to be liable for any offence 11.
But this section will not apply where the act itself will not apply law,
e.g. a fight with deadly weapons. By agreement, one can not do what the
law says shall not be done. If the offence is of a public character, the
consent given by the party suffering the harm is not treated as consent at
all.
The consent may be express or implied. An implied consent may be
inferred from the conduct of a man, the nature of the operation and the
like. For instance, when a man takes parts in lawful game, say hockey or
cricket, it is obvious that b participating in the game he has given his
implied consent to the infliction upon him of a certain amount of bodily
injury implicit in the game. But, if the bodily injury is inflicted in violation
of the rules of the games, the man causing injury is held criminally
responsible for it and the consent is deemed to have been withdrawn ab
initio i.e. from the very beginning.
11
Tunda vs. R (AIR V37) ;Cr. L. J 402
Section 88 of Indian Penal Code envisages:-
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.
No consent can justify an intentional causing of death. But a person
for whose benefit a thing is done may consent that another shall do that
thing even if death may probably ensue. This section sanctions the
infliction of any harm as it is for the benefit of the person to whom it
caused. The illustration attached to this makes the point clear:
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.
There is a need for distinction between cases in which a man causes

an effect designedly, and cases in which a man causes it with knowledge
that he is likely to cause it. It is often that a man may labour under a cruel
and wasting melody which is certain to shorten his life, and which renders
his life, while it lasts, useless to others and a torment to him. Suppose
under these circumstances he, undeceived, gives his free and intelligent
consent to take the risk of an operation which---in a large proportion of
cases has proved fatal, but which is the only method by which his disease
can possibly be cured, and which, if succeeds will restore him to health
and vigour. We do not conceive that it would be expedient to punish the
surgeon, who should perform the operation, though by performing if he
might cause death, not intended, but knowing that he is going to be likely
to cause it.
The Kerala High Court in Shanku Sreedharans case observed, If
a man uses a knife on another so as to pierce the latters heart and kill him,
the character and circumstances of his act would suggest that he intended
to kill him, for, death is the natural and probable or may the well-high,
certain result of such an act. But a surgeon doing this could readily rebut
this inference by showing that he did this but not with the intention of
causing death but with the intention of curing the man of a dangerous
disease. Nevertheless the surgeon would still have intentionally caused
bodily injury sufficient in the ordinary course of nature to cause death, and
as we have already said, is saved from penal consequences only by reason
of the exception in section 88 of the code.12
Section 88 will not apply to an act, which is intended to cause death.
Hence, the intentional causing of death of a person even with his consent
and for his benefit will be an offence. But merely knowing that the act is
likely to cause death is not sufficient to negative the defence under this
section. In order that a doctor or a like person is granted protection, it must
be shown, firstly, that the act was for the benefit of the person. Section 92
of the IPC in the explanation lays down that mere pecuniary benefit is not
benefits with in the meaning of sections 88, 89 &92. For example, a
12
1970 Cr. L. J. 688 (KER): AIR 1970 Ker. 98
person may desire to amputate his arm in order to beg successfully. The
surgeon who performs the amputation caused by him would serve a
pecuniary benefit to the beggar and would not be saved by the provision of
this section. The reason for not granting protection to the accused in such
cases has been very well explained by Swift13No man can license
another to commit a crime. So far as criminal law is concerned, therefore,
where the act charged is in itself unlawful, it can never be necessary to
prove absence of consent on the part of the person wronged in order to
obtain the conviction of the wrong doer.
Secondly, Section 87, 88, 89 & 92 of the Code affords protection to

a person who has acted in good faith. Term good faith14 although has not
been defined in the Code in a positive sense, but has been defined in the
negative sense. It states: Nothing is said to be done or believed in good
faith which is done or believed to be done without due care and attention.
To render a medical man liable for negligence, or want of due care and
skill, it is not enough that there has been a less degree of skill that some
other medical men might have shown, or a less degree of care than even
he himself might have bestowed; nor is it enough that he himself might
acknowledges some degree of want of care; there must have been a want
of competence and ordinary care and skill to such a degree as to have led
to a bad result15. The court has to consider whether in the execution of that
duty which a doctor had undertaken to perform, he is proved to have
shown such a gross want of care, or such a gross and culpable want of
13
supra note 5.
14
Section 52, IPC
15
Rich vs. Pierpont (1862) 3F &F 35.
skill, as any person undertaking such a charge ought not to be guilty.16 But
if a person bonafidely and honestly exercising the best skill to cure a
patient performs an operation which causes the patients death, he is not
guilty of man slaughter and it makes no difference whether the party be
regular or an irregular surgeon.17
The law commission observes that this section will not excuse
dangerous operation performed by unqualified persons: We apprehend
that an unqualified and ignorant quack could hardly be excused, as it is not
to be conceived that such a person could obtain the free and intelligent
consent of any patient to his performing an operation dangerous to life but
by misrepresentation; and such an act could hardly satisfy a court of
justice that he had performed the operation in good faith under section 52.
Good faith here to mean- a conscientious belief that he had skill to
perform the operation and by it to benefit the patient, while the
supposition is that he was unskilled and ignorant.18

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:
Provisos-Provided-
16
Juggankhan Jamshnkhan vs. State of M.P , AIR 1963 MP 102L1963) ! CR.L.J 296 (MP)
17
Crook (1859) 1 F&F 521
18
Ratan Lal & Dhiraj Lal, Law of Crimes, 24th ed. Vol.-1,1997 p. 312
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 of grievous hurt, or
the curing of any grievous disease of 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.
Section 89 is a corollary of section 88 with a difference that in case

of a child below 12 years of age and in case of a man of unsound mind,
who are not competent and capable of giving consent at law, the consent
may be obtained by the guardian or the person having lawful charge of
such person. Such consent will have the same effect which it would have
had if the sufferer were of ripe age and of sound mind. As is clear, this
section authorizes the guardian to inflict the harm himself or consent to its
infliction by harmed and further that it is done in good faith and for the
benefit of the person harmed and further that it is not an act which is
immoral or illegal.
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:
Provisos - Provided-
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 on
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 housetop, 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.
Section 92 extends protection to those people who cause harm to

another during course of performing an act, though without consent,
provided the act is done in good faith and for the benefit of that person.
This provision has been enacted to cover those class of cases where
because of the extreme situation, either it is impossible for the person to
signify his consent, or he is incapable of giving consent and there is no
other person to signify consent on his behalf.19
For instance, if a person falls down is an epileptic fit, loss of sense
and motion usually through hemorrhage in brain, and bleeding alone can
save him but he is unable to signify his consent to be bled because of
unconsciousness, the surgeon who bleeds him commits no offence. He
will be protected under this section, inspite of fact that the surgeon is not
the patients guardian and had no authority from any such guardian,
because the act was done in good faith for the saving the life of the person.
In all such cases the law presumes the temporary guardianship with the
very person because of the exigencies and the humanity of motive with
which the act is done, and therefore such persons are exempted from
criminal responsibility in cases of any eventuality,
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
19
K.D GAUR, cases and Material on criminal laws, 2nd ed 1985 p.122
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.
As stated in the illustration appended to the section, causing

miscarriage is not only an injury to the woman alone, but an offence
against the life of the childs as well. The mothers consent, therefore, will
be of no avail for the childs consent and the person causing miscarriage
could not be protected. The consent may wipe off an injury to the person
concerned, but not to an injury caused to some one else who never
consented to it. Again, consent will not condone a man from criminal
liability in respect of public offences viz. offences against the state, public
health, safety, convenience, decency, moral and the like.
Thus a person will not be protected from criminal prosecution for

obscene publication, indecent exhibition and public nuisance etc. even if
the act is done with the consent of the person. Such offences affect the
state generally and the harm caused to the society predominates and so on
two individual cannot agree to violate these provisions. It is only in cases
of property and to some extent of human body that the consent may wipe
the criminal liability.
------------------------------------------
CHAPTER- III
CONSENT UNDER OFFENCES RELATING
TO HUMAN BODY
In the previous chapters, we have discussed the term Consent, its

meaning, statutory frame work and its affect as a mitigating factor in
liability. In this chapter we will deal with the specific offences relating to
human body i.e. murder, suicide, abortion, kidnapping, abduction, rape,
and adultery etc...
Criminal law has been mainly concerned with the protection of the
elementary social interest in the integrity of life, liberty and property. If
the harm in question is serious, and if the risk-laden conduct producing it
is not privileged by social acceptance, consent is ineffective to relieve
from criminal liability. Locke, in his essay on civil government says, As
he cant take away his own life, so he cant give power to another to take
it.
A. Murder:-
There are two branches of culpable homicide i.e.
1. Culpable homicide amounting to murder.

2. Culpable homicide not amounting to murder.
Section 299 of code20 defines culpable homicide as such
20
Indian penal code,1860 chapter XVI
Section 300 of Indian Penal Code: Culpable homicide
Who ever causes death by doing an act with the intention of

causing death, or with the intention of causing such bodily injury as is
likely to cause death, or with the knowledge that he is likely by such act to
cause death, commits the offence of culpable homicide.
Illustration
A knows Z to be behind a bush. B does not know it A, intending to
cause, or knowing it to be likely to cause Z's death, induces B fires and
kills Z. Here B may be guilty of no offence; but A has committed the
offence of culpable homicide.
Explanation 1- A person, who causes bodily injury to another who is

laboring under a disorder, disease or bodily infirmity, and thereby
accelerates the death of that other, shall be deemed to have caused his
death.
Explanation 2-Where death is caused by bodily injury, the person who

causes such bodily injury shall be deemed to have caused the death,
although by resorting to proper remedies and skilful treatment the death
might have been prevented.
Explanation 3-The causing of the death of child in the mother's womb is

not homicide. But it may amount to culpable homicide to cause the death
of a living child, if any part of that child has been brought forth, though
the child may not have breathed or been completely born.
So, intentional causing of death of a human being which does not

fall in the general exception is culpable homicide which may be amounted
to murder or may not be amounted to murder. Section 300 of code defines
the cases where culpable homicide amounts to murder and also exception
thereto;
Section 300 of Indian Penal Code: Murder
Except in the cases hereinafter excepted, culpable homicide is murder, if

the act by which the death is caused is done with the intention of causing
death, or-
2ndly- If it is done with the intention of causing such bodily injury as the
offender knows to be likely to cause the death of the person to whom the
harm is caused, or--
3rdly- If it is done with the intention of causing bodily injury to any
person and the bodily injury intended to be inflicted is sufficient in the
ordinary course of nature to cause death, or-
4thly- If the person committing the act knows that it is so imminently
dangerous that it must, in all probability, cause death or such bodily
injury as is likely to cause death, and commits such act without any excuse
for incurring the risk of causing death or such injury as aforesaid.
There are five exceptions to Section 300 where the offence of murder
reduces to manslaughter even falling under any of the clause of said
section. These are:
(1) Provocation;
(2) Right to private defence;
(3) Public servant exceeding the powers;
(4) Sudden fight and lastly;
(5) Consent
In this chapter we are concerned only with the Exception V attached to

section 300 of IPC which provides that 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 that with his own consent.
Exception 5- 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.
Illustration attached to Exception V of section 300 clarifies the point

better. It says that 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. Suppose, if Z would have been of the major
age then, A will guilty of abetment to suicide.
Now, suppose B, who was suffering from cancer, from which she
had no hope of recovery, repeatedly requested her husband A, therefore,
killed her one night while she was sleep. A is guilty of culpable
homicide not amounting to murder, since killing was with Bs consent.
The above case is similar to one in which accuseds wife, overwhelmed
with grief at the death of her child repeatedly requested him to kill her
and he did so. He was held guilty of culpable homicide, and not
murder21.
The reason for not punishing homicide by consent as severely as
murder is that the motives which prompt men to the commission of this
offence are generally for more respectable than those which prompt men
to the commission of murder. Sometimes it is the effect of a strong sense
of religious duty, sometimes of a strong sense of honor, not frequently of
humanity. The soldier who, at the entreaty of a wounded comrade, puts
that comrade out of pain, the friend who supplies laudanum to a person
suffering the torment of lingering disease, the freedom who in ancient
times held out the sword that his master might fall in it, the high born
native, of India who stabs the female of his family at their own entreaty in
order to save them from the licentiousness of a band of marauders, would,
-----scarcely by thought culpable22.
Again, this crime is by no means productive of so much evil to the

community as murder ---, it does not produce general insecurity. It does
not spread terror through society. When we punish murder with such
21
Queen vs. Annto, (1886) 6 W.R 57
22
K.D Gaur, Criminal law cases and materials, N.M Tripathi Pvt. Ltd, Bombay, 1985 p. 444.
signal severity, we have two ends in view; one end is, that people may nit
be murdered; another end is that people may not live in the constant dread
of being murdered. The second end is perhaps the more important of the
two. For if assassination were left unpunished, the number of persons
assassinated would probably bear very small proportion to the whole
population; but the life of every human being would be passed in constant
anxiety and alarm.
To bring a case under this exception, the consent must be
unconditional, without any reservation and must be unequivocal that is,
there must be no choice of alternatives to which the person taking the life
more or less has driven the person23. It must be found that the person killed
was with fill knowledge of the acts, determined to suffer death; or take the
risk of death, and that this determination continued up to, and existed, at
the moment of his death24.
Section 90 of the Code itself provides that a consent is not such a
consent as it 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 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 if the consent is given by a person who is under twelve
years of age. So, the consent given by person above 12 years of age may
23
Ambalathi Assainar, Lnre, (1955) M.W.N. 605(2) (1955) 2 M.L.J 383 (D.B)
24
Queen Empress vs. Nayamuddin (1891) ILR 18 Cal 4 (FB).
be consenting age for penal code but for section 300, exception V is not a
consenting age.
Under section 87 also, consent does not justify causing of death or
grievous hurt. In Dashrath Paswan vs. State of Bihar25 , the appellant
was a student of class X. He failed in the annual examination for three
successive years. His wife aged 19 year was a literate woman. He was
very much upset by his last failure and left his village and came back after
a week. On return he told his wife that he has decided to end his life. His
wife told him in reply that he should first kill her then kills himself. About
an hour later, his wife spread a mat on the floor in one of the rooms in the
house and lay down quietly. The appellant first struck her with a bhala
causing a minor injury on her chest and then took up a sharp weapon and
gave her three violent blows on the neck, killing her on the spot.
Thereafter, he ran out of the house with his blood stained cloth in order to
end his own life. One of the witnesses chased the appellant and brought
him under arrest to his house. On a charge for murder it was held that the
deceased was above the age of 18 years and had suffered death with her
consent. It could not be reasonably said that she gave her consent under
fear of injury or under misconception of fact, therefore, the case was
caused by this exception and the accused was liable for culpable homicide
not amounting to murder.
KIDNAPPING: Kidnapping is an act of stealing, abducting or carrying

away a person by force or fraud after for the use as a hostage or to extract
25
A.I.R 1958 Pat. 190
ransom26.Section 359 does not define Kidnapping, however, it divides
kidnapping in two classes i.e. kidnapping from India and kidnapping from
lawful guardianship. According to section 360: Kidnapping from India
means:
Whoever conveys any person beyond the limits of [India] without
the consent of that person, or of some person legally authorized to consent
on behalf of that person is said to kidnap that person from [India]. (The
words "British India" have successively been subs. by the A. O.1948, the
A.O. 1950 and Act 3 of 1951, sec. 3 and sch., to read as above.)
According to section 361 of Indian Penal Code:
Kidnapping from lawful guardianship means that -- Whoever takes or

entices any minor under [sixteen] years of age if a male, or under
[eighteen] years of age if a female, or any person of unsound mind, out of
the keeping of the lawful guardian of such minor or person of unsound
mind, without the consent of such guardian, is said to kidnap such minor
or person from lawful guardianship.
Explanation: - The words "lawful guardian" in this section includes any

person lawfully entrusted with the care of custody of such minor or other
person.
Exception: - This section does not extend to the act of any person who in
good faith believes himself to be the father of an illegitimate child, or who
26
Websters Encyclopedic Unabridged Dictionary, (1994).
in good faith believes himself to be entitled to lawful custody of such
child, unless such act is committed for an immoral or unlawful purpose.
For defence of consent in kidnapping, consent must be obtained

legally. Where a man by false and fraudulent representation induces the
parents of a girl to allow him to take her away he would be guilty of an
offence of kidnapping because it is not consent at all 27.The Allahabad High
Court held28 that consent given by the guardian after the commission of
the offence would not excuse the offence.
For the purpose of kidnapping consent must be seen according to

section 90 of the IPC, where consent given under fear of injury,
misconception of fact, by a child under the age of 12 years, by a person of
unsound mind and consent obtained by fraud is no consent. In kidnapping
the consent of the minor or a person of unsound mind is immaterial
because they are in law incapable of assigning a valid consent29.
A misrepresentation as to the intention of a person is a

misrepresentation of a fact30.In Rassol vs. State , the Allahabad High
Court has held that taking away girl of 14 years of age without the consent
of her guardian would amount to kidnapping from lawful guardianship,
The fact that girl was of easy virtue does not make any difference. It was
also observed that the consent of the minor girl is also no defence in such
case.
27
Hopkins (1842) Car & Mar 254.
28
Ganesh (1909) 31 All. 448.
29
Queen vs. Bhungee Ahur (1805) 2 W.R (cr)5
30
Jaladu (1911) 36 Mad 453
In Prankrishan Surma31, a Hindu woman left her husbands house
and took her infant daughter with her. She went to the house of B, and on
the same day, her daughter was married to O, the brother of B without
consent of her father. B held guilty of committing an offence under section
109 & 363 of IPC for abetting the offence of kidnapping.
In State of Haryana vs. Raja Ram32, the Supreme Court held that
it was not necessary that the enticing or taking must be shown to have
been by means of force or fraud. Persuasion by the accused person, which
creates willingness on the part of the minor to be taken out of the keeping
of the lawful guardian, would be sufficient to attract the section. The
entice means persuade by offer of pleasure or some other form of
allurement.
ABDUCTION:
To abduct means carry off or kidnap a parson illegally by force or

deception. According to section 36233 Abduction means:
Whoever by force compels, or by any deceitful means induces,

any person to go from any place, is said to abduct that person.
Under this section, consent of the person moved, if freely and

voluntarily given, condones abduction. Deceitful means is used as an
alternative to use of force. Deceitful means misleading a person by
making false representations and thereby persuading the person to leave
31
1882) 8 Cal 969.
32
AIR 1973 SC 819
33
Ibd note 1
any place. Where the prosecutrix accompanies the accused of her own free
will without any inducement or use of force, no offence is committed
neither kidnapping nor abduction34.
It must be noted that abduction per se as defined u/s 362 is not an

offence and hence is not punishable. Only if the abduction falls in the
categories provided u/ss 364,365,366,367 and 369, will it amount to an
offence. Thus, abduction is an offence only if it is done with intent to:
(a) Murder
(b) Secretly and wrongfully confine person
(c) Induce woman to compel her marriage
(d) Subject person to grievous hurt, slavery etc
(e) Steal from a person under 10 years
ABORTION:
In Penal Code there is another offence where consent is immaterial
is that of Abortion. The Code, keeping in view the religious, moral,
social and ethical background of the Indian community made induced
abortion a criminal offence under section 312 to 316.
It is important to note that the framers of the Code have carefully

avoided the use of word abortion. This was perhaps done with a view not
to injure the sentiments of the traditionally bound Indian community. The
Code does not speak of ABORTION but speaks of MISCARRIAGE
34
State of Maysore vs. Pandurang P. Naik 1978 Cr.L.J (NOC) 5.
only. However, miscarriage, in its popular sense is synonymous with
abortion, and means the expulsion of immature foetus at any time before
it reaches full growth. Miscarriage technically refers to spontaneous
abortions, whereas voluntary causing miscarriage, which forms the
offence under the Code, stands for criminal abortion.
In Penal Code, the law regarding the abortion is dealt under section
312 to 316. The voluntary causing miscarriage is an offence under
section 312 in two situation i.e. when a woman is with child and
secondly, when a woman is quick with child. In the first case the
punishment may go up to three years of imprisonment or fine or with
both. In the second case the punishment of imprisonment of either
description which may extends to seven years, and fine. A woman who
causes miscarriage comes with in the meaning of this section. If the
miscarriage is caused in good faith for the saving the life of woman then
it is exempted in the section itself. Causing miscarriage is an offence
under section 312 but the punishment is enhanced to ten year
imprisonment under sec. 313 if it is done without the consent of the
woman.
Section 314 says that if a man causes the death of the woman while
causing miscarriage shall be liable to imprisonment up to ten years and
fine, and if the act is done with out the consent of the woman, shall be
punished either with imprisonment for life or with the punishment as
stated above.
Section 312 permits abortion on therapeutic (medical) ground in
order to protect the life of the mother. The threat of life, however, needs
not be Imminent or certain, if the act is done in good faith.
According to the Medical Termination of Pregnancy Act of 1971

pregnancies may be terminated by registered medical practitioners. It has
an opinion in good faith that the continuance of the pregnancy would
involve a risk to the life of the pregnant woman or of grave injury to her
physical or mental health; or if there is a substantial risk that if the child
were born, it would suffer from such physical or mental abnormalities as
to be seriously handicapped; in these situations pregnancy can be
terminated if the length of pregnancy does not exceed twelve weeks, but
in the case where the length of the pregnancy exceeds twelve weeks but
does not exceeds twenty weeks, then the opinion of two registered
medical practitioners are required35.
So we can say that miscarriage is an offence although done with the

consent of the woman, but where the miscarriage is carried on without
womans consent or where no effective consent obtained, the punishment
is enhanced.
===================
35
Sec. 3(2), The Medical Termination of Pregnancy Act,1971.
CHAPTER- IV
RELEVANCY OF CONSENT IN SUICIDE
AND EUTHANASIA
The penal code allows inflicting all harms to ones own person short of
death. Even committing grievous hurt to own body is no offence at all.
SUICIDE:-
Suicide is self-destruction by a person. The consent of a person to
kill himself is no consent in the Penal Code. Murder consists in the
unlawful taking of a human life. It, therefore, always been a felony even
though the life which the man takes is his own.
This is the only offence in which the offender dies in suicide he or

she cannot be punished for the offence, but if the offender survives he or
she will be punished for attempt to commit suicide. This is the only
instance where actual commission of offence cannot be punished; only
attempt to commit the offence is punishable under section 309 of IPC.
Section 309:- Attempt to commit suicide
Whoever attempts to commit suicide and does any act towards the
commission of such offence, shall be punished with simple
imprisonment for a term which may extend to one year 1[or with fine, or
with both].
1. Subs. by Act 8 of 1882, sec.7, for "and shall also be liable to fine".
As stated above, suicide is as such no crime under the Code.
However, attempt to commit suicide is made punishable under this
section. Mens rea is one of the essential elements of this offence. In
Chikkam Ammiraju vs Chikkam Seshama 36, the question before the
Honble Madras High Court was that whether coercion could be caused by
a threat to commit suicide. Seshagiri Ayyar, J., observed:
A man who commits suicide goes unpunished, because the law

cannot reach him and not because the offence is not forbidden. The Code
makes a person who abets the committing of suicide punishable. It also
reaches a man who attempts to commit suicide. Although, therefore, there
is no provision in the Indian Penal Code which forbids in terms the
commission of suicide, there can be no doubt that the intention of the
legislature is to forbid such an act. Simply because a man escapes
punishment, it does not follow that the act is not forbidden by Code.
Commission of Sati (Prevention) Act, 1987:-
The object of the act is to provide for the more effective prevention
of the commission of sati and its glorification. The expression sati is
derived from the word SATI means, a Hindu widow, who immolates
herself on her husbands funeral pyre and implied custom requiring such
immolation. It was not until 1829 that this custom was declared illegal in
British India.
The provisions of the Act are independent of the Indian Penal Code.
Section 309 of the Indian Penal Code makes attempt to commit suicide a
36
I.L.R (1918) 41 Mad. 33.
punishable offence commission of sati being also noting but suicide,
attempt to commit sati has been made punishable under section 4 of the
Act.
In Kindar Singh vs. Emperor37, the accused desired that the widow
should commit sati. Several villagers had assembled to witness the
commission of sati. The first accused was the head of deceaseds family
and the others were relatives. The accused were held guilty under section
306 of the IPC.
CONSTITUTIONAL VALIDITY OF
SECTION 309 VIZ. A VIZ: Euthanasia
In the advent of delving into what has unfurled into one of the most
controversial issues that could have tremendous ramifications on basic
ethical concepts and most importantly, the sanctity of life. The precious
words of Thomas Jefferson strike a chord, "The care of human life and
happiness and not their destruction is the first and only legitimate object
of good governance. In juxtaposition, the words "RIGHT TO DIE" evoke
an exactly opposite sentiment. How can it be a right if you are using it to
give up your rights? The above right has been used as a guise or a
camouflage to include various concepts that are opposed to preservation of
life.
The word euthanasia (derived from the Greek - eu meaning

good and Thanatos meaning death) raises strong emotions and has
37
AIR 1933 ALL 160; Cr.L.J. 1069
become controversial as it involves termination of human life which has
been unjustifiably equated with killing. Taken singularly the term
euthanasia has no practical meaning, and has been qualified by
voluntary, involuntary non- voluntary and other prefixes. This
presentation will concern itself only with some facets of voluntary
euthanasia.
The conceptual definition of voluntary euthanasia is based on -a

philosophy which embraces humanism and compassion, and one which
recognizes the autonomy of the individual and his freedom of choice,
along with recognition of his dignity as much in the process of dying as in
that of living.
Voluntary euthanasia can then by defined as a means chosen by an

individual making a request on the basis of a voluntary decision not to
have his life prolonged under specific circumstances of ill- health. The
operative principles are voluntarism and self- determinism. There definite
are nonetheless some qualifying clauses to the definition:
The decision has to be made by a mature adult.

He (or she) should be in full possession of his (her) decision
making capacity.
The decision should be made after careful consideration and due

deliberation.
There should be no element of duress or coercion.

The conditions of ill- health must be such as to qualify as
irreversible illness which is causing undue pain and suffering and
where the terminal event of death is probable in a relatively short
period of time.
Euthanasia is defined as an "intentional killing by an act/ omission

of person whose life is felt is not to be worth living." Euthanasia,
Physician Assisted Suicide (PAS), Suicide, though conceptually different,
are species of the same genre. The above attribution consequentially
includes just about any one who has a suicidal impulse. Moreover the term
"person" is inclusive of any and everybody and is not solely restricted to
"patients." The legalization of the above would result in nothing but
pandemonium.
The Indian Perspective:

In India, the sanctity of life has been placed on the highest pedestal.
The right to life" under Article 21 of the Constitution has received the
widest possible interpretation under the able hands of the judiciary and
rightly so. This right is inalienable and is inherent in us. It cannot and is
not conferred upon us. This vital point seems to elude all those who keep
on clamoring for the "RIGHT TO DIE".
The stance taken by the judiciary in this regard is unquestionable. In

Gian Kaur vs. State of Punjab38, a five judge Constitutional Bench held
that the "right to life" is inherently inconsistent with the "right to die" as is
38
AIR 1996 SC 946
"death" with "life". In furtherance, the right to life, which includes right to
live with human dignity, would mean the existence of such a right up to
the natural end of life. It may further include "death with dignity" but such
existence should not be confused with unnatural extinction of life
curtailing natural span of life. In progression of the above, the
constitutionality of Section 309 of the I.P.C, which makes "attempt to
suicide" an offence, was upheld, overruling the judgment in P. Rathinam's
case39 & C. Jagdeseswar vs. State of A.P40.
The factor of immense significance to be noted here is that suicide,

euthanasia, mercy killing and the like amount to unnatural ebbing of life.
This decision thereby overruling P.Rathinam's case establishes that the
"Right to life" not only precludes the "right to die" but also the right to
kill."
Interestingly in P.Rathinam's case, even when a Division bench

affirmed the view in M.S Dubal v. State of Maharashtra41 ,that the "right
to life" provided by the Constitution may be said to bring into its purview,
the right not to live a forced life, the plea that euthanasia be legalized was
discarded. It was held that as euthanasia involves the intervention of a
third person, it would indirectly amount to a person aiding or abetting the
killing of another, which would be inviting Section 306 of the I.P.C.
39
AIR 1994 SC 1844
40
1988 Cr.L.J.549 AP
41
1987 Cr. L.J. 743 BOMBAY
In Naresh Marotrao Sakhre v. Union of India, Lodha J. affirmed
that "Euthanasia or mercy killing is nothing but homicide whatever the
circumstances in which it is effected."(Emphasis added).
The above inferences lead to one irresistible conclusion i.e. any

form that involves unnatural termination of life, whether an attempt to
suicide, abetment to suicide/assisted suicide or euthanasia, is illegal. The
fact that even an attempt to suicide is punishable goes to show the extent
of credibility accorded to the sanctity of life and the right to life as a
whole. This apart, the decriminalization of euthanasia is unworkable in the
Indian perspective, even on humanitarian grounds, as it involves a third
person.
Though, there has been no legislation pertaining to euthanasia in

India, the term keeps on coming back for public approval like a recurring
decimal.
An impracticable solution: The implication of the term "euthanasia"

is itself shrouded in ambiguity. It is derived from the Greek word
euthanatos" meaning good death". To reiterate the judicial
pronouncements in the Indian context, good or happy death would imply
the ebbing of life the natural way. In its earlier form; it was used as an
omnibus term to signify a painless death. In its modern context, the term is
used a deliberate euphemism to reduce the culpability of an act", an act
which is a subset of murder, by injecting the term "mercy". The fact
remains" Euthanasia/Mercy killing are about giving license for the right to
kill.
There have been views propagating the practice of passive

euthanasia (letting some one die) to be morally permissible and active
euthanasia (killing someone), morally impermissible. It is submitted that
these distinctions are irrelevant and unnecessary as to of both acts
inevitably center around a single element- an intention to kill. The above
premise has been aptly summed up by Professor James Rachels who
believes. The active and passive dichotomy is a distinction without a
difference.
Proponents and "Right to die" groups argue that, a patient in

unbearable agony and excruciating pain or "terminally ill", the saving-
grace is euthanasia on compassionate grounds.
It is submitted that the problem here is" the term "terminally ill" has
no precise definition. For instance, Jack Kervorkian, a famous proponent
of euthanasia, defined "terminal illness" as "any disease that curtails life
even for a day". Some laws define "terminal" as one from which death
will occur in a "relatively short time" or "within a span of six months.
The nub of the point is that all these definitions scream ambiguity and
medical experts have acknowledged that it is virtually impossible to
predict the life expectancy of a particular individual.
Interestingly, euthanasia activists have dropped references to
terminal illness, replacing them with such phrases as "gentle landing",
"hopelessly ill"' desperately ill" and "meaningless life."
It is reinforced that this issue hovers around an invaluable asset

called "life". Just as a mistaken diagnosis is possible, so is a mistaken
prognosis. It must be remembered that death is final and a chance of error
too great to approve the practice of euthanasia.
The fact remains that the practice of euthanasia has been ostracized since
time immemorial and Oregon, Belgium and The Netherlands are the only
jurisdictions in the world where laws specifically permit euthanasia or
assisted suicide.
It may be pertinent to mention that the most vital point is the

repercussions that could take place once something as controversial is
legalized. The matter is not an issue of force but an issue of the way laws
can be expanded once something is declared legal. In India, where abuse
of the law is the rule rather than the exception and where conniving
relatives clamor to lap up an heirloom, the abovementioned argument
holds great weight age.
To elucidate, in England, the House of Lords in Airedale NHS

Trust v. Bland permitted non-voluntary euthanasia in case of patients in a
persistent vegetative state. Subsequently, the Supreme Court of Ireland
in Re A Ward of Court expanded the persistent vegetative state to include
cases where the patient possessed limited cognitive faculties.
In Netherlands, the Supreme Court in a 1984 ruling held that
euthanasia could be lawful only in cases of physical illness. However, a
decade down the line, the Supreme Court in Chabot's case held that it
could even extend to cases of mental illness.
Thus, there is evidenced a conceptual degradation of the right to live

with dignity. The sole qualitative argument in favor of euthanasia, is the
fact that if procedures are stringent and foolproof and with proper
mechanisms in place, then the legalization of the same could be effected in
India. For instance, in The Netherlands the request for euthanasia should
come only from the patient and be free, voluntary, and persistent; it should
be the last resort and should be performed by a physician in consultation
with an independent physician colleague who has experience in the field.
Attitudes of doctors towards voluntary euthanasia in India:

This has not been analyzed on a significant scale involving a large
cross section of the profession. Extracts from a sample survey of 200
doctors carried out by the Society for the Right to Die with Dignity in
Bombay, do offer some indications:
90% stated they had the topic in mind and were concerned.
78% argued that patients should have the right to choose in case of
terminal illness.
74% believed that artificial life supports should not be extended
when death is imminent; but only 65% stated that they would withdraw
life supports.
41% argued that Living Will should be respected. 31% had

reservations.
Considerations involved ethics, morality, law and religion in that

order of importance.
More than 70% were apprehensive of the abuse of the law if one
was enacted to legalize voluntary euthanasia.
Voluntary euthanasia and society: The issues of right to a dignified

death and voluntary euthanasia are not the concern of the medical
profession alone, and it should not be so if society has to keep a watch
over abuse of the concepts. All sections of society must be vitally
involved as the issues transcend any philosophical, moral, legal or
theological considerations. It is an issue of humanism and compassion.
Society will need to change its value systems in the context of the
changing medical. Scenario, of socio- economic environment, of
increasing cost of medical services and their cost- effectiveness.
As Spring has stated: Will we use our knowledge and new power
intelligently, or will we just adhere to dogmas and beliefs that have no
relevance for this age of biological revolution and spectacular medical
skills? If we have to call ourselves a civilized society, we must
understand death, respect it and civilize it, as much as we respect life.
Poles Apart: It is humbly submitted that the implementation of the

above mechanism in India is utopian and thus the two situations
incomparable. It is ironical to note that ninety percent of the patients
succumb to death without receiving any primary health care. Thus the
logical derivation of this aspect would be that India does not have an
appropriate health-care mechanism in place, let alone foolproof
procedures for euthanasia.
In the presence of the above bottlenecks and policing rampant in our

country, the appropriate course of action would be to develop proper
"care ethics", ensuring a "dignified existence and termination" of life.
Let us augment the above and resultantly, the concept of euthanasia will
be nothing but a distant reality.
I opine that each and every person has its own importance no
should be killed just because he is infected by a disease which is
incurable. It may so happen that you or me also can be affected by those
disease, finally I would like to say when the birth is not in our in our
hand then why the death,.......the birth is given by nature and so death
should also be given by nature itself, we shouldn't interfere in the rules of
nature. Locke, in his essay on civil government says, As he cant take
away his own life, so he cant give power to another to take it.
HUNGER STRIKE: The peculiar difficulty about suicide by
starvation is that it is a long drawn out process, which can be interrupted
or given up at any stage. Unless there is some overt declaration by the
accused of his intention to fast unto death, it is difficult to be sure that he
intended to preserve to the bitter end. Even if there is such an intention at
the beginning, one has always to make allowance for the possibility of
the accused changing his mind and breaking his fast before it becomes
dangerous. However, in cases where the accused intends to persevere to
the end refused all nourishment and reaches such a stage that there is
imminent danger pf death ensuing, only then can he be held guilty of the
offence of attempt to commit suicide42.
======================
42
Ram Sunder Dubey vs. State AIR 1962 ALL 262
CHAPTER -V
NATURE OF CONSENT & THE POTENTIAL
CRIMINAL LIABILITY FOR EXCEEDING
CONSENT
The Law Underpinning the Doctor - Patient Relationship
The physical contact made by a doctor examining, or

administering treatment, to a patient, is lawful if consent to the
contact is given by an autonomous patient or by a person with
authority to make decisions for the patient, e.g., a parent
consenting on behalf of his/her young child. Of course, if the
information on which the person bases his consent is given
negligently or the information on which to base a valid consent is
inadequate, then any administration supposedly based on consent
may, in fact, attract legal liability. Consent, thus, has a dual
purpose. The first purpose is: 2
to protect the bodily integrity of an autonomous person (the
patient) by attaching civil and/or criminal liability to unwanted
contact, i.e., contact in the absence of consent where that consent
could and should - have been obtained; or where its refusal was
deemed to have been communicated and that includes, for
example, refusal of consent being deemed to have been
communicated by virtue of information contained in a card
belonging to a Jehovahs Witness proclaiming no blood or blood
products to be administered, should the occasion arise. That
liability may attach to a member of the medical profession who
overrides a patients wishes was affirmed by Sir Thomas
Bingham MR in Airedale NHS Trust v Bland [1993] 2 WLR 316
at 334G where he said:
It is a civil wrong, and may be a crime, to impose medical

treatment on a conscious adult of sound mind without his or her
consent: In re F (Mental Patient: Sterilisation) [1990] 2 AC 1.
The second purpose of consent, then, is:
to provide a defence to a doctor who has physically examined

an autonomous patient who had consented to the contact, or a
patient for whom the appropriate lawful consent had been given.
In essence, this means that the law relating to physical

contact in the doctor-patient relationship is precisely the same as
that in any other relationship between human beings, viz; consent
to any physical contact that is not against public policy is not
unlawful. Accordingly: There is no special law in this country
that places doctors in a separate category and gives them extra
protection over the rest of us per Farquharson J in R v Arthur
(1981) 12 BMLR 1.
Point at Which Liability for Non-Consensual Contact Arises

The general rule is that:
... everybody is protected ... against any form of physical
molestation. ... [though this rule is] subject to exceptions. For
example ... people may be subjected to the lawful exercise of the
power of arrest; and reasonable force may be used in self-defence
or for the prevention of crime ... [moreover] a broader exception
has been created to allow for the exigencies of everyday life.
Generally speaking, consent is a defence to [the tort of] battery;
and most of the physical contacts of everyday life ... are
impliedly consented to by all who move in society and so expose
themselves to the risk of bodily contact. So nobody can complain
of the jostling which is inevitable from his presence in, for
example, a supermarket, or underground station or a busy street;
nor can a person who attends a party complain if his hand is
seized in friendship, or even if his back is, within reason,
slapped ... (per Goff LJ, Collins v. Wilcock (1984)).
Similarly, consent to participation in properly conducted
physical contact sports such as boxing, football and ice hockey
will negate liability for injuries which reasonably may be
expected during the course of the sport in question. However,
punching an opponent in (say) an off-the-ball incident in a
football match would constitute a battery as it is neither an injury
which reasonably could be expected nor is it permissible under
public policy for a victim to consent to an act which causes him
bodily harm.
It would appear, then, that the law will impose liability for
an unwanted touching, i.e. one that is not agreed or assented to,
(or deemed to be unlawful), if it is more than de minimis1 and
which it regards as against public policy (perhaps because it was
performed for no good reason).
Consent in the Doctor-Patient Relationship
The application of the general rules of consent to the doctor

- patient relationship is clarified once the meaning of consent to
treatment is explained. With regard to medical treatment, consent
means more than mere acceptance, agreement, or assent. In
his book Philosophical Medical Ethics (Wiley, 1986), Gillon (at
p113) says that:
For medical interventions it is widely accepted that

consent means a voluntary, uncoerced decision, made by a
sufficiently competent or autonomous person on the basis of
adequate information and deliberation, to accept rather than reject
some proposed course of action that will affect him or her.
The general rule, then, is that any mature person (i.e. any
autonomous individual, including a mature minor who
understands the nature of the proposed treatment can submit by
way of giving real consent3 to any medical procedure. The
patients right of self-determination is reinforced by noting that a
doctor has a legal as well as a moral (or ethical) duty to respect a
persons autonomy. It is respect for a persons autonomy that
morally underpins the legal requirement for consent. That a legal
requirement for consent is based on the moral principle of respect
for another persons autonomy is merely a specific example of
the general rule that: ... every legal duty is founded on a moral
obligation.
The concept of autonomy is frequently said to consist of:

autonomy of thought; autonomy of will; and autonomy of action.
Autonomy of thought includes the ability to think for oneself;
autonomy of will is the freedom to decide to do things on the
basis of ones own deliberations; and
autonomy of action is the ability to exercise ones autonomy
of thought and will subject to the respect for the autonomy of
others.
Right of Self-Determination/Autonomy is enshrined in

Moral Theory and in Law.
The right of certain individuals to self-determination is a

focal point of Mills Harm-to-Others theory which he expressed
in his essay On Liberty, written in 1854 and published in 1859.
Mill was of the view:
That the only purpose for which power can be rightfully

exercised over any member of a civilized community, against his
will, is to prevent harm to others. His own good, either physical
or moral, is not a sufficient warrant. ... The only part of the
conduct of any one, for which he is amenable to society, is that
which concerns others. ... Over himself, over his own body and
mind, the individual is sovereign.
The common law affirms an individuals right to bodily

integrity by providing for the sanction that the absence of consent
will normally constitute a trespass to the person. The classic
statement is that of Cardozo J in the American case of
Schloendorff v Society of New York Hospital (1914) where he
said that:
Every human being of adult years and sound mind has a

right to determine what shall be done with his own body; and a
surgeon who performs an operation without his patients consent,
commits an assault ...
Summary of the Nature of Consent
1. The general rule that no treatment is administered to a patient

without first obtaining his consent is (a) to provide that patient
with legal protection from unwanted bodily contact; and/or (b) to
provide an accused party with a defence.
2. Not every act can be consented to, however: in particular, an

individual cannot consent to acts which cause him bodily harm
and which are against public policy. Accordingly, an individual
may not consent to the administration of a lethal dose of
medication even though he may be suffering from a terminal
illness and be in excruciating pain: Dr Coxs case (1992) [see
notes on Euthanasia in Topic 10].
3. Consent has both a moral aspect (principally by virtue of the

principle of respect for autonomy) and a legal aspect; and that
consent underlies the whole of medical practice there is no doubt
- especially since there is no separate category of medical
touchings. 6
APPENDIX: OVERVIEW OF THE POTENTIAL LEGAL
LIABILITY FOR NON-CONSENSUAL CONTACT AND
THE CIRCUMSTANCES UNDER WHICH IT MAY ARISE
Background.
Legal action in respect of non-consensual medical

treatment may result in criminal charges (relatively rare) or, more
likely, civil (tortious) action. Sir Thomas Bingham MR said:
It is a civil wrong, and may be a crime, to impose medical
treatment on a conscious adult of sound mind without his or her
consent:
A potential defendant, such as a registered medical
practitioner (a doctor), may avoid any criminal liability or
tortious liability for trespass to the person if he obtains a legally
valid consent from his patient. The patient may give valid consent
orally, in writing or by means of non-verbal communication, as,
for example, by way of holding out her arm to signify consent to
being vaccinated as did.
Valid consent is consent given by an autonomous person
An essential pre-requisite of real, or valid, consent is capacity.

Capacity is the legal recognition of the moral principle of
autonomy and, as Skegg notes: The question of capacity to give a
legally effective consent has two aspects: first, whether anyone
may give a legally effective consent, ... * i.e., the issue of
general capacity+; and secondly, whether the person in question
can give a legally effective consent i.e. the issue of individual
capacity. Two simple examples illustrate these aspects:
(i) no one has the capacity to consent to his own intentional

killing by another person; e.g. a patient cannot absolve a doctor
from legal liability for mercy killing. As English law does not
recognise mercy killing (i.e., neither active euthanasia nor
physician (doctor) - assisted suicide) then a doctor who
deliberately accelerates the death of one of his patients may be
charged with - and convicted of - murder.
(ii) The success of organ transplantation from living donors

illustrates not only the social acceptability of this form of medical
treatment, but also that the law recognises, as a general rule, that
autonomous individuals have the right, or capacity, to undergo
medical interventions that have no value in improving their own
physical health i.e. they have the 7 capacity to undergo non-
therapeutic operations. However, whether (say) a particular 14
year old boy would be regarded as having the capacity to donate
a kidney, and to override the objections of (say) his parents is, at
least, debatable
So, whereas from point (i) it is clear that a patient does not
have the legal authority to consent to his own intentional killing
by another person, a question arises from point (ii) which is:
Does a Patient Have Capacity to Consent to Bodily Harm?
Whereas consent per se may negate liability for some bodily
harm, - donating organs, for example, - an issue of particular
relevance is whether some medical treatment which is provided
in good faith and administered for the benefit of bodily health can
be regarded as causing bodily harm; or is it inappropriate to think
of a doctor acting in a harmful or offensive way? This issue
arises because there is no identified special category of medical
touching as distinguished from other bodily touching
In R v Donovan (1934) bodily harm was said to include

any hurt or injury calculated to interfere with ... health or
comfort and to do so in a manner which is more than merely
transient and trifling. Donovan was not a case on medical
treatment and, prima facie, the description would not appear to
apply to therapeutic medical procedures, especially as benefit is
the converse of harm. Indeed (at p113), in R v Hyam (1975) Lord
Hailsham said: it is the absence of intention to kill, or cause
grievous bodily harm which absolves the heart surgeon in the
case of the transplant ... *Contrast, for example, the intention to
kill which equates euthanasia with murder].
However, as Skegg observes, there may be a small

category of procedures which benefit the patients health, yet do
involve bodily harm. These are procedures which could be
regarded as involving physical detriment, but where such
detriment is thought to be outweighed by psychological benefit.
Examples include some sex change operations. Whether such
procedures amount to bodily harm could depend on whether
bodily harm is taken to include psychological harm which does
not have any apparent physical effects. In R v Miller (1954)
Lynskey J said that an injury to a persons state of mind for the
time being now comes within the definition of actual bodily
harm. ... *so+ if it is accepted that bodily harm includes purely
psychological harm as well as physical harm, it could be argued
that a medical procedure should not be regarded as causing
bodily harm if physical detriment is outweighed by psychological
benefit.
On the other hand, and with particular reference to

Jehovahs Witnesses, the psychological detriment suffered as a
result of a blood transfusion may well outweigh any perceived
physical benefits and lead to a successful claim for damages:
Malette v Shulman (1990).
Case law has illustrated that it is far more likely that

tortious liability, rather than criminal liability, will be imposed for
the administration of non-consensual medical treatment. 8
CRIMINAL LIABILITY WHICH MAY BE INCURRED IN
ADMINISTRATION OF NON-CONSENSUAL MEDICAL
TREATMENT
If a crime results from non-consensual medical treatment,

the potential causes of action are likely to be for: battery; or
grievous bodily harm; or maim though, exceptionally, charges
of murder and manslaughter have been brought.
However, the rarity of a criminal charge against a doctor in
respect of an act on a consenting patient [that] ..would be a very
serious crime if done by someone else [is because] bodily
invasions in the course of proper medical treatment stand
completely outside the criminal law. The reason why the consent
of the patient is so important is not that it furnishes a defence in
itself, but because it is usually essential to the propriety of
medical treatment.
Lord Mustill returned to the issue of consent per se being
an insufficient defence to a criminal act has said:
Many of the acts done by surgeons would be very serious crimes
if done by anyone else, and yet the surgeons incur no liability.
Actual consent, or the substitute for consent deemed by the law to
exist where an emergency creates a need for action, is an
essential element to this immunity; but it cannot be a direct
explanation for it, since much of the bodily invasion involved in
surgery lies well above any point at which consent could even
arguably be regarded as furnishing a defence. Why is this so? The
answer must in my opinion be that proper medical treatment, for
which actual or deemed consent is a prerequisite, is in a category
of its own.
CONSENT TO PROCEDURES HAVING NO PHYSICAL

BENEFIT MAY STILL NEGATE CRIMINAL LIABILITY
Sterilisation and the removal of a kidney from a healthy person

for the purpose of transplantation into someone, who, as a general
rule, is genetically related and is in need of it, provide, perhaps,
two examples of medical procedures not intended to provide a
physical to benefit the person on whom they were performed.
Nevertheless, consent will negate criminal liability.
i) Crime of Causing Grievous Bodily Harm

This is a very rare occurrence. Two principal points arise from
this definition:
i. even if a medical procedure does cause gbh. (a synonym for
really serious bodily harm: a registered medical practitioner (or
rmp or doctor) would not be guilty of the offence if he did not
intend to cause such harm; (absence of mens rea) and
ii. the fact that the conduct specified must be carried out
unlawfully if criminal liability is to attach to the r.m.p. has led to
an interpretation of unlawfully as meaning without lawful
excuse: which implies that in certain circumstances a medical
procedure which intentionally causes gbh. (removal of a kidney
from a healthy donor for transplantation to a needy recipient,
perhaps) is not unlawful, i.e. it is a 10 procedure to which consent
may lawfully be given.
(ii) Crime of Maim

This is an ancient common law offence that has not been
expressly abolished. It is based on the distinction between acts
which permanently disable and weaken a man, rendering him less
able in fighting and acts which simply disfigure. (N.B.: At
common law, maim applied to men only; not women). Maim has
been said to include the disabling or weakening of an arm or foot;
or the deprivation of an eye, foretooth or those parts, the loss of
which in all animals abates their courage which, presumably,
refers to castration. The loss of an ear or nose was not considered
to impair a mans capacity to fight and, consequently, was not
regarded as a maim.
As the vast majority of medical procedures do not result in
permanent disabilities, the scope for the offence of maim is very
limited. Even where an amputation of a limb results it is likely
that it was a disease that rendered the patient disabled:
consequently the subsequent operation falls outside the scope of
maim. And as Skegg notes: even if castration could still be
regarded as coming within the potential scope of maim, it would
be justified if performed for a therapeutic purpose.
CHAPTER-VI
RELEVANCY OF CONSENT IN SEXUAL OFFENCES
In the course of discussion of relevancy of consent in sexual

offences we had to consider the effect of the consent of the victim on
accuseds liability, capacity of victim to consent, effect on consent of
fraud, mistake, force, threats, abuse of power and other pressures, and the
mental element in relation to consent. The task of analyzing that response
and developing policies on the multitude of difficult legal and
philosophical issues which it threw up has, inevitably, been lengthy and
painstaking. In this course we will discuss:-
(1) describes the existing sexual offences in which liability is conditional
on the absence of consent;
(2) Proposes a definition of consent, for the purpose of these offences or
any further offences of non-consensual sexual behavior which may be
created; and
(3) Considers the rules on the burden of proof where consent is in issue
for the purpose of any such offences.
Rape is not only a crime against the person of a woman; it is a crime

against the entire society. It destroys the entire psychology of a woman
and pushes her into deep emotional crises. It is only by her sheer will
power that she rehabilitates herself in the society which, on coming to
know of the rape, looks down upon her in derision and contempt. Rape is,
therefore, the most hated crime. It is a crime against the basic human
rights and is also in violation of the victims most cherished of the
Fundamental rights, namely the Right to live with dignity enshrined in
Article 21 of the constitution43.
MEANING OF RAPE:
The word Rape is derived from the Latin term rapio, which
means to seize. Thus, rape literally means a forcible seizure and that is the
essential characteristic feature of the offence. In common parlance, it
means intercourse with a woman without her consent by force, fear or
fraud. In other words, rape is violation with violence of the private person
of a woman. It is outrage by all canons.44
The explanation to the section 375 states that penetration is

sufficient to constitute sexual intercourse, necessary for the offence of
rape. The depth of penetration is immaterial as far as the offence u/s 376 is
concerned.45
In Madan Gopal Kakkad vs. Naval Dubey46, the medical officer

on examination of the victim after five days, found an abrasion on the
medial side of labia majora and redness around the labia minora, but the
hymen was intact admitting tip of little finger. The medical officer opined
43
Bodisattawa Gautam vs. Miss Subha Chakraborty. AIR 1996 SC 922
44
Phul Singh vs. State of Haryana AIR 1980 SC 249
45
Ghanshyam Misra vs. State AIR 1957 Orissa 1978
46
1992(3) SCC 204
that there was absence of signs of full penetration and hence, there was an
attempt to rape. The Supreme Court held that the opinion of the medical
officer that there was an attempt to rape is not conclusive and held that
when there was partial penetration, it is in the legal sense sufficient to
constitute rape.
According to section 375, a man is said to commit "rape"

Who, except in the case hereinafter excepted, has sexual intercourse with a
woman under circumstances falling under any of the six following
descriptions: -
First: - Against her will
Secondly: -without her consent.
Thirdly: - With her consent, when her consent has been obtained by
putting her or any person in whom she is interested in fear of death or of
hurt.
Fourthly: -With her consent, when the man knows that he is not her
husband, and that her consent is given because she believes that he is
another man to whom she is or believes herself to be lawfully married.
Fifthly: - With her consent, when, at the time of giving such consent, by
reason of unsoundness of mind or intoxication or the administration by
him personally or through another of any stupefying or unwholesome
substance, she is unable to understand the nature and consequences of
that to which she gives consent.
Sixthly: - With or without her consent, when she is under sixteen years of
age.
Explanation: - Penetration is sufficient to constitute the sexual
intercourse necessary to the offence of rape.
Exception: -Sexual intercourse by a man with his wife, the wife not being
under fifteen years of age, is not rape.
Where indecent assault is concerned the word assault may consist

in either the application or the apprehension of force, or indeed both & it
consider to be indecent according to contemporary standards of modesty
and privacy & indecent means an act which right-minded persons
would consider indecent. Liability for assault (including indecent assault)
is normally, but not always, conditional upon the fact that the victim has
not consented to the conduct in question. For the purposes of indecent
assault the consent of a child under 16 does not count.
The term against her will and without her consent appear
synonymous. Though every act done against the will of a person will
also mean that it is done without the consent of the person, but an act
done without the consent of a person does not necessarily mean against
the will. Without consent would denote an act being done in spite of
opposition of the person. The element of active opposition will not be
present when something is done against the will of the person. So, if
sexual intercourse is done with a woman who is asleep, then it would
amount to being against her will.
Without Consent:-
The second clause of s 375 stipulates that if a man has sexual

intercourse with a woman without her consent, then it amounts to rape.
Section 90, IPC states as to what does not amount to consent under the
code: - Section 90:-
A consent is not such a consent as it 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
THE MEANING OF CONSENT should mean a valid subsisting

consent and consent may be express or implied.
The essence of consent is agreement to what is done. Agreement
is the principal synonym for consent to be found in dictionaries. For the
purposes of the criminal law of sexual offences, an apparent agreement
should not count as consent unless it is a free and genuine agreement. The
formula free agreement, and variations on the theme, is to be found in a
number of common law jurisdictions. The word free signifies that an
agreement secured by duress will not suffice. We believe that it conveys
and illuminates for juries the essential difference between consent on the
one hand and mere submission on the other. Similarly, the word genuine
raises the issues of deception and mistake. An agreement to an act should
not be regarded as consent to that act unless it is subsisting at the relevant
time. If what is relied on is past agreement, this will mean both (a) that,
when previously given, the agreement must have extended to the doing of
the act at that later time, and (b) that it must not have been withdrawn in
the meantime.
It should be made clear that consent may be express or implied.
Consent may be evidenced by either words or conduct (whether present or
past). It may be thought that only express consent should suffice, because
courts are too ready to identify an implied consent in rape trials. If we
considered this view, we would have come to the conclusion that sexual
activity is frequently assented to by non-verbal conduct and that it would
be wrong to disregard such consent.
Consent is an act of reason coupled with deliberation, after the mind
has weighed the good and evil on each side in a balanced manner. Consent
denotes an active will in the mind of a person to permit the doing of the
act complained of.47
47
Vijayan Pillai vs. State of Kerala, 1990 I crimes 261(ker); Harnrain Singh vs. State of Punjab AIR
1958 PUN 133
Consent Obtained Under Fear of Death or Of Hurt or Threat: - ,
Clause III of sec 375 stipulate that when the consent has been
obtained by putting a woman or any person in whom she is interested in
fear of death or of hurt is not consent and hence, the act would amount to
rape.The judgment of the Supreme Court in case, Tukaram vs. State of
Maharashra48, had resulted in extensive amendment in the rape law under
IPC. In this case, Mathura, a 18-year-old Harijan orphan girl, was brought
to police station, along with her boyfriend, on the complaint of her brother.
She had been raped by accused in a toilet despite her protest and stiff
resistance. The Bombay High Court had observed that there was a
difference between consent and passive submission, and held that mere
passive or helpless surrender of the body and its resignation to others lust,
induced by threats or fear, cannot be equated with the desire or will, or can
furnish an answer by the mere fact that the sexual act was not in
opposition to such desire pr volition. The Supreme Court, however, held
that Mathura could not have been overawed in the police station,
especially since her relatives were waiting outside. Further, no injuries
were found on Mathura after the incident and the absence of injuries
indicated that the alleged intercourse was a peaceful affair.
To nullify the effect of the Supreme Court judgment in the Mathura
case and other cases of that period, extensive amendments were
introduced to the Indian Penal Code and the Indian Evidence Act. Third
clauses vitiates consent not only when a woman is put in fear of death or
48
AIR 1979 SC 185
hurt, but also when she is put in fear of any a injury being caused to any
person (including herself) in body, mind, reputation or property or also if
her consent is obtained by criminal intimidation, that is to say, by any
words or acts intended or calculated to put her in fear of any injury or
danger to herself or to any person in whom she is interested.
Consent obtained by fraud:-

The consent obtained by fraud is no consent at all, is not true as a
general proposition either in fact or in law. If a man meet a woman in a
street and knowingly gives her bad money in order to procure her consent
to intercourse in order to procure her consent by fraud, but it would be
childish to say that she did not consent.49
If a full grown girl consent to sexual intercourse on a promise of
marriage and continues to indulge in such activity till she becomes
pregnant, the accused is not guilty of rape. The girls consent cannot be
said to be induced by misconception of fact so as to vitiate the consent
under section 90 of the Penal Code, unless it is proved that from the very
inception the accused never really intended to marry the girl.50
It is settled law that consent obtained by deceit is no consent.
Supreme Court in Yedla Srinivasa Rao v. State of A.P. 51& also in Uday
v. State of Karnataka 52 Observed as under:
49
Clarence (1888) 22 QBD 2327 (per wills. J )
50
(1) Jyanti Rani Panda vs. State of West Bengal, (1984) Cr.L.J. 1535 Cal.
(2) Sudhamoy Nathalias Bachhu vs. State of West Bengal (1999) Cr.L.J 4482
51
2007(1) SCC (Crl.) 557
52
(2003 (4) SCC 46)
If the prosecutrix had sexual intercourse with the accused on the
representation made by the accused that he would marry her & this was a
false promise held out by the accused. Had this promise not been given
perhaps, she would not have permitted the accused to have sexual
intercourse. Therefore, whether this amounts to consent or the accused
obtained consent by playing fraud on her. Section 90 of the Penal Code
says that if the consent has been given under fear of injury or a
misconception of fact, such consent obtained, cannot be construed to be a
valid consent. Section 90 reads as under: 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. If it appears that the
intention of the accused right from the beginning, not honest and he kept
on promising that he will marry her, till she became pregnant. This kind of
consent obtained by the accused cannot be said to be any consent because
she was under a misconception of fact that the accused intends to marry
her, therefore, she had submitted to sexual intercourse with him.
Therefore, if the intention of the accused right from the beginning
was not bona fide and the poor girl submitted to the lust of the accused,
completely being misled by the accused who held out the promise for
marriage. This kind of consent taken by the accused with clear intention
not to fulfill the promise and persuading the girl to believe that he is going
to marry her and obtained her consent for the sexual intercourse under
total misconception cannot be treated to be consent. In this connection,
reference may be made to a decision of the Calcutta High Court in Jayanti
Rani Panda v. State of W.B. 53In that case it was observed that in order to
come within the meaning of misconception of fact, the fact must have an
immediate relevance. It was also observed that if a fully grown-up girl
consents to the act of sexual intercourse on a promise of marriage and
continues to indulge in such activity until she becomes pregnant, it is an
act of promiscuity on her part and not an act induced by misconception of
fact and it was held that Section 90 IPC cannot be invoked unless the
court can be assured that from the inception the accused never
intended to marry her right from the beginning. Therefore, it depends
on case to case that what is the evidence led in the matter. It is always a
matter of evidence whether the consent was obtained willingly or consent
has been obtained by holding a false promise which the accused never
intended to fulfill. If the court of facts comes to the conclusion that the
consent has been obtained under misconception and the accused persuaded
a girl of tender age that he would marry her then in that case it can always
be said that such consent was not obtained voluntarily but under a
misconception of fact and the accused right from the beginning never
intended to fulfill the promise. Such consent cannot condone the offence.
Reliance can also be placed on Emperor v. Soma54 In that case the
question of consent arose in the context of an allegation of kidnapping of a
minor girl. It was held that the intention of the accused was to marry the
girl to one Daya and she obtained Kujan's consent to take away the girl by
53
1984 Crl.LJ 1535 (Cal).
54
(1917) 18 Crl.L.J 18.
misrepresenting her intention. In that context it was held that at the time of
taking away the girl there was a positive misrepresentation i.e. taking the
girls to the temple at Jawala Mukhi and thereafter they halted for the night
in kutiya (hut), some three miles distance from Pragpur and met Daya
Ram, Bhag and Musammat Mansa and Musammat Sarasti was forced into
marrying Daya Ram. This act was found to be an act of kidnapping
without consent.
But, when girl though aged 16 years was persuaded to sexual
intercourse with the assurance of marriage which the accused never
intended to fulfill and it was totally under misconception on the part of the
victim that the accused was likely to marry her, therefore, she submitted to
the lust of the accused. Such fraudulent consent cannot be said to be
consent so as to condone the offence of the accused. In Deelip Singh v.
State of Bihar55, Wherein Supreme Court took view that prosecutrix had
taken a conscious decision to participate in the sexual act only on being
impressed by the accused who promised to marry her. But the accused's
promise was not false from its inception with the intention to seduce her to
sexual act. Therefore, this case is fully distinguished from the facts as
Court found that the accuseds promise wasnt false from its inception.
What is a voluntary consent and what is not a voluntary consent

depends on the facts of each case. In order to appreciate the testimony, one
has to see the factors like the age of the girl, her education and her status
in the society and likewise the social status of the boy. If the attending
circumstances lead to the conclusion that it was not only the accused but
55
(2005) 1 SCC 88
the prosecutrix was also equally keen, then in that case the offence is
condoned. But when the accused promised to marry her but he never
intended to marry her right from the beginning then the consent of the girl
is of no consequence and falls in the second category as enumerated in
Section 375 --Without her consent. A consent obtained by
misconception while playing a fraud is not consent.
Pradeep Kumar @ Pradeep Kumar Verma vs. State of Bihar

and Anr56, The prosecutrix lodged the First Information Report alleging
that with an assurance that the accused-appellant would marry her, he had
sexual relationship with her. When this went on for some time, the
informant had been taken to a temple where in the presence of deity he
accepted her to be his wife and there was an agreement of marriage
entered into. Alleging that the accused was likely to get married with
some other lady, an FIR was lodged. In statement of the informant
recorded under Section 164 of the Code of Criminal Procedure, 1973
wherein it was accepted that first with a promise of marriage; the accused
had physical relationship with the informant and then, had married her.
After investigation, charge sheet was filed wherein it was indicated an
offence punishable under Sections 376 and 406 of IPC was made out. It
was held that, the ingredients of Section 406 IPC have absolutely no
application. Even a bare reading of the statement recorded under Section
164 of the Cr.P.C shows that section 406 has no application. Section 406
IPC relates to punishment for criminal breach of trust. The expression
criminal breach of trust is defined in Section 405. The same relates to only
56
DATE OF JUDGMENT: 17/08/2007BENCH:Dr. ARIJIT PASAYAT & D.K. JAIN
entrustment of property or dominion over the property. There is no
allegation of any entrustment of any property in this case and therefore
Section 406 does not apply to this case. As to sec. 376, learned counsel for
the informant submitted that since on the pretext of marriage and by
cheating the victim the accused had physical relationship with her, it
cannot be said that there is element of consent and section 376 has rightly
been applied. The Supreme Court observed that Here the allegation of
the complainant is that the accused used to visit her house and proposed to
marry her. She consented to have sexual intercourse with the accused on a
belief that the accused would really marry her. But one thing that strikes us
is ... why she should keep it a secret from her parents if really she had
belief in that promise. Assuming that she had believed the accused when
he held out a promise, if he did at all, there is no evidence that at that time
the accused had no intention of keeping that promise. It may be that
subsequently when the girl conceived the accused might have felt
otherwise. But even then the case in the petition of complainant is that the
accused did not till then back out. Therefore it cannot be said that till then
the accused had no intention of marrying the complainant even if he had
held out any promise at all as alleged. It was further observed that... In
order to come within the meaning of misconception of fact, the fact must
have an immediate relevance. The matter would have been different if the
consent was obtained by creating a belief that they were already married.
In such a case the consent could be said to result from a misconception of
fact. But here the fact alleged is a promise to marry we do not know when.
If a full-grown girl consents to the act of sexual intercourse on a promise
of marriage and continues to indulge in such activity until she becomes
pregnant it is an act of promiscuity on her part and not an act induced by
misconception of fact. Section 90 IPC 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. (Emphasis supplied)The learned
Judges referred to the decision of the Chancery Court in Edgington v.
57
Fitzmaurice and observed: A misstatement of the intention of the
defendant in doing a particular act may be a misstatement of fact, and if
the plaintiff was misled by it, an action of deceit may be founded on it.
The particular observation at p. 483 runs to the following effect:-There
must be a misstatement of an existing fact. Therefore, in order to amount
to a misstatement of fact the existing state of things and a misstatement as
to that becomes relevant. In the absence of such evidence Section 90
cannot be called in aid in support of the contention that the consent of the
complainant was obtained on a misconception of fact.
It therefore appears that the consensus of judicial opinion is in
favour of the view that the consent given by the prosecutrix to sexual
intercourse with a person with whom she is deeply in love on a promise
that he would marry her on a later date, cannot be said to be given under a
misconception of fact. A false promise is not a fact within the meaning of
the Code. We are inclined to agree with this view, but we must add that
there is no straitjacket formula for determining whether consent given by
the prosecutrix to sexual intercourse is voluntary, or whether it is given
57
(1885 (29) Ch.D.459)
under a misconception of fact. In the ultimate analysis, the tests laid down
by the courts provide at best guidance to the judicial mind while
considering a question of consent, but the court must, in each case,
consider the evidence before it and the surrounding circumstances, before
reaching a conclusion, because each case has its own peculiar facts which
may have a bearing on the question whether the consent was voluntary, or
was given under a misconception of fact. It must also weigh the evidence
keeping in view the fact that the burden is on the prosecution to prove
each and every ingredient of the offence, absence of consent being one of
them.
The crucial expression in Section 375 which defines rape as against
her will. It seems to connote that the offending act was despite resistance
and opposition of the woman. IPC does not define consent in positive
terms. But what cannot be regarded as consent is explained by Section 90
which reads as follows:
Consent given firstly under fear of injury and secondly under a
misconception of fact is not consent at all.
CAPACITY TO CONSENT: MINORS

In this part we explain our approach to the general question of
capacity to consent; we discuss the question of age limits for sexual
offences; and we recommend a test for establishing the capacity of a child
to consent. Generally, the purposes of any offence to which consent is or
may be a defence, a valid consent may not be given by a person without
capacity. Before turning to the circumstances in which a minor should be
regarded as having capacity to consent to sexual conduct, we must explain
the role played in the law by age limits.
In respect of the present law on sexual offences (as opposed to other
offences against the person), age limits are not, in truth, concerned with
capacity to consent. Clause (6) provides that sexual intercourse with a
woman under the age of 16 years will amount to rape, whether it is done
with or without her consent. Two criminal law policy objectives operate in
this area. The first is that of forbidding sexual activity with children,
whether consensual or not. The second is forbidding non-consensual
sexual activity with anyone. The first objective is achieved in two ways.
One is directly to criminalize the activity with children. The other is to use
the general offence relating to non-consensual sexual activity, and deem
children to be incapable of giving consent. It is irrelevant for the purpose
of this objective whether an apparent consent is effective or valid. For
example, the offence covering adult, on-consensual activity indecent
assault is used to criminalize consensual activity with a child by means
of a provision deeming children less than sixteen year incapable of giving
consent. This does not truly address the childs capacity to consent. It is
merely a device to accomplish the distinct objective of criminalizing
consensual sexual activity with children. The second policy objective is
achieved in the case of rape, which requires the prosecution to prove
absence of consent in all cases. In the case of children, however, the
current law is that the prosecution may prove absence of consent on the
occasion charged by proving that the victim was incapable of giving
consent whether through age, the consumption of drink or drugs, or
mental disability. It introduces two tiers of rape: non-consensual rape and
consensual, or statutory, rape. Even if the girl is not modest and is a
willing party or even if se invited the accused to have sexual intercourse
with her, the act would still be an offence under section 376 if she is below
16 years of age.58 When the prosecutrix is a minor aged below 16 years,
the question of her being a consenting parity to the sexual intercourse
does not arise or is or no consequence; Naresh v. State of Haryana59.
The exception to the section states that sexual intercourse by a man
with his wife, if she was over 15 year will not amount to rape.
A person should be regarded as being unable to make a decision by
reason of age or immaturity if at the time the decision needs to be made he
or she does not have sufficient understanding and intelligence to
understand the information relevant to the decision, including information
about the reasonably foreseeable consequences of deciding one way or
another or of failing to make the decision. The general age at which the
law ceases to prohibit sexual activity with children is 16. The law allows
that young people over that age should be able to take their own decisions
in sexual matters. That must include the giving and withholding of
consent. The test of capacity should, therefore, apply only to those below
that age.
As we discussed above, the current structure of age limits in respect
of sexual offences is a means of achieving criminalization, rather than a
way of addressing capacity to consent. It is, however, possible to use an
age limit as a way of dealing with the real, factual issue of capacity. A
58
Shabir Rashid 1969. Cr.L.J. 1282 (DEL)
59
(1997)2 Crimes 587 (P&H).
principal justification for the current requirement in rape for actual consent
is that non-consensual sexual intercourse with a child is more serious than
consensual sexual intercourse, and so should be both marked by a more
serious offence-label, and sentenced more severely. However, below a
certain age, capacity to consent to sexual conduct cannot possibly arise as
a live issue. There is, therefore, an argument for a provision stating that,
below such an age, the prosecution need not prove lack of consent or
incapacity to consent. There should be an irrefutable presumption that the
child did not have the capacity to consent. What that age should be is a
matter for those experts in child development and those with a wider
social policy remit.
MENTAL INCAPACITY
The law presumes that persons who have attained the age of 18 have
sufficient intelligence and maturity to make their own decisions; but such
a person cannot give a valid consent to an act if he or she is incapable of
understanding the nature of the act due to unsoundness of mind or
intoxication. In this part we examine the position relating to the capacity
of the mentally disabled to consent to sexual activity.
At common law, no specific criteria are identified as material for
determination of whether or not a person has the capacity to consent to a
sexual act: this is a question of fact, to be determined in accordance with
the ordinary meaning of the word consent on the basis of common sense
and experience. A broad definition is favored in the terms mental
disability, viz any disability or disorder of mind or brain, whether
permanent or temporary, which results in an impairment or disturbance of
mental functioning
In Fletcher60, a conviction for rape was upheld in respect of sexual

intercourse with a girl of weak intellect. The jury found that she was
incapable of giving consent due to her defect of reasoning. These
principles are recognized in Article 7 of the United Nations Declaration on
the Rights of Mentally Retarded Persons
Whenever mentally retarded persons are unable, because of the
severity of their handicap, to exercise all their rights in a meaningful
way or it should become necessary to restrict or deny some or all of
these rights, the procedure used for that restriction or denial of rights
must contain proper legal safeguards against every form of
abuse...61
A sexual relationship between a person of full mental capability and
one with severe learning disabilities may well involve an element of abuse
that the criminal law should proscribe, particularly where there is a care
relationship
The nature of understanding of an adult female and consequences of
sexual act must be intelligent understanding to constitute consent. Consent
within penal law, defining rape, requires exercise of intelligence based on
knowledge of its significance and moral quality and there must be a choice
between resistance and assent.
60
(1859) Bell CC 63; 169 ER 1168,
61
Declaration on the Rights of Mentally Retarded Persons, 1971 UN General Assembly 26th Session,
Resolution 2856
The test for capacity turned on whether the victim sufficiently
understood the nature, purpose and effects of the proposed act.
THE BURDEN OF PROOF:
It is convenient to deal here with the question of the burden of proof

where consent is in issue. At present the prosecution must prove, to the
criminal standard of proof that the complainant did not consent. Paul
Roberts stated that it would be authoritarian to do otherwise, given that it
is generally harder to prove innocence than to establish guilt, and that the
prosecution has significant investigative advantages and therefore is in a
better position to bear the burden of proof.
Of those who favored reversing the burden of proof, several cited
the need to protect vulnerable victims, especially females experiencing
domestic violence. It was also said to be protective of the autonomy of the
victim to make it harder for the defendant to rely on consent. Respondents
also felt that it would not be unfair to expect the defence to prove
something that is part of the defendants own intimate knowledge, whereas
it would be onerous for the prosecution to do so. If, having It is sometimes
suggested that in the case of indecent assault (though not rape) consent is a
defence in the strict sense, rather than its absence being an element of the
offence; that the defence therefore has the evidential burden of raising the
issue, as in the case of other defences such as self-defence; and that only if
that burden is discharged does the prosecution have to discharge the legal
burden of disproving consent. It would be surprising if there were a
difference in this respect between rape and indecent assault, and we know
of no clear authority for such a distinction. According to Professor Sir
John Smith, the better view is that expressed by Glanville Williams in
Consent and Public Policy62 and emphatically endorsed by Lord Slynn
in Brown63 viz that It is inherent in the concept of assault and battery
that the victim does not consent. Since an evidential burden can be
discharged by the existence of evidence from any source, the question
could only arise if the prosecution fails to adduce any evidence at all on
the issue of consent e.g. where P testifies that D touched her indecently
but gives no comprehensible answer to the question Did you consent to
what he did? Yet seeks a conviction anyway. We think it clear that, in
the unlikely event of such circumstances arising, a submission of no case
ought to succeed.
Section 114-A of IEA, provides an exception to the general rule of
burden of proof. According to said sec, in the cases mentioned in clauses
(a), (b), (c) and (d) of sub sec (2) of section 376 of IPC, the prosecution
has to prove only that there was sexual intercourse between the accused
and the prosecutrix. After that if prosecutrix states in her evidence before
the court that she did not consent, the court shall presume that the sexual
intercourse was committed without the consent of woman than it lies on
the accused to prove that he committed the sexual intercourse with the
consent of woman; but if he fails to prove the consent of the woman he
shall be convicted for the offence of rape. Section 376 provides
punishment for rape:-
62
[1962] Crim LR 74, 75,
63
[1994] 1 AC 212,
(1) Whoever, except in the cases provided for by sub-section (2), commits
rape shall be punished with imprisonment of either description for a term
which shall not be less than seven years but which may be for life or for a
term which may extend to ten years and shall also be liable to fine unless
the woman raped is his own wife and is not under twelve years of age, in
which cases, he shall be punished with imprisonment of either description
for a term which may extend to two years or with fine or with both:
Provided that the court may, for adequate and special reasons to be
mentioned in the judgment, impose a sentence of imprisonment for a term
of less than seven years.
(2) Whoever: -
(a) Being a police officer commits rape-
(i) Within the limits of the police station to which he is appointed;
(ii) In the premises of any station house whether or not situated in the
police station to which he is appointed; or
(iii) On a woman is his custody or in the custody of a police officer

subordinate to him; or
(b) Being a public servant, takes advantage of his official position and
commits rape on a woman is custody as such public servant or in the
custody of a public servant subordinate to him; or
(c) Being on the management or on the staff of a jail, remand home or
other place of custody established by or under any law for the time being
in force or of a woman's or children's institution takes advantage of his
official position and commits rape on any inmate of such jail, remand
home, place or institution; or
(d) Being on the management or on the staff of a hospital, takes
advantage of his official position and commits rape on a woman in that
hospital; or
(e) Commits rape on a woman knowing her to be pregnant; or
(f) Commits rape when she is under twelve years of age; or
(g) Commits gang rape,
Shall be punished with rigorous imprisonment for a term which shall not
be less than ten years but which may be for life and shall also be liable to
fine:
Provided that the court may, for adequate and special reasons to be
mentioned in the judgment, impose a sentence of imprisonment of either
description for a term of less than ten years.
Explanation 1- Where a woman is raped by one or more in a group of
persons acting in furtherance of their common intention, each of the
persons shall be deemed to have committed gang rape within the meaning
of this sub-section.
Explanation 2-"Women's or children's institution "means an institution,
whether called an orphanage of a home for neglected women or children
or a widows' home or by any other name, which is established and
maintained for the reception and care of women or children.
Explanation: 3. - "Hospital" means the precincts of the hospital and
includes the precincts of any institution for the reception and treatment of
persons during convalescence or of persons requiring medical attention or
rehabilitation.
EVIDENCE OF THE PROSECUTRIX

In every case, the evidence of the prosecutrix or the woman who has
been raped is a very crucial piece of testimony to prove the case against
the accused. Every rape victim in our country is viewed with a lot of
suspicion and is also humiliated. More than the culprit, it is the rape victim
who faces social stigma. Unfortunately, there was a clause under section
155 of Indian Evidence Act, envisaging that it may be shown that the
prosecutrix was of generally immoral character and that clause has been
deleted by the Indian Evidence Amendment Act 2002. Very often, this
clause was used as a pretext to harass or humiliate the prosecutrix in the
course of cross-examination. In this context, the Supreme Court in State
of Punjab vs. Gurmit Singh64, held:
The Court should not sit as a silent spectator while the victim of
crime is being cross-examined by the defence. It must effectively control
the recording of evidence in the Court. While every latitude should be
given to the accused to test the veracity of the prosecutrix and the
credibility of her version through cross-examination, the court must also
ensure that cross-examination is not made a means of harassment for
causing humiliation to the victim of crime. In the same case, the Supreme
Court also observed that the testimony of victim in cases of sexual
offences is vital and unless there are compelling reasons, which necessitate
looking for corroboration for her statement, the court should fid no
64
AIR 1996 SC 1393, see also State vs. Lekh Raj 2000(1) SCC 247
difficulty to act on the testimony of a victim of sexual assault alone. The
Court observed that the evidence of a girl or a woman, who complains of
rape or sexual molestation, should not be viewed with doubt, disbelief or
suspicion.
Normally a woman would not falsely implicate for the offence of

rape at the cost of her character. In Indian society, it is very unusual that a
lady with a view to implicate a person would go to the extent of stating
that she was raped; Mohan Lal v. State of Madhya Pradesh.
Where the testimonies of witnesses are fully corroborated by

medical evidence and other material evidences; active role of all of
accused is not doubted; their conviction under section 376 (2) (g) and
302/34 is fully justified; State of Madhya Pradesh v. Mohai65.
Medical evidence corroborated by version of prosecutrix
independent witness also in favour of the victim. No evidence of causing
an unknown person a false implication at cost of a family name,
conviction based on her evidence up held; Lakha v. State of Rajsthan66.
Corroborative evidence is not an imperative component of judicial
credence in every case of rape; State Maharashtra v. Suresh Nivruthi
Bhusare67.
In absence of any sign of forcible intercourse during medical
examination and delay in lodging FIR not explained, accused entitled to
acquittal; Babu Dey v.State of West Bengal68.
65
1999 Cr. L.J 2698 (MP).
66
1999 Cr. L.J 3418 (Raj).
67
(1997) 2 Crimes 257 (Bom).
68
2000 Cr .L.J 329 (Call).
Where an innocent girl of just 9 years of age raped by accused ,
and FIR is lodged well in time evidence of her testimony also
corroborated by medical evidence, no evidence for false implication,
failure on part of investigation are not enough to deny version of
prosecrrtuix and other corroborative evidences; Najoor Ahmad v. State or
Bihar69.
RAPE IN SPECIAL CASES AND EXAGGERATIVE PUNISHMENT
Sec. 376-A: - Intercourse by a man with his wife during separation.

Whoever has sexual intercourse with his wife, who is living separately
from him under a decree of separation or under any custom or usage
without her consent, shall be punished with imprisonment of either
description for a term which may extend to two years and shall also be
liable to fine].
Section 376-B: - Intercourse by public servant with woman is his

custody
Whoever, being a public servant, takes advantage of his official position

and induces or seduces any woman, who is in his custody as such public
servant or in the custody of a public servant subordinate to him, to have
sexual intercourse with him, such sexual intercourse not amounting to the
offence of rape, shall be punished with imprisonment of either description
for a term which may extend to five years and shall also be liable to fine].
69
1999 Cr LJ 2550 (Pat).
Sec. 376-C: -Intercourse by superintendent of jail, remand home, etc.
Whoever, being the superintendent or manager of a jail, remand home or
other place of custody established by or under any law for the time being
in force or of a woman 's or children's institution takes advantage of his
official position and induces or seduces any female inmate of such jail,
remand home, place or institution to have sexual intercourse with him,
such sexual intercourse not amounting to the offence of rape, shall be
punished with imprisonment of either description for a term which may
extend to five years and shall also be liable to fine.
Explanation 1:-"Superintendent" in relation to jail, remand home or other

place of custody or a women's or children's institution included a person
holding any other office in such jail, remand home, place or institution by
virtue of which he can exercise any authority or control over its inmates.
Explanation 2:-The expression "women's or children's institution" shall

have the same meaning as in Explanation 2 to sub-section (2) of section
376.
Section 376-D: - Intercourse by any member of the management or

staff of a hospital with any woman in that hospital
Whoever, being on the management of a hospital or being on the staff of a

hospital takes advantage of his position and has sexual intercourse with
any woman in that hospital, such sexual intercourse not amounting to the
offence of rape, shall be punished with imprisonment of either description
for term which may extend to five years and shall also be liable to fine.
Explanation:-The expression "hospital" shall have the same meaning as in

Explanation 3 to sub-section (2) of section 376.]
UNNATURAL OFFENCES
India inherited the anti-sodomy laws in its criminal code from the
British raj, which were not present in its history of codified or customary
legal system before. Section 377 of the Indian Penal Code calls for a
maximum punishment of life imprisonment for all sexual acts against
human nature (primarily interpreted to be homosexuality, especially
sodomy, including between consenting adults).
Section 377 prescribes that whoever voluntarily has carnal
intercourse against the order of nature with any man, woman or animal
shall be punished with imprisonment for life, or with imprisonment of
either description for term which may extend to ten years, and shall also
be liable to fine.
Explanation: - Penetration is sufficient to constitute the carnal intercourse
necessary to the offence described in this section.
Under this section, consent is wholly irrelevant. The party consenting

would be equally liable as an abettor.
VALIDITY OF SECTION
This section corresponds to anti-sodomy laws that were prevalent in
Victorian England. The term carnal intercourse refers to sexual
intercourse between two men, or in other words, homosexual
relationships. Since penetration is an essential ingredient of the
offence, it does not bring within its purview lesbian or sexual
relationships between two women. It may be pointed out that anti-
sodomy laws stand repealed in the parent country, i.e. England, and in
many other countries of the world like Australia, South Africa and so on.
South Africa is the first country in the world which has expressly
guaranteed protection to sexual minorities or homosexual and lesbians.
Despite the still prevalent social censure of gay and lesbian

relationship, there is a growing yet grudging recognition of the fact that
the same sex desire or in other words homosexuality, has to be
recognized as an alternative sexuality, which existed and exists in every
community. The European Commission of Human Rights has held that
the anti-sodomy laws of Ireland70, Great Britain71 and Cyprus72, violated
the right to privacy guaranteed under article 8 of the European Charter of
Human Rights. In USA, the Hawaiian Supreme Court in Boehr vs.
Levin73, has held that prohibition of same sex marriage violated the clause
on non-discrimination on the basis of sex. Similarly, the Canadian
70
Narris vs. Ireland 13 Eur Ct HR 149(1981)
71
Dudgeon vs. Great Britain 4 Eur CT HR 149 (1981)
72
Mondis vs. Cyprus 16 Eur Ct HR (1993)
73
852 P 2d at 44.
Supreme Court has held that spousal benefit should be applicable to gay
and lesbian couple as well74.
Viewed in the backdrop of these international developments, Section

377, IPC, seems to be outdated and a moral of a bygone era. In keeping
with international trends in jurisprudence and legal discourse, it is
important that our law is also brought in line with international standards
and the section be amended or repealed.
In a Landmark Judgment, delivered by Delhi High Court on 2nd of

July, 2009 a bench of Chief Justice Honble Shri A.P. Shah and Honble
Shri S. Murlidharan declared Section 377 of IPC Violative of
Constitution of India in so far as it criminalizes consensual sexual Acts
of Adults in Private. A lot of hue and cry is being raised by a section of
our society with some socio - political leaders going to the extent of
criticizing judiciary in a non charitable manner. However, without
opposing their right to oppose the order and air their views, I would like to
point out that the manner in which they are criticizing judiciary requires a
restraint. Judiciary is merely doing its duty of interpreting the law and
parliament is always in its right to make or amend an existing law. Who
can forget Shah bano case and subsequent amendment of law by the
congress led parliament under the leadership of late Rajiv Gandhi. We
should never forget that we are a democracy and there are very fine thinly
regulated system of checks and balances and which need to be respected
for vibrant and successful democracy.
74
MV vs. H Guardian 22 May 1999
However, let us now consider the judgment of the Delhi high Court
which has been in news for its path breaking judgment.
The Writ Petition on which Delhi High Court delivered its landmark
Judgment was filed by an NGO (Naz foundation) as Public Interest
Litigation to challenge the constitutional validity of section 377 of IPC to
extent that the said provision criminalizes sexual acts between adult in
private. The Writ Petition was earlier dismissed by the Delhi High Court in
2004 on the ground that there is no cause of action in favor of the
Petitioner and that such a Petition cannot be entertained to explain the
academic challenge to the constitutionality of the legislation. The Supreme
Court with a order dated 3rd February, 2006 set aside the said order of
Delhi High Court observing that the matter does require the consideration
and is not of a nature which could be dismiss on the aforesaid ground.
HISTORY OF THE LEGISLATION: Section 377 of IPC criminalizes

sex other than heterosexual penile - vaginal. The Legislation History of the
subject indicates that the 1st record of sodomy as a crime at common law
in England were chronicled in Flata in the year 1920 and later in the
Britton in the year 1300. Both texts prescribe that sodomites should be
burnt alive. Acts of sodomy later became penalized by hanging under the
Buggery Act of 1533 and which was re-enacted in 1563 by Queen
Elizabeth 1.
In 1861 the death penalty for Bugery was abolished in England and
Wales. However, sodomy/Bugery remained as a crime Not to be
mentioned by the Christians.
The said Section drafted by Lord Macaulay in 1860 prescribes
imprisonment up to 10 years for unnatural sex and outlaws non-vigilance
sex (oral or anal) and any kind of sex with animals. The English law was
reformed in Britain by the sexual offence act 1967. Section 377 of IPC is
contained in Chap 16 of IPC under the Title of offences affecting the
Human body within this chapter Section 377 of IPC is categorized under
the subject unnatural offences. The concerned section read as below:
377. Unnatural Offences - Whoever voluntarily has carnal intercourse

against the order of nature with any man, woman or animal, shall be
punished with imprisonment for life, or with imprisonment of either
description for a term which may extend to ten years, and shall also be
liable to fine. Explanation - Penetration is sufficient to constitute the carnal
intercourse necessary to the offence
The Judgment delivered by the Delhi high Court has very nicely analyzed
as to how the unnatural offences as perused under section 377 of IPC has
undergone change from non-procreative to imitative to sexual perversities.
Thus we find that in Khanu v. Emperor, AIR 1925 Sind 286, Kennedy
A.J.C. held that section 377 IPC punishes certain persons who have carnal
intercourse against the order of nature with inter alia human beings.... [if
the oral sex committed in this case is carnal intercourse], it is clearly
against the order of nature, because the natural object of carnal intercourse
is that there should be the possibility of conception of human beings,
which in the case of coitus per os is impossible. Thus here we find that
purpose of sex is procreation and any sex which does not lead to
procreation is illegal. Moving further In Lohana Vasantlal Devchand v.
State, AIR 1968 Guj 252, the issue was whether oral sex amounted to an
offence under Section 377 IPC. It was held that the orifice of the mouth is
not, according to nature, meant for sexual or carnal intercourse. Moving
further in the case of Fazal Rab Choudhary v. State of Bihar, AIR 1983 SC
323; it was observed that Section 377 IPC implied sexual perversity.
However, it is noteworthy that courts had earlier held in R.V. Jacobs
(1817) Russ & Ry 331 C.C.R., and Govindarajula In re., (1886) 1 Weir
382, that inserting the penis in the mouth would not amount to an offence
under Section 377 IPC.
CASE OF THOSE WHO ARE OPPOSING THE SECTION 377 AS IT

IS: 1. According to Petitioner NGO and those who supported the petition
Homosexual and such other people represents population segment that is
extremely venerable to HIV/AIDS infections. According to them the
HIV/AIDS preventive efforts were severally impaired by the
discriminatory attitudes of the State Agency towards homo sexuality as
the same is covered under section 377 of IPC, as a result of which basic
fundamental Human right of such groups (in minority) stood denied and
they were subject to abuse, harassment, and assault from public and public
authorities. 2. Further the concerned Section 377 of IPC is based upon
traditional Christen moral Standard which conceives sex in purely
functional terms i.e. for the purpose procreation only. Any non-procreation
sex activity is thus viewed as being against the order of nature. 3. Recent
past History of section 377 of IPC shows that it has generally been
employed in cases of child sexual assault and abuse and not on private
consensual same sex conduct and thus criminalizing consensual oral and
anal sex is outdated and served as the weapons for money and perpetuate
negative and discriminative beliefs towards homo sexual. 4. The
submission of NACO and consequently ministry of Health confirm the
case set out by those demanding changes that Homo sexual community is
particularly susceptible to attracting to HIV/AIDS. According to NACO
those in the high risk of HIV/AIDS category like Homo Sexual have been
found to be mostly reluctant to reveal same sex behavior due to the fear of
law enforcement Agencies and thus keeping a large section invisible and
unreachable and thus thereby pushing the cases of infection underground
making it very difficult for the public worker to even assess them. 5.
Voices against section 377 of IPC is coalition of 12 organization
representing child rights, women rights, Human rights, Health concerns as
well as rights of same sex desiring people including those identified as
Lesbian, gay, by sexual, transgender, Hizra, kothi persons. This group
supports the cause of the Petitioner and realized upon its report, title
Rights for all, ending discrimination under section 377 of IPC, published
in the year 2004 to create awareness about negative impact of this law of
society in general and Lesbian, gay, by sexual, transgender, Hizra and
Kothi persons in particulars. 6. The Petitioner had further stated that the
said section to the extent of their application violates the section 14, 15, 19
(1) (a) (b) (c) and (d) and Article 21 of the Constitutional of India and thus
consensual sexual intercourse between two willing adult in private is
required to be saved and excepted from the panel provision contained in
section 377 of IPC.
CASE OF THOSE WHO ARE SUPPORTING THE RETENTION OF
SECTION 377 AS IT IS: As for the Union of India WAS concerned in
this particular case the Ministry of Home affairs and Ministry of Health
and family welfare had taken contradictory stands as is clear from the
affidavit filed by two wings of Union of India. The Ministry of Home
affairs sought to justify the retention of section 377 of IPC, whereas
ministry of Health and Family insistent that continuance of section 377 of
IPC has hampered the HIV/AIDS prevention efforts. Stand of Ministry of
Home affairs and supporters seeks to justify the section 377 of IPC on the
reason that: - a) It has be generally invoked in cases of child sexually abuse
and for complementary lacunae in rape laws and not mere home sexuality;
b) This clause has been used in cases of assault where bodily harm is
caused or feared; c) Delusion would open the flood gate of delinquent
behavior; d) Interference by Public authority in the interest of public safety
and public health and morality; e) 42nd report of law commission of India
in its report have justified that Indian society still considers that homo-
sexuality is criminal offence. f) The subject is relating to policy of law
rather than the legality; g) In Parliamentary secular democracy the legal
conception of crime depends upon political as well as moral consideration,
not withstanding overlap existing between legal and moral factors;
h) Public tolerance to such acts by other country and society cannot be the
ground for its legality as the same is not approved or tolerated by Indian
Society. i) Anything which is illegal can not be legalized by the consent of
the party who is party to such illegality.
HIGH COURT VIEW: The Honble High Court held that Section 377 of
IPC infringes Articles 14, 15 and 21 of the Constitution of India to the
extent it criminalizes consensual sexual Acts of Adults in Private. The
Honble High court did not deal with violation of Article 19(1) (a) to (d)
and that issue has been left open.
The Honble High Court has held that the criminalization of

homosexuality condemns in perpetuity a sizable section of society and
forces them to live their lives in the shadow of harassment, exploitation,
humiliation, cruel and degrading treatment at the hands of the law
enforcement machinery. The Government of India estimates the MSM
number at around 25 lacs. The number of lesbians and trans genders is said
to be several lacs as well. This vast majority is denied moral full
citizenship. Section 377 IPC grossly violates their right to privacy and
liberty embodied in Article 21 insofar as it criminalizes consensual sexual
acts between adults in private.
The Honble court has further held that if the penal clause is not
being enforced against homosexuals engaged in consensual acts within
privacy, it only implies that this provision is not deemed essential for the
protection of morals or public health vis-a-vis said section of society. The
provision, from this perspective, should fail the reasonableness test.
The Honble High Court held that right to life & protection of a
persons dignity, autonomy and privacy is covered by Article 21 of the
Constitution of India. S -377 of IPC is an infringement of the right to
dignity and privacy.
The Honble High Court held that Section 377 is an impediment to

successful public health and the submission of ASG that Section 377 IPC
helps in putting a brake in the spread of AIDS and if consensual same-sex
acts between adults were to be de-criminalized, it would erode the effect of
public health services by fostering the spread of AIDS is completely
unfounded since it is based on incorrect and wrong notions. It held that
Sexual transmission is only one of the several factors for the spread of HIV
and the disease spreads through both homosexual as well as heterosexual
conduct. There is no scientific study or research work by any recognized
scientific or medical body, or for that matter any other material, to show
any causal connection existing between decriminalization of
homosexuality and the spread of HIV/AIDS. The argument, in fact, runs
counter to the policy followed by the Ministry of Health and Family
Welfare in combating the spread of this disease.
MORALITY AS A GROUND OF A RESTRICTION TO

FUNDAMENTAL RIGHTS: Honble High Court held that if a court
finds that a claimed right is entitled to protection as a fundamental privacy
right, the law infringing it must satisfy the compelling state interest test.
While it could be a compelling state interest to regulate by law, the area

for the protection of children and others incapable of giving a valid consent
or the area of non-consensual sex, enforcement of public morality does not
amount to a compelling state interest to justify invasion of the zone of
privacy of adult homosexuals engaged in consensual sex in private without
intending to cause harm to each other or others.
Thus popular morality or public disapproval of certain acts is not a

valid justification for restriction of the fundamental rights under Article 21.
Popular morality, as distinct from a constitutional morality derived from
constitutional values, is based on shifting and subjecting notions of right
and wrong. If there is any type of morality that can pass the test of
compelling state interest, it must be constitutional morality and not
public morality. This aspect of constitutional morality was strongly insisted
upon by Dr. Ambedkar in the Constituent Assembly.
In the 172nd report, the Law Commission has recommended deletion

of Section 377 IPC, though in its earlier reports it had recommended the
retention of the provision. In the 172nd report, the Law Commission of
India, focused on the need to review the sexual offences laws in the light of
increased incidents of custodial rape and crime of sexual abuse against
youngsters, and inter alia, recommended deleting the section 377 IPC by
effecting the recommended amendments in Sections 375 to 376E of IPC
WHETHER SECTION 377 IPC VIOLATES CONSTITUTIONAL
GUARANTEE OF EQUALITY UNDER ARTICLE 14 OF THE
CONSTITUTION: The scope, content and meaning of Article 14 of the
Constitution has been the subject matter of intensive examination by the
Supreme Court in a catena of decisions. The decisions lay down that
though Article 14 forbids class legislation, it does not forbid reasonable
classification for the purpose of legislation. In order, however, to pass the
test of permissible classification, two conditions must be fulfilled, namely,
(i) that the classification must be founded on an intelligible differentia
which distinguishes persons or things that are grouped together from those
that are left out of the group; and (ii) that the differentia must have a
rational relation to the objective sought to be achieved by the statute in
question. The classification may be founded on differential basis according
to objects sought to be achieved but what is implicit in it is that there ought
to be a nexus, i.e., causal connection between the basis of classification
and object of the statute under consideration. Honble High Court held that
the classification under S-377 bears no rational nexus to objective sought
to be achieved.
THE CLASSIFICATION BEARS NO RATIONAL NEXUS TO THE

OBJECTIVE SOUGHT TO BE ACHIEVED: Section 377 IPC makes
no distinction between acts engaged in the public sphere and acts engaged
in the private sphere. It also makes no distinction between the consensual
and non-consensual acts between adults. Consensual sex between adults in
private does not cause any harm to anybody. Thus it is evident that the
disparate grouping in Section 377 IPC does not take into account relevant
factors such as consent, age and the nature of the act or the absence of
harm caused to anybody. Public animus and disgust towards a particular
social group or vulnerable minority is not a valid ground for classification
under Article 14.
INFRINGEMENT OF ARTICLE 15 WHETHER 'SEXUAL

ORIENTATION' IS A GROUND ANALOGOUS TO 'SEX': Article 15
is an instance and particular application of the right of equality which is
generally stated in Article 14. Article 14 is genus while Article 15 along
with Article 16 are species although all of them occupy same field and the
doctrine of equality embodied in these Articles has many facets. Article
15 prohibits discrimination on several enumerated grounds, which include
'sex'. The argument of the petitioners was that 'sex' in Article 15(1) must be
read expansively to include a prohibition of discrimination on the ground
of sexual orientation as the prohibited ground of sex discrimination cannot
be read as applying to gender simpliciter. The Honble High Court held
that the sexual orientation is a ground analogous to sex and that
discrimination on the basis of sexual orientation is not permitted by Article
15. Further, Article 15(2) incorporates the notion of horizontal application
of rights. In other words, it even prohibits discrimination of one citizen by
another in matters of access to public spaces. According to Honble Court,
discrimination on the ground of sexual orientation is impermissible even
on the horizontal application of the right enshrined under Article 15.
TEST OF REASONABLENESS: The Honble High Court held that the
interference prescribed by the State for pursuing the ends of protection
should be proportionate to the legitimate aims. The standard for judging
the proportionality should be a standard capable of being called reasonable
in a modern democratic society. If a law discriminates on any of the
prohibited grounds, it needs to be tested not merely against
reasonableness under Article 14 but be subject to strict scrutiny. The
impugned provision in Section 377 IPC criminalizes the acts of sexual
minorities particularly men who have sex with men and gay men. It
disproportionately impacts them solely on the basis of their sexual
orientation. The provision runs counter to the constitutional values and the
notion of human dignity which is considered to be the cornerstone of our
Constitution. Section 377 IPC in its application to sexual acts of
consenting adults in privacy discriminates a section of people solely on the
ground of their sexual orientation which is analogous to prohibited ground
of sex. A provision of law branding one section of people as criminal based
wholly on the States moral disapproval of that class goes counter to the
equality guaranteed under Articles 14 and 15 under any standard of review.
SCOPE OF THE COURT'S POWER TO DECLARE A STATUTORY

PROVISION INVALID: The Honble High Court also dealt with the
subject of Courts power to declare statutory provision invalid especially
since Union of India filed written submissions in which it claimed that the
courts have only to interpret the law as it is and have no power to declare
the law invalid. According to ASG (Additional Solicitor General),
therefore, if Honble Court were to agree with the petitioner, they could
only make recommendation to Parliament and it is for Parliament to amend
the law. However, the Honble court did not agree to the views of ASG and
observed that the submission of learned ASG reflects rather poorly on his
understanding of the constitutional scheme. It held that it is a fundamental
principle of our constitutional scheme that every organ of the State, every
authority under the Constitution derives its power or authority under the
Constitution and has to act within the limits of powers. The judiciary is
constituted as the ultimate interpreter of the Constitution and to it is
assigned the delicate task of determining what is the extent and scope of
the power conferred on each branch of government, what are the limits on
the exercise of such power under the Constitution and whether any action
of any branch transgresses such limits. The role of the judiciary is to
protect the fundamental rights. A modern democracy while based on the
principle of majority rule implicitly recognizes the need to protect the
fundamental rights of those who may dissent or deviate from the
majoritarian view. It is the job of the judiciary to balance the principles
ensuring that the government on the basis of number does not override
fundamental rights. After the enunciation of the basic structure doctrine,
full judicial review is an integral part of the constitutional scheme.
DOCTRINE OF SEVERABILITY: The prayer of the petitioners was to

declare Section 377 IPC as unconstitutional not completely but to the
extent the said provision affects private sexual acts between consenting
adults in private. The relief has been sought in this manner to ensure the
continuance of applicability of Section 377 IPC to cases involving non-
consensual sex. Based on the doctrine of Severability the honble High
Court declared that S-377 IPC, insofar it criminalizes consensual sexual
acts of adults in private, is violative of Articles 21, 14 and 15 of the
Constitution. The Honble Court further held that the provisions of Section
377 IPC will continue to govern non-consensual penile non-vaginal sex
and penile non-vaginal sex involving minors. By 'adult' the Honble Court
meant everyone who is 18 years of age and above.
CONCLUSION The notion of equality in the Indian Constitution flows

from the Objective Resolution moved by Pandit Jawaharlal Nehru on
December 13, 1946. Nehru, in his speech, moving this Resolution wished
that the House should consider the Resolution not in a spirit of narrow
legal wording, but rather look at the spirit behind that Resolution. He said,
Words are magic things often enough, but even the magic of words
sometimes cannot convey the magic of the human spirit and of a Nations
passion.. (The Resolution) seeks very feebly to tell the world of what
we have thought or dreamt of so long, and what we now hope to achieve in
the near future. [Constituent Assembly Debates: Lok Sabha Secretariat,
New Delhi: 1999, Vol. I, pages 57-65]. If there is one constitutional tenet
that can be said to be underlying theme of the Indian Constitution, it is that
of 'inclusiveness'. Indian Constitution reflects this value deeply ingrained
in Indian society, nurtured over several generations. The inclusiveness that
Indian society traditionally displayed, literally in every aspect of life, is
manifest in recognizing a role in society for everyone. Those perceived by
the majority as deviants' or 'different' are not on that score excluded or
ostracized. Where society can display inclusiveness and understanding,
such persons can be assured of a life of dignity and nondiscrimination.
This was the 'spirit behind the Resolution' of which Nehru spoke so
passionately. Indian Constitutional law does not permit the statutory
criminal law to be held captive by the popular misconceptions of who the
LGBTs are. It cannot be forgotten that discrimination is antithesis of
equality and that it is the recognition of equality which will foster the
dignity of every individual. We are a democratic country where we agree
to disagree. This right of others to disagree requires to be protected for
sustenance of democracy. After all, we all Indians want Qasab (seen killing
our countrymen on video live), Accused of Mumbai attack, to be hanged
but we still provide him with a lawyer and hold trial for the same. Why do
we do that? Because it is the fundamental right to have a Lawyer and
defend our case. No one can be punished without a trial. It is the rule of
law that has to prevail. If, that is the case then why can not we allow adult
people to decide on their sexual orientation and preference? By saying this
I am not trying to justify or the Honble Court tried to justify
Homosexuality, but what the court held was that because we are a
democratic society and there is enough scope for disagreement within the
society and thus we might not agree with each other words and deeds but
we certainly protect the right of others to disagree and do things which we
do not like as long as it is not unlawful legally. We are a multi cultural and
multi ethical country where differences in acts and deeds are bound to be
there but that does not make the words and deeds of minority unlawful
simply because it does not toe the line of majority or it is in opposite to the
views of the majority.
LAWS ON CHILD SEXUAL ABUSE IN INDIA
According to The Convention on the Rights of the Child, Article 1

defines the child as every human being below the age of 18 years
unless under the law applicable to the child, majority is attained earlier.
In the Indian legal system, the child has been defined differently in
the various laws pertaining to children.
The Indian Penal Code defines the child as being 12 years of age,
whereas the Indian Traffic Prevention Act, 1956 defines a minor as a
person who has completed the age of 16 years but not 18 years. Section
376 of IPC, which punishes the perpetrators of the crime of rape, defines
the age of consent to be below 16 years of age, whereas Section 82 & 83
of the IPC states that nothing is an offence done by a child under 7 years,
and further under 12 years, till he has attained sufficient maturity of
understanding the nature of the Act and the consequences of his conduct
on that occasion.
There are very few sections under the Indian Penal Code that deal
with child sexual abuse. Some terrible home truths are:
The laws for women are extended to include children.
The major weakness of these laws is that only penile penetration is
considered a grave sexual offence. The crime is considered lesser when it
is oral, or through penetration with an object.
Although section 377, dealing with unnatural offences, prescribes
seven to ten years of imprisonment, such cases can be tried in a
magistrates court, which can impose maximum punishment of three
years.
If the abuse is repeated several times it affects children more
severely, however as yet there is no law for repeated offences against the
one child.
How do we apply section 354, on outraging the modesty of woman,

with respect to children?
How do we define modesty?
The gravity of the offence under section 509, dealing with obscene
gestures, is less. Yet even in such cases, the childs psyche may be
affected as severely as in a rape.
There also exists a differential definition for boys and girls. This is
clearly seen in the Juvenile Justice Act, which defines a male minor as
being below 16 years and a female minor as being below 18 years of age.
In the Indian context the age of an individual in order to be
determined as a child is NOT uniformly defined. The consequence of
this is that it offers various gaps in the legal procedure which is used by
the guilty to escape punishment.
In cases of rape the burden of proof is on the victim of rape,
however if the victim is a minor, the question of giving consent does not
arise, as consent of a minor is not concerned as consent in the eyes of the
law. In cases of CSA, at present the law that is referred to is section 376
of the IPC, where the age of consent is above 16 years.
Furthermore, the definition of trafficking goes beyond trafficking for
commercial sex. The proposed document has specific sections dealing
with various offences against children, including sale/transfer, sexual
assault, sexual/physical/emotional abuse, commercial sexual
exploitation, child pornography, grooming for sexual purpose, incest,
corporal punishment, bullying and economic exploitation. The document
makes it clear that provisions in this law will be in addition to other
legislation within the IPC and the Juvenile Justice Act because these
laws do not separately cover persons who commit crimes against
children and some other categories of children under various
circumstances of abuse, exploitation and neglect.
Child rights activists are calling for the draft under consideration to
be made into a law so that the suffering children have some hope. As the
first paragraph of the document states, "although India has the second
largest child population in the world, there is no separate legislation to
deal with offences against children". It is high time it was enacted75.
==========================
Chapter-VII
OFFENCES AGAINST PROPERTY
75
URL: http://www.arpan.org.in/csa.html#anchor8csa
Wrongs can be categories under the head of Private wrongs and
Public wrongs. Private wrongs are committed by the infringement of
private rights i.e. rights in rem. In such instances the wrong is committed
against the individual and he is well competent to give consent to such
wrong. Proprietary rights are alienable in nature and can be waived by
an individual.
The Indian Penal Code in chapter XVII deals with the offences
against property. These offences have been enacted by the state in order to
protect, preserve and conserve persons private rights in property against
their violations76.
THEFT: According to section 378 of IPC

Whoever is intending to take dishonestly any [moveable property] 77 out of
the possession of any person without that person's consent moves that
property in order to such taking is said to commit theft.
Explanation-1. -A thing so long as it is attached to the earth, not being
movable property, is not the subject of theft; but it becomes capable of
being the subject of theft as soon as it is severed from the earth.
Explanation-2. -A moving effected by the same act which affects the
severance may be a theft.
Explanation3. -A person is said to cause a thing to move by removing
an obstacle which prevented it from moving or by separating it from any
other thing, as well as by actually moving it.
76
Gour, H.S, The Penal Code of India, 10th edition, vol. III pp.2965.
77
I.P.C; S.22 defines movable property in these term: it includes corporeal property of every description,
except land and things attached to the earth or permanently fastened to anything which is attached to the
earth
Explanation4. -A person, who by any means causes an animal to move,
is said to move that animal, and to move everything which, in
consequence of the motion so caused, is moved by that animal.
Explanation 5. -The consent mentioned in the definition may be
expressed or implied, and may be given either by the person in possession,
or by any person having for the purpose authority either express or
implied.
In order to constitute theft five ingredients are essential:-
(1) Dishonest intention to take property;
(2) The property must be moveable property;
(3) It should be taken out of the possession of another person;
(4) It should be taken without the consent of that person; and
(5) There must be some moving of the property.
Out of five factors given above; we will concern only 4th factor of
theft i.e. property should be taken without the consent of that person in
possession of it.
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.
A asks charity from Z's wife. She gives A money, food and clothes,
which A knows to belong to Z her husband. Here it is probable that A may
conceive that Z's wife is authorized to give away alms. If this was A's
impression, A has not committed theft.
Section 90 of the Indian Penal Code defines consent .. A consent
is not such a consent as it 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
In Maungaba vs. Emperor, where a licensee cuts down trees in
Government forest which was not covered by his license and the person
authorized to give consent to remove them out of the possession of the
Government gives it by issuing removal pass and the bill of title to timber
under the misconception that the timber to be removed was timber covered
by the license, the consent is one given under a misconception of fact and
no consent for purpose of section 378 and the removal of timber in such
circumstances amounts to theft.
In Ranson H. J. vs. Triloki Nath78 , if a person takes a lorry on

hire-purchase system from a company which under the agreement has
reserved the right of seizing it in the event of default in payments of
installment and default is made, then the company is not entitled to retake
78
(1942) 17 Luck 663.
its possession by force or by removing it from the hands of the purchasers
servants who have no authority, express or implied, to give any consent, if
the company or its agents do so they are guilty of theft. The question
whether ownership had or had not possessed to the purchaser is wholly
immaterial as section 378 deals with possession and not ownership.
In Dobson vs. General Accident fire and Life Assurance Corp 79.
The fact of the case is that the plaintiff was insured with the defendants
against loss by theft. The plaintiff advertised a watch and a ring for sale
and received a telephone call from someone who expressed interest. He
called agreed to pay the asked price and made payment by a building
society cheque and took the delivery of the items. The cheque was
dishonoured. For the article so lost, a claim was presented to the insurer
under the theft policy. He refused to pay saying that the case involved
delivery with consent and not theft. The court concluded that there was not
such a consent as would take out a removing from the concept of theft
and, therefore, the loss was a loss by theft.
In India there is no presumption of law that husband and wife

constitute one person for the purpose of criminal law, if the wife removes
her husbands property from his house with dishonest intention, she is
guilty of theft80. A Hindu woman who removes from the possession of her
husband and without his consent, her stridhan (womans property) cannot
be convicted of theft because this species of property belong to her
79
(1989) 3 ALL ER 925
80
Butchi, (1893) 17 Mad 401.
absolutely81. So also a husband can be convicted if he steals his steals his
wifes stridhan.
(B) Extortion: The offence of extortion is defined in section 383 of IPC.

It is defined as:
Whoever intentionally puts any person in fear of any injury to that person,
or to any other, and thereby dishonestly induces the person so put in fear
to deliver to any property or valuable security, or anything signed or
sealed which may be converted into a valuable security, commits
"extortion". The following are the essential of extortion:
(1) intentionally putting a person in fear of injury to himself or to

another
(2) Dishonestly inducing the person so put in fear to deliver to any
person, any property or valuable security.
Extortion is distinguished from theft by the obvious circumstances that the

consent is obtained by putting the person in possession of property
fear of injury to him or to any other. The offence is carried out by
overpowering the will of the owner82. It has to be shown that the person
was induced to part with the property by putting him in fear of injury 83. In
theft the offenders intention is always to take without that persons
consent.
The fear must be of such a nature and extent as to unsettle the mind
of the person on whom it operates, and takes away from his acts that
81
Natga Kalyan, (1871) 8 BHC (Cr.c) 11
82
Meajan (1865) & WR (CR.) S.
83
M. Indersana Kaur vs. Sia Ram Pandey, 1970 Cr.L.J 647 (pat.)
element of free, voluntary action which alone constitutes consent. A
threatens Z that he will keep Z's child in wrongful confinement, unless Z
will sign and deliver to A promissory note binding Z to pay certain monies
to A. Z signs and delivers the note. A has committed extortion.
(C) Robbery: The offence of robbery is defined in Section 390 of the

code. It is defined as: In all robbery there is either theft or extortion.
When theft is robbery: -Theft is "robbery" if, in order to the committing
of the theft, or in committing the theft, or in carving away or attempting to
carry away property obtained by the theft, the offender, for that end,
voluntarily cause or attempts to cause to any person death or hurt or
wrongful restraint, or fear of instant death or of instant hurt, or of instant
wrongful restraint.
When extortion is robbery: -Extortion is "robbery" if the offender, at the
time of committing the extortion, is in the presence of the person put in
fear, and commits the extortion by putting that person in fear of instant
death, of instant hurt, or of instant wrongful restraint to that person or to
some other person, and, by so putting in fear, induces the person so put in
fear then and there to deliver up the thing extorted.
Explanation -The offender is said to be present if he is sufficiently near to
put the other person in fear of instant death, of instant hurt, or of instant
wrongful restraint.
Robbery is a special and aggravated form of either theft or extortion.

Robbery means a felonious taking from the person of another or in his
presence against his will, by violence or putting him in fear. In both cases
when theft and extortion becomes robbery, the consent of the owner has
been obtained wrongfully. The element of fear also exists in both. In both
there is delivery of property by the victim.
The consent in case of extortion is no consent in the eye of law.

According to Section 90, consent given under fear of injury is no consent.
The consent is vitiated and in extortion, the accused cannot take the
defence that the victim voluntarily delivered the property to the accused.
To be effective the owners consent must be full and free. It may be

that the owner has expressed his consent but only under the compulsion of
threats made out by a wrongdoer to harm him if he does not allow the
goods to be taken. The courts have always refused to regard a consent so
enforced as a real consent.
(D) Criminal misappropriation of property
The offence of criminal misappropriation of property is defined in sec. 403

of the Code:-
Whoever dishonestly misappropriates or converts to his own use any
movable property, shall be punished with imprisonment of either
description for a term which may extend to two years, or with fine, or with
both.
The offence of criminal misappropriation takes place where the

initial possession is innocent, but the retention thereof becomes
wrongful and fraudulent, --- by a subsequent change of intention, or
from the knowledge of some new fact not previously known to the party.
There are two explanations to sec. 403:
Explanation.1- A dishonest misappropriation for a time only is a

misappropriation with the meaning of this section.
Explanation2. - A person who finds property not in the possession of any

other person, and takes such property for the purpose of protecting if for,
or of restoring it to, the owner does not take or misappropriate it
dishonestly, and is not guilty of an offence; but he is guilty of the offence
above defined, if the appropriates it to his own use, when the knows or has
the means of discovering the owner, or before he has used reasonable
means to discover and give notice to the owner and has kept the property a
reasonable time to enable the owner to claim it.
What are reasonable means or what is a reasonable time in such a

case, is a question of fact. It is not necessary that the finder should know
who the owner of the property is, or that any particular person is the owner
of it; it is at the time of appropriating it, he does not believe it to be his
own property, or in good faith believe that the real owner cannot found.
In such cases the property might has been taken in possession with
the consent of the owner but such act into a criminal act as soon as the
offender misappropriate the same with dishonest intention. So, consent of
the owner cant affect liability of the offender.
(E) Cheating:
The offence of cheating is defined in section 415 of Code. It is defined
as:-
Whoever, by deceiving any person, fraudulently or dishonestly induces the
person so deceived to deliver any property to any person, or to consent
that any person shall retain any property, or intentionally induces the
person so deceived to do or omit to do anything which he would not do
omit if he were not so deceived, and which act or omission causes or is
likely to cause damage or harm to that person in body, mind, reputation or
property, is said to "cheat".
Explanation: A dishonest concealment of facts is deception within the

meaning of this section.
The following are the essentials of the cheating:-
(1) Deception of any person
(2) (a) Fraudulently or dishonestly inducing that person
(i) to deliver any property to any person; or
(ii) to consent that any person shall retain any property ; or
(b) Intentionally inducing a person to do or omit to do anything, which

he would not do or omit if he would not have been so deceived and such
act or omission causes or is likely to cause damage or harm to that person
in body, mind, reputation or property.
The offence of cheating is different from theft. In theft the
property is taken without the consent of the person having possession of it.
In cheating the consent of the person is obtained by deception and such
consent has no value in eyes of law.
In the offence of cheating there must be deception, which may be

by words or implied by conduct and directly or indirectly depending upon
the facts and circumstances of each case. 84
A person is deceived when he is induced to believe what is false

as true. If a person makes a representation which he honestly believes to
be true, there can be no question of cheating, but if he knew that the
representation is false and is made with a view that the other person
should act upon it, then that will amount to cheating. 85According to section
90 of Code, consent given under misconception of fact is not a good and
valid consent provided the person doing the act knows or has reason to
believe that the consent given in consequence of such misconception. An
honest misconception of fact by both the parties does not invalidate the
consent.
In Hari Majhi vs. State86, the accused promised marriage to the

girl and to her parents and thereafter maintained sexual intimacy with her
for over a year, confessed to the village panchayat of that fact and
pregnancy, but went out. It required proof that at the time of the promise
he had the fraudulent intention of not performing. Such a proof was not
84
Khoda Baksh, H.R 32 Cal 941
85
Moti Lal Chakravorty, AIR 1949 Cal 586: 51 Cr.L.J. 115.
86
(1990) Cr.L.J. 650 (cal)
there. The court cited its own earlier decision in Jayanti Rana Panda vs.
State87 , where it was observed that if a full grown girl consents to act of
sexual intercourse on a promise of marriage and continues to indulge in
such activity until she becomes pregnant, it is an act of promiscuity on her
part and not an act induced by misconception of fact. Section 90 of the
code cannot be called in aid in such a case to pardon the act of the girl and
fasten criminal liability on the over unless the court can be assured that
from the very inception the accused never really intended to marry her.
======================
Chapter-VIII
RELEVANCY OF CONSENT IN SOCIO-
ECONOMIC OFFENCES
Offences may be divided into two classes: (a) Traditional offence,

e.g. theft, robbery, dacoity and murder etc. and (b) Socio-economic
87
(1983) 2 Cal HN 290: 1984 Cr.L.J 1535
offences. Socio-economic offences are new from of criminality, in which
upper and middle class people are involved and are committed by them in
the course of their business. Sutherland has named these crimes as White
Collar Crime, while others have described it with different names i.e.
Public welfare offences, Regulatory offence, and crimes of strict
liability.
Socio-economic offences are defined as those crimes which either
affect the health and material welfare of the community as a whole or
countrys economy and by and large are committed not by low class
people but invariably the course of their occupation i.e. trade ,profession,
commerce or business88. The following are chief characteristics of socio
economics offences:
1. The socio economic offences are considered graver wrong than
traditional offences because they affect not only the health and material
welfare of the individual but also the economic structure and social fabric
of a nation.
2. Unlike traditional offences, socio-economic offences are committed by
middle and upper class people of the society in the course of their trade
business or profession.
3. In traditional offences the motive behind the commission of such
offences are hate or lust, while in socio-economic offences the motive is
greed for money.
88
Mahesh Chandra; Socio Economic Crime, p 72
4. Socio-economic offences are committed by way of fraud
misrepresentation etc. rather than force, and the act is deliberate and
willful. Thus, socio-economic offences are not committed in emotions.
5. Traditional offences are the outcome of guilty or criminal mind while
socio economic offences are the product of a corrupt mind.
6. In reference to a common man, socio economic offences do not carry
any stigma with them89.
Sutherland90 has branded the following acts as White Collar

Crime- promulgating false or misleading advertisement, illegal
exploitation of employees, mislabeling of goods, violation of weights and
measures , conspiring to fix prices, selling adulterated foodstuff, evading
corporate taxes , misrepresentation in financial statements of corporations,
manipulation in stock exchange, bribery, embezzlement and
misapplication of funds, illegal sales of alcohol and narcotic, infringement
of patents, trade marks and copyrights etc. The list is not exhaustive but
exemplary.
Section 272:- Adulteration of food or drink intended for sale
Whoever adulterates any article of food or drink, so as to make such

article noxious as food or drink, intending to sell such article as food or
drink, or knowing it to be likely that the same will be sold as food or
drink, shall be punished with imprisonment of either description for a term
89
S.N Mishra, Indian Penal Code, 11th edition p. 28
90
White Collar Criminality; American Sociological Review,1940 vol. 5 pp. 1-12
which may extend to six months, or with fine which may extend to one
thousand rupees, or with both.
Socio-Economic offences & Mens Rea:-
In cases of traditional offences, generally speaking, liability is not absolute

and is rather related to the intention of wrong doer. However, with respect
to socio-economic offences, the tendency of the legislature is to curtail the
requirement of mens rea for criminal liability. The harm done by these
offences are greater than that of traditional crimes. They affect the
morality, health and welfare of the people as a whole and have a tendency
to undermine the economic fabric. Therefore, the policy of the legislature
in such offences is not to be lenient in the matter of their prevention,
control and punishment. The policy can be implemented only if the penal
liability in such cases is treated as strict i.e. without reference to mens rea.
Therefore, it is necessary to formally exclude the requirement of proving
mens rea for the prosecution & prove of actus reus is sufficient to held the
accused guilty.
EFFECT OF CONSENT IN SOCIO-ECONOMIC OFFENCES:-
As we already discussed that, the consent plays an important role in

criminal liability. It may altogether end such liability or may diminish
punishment for such criminal wrongs. In socio-economic offences, the
law treats the offender under the rule of strict liability i.e. no mens-rea or
guilty intention is required to be proved before holding the offender
guilty. So consent, which either eliminate or somehow doubted the basic
element of crime i.e. mens-rea, plays a very little role in socio-
economic offences as the liability for such offences is strict one.
Secondly, consent shall be free from duress, coercion, misrepresentation,

fraud or mistake. A consent taken by employing any of such unfair
means is not a valid/free one and has no immunizing impact at all to the
liability of offenders. In most of socio-economic offences, the offenders
breach the trust of or, commit the fraud on, the general public by
misrepresenting the facts or data. Thus, even the general public
consented to such white collar crimes but such consent has been taken by
employing fraud or misrepresentation on them & thus not a immunizing
factor to criminal liability. For example, if a trader sale misbranded
goods or adulterated foods and public consumes that then in this case
they consume it under the misconception of fact that it being a branded
good or hygienic food.
Lastly, in such offences the victim is not exclusively the person who
suffers harm; in fact consequences of such criminal act go beyond the
individual victim and have devastating effect on social & economic fiber
of society. This kind of situation desired intervention from state, which is
under obligation to protect social, moral & economic fiber of a society.
In more simple words, the problem of law & order comes as a
justification for state intervention in such criminal conduct as state
becomes a victim party in such offences. Thus, individual victim alone in
such situation is not competent to consent & condone the criminal
conduct of offender. For example if an accused is engaged in
counterfeiting the national currency & was got caught by an individual
while using such duplicate currency notes; the said individual
complainant is not competent to consent & condone such criminal act as
the state is the ultimate victim in such cases.
So, in socio economic offences, the liability of accused is a strict

one. The prosecution is required to prove only the execution of criminal
act & need to prove the criminal mind behind such act. Consent plays a
very nominal role in such liability as the gravity of such offences is too
high to condone them.
======================
CHAPTER- IX
COMPOUNDING OF OFFENCES & WITHDRAWAL
FROM PROSECUTION
In this chapter we will discuss relevancy of consent of victim given
after the commission of offence and effect of compromise between the
accused and victim on liability under different offences. Consent has
varying effect on Penal liability at two stages; firstly, in the commission of
the crime, secondly, after the commission of crime. Before the
commission of Actus Reus it is the substantive law that regulates the
liability but after the commission it is regulated by procedural law.
In Penal Jurisprudence, consensual harm ordinarily does not require

legal intervention, when any act is done with the consent of the victim, it
losses moral sanctity which is the driving force for legal intervention.
However, many questions can be raised in this context, depending upon
the nature of offence, age of victim and other related circumstances.
Firstly, who is a victim; victim is not exclusively the person who

suffers harm, in fact consequences of criminal act many a times go beyond
the individual victim and nave devastating effects on social fiber of the
society. This kind of situation desires intervention from the State, Who is
under obligation to protect social and moral fiber of a given society. Thus
State becomes a victim party of any criminal activity which causes
consequences, going beyond individual victim. In more simple words, the
problem of law and order comes as a justification for State intervention in
such criminal conduct. In the interest of justice State exercises power to
prevent the individual victim from putting the justice on sale.
A crime is essentially a wrong done to the society; therefore a
compromise between the accused (wrongdoer) and the individual victim
should not be enough to absolve the accused from criminal
responsibility91. However, where the offences are essentially of a private
nature and relatively not quite serious, the Criminal Procedure Code
considers it expedient to recognize some of them as compoundable
offences and some other as compoundable only with the permission of the
court. Table given in S. 320(1) & S. 320(2) prescribes as under:
320. COMPOUNDING OF OFFENCES.
(1) The offences punishable under the sections of the Indian Penal Code
(45 of 1860) specified in the first two columns of the Table next following
may be compounded by the persons mentioned in the third column of that
Table.
Offence Section of the Person by whom offence may

Indian Penal be compounded.
Code
Applicable
1 2 3
Uttering wards, etc., with deliberate 298 The person whose religious feelings
intent to wound the religious feeling are intended to be wounded
91
Sulochanna vs. State Registrar of Chits. 1978 Cr.L.j. 160 MAD
of any person
Voluntarily Causing Hurt. 323 334

The person to whom the hurt is
caused. .
Voluntarily causing hurt on provocation 334 Ditto
Voluntarily causing grievous hurt on grave and 335 Ditto
provocation
Wrongfully restraining or confining any 341, 342 The person restrained or confined.
person.
Wrongfully confining a person for three 343 The person confined.
Days or more
Wrongfully confining a person for ten 344 Ditto
Days or more
Wrongfully confining a person in secret 346 Ditto
Assault or use of Criminal force 352, 355, 358 The person assaulted or
whom criminal force is used.
Theft 379 The owner of the property stolen
Dishonest misappropriation of property 403 The owner of the property
misappropriated
Criminal breach of trust by a carrier, 407 Ditto
Wharfinger etc.
Dishonestly receiving stolen property 411 The owner of the property stolen
Knowing it to be stolen
Assisting in the concealment or disposal 414 Ditto
of stolen property knowing it to be stolen
Cheating 417 The person cheated
Cheating by personation 419 Ditto
Fraudulent removal or concealment of 421 The creditors who are affected
Property etc. to prevent distribution thereby
among creditors
Fraudulently preventing from being made 422 Ditto
available for his creditors a debt or demand
due to the offender
Fraudulent execution of deed of transfer 423 The person affected thereby
containing false statement of
consideration
Fraudulent removal or concealment of 424 Ditto
Property
Mischief, when the only loss or damage 426, 427 The Person to whom loss or damage
caused is loss or damage to a private is caused.
person.
Criminal trespass. 447 The Person in possession of property tresp

upon.
House trespass 448 Ditto
House trespass to commit an offence 451 The person in possession of the
(other than theft) punishable with House trespassed upon
Imprisonment
Using a false trade or property mark 482 The person to whom loss is caused
by such use
Counterfeiting a trade or property mark 483 Ditto
Used by another
Knowingly selling, or exposing or 486 Ditto
Possessing for sale or for manufacturing
purpose, goods marked with a counterfeit
proprerty mark
Criminal breach of contract of service 491 The person with whom the offender
has contracted
Adultery. 497 The husband of the woman
Enticing or taking away or detaining with 498 Ditto.
criminal intent a marriedwoman
[Defamation, except such case as are 500 The person defamed.
specified against section 500 of the Indian
Penal Code in column 1 of the table under
sub section (2).]
Printing or engraving matter, knowing it to 501 Ditto.
be defamatory.
Sale of printed or engraved substance 502 Ditto.
containing defamatory matter, knowing it
to contain such matter
Insult intended to provoke a breach of the 504 The person insulted.
peace.
Criminal intimidation except when the 506 The person intimidated
offence is punishable with imprisonment
for seven years.
Act caused by making a person believe 508 The person against whom the o
that he will be an object of divine was committed.
displeasure.
(2) The offences punishable under the section of the Indian Penal Code (45 of 1860) specified
in the first two columns of the table next following may, with the permission of the court before
which any prosecution for such offence is pending, be compounded by the persons mentioned
in the third column of that table.
TABLE
Offence Section of the Person by whom offence may be

Indian Penal Code compounded
applicable
1 2 3
Causing miscarriage 312 The woman to whom miscarriage
is caused
Voluntarily causing grievous hurt. 325 The person to who hurt is
caused.
Causing hurt by doing an act so rashly 337 Ditto.
and negligently as to endanger human
life or the personal safety of others.
Causing grievous hurt by doing an act 338 Ditto.
so rashly and negligently as to endanger
human life or the personal safety of
others.
Assault or criminal force in attempting 357 The person assaulted or to
wrongfully to confine a person. whom the force was used.
Theft by clerk or servant of property in 381 The owner of the property
possession of master, where the value of Stolen
the property stolen does not exceed two
hundred and fifty rupees.
Criminal breach of trust, where the value 406 The owner of the property in
of the property does not exceed two respect of which the breach of
hundred and fifty rupees. trust has been committed.
Criminal breach of trust by a clerk or 408 Ditto.
servant, where the value of the property
does not exceed two hundred and fifty
rupees.
Cheating a person whose interest the 418 Ditto.

offender was bound either by law or by
legal contract, to protect.
Cheating and dishonestly including 420 Ditto.

delivery of property or the making,
alteration or destruction of a valuable
security.
Marrying again during the lifetime of a 494 The husband or wife of the
husband or wife. person so marrying.
Defamation against the President or the 500 The person defamed.
Vice-President or the Governor of a State
or the Administrator of a Union territory
or a Minister in respect of his conduct in
the discharge of his public functions
when instituted upon a complaint made
by the public prosecutor.
Uttering wards or sounds or making 509 The woman whom it was
gestures or exhibiting any object intended to insult or whose
intending to insult the modesty of a privacy was intruded upon.
woman or intruding upon the privacy
of a woman.
The following are additional rules in respect of the compounding of

offences:
(1) When any offence is compoundable under this section, the abetment
of such offence or an attempt to commit such offence (When such
attempt is itself an offence) may be compounded in like manner.[320(3)
(2) When the person who would otherwise be competent to compound

an offence under this section is under the age of eighteen years (minor) or
is an idiot or a lunatic, any person competent to contract on his behalf,
may, with the permission of the Court compound such offence.[320(4)
(a)]
(3) When the person who would otherwise be competent to compound an
offence under this section is dead, the legal representative, as defined in
the Code of Civil procedure, 1908 (5 of 1908) of such person may, with
the consent of the court compound such offence.[320(4)(b)]
(4) When the accused has been committed for trial or when he has
been convicted and an appeal is pending no composition for the offence
shall be allowed without the leave of the court to which he is
committed, or as the case may be, before which the appeal is to be
heard.
(5) A High Court or a Court of Session acting in the exercise of its
power of revision under section 401 may allow any person to compound
any offence which such person is competent to compound under this
section.
(6) No offence shall be compounded if the accused is, by reason of
previous conviction, liable either to enhanced punishment or to a
punishment of a different kind for such offence.
(7) The Composition of an offence under this section shall have the
effect of an acquittal of the accused with whom the offence has been
compounded. [320(8)]
No offence shall be compounded except as provided by section
320. A case may be compounded at any time before the sentence is
pronounced92. It is to be borne in mind while granting permission to
compound an offence [where such permission is necessary under section
92
Aslam Meah vs. Emperor, ILR (1917) 45 Cal 816
320(2)] the court should act judicially and should exercise sound and
reasonable discretion93. Once application of genuine and real compromise
is filed, composition is complete and effective, and will have the effect of
acquittal though no specific order of acquittal is passed on the petition by
the court.
So, consent of victim can neutralize the responsibility of
offender, in case he compromises with the offender. The policy of law
for allowing such compromises is two fold:
(1) There are some offences which are of the nature of private wrongs,
and law presumes such wrongs can be settled by the parties if they wish
so.
(2) To maintain the harmony in society, the policy of law is also to allow
the compromise between the parties provided that such compromise shall
not be at the cost of the society as no one has power to compromise in case
of an offence against society i.e. heinous offences or offences which raises
an alarm in the society.
Withdrawal from prosecution & The nature and scope of Section
321 of the Criminal Procedure Code:-
The section enables the Public Prosecutor or the Assistant Public
Prosecutor to withdraw from the prosecution of any person either
generally or in respect of any one or more of the offences for which he is
tried. For doing so, consent of Court is necessary. Permission for
withdrawal of the prosecution cannot be grated mechanically, or simply
because the State has no objection. Withdrawal must be for proper
93
V. K. Kumar vs. State of Maysore, AIR 1965 Mys 238
administration of justice and is not to be allowed mechanically, but only in
Public Interest. The proviso to the section lays down that consent of the
Central Government has to be obtained before a Public Prosecutor or
Assistant Public Prosecutor moves the court for withdrawal of the case,
whenever the offence falls within the categories mentioned in sub-clause
(i) to (iv) of the proviso. However, in a complaint case prosecuted by the
complainant, Public Prosecutor cannot apply for withdrawal under section
321 of Cr PC.
Section 321 gives a general executive discretion to the Public

Prosecutor to withdraw from the prosecution subject to the consent of the
Court, which may be determined on many possible grounds. The Public
Prosecutor though an executive officer is, in a larger sense, also an officer
of the Court and that he is bound to assist the Court with his fairly
considered view and the Court is entitled to have the benefit of the fair
exercise of his function. . The Public Prosecutor while applying for
withdrawing from prosecution must apply his mind; there must be an
independent application of mind.
It is important to note here that the section uses the phrase

withdrawal from Prosecution and not withdrawal of Prosecution, the
effect being that when prosecution instituted for one or more offences
against one or more persons, the Public Prosecutor or the Assistant Public
Prosecutor may at any time before the judgment may file an application to
withdraw from Prosecution, i.e. withdrawal of one or more offences
against one or all persons. If the phrase used was withdrawal of
Prosecution, that would have necessarily meant the closure of suit.
The Kerela High Court in its full bench decision has held that
though the power to withdraw is an executive function but it should be
exercised in the light of Public Prosecutors own judgment and not at
dictation of some other authority, however high. Further the Court held
that this power is not an absolute power, it can be exercised only with the
consent of the court.
In the Case of Sheo Nandan Paswan, v. State of Bihar and others,

the Court opined that Section 321 providing for withdrawal from
prosecution gives no indication as to the grounds on which the Public
Prosecutor may make the application, or the considerations on which the
Court is to grant its consent. The initiative is that of the Public Prosecutor
and what the Court has to do is only to give its consent and not to
determine any matter judicially. The judicial function implicit in the
exercise of the judicial discretion for granting the consent would normally
mean that the court has to satisfy itself that the executive function of the
Public Prosecutor has not been improperly exercised, or that it is not an
attempt to interfere with the normal course of justice for illegitimate
reasons or purposes. When an application under S. 321 is made, it is not
necessary for the Court to assess the evidence to discover whether the case
would end in conviction or acquittal. The section should not be construed
to mean that the Court has to give a detailed reasoned order when it gives
consent. All that is necessary to satisfy the section is to see that the Public
Prosecutor acts in good faith and that the Magistrate is satisfied that the
exercise of discretion by the Public Prosecutor is proper. This will be clear
on perusal of some other provisions in the Code such as Ss. 203, 227, 245,
257 and 258 which relate to the manner in which Courts have to exercise
their jurisdiction in pending cases when applications are made for their
withdrawal or when the Court finds that there is not ground to proceed
with the cases and Sec. 320 which is a kindred section. While Ss. 203,
227, 245, 257 and 255 require the Magistrate to record his reasons for the
order he passed S. 320 contemplates consent by the Court only in a
supervisory manner and not in an adjudicatory manner.
Similarly in Veerathaiah v Ramamswamy Iyyengar, it was held that

Section 321 of the Cr PC is the only section which refers to withdrawal of
a Warrant Case and it does not empower a private party to apply for
withdrawal as obviously the policy of the Code is to regard withdrawal of
all warrant cases as the concern of the State.
It is the duty of the Court also to see in furtherance of justice that the
permission is not sought on grounds extraneous to the interest of justice or
that offences which are offences against the State go unpunished merely
because the Government as a matter of general policy or expediency
unconnected with its duty to prosecute offenders under the law, directs the
public prosecutor to withdraw from the prosecution and the public
prosecutor merely does so at the behest.
Reasons for granting Permission\consent: Permission for
withdrawal from Prosecution is not maintainable when the reasons for
withdrawal were neither given by the Public Prosecutor nor by the Court.
Opposition by private parties: In respect of application for withdrawal
from prosecution by the Public Prosecutor opposition by private persons
cannot be discountenanced on grounds of locus standi. The offences of
corruption and criminal breach of trust, being offences against society, any
member of society who is interested in cleanliness of administration is
entitled to oppose application for withdrawal of prosecution.
In the case of Abdul Karim v State of Karnataka, which relates to

the famous Rajkumar Kidnapping case, in which Veerappan asked for the
release of forty-four of his associates in exchange of Rajkumar.
Government of Karnataka accepted some of the demands made by
Veerappan and at the same time took a decision of directing the Public
Prosecutor to withdraw from the case. The Public Prosecutor moved an
application for withdrawal from prosecution for offences under TADA, so
that the accused may be released on bail and it would result in security and
peace in the State. Trial Court permitted the withdrawal on these grounds.
Abdul Karim, father of BSF personnel, who was killed by Veerappan,
came in appeal before the Supreme Court. The Honble Supreme Court
opined that a serious discrepancy has occurred as the Public Prosecutor
was directed by the State Government, who without verifying himself
about real object, moved the application and THUS has abducted his
powers to the State Government and also that the Trial Court, despite so
many guidelines, erred in permitting the withdrawal.
====================
EPILOGUE
Consent has varying effect on Penal liability at two stages, firstly,

in the commission of the crime & then after the commission of crime.
Before the commission of Actus Reus it is the substantive law that
regulates the liability but after the commission it is regulated by
procedural law (section 320 & 321 of CR. P .C).
In Penal Jurisprudence, consensual harm ordinarily does not
require legal intervention, when any act is done with the consent of the
victim, it losses moral sanctity which is the driving force for legal
intervention. However, many questions can be raised in this context,
depending upon the nature of offence, age of victim and other related
circumstances. Firstly, who is a victim; victim is not exclusively the
person who suffers harm, infact consequences of criminal act many a
times go beyond the individual victim and nave devastating effects on
social fiber of the society. This kind of situation desires intervention from
the State, Who is under obligation to protect social and moral fiber of a
given society. Thus State becomes a victim party of any criminal activity
which causes consequences, going beyond individual victim. In more
simple words, the problem of law and order comes as a justification for
State intervention in such criminal conduct. In the interest of justice State
exercises power to prevent the individual victim from putting the justice
on sale.
But law allows the persons to consent to any harm which is private
in nature and does not raise any alarm in the society. Law provides
consent as a good defence to all offences against property and to all
offences which do not involving the causing of death or grievous hurt. A
man cant only consent to the causing by another of his own death, but he
cannot also consent to his eyes being blinded or his legs to be amputated
or other offences of the same kind which are included in the definition of
grievous hurt.94
A valid consent can have two effect on criminal responsibility i.e.
it may prove a complete defence against a criminal charge or it may
reduce the liability in certain cases. For instance, the fifth exception to
section 300 provides that culpable homicide is not murder when the
person whose death is caused being the age of eighteen years suffers death
or takes the risk of death with his own consent.
The policy behind condonation from criminal liability in cases of

consent is based upon the maxim volenti non fit injuria (he, who
propositions.
94
Sec. 320 IPC, Huda, S.S principle of law of crimes in British India(T.L.L 1902), p 326-327
Consent does not justify causing of death or grievous hurt. As to the
first, the restriction is absolute and unconditional, except that by statutory
his own consent. Section 314 furnishes another of the same kind. As to
the second effect of causing grievous hurt, the restriction is removed under
certain conditions.
Consent generally means; a concurrence of minds; actual

willingness that an act or an infringement of an interest shall occur.
Consent assumes a physical power to act and a reflective, determined, and
unencumbered exertion of these powers. It is an act unaffected by Fraud,
duress, or sometimes even mistake when these factors are not the reason
for the consent. So, consent shall be free from coercion, fraud &
misconception in order to be a valid and effective defence in a criminal
trial. The person shall have the capacity to consent to the harm to him i.e.
he shall be a person of 18 years of age and shall have understanding of the
nature & consequences of the consented act.
Consent is no defence in offences which are of public character and

on which public is involved or which are injurious to the society at large,
the offences of a public character are enumerated in chapter VI to XV of
the Penal code. Under section 91 acts which are offences independently of
any harm which they may cause will not be covered by consent given
under section 87, 88, 89. Instances of such acts are causing miscarriage,
public nuisance, offences against public safety, morals and like.
The concept of consent is eroding criminal liability in many

areas involving social morality. There is a demand of decriminalization of
many offences in view of the consensual nature of the offence & involving
the personal injury. Offences like prostitution, gambling, adultery offences
relating to gays and lesbians fall in this category. There are many so called
civilized and developed States where these kinds of activities have been
decriminalized. Though, as yet this approach has not made any serious
inroads in the Penal Jurisprudence of India. However, strong voices to that
effect can be heard even in different corners of Indian society. How long
can we stale this development is a big question mark?
Society is becoming more open and liberal in its interaction with

each other. Individual liberty and love for freedom are two strong
motivating reasons deriving the society towards a cultural setting which
was not considered appreciable in the immediate past. Comparatively
speaking our society is a conservative and traditional one. We must learn
from the experience of other States. Any kind of post progress towards
decriminalization of certain crimes on the basis of consensual activity can
prove disastrous for our social fiber.
BIBLIOGRAPHY
1. Ahmad Siddique: Criminology: Problems & Prespectives
2. A.N. Saha, Basus Individual Code, vol. 1 8th edition 1998
3. Ashok K. Jain: Criminal Law, Ascent Publication
4. Bhattachariya T. N, Indian Penal Code
5. Chaturvedi M. D, Bhartiya Dand Sanhita
6. Dr. K. N. C. Pillai: General Principles of Criminal Law
7. Declaration on the Rights of Mentally Retarded Persons, 1971 UN
General Assembly 26th Session, Resolution 2856
8. Gour, H.S: The Penal Code of India
9. Gaur, K.D., Criminal law cases and Materials, forward by
M. Hidayatullah,
10. Huda Syed Shanshul, The principals of the law of crimes in British
India, Tagore
11. Halsburys Laws of England, (Vol. 9)

12. Kenny Outlines of criminal law (8thEd.)
13. Law Lectures, 1992, Eastern Book Company, luck now.
Reprinted 1982
14. Locke: essay on civil government
15. Ratanlal & Dhirajlal: The Indian Penal Code
16. Ratanlal & Dhirajlal: The Law of Crimes
17. Nigam: Criminal Law of India
18. Russel on Crime
19. Smith & Horgan: Criminal Law
20. Srivastava O. P, Principles of Criminal Law
21. Stephen, General view of criminal law of England
22. P.J. Fitzgerald, Criminal Law and Punishment, Oxford at the
Clarendon press, 1962
23. Mahesh Chandra; Socio Economic Crime
24. Mishra S. N, Indian Penal Code
25. Mozley and Whitleys, law dictionary, Butterworth London,
10th ED. 1988 p. 98
26. Morris & Howard: Studies in Criminal Law

27. URL: http://www.arpan.org.in/csa.html#anchor8csa

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A Dissertation

Kurukshetra Neeraj Januha

This is certified that this dissertation title as

Modernization of Indian society and emerging influence of

Recently in a case before Delhi High Court, validity of Section

In some rape cases also sexual intercourse is committed on the

The consent of victim also plays its role after commission of

In this work an attempt to study the relevancy of consent in penal

The study needs a through perusal of Penal laws in India and

Law websites will be accessed to find out relevant respective

1. The Law Underpinning the Doctor - Patient Relationship

CONSENT: ITS MEANING:-

Consent generally means; a concurrence of minds; actual

CONSENT & NATURE OF RIGHTS:

CONSENT & LIABILITY:

CONSENT AS DEFENCE: PRINCIPLE EXPLAINED:-

The doctrine so far is simple and perfectly intelligible

The Drafts Commission of Indian Penal Code explained that, It is

General justifications, which apply to nearly all offences, may be

How do these circumstances furnish justifications? We shall see that

What more natural than to presume that there is in fact no evil, or

COMPARATIVE RELEVANCE IN FACET OF TIME

COMPARATIVE STUDY IN VARIOUS LEGAL SYSTEMS:

GERMAN CRIMINAL LAW

"Consent as 'negative element...German criminal law scholarship

(1) In General: The consent of the victim to conduct charged to

(2) Consent to Bodily Injury: When conduct is charged to constitute

(a) The bodily injury consented to or threatened by the

(3) Ineffective Consent. Unless otherwise provided by the Code or by the

(b) It is given by a person who by reason of youth, mental disease or

(c) It is given by a person whose improvident consent is sought to be

(d) It is induced by force, duress or deception of a kind sought to be

SECTION 123 Injuries by Consent.

No one commits an offence by inflicting on another any bodily injury

SECTION-125. No right to consent to death.

If any person inflicts death upon another person by his consent, he

SECTION 159: Maiming One Self or Another by Consent

Every one shall be guilty of an indictable offence, and shall be liable

A 'maim' is a bodily harm, whereby a man is deprived of any member

There are certain offences in which, the existence of consent of the

(1) Offences against human body==== Murder, abortion, kidnapping etc.

==== Sexual offences i.e. rape, sodomy

==== Suicide, euthanasia etc. (self-

(1) Offences against property===theft, extortion, robbery, cheating etc.

(3) Relevancy of consent after commission of offence i.e. compounding

of offences, withdrawal of prosecution & plea bargaining.

In some cases of serious and unprivileged harm-doing there is

PUNISHMENT: AIMS AND OBJECTS:-

Consent does not justify causing of death or grievous hurt. As to the

A person cannot consent to suffer death, or to run the risk of death,

A, a surgeon, knowing that a particular operation is likely to cause the

There is a need for distinction between cases in which a man causes

Secondly, Section 87, 88, 89 & 92 of the Code affords protection to

Section 89 of Indian Penal Code envisages:-

Section 89 is a corollary of section 88 with a difference that in case

Fourthly:-That this exception shall not extend to the abetment of any

Explanation-Mere pecuniary benefit is not benefit within the meaning

Section 92 extends protection to those people who cause harm to

Section 91 of Indian Penal Code envisages:-

As stated in the illustration appended to the section, causing

Thus a person will not be protected from criminal prosecution for

In the previous chapters, we have discussed the term Consent, its

There are two branches of culpable homicide i.e.