TOPIC: CONSENT AS A DEFENCE

SUBMITTED TO- SUBMITTED BY-

MR. MALAY PANDEY CHAITANYA
ASSISTANT PROF.(LAW) 170101047
DR. RMLNLU, LUCKNOW

Index Of Authorities

Introduction …………………………………………………….2
Consent as a Defence …………………………………………..4
Consent obtained from a child- not a ‘true consent’…………6
Consent obtained from a person having an unsound mind….8
Consent obtained under a misconception of fact……………10
Conclusion……………………………………………………..11
Bibliography…………..………………………………………11

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 INTRODUCTION

A person who commits an offence shall not be held necessarily liable and thus convicted for that
offence. The criminal law not only provides the definitions of various offences but also defences
which can be used by a person in order to prove that he was actually not guilty of committing that
offence. The definitions of defences make it clear that an act which would otherwise be a crime can
be justified by a person and the accused can be excused. The criminal law in India has codified
certain defences that condone the criminal liability. Such defences are principled on the premise that
even though a person committed an offence, he shall not be held liable for the same. The reason for
this is that while committing the crime, either the circumstances were such that the act of the person
was justified or the condition of the person accused of the crime was such that he could not enroot
the required mens rea. The defences are divided into two categories, those being justifiable and
excusable. As is rightly said by John Gardner “for committing a wrong, a person must be
responsible for doing a wrongful act without having a justification or excuse for it”1 .

The Indian Penal Code, 1860 has recognized such defences in chapter four of the code under the
heading of ‘General Exception’. These defences are covered under sections 76 to section 106 of the
code. This primary aim of writing this project is to highlight the defences available under sections
90 and 92 of the code. That is, consent and goodwill or benevolence as defences.

Consent is an act which is accompanied by a reason and proper deliberation to do a particular act.
Thus, it involves mind weighing, which is to balance the good and evil and then act. Consent shows
an active will present in the mind of the person committing the act, that is being complained of and,
and also the presence of knowledge as to what was being done or the nature of the act is essential
for consent.

Where consent deals with the knowledge as to whether the person is knowing about the
consequences of the act or not, the other section, that is section 92 deals with acts which are done a

1John Gardner, Offences and Defence: Selected Essays in Philosophy of Criminal Law(Oxford
University Press, 2007).
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good faith that they would be beneficial for the person for whom they are being done, with or
without the consent of the latter.

Sections 87 to 93 of the Indian Penal Code talk about consent being a general exception. Sections
91 and 87 put down consent as a defence , sections 88, 89, 92 and 93 lay down laws relating to the
protection for the harm caused, in good will, with or without obtaining the consent of the person
suffering from the harm, which is for his own benefit. Moreover, section 90 explains as to what is
not consent for the purposes of this code.

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 CONSENT AS A DEFENCE

Consent in criminal law is similar to the defence of consent as used in tort law, where the victim is
shown to have given consent to the defendant’s act. However, this defence can be used only when
the defendant’s action wasn’t strictly forbidden by the statute, which is the case with the strict
liability crimes or as generally called ‘consensual crimes’. Consent thus given may be oral or
written. In some cases, silence can also amount to giving consent.

Consent shows the presence of a will in the mind of a person to commit the act that has been done,
and the knowledge of the nature and result of the act that is being done is essential in consent for an
act. The main aim of section 90 is to provide that if the consent of a person may allow him to take
defence of the criminal charge pout against him, then, any such consent should not be vitiated by
factors of immaturity, fear or fraud.

We first have to see as to what actually defines consent. “consent means something that is done
deliberately and by free will. It is occurrence of wills”2 . It involves deliberate use of intelligence
having due knowledge of the moral and physical effect of the act. A free consent cannot be used as a
defence, it was rightly stated in the case of Dilip Kumar v. State of Bihar that “consent obtained by
intimidation, force, mediated imposition, circumvention, surprise or undue influence, therefore is a
mere delusion and not a deliberate and free act of mind”3 .

There lies a distinction between consent and submission. Every consent may follow submission but
every submission does not necessarily have to involve consent. A submission made by a person who
is unaware of the nature of the act done shall not be construed as consent. “A mere act of helpless
resignation in the face of inevitable compulsion, acquiescence, non-resistance of passive giving in,
when volitional faculty is either clouded by fear or vitiated by duress, cannot be deemed to be
consent”4. If a submission lacks knowledge, then that would not amount to a valid consent.

Section 90 of the Indian Penal Code, 1860, talks about consent being used as a defence. Thus, we
can see that the following might be the instances where consent would not be supposed to be taken,
as, instead of defining as to what can qualify as consent, the code prescribes as to what does not

2 PSA Pillai, Criminal Law, 12th Edition Pg. 121.

3 Dilip Kumar v. State of Bihar, AIR 2005 SC 203.
4 Ratanlal & Dhirajlal, The Indian Penal Code, 31st Edition, Pg. 393.
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amount to consent. Thus, the circumstances in which the consent would not be construed to be ‘true
consent’ are:

1. If the consent is obtained from a person who is under a fear or has been injured;

2. If the consent is obtained from a person who is under a misconception of a fact;

▪ If the person from whom the consent is obtained is of unsound mind;

1. If the consent is obtained when the person is intoxicated;

2. By a person under 12 years of age.

Thus, we see consent that is obtained or is given under duress, from a child or by a person of
unsound mind or insane person is not consent. Also, a consent given under a misconception would
also not amount to a true consent. And also, a misrepresentation which amounts to the
misconception of facts would also not be a valid consent. However, if there is an honest
misconception on the side of both the parties then the consent would not necessarily stand invalid.
These are certain circumstances which shall now be discussed in detail.

The above circumstances shall now be discussed in detail as to when does a consent is not
considered to be a true consent


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 CONSENT OBTAINED FROM A CHILD- NOT A ‘TRUE CONSENT’

Section 82 of the Indian Penal Code state that a child under seven years of age is presumed to
be not guilty of committing the crime. This is because, below that age, an infant is presumed
to be doli incapax, which means that someone who is incapable of committing the crime.
Children below the age of discretion cannot be punished by any criminal prosecution. Thus, a
child under seven years of age enjoys absolute immunity from any criminal prosecution
whatsoever.
Section 83 of the code, enshrines that when the accused is a child below twelve years of age
but above seven, the incapability as to not to commit an offence only emanates when the child
is not having sufficient maturity to judge the nature and consequences of the act that he has
done, and such insufficiency or non-attainment of maturity would have to be specially
pleaded and proved in a court of law. Thus, as was rightly decided in the case of Kalka
Prasad v. State of UP5 where a girl aged 10 was sent to one month simple imprisonment as
she was convicted for the crime of stealing a silver button belonging to her master. It was seen
that under sections 82 and 83 of Indian Penal Code, that a child cannot be held guilty of
committing an offence, unless it is proved that the child was having sufficient maturity and
knew the nature and consequences that would follow the act. The fact that the girl had given
the button to her mother after she picked it up proves that she was not having any malafide
intention with regards to the commission of the act and was thus acquitted by the court.
The plain aim of the legislature is to refer to the exceptional immaturity of intellect that a
child has and that would have to be proved in order to escape a criminal liability. Thus, a
minor, above the age of 12 years can be said to have a criminal liability unless his case does
not fall under section 82 and 83 of Indian Penal Code.
In order to apply section 83 of the code, it must be necessarily proved that the child was not
aware of the nature and consequences of his conduct. However, if the child is above seven
years and below 12 years of age, and discloses an intelligent brain, then the defence of
immaturity cannot be taken into consideration and thus, he must be held liable as he very
much had the knowledge of the act and still intended them to happen. Thus, in the case

5 Kalka Prasad v. State of UP, AIR 1959 All 698.

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of Ulla Mahapatra6 where a child around eleven years of age picked up a knife and
threatened the deceased of cutting him into pieces and did actually cut him, can lead to only
one inference that he did actually intend and had knowledge of the result of the act that he had
committed.
Thus, we may conclude by saying that while an infant under seven years of age has absolute
protection and cannot be prosecuted at all, a child above seven years and below twelve years
of age, in order to have immunity via section 83 of the code shall have to prove that he or she
is below twelve years of age and not only this but the fact that he has not attained the maturity
of understanding the nature and consequences of the act will have to be specially pleaded and
proved.
In common law, infancy was not recognized as a defence to the criminal prosecution. After a
continuous refinement in the rules of the common law, it is now prevalent that, children below
seven years of age are declared to be having no criminal capacity.

6 Ulla Mahapatra v. The King, 1950 Cut 293.

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 CONSENT OBTAINED FROM A PERSON HAVING AN UNSOUND MIND

Section 85 of the Indian Penal Code, states that a person shall be vindicated from a criminal
liability for the commission of an act while he was in the state of intoxication, if he was
incapable to understand the nature and the wrongfulness of the act, while committing it,
because of the effect of intoxication. Provided that the intoxication under which he committed
the act was administered to him without his will and knowledge.
There lies a difference between the defence of insanity and the defence of intoxication which
leads to the production of a situation in which the person who has been intoxicated, his mind,
becomes weak and feeble to form a specific intention.
Section 85, being one of the provisions of chapter IV which deals with the general exceptions
to criminal liability for establishing the constituents of an offence, it is upon the accused to
prove that he was intoxicated without his consent which subsequently led to the loss of
equilibrium of his mind.
Thus, we see that any consent taken while a person is in the state of intoxication will not be
considered as a true consent because the person who has been intoxicated does not know the
nature and consequences of the act that he is committing or the act for which he is consenting.
However, the burden of proof lie on the accused, and this was rightly stated in the case
of Dasa Kandha v. State of Orissa that “the onus to bring under the protection is squarely
upon the accused who is to prove that the intoxication envisaged was such as would render
the accused incapable of forming the specific intent essential to constitute the crime”7 .
Intoxication rather than an excuse is profoundly considered as the aggravating factor that
raises the degree of social disapproval. Moreover, involuntary intoxication cannot be
considered as a defence if there is a presence of mens rea.
Involuntary intoxication and the consent obtained under it can both be used as defences in any
and all the criminal offences. Involuntary intoxication can take place in the following four
ways:
1. Duress- when an individual is coerced to consume alcohol or any other intoxicant.
2. Mistake- If the person by mistake consumes a narcotic substance other than that has
been medicated to him.

7 Dasa Kandha v. State of Orissa, 1976 CrLJ 2010.

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▪ Fraud- If a person consumes a substance or a drink because of a fraudulent
misrepresentation of the substance.
1. Medication- An unanticipated reaction to the medication prescribed by the doctor
might also lead to an extreme behaviour of an individual.

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 CONSENT OBTAINED UNDER A MISCONCEPTION OF FACT

Consent that is obtained under a misconception is not valid if the person taking the consent is
aware of this is aware of the existence of a misconception. A consent given over
misrepresented facts is a consent given under a misconception. However, if there has been an
honest misconception on side of both the parties then the consent does not stand invalid.
“Consent obtained by a false representation which leads to a misconception of facts will not
be a valid consent”8. Thus, where in a case, a girl was raped by her singing master, who had a
sexual intercourse with her proclaiming it to be a method of improving the voice quality, the
act amounted to rape as the consent was taken on a deception of improving the voice, and
since it was given under a misconception of fact, it could not amount to true consent under
law9.
The non-performance of a promise in future, because of reasons which were not very clear do
not amount to misconception of fact at the outset of the act itself. In order to come under the
ambit of misconception of fact, it should necessarily have an instantaneous pertinence. If the
plaintiff was misled by a misstatement of fact then a deceit maybe founded on it. It is
necessary that the fact that has been misstated must still exist.


8 Parshottam v, State, (1962) 64 Nom LR 788.

9 R v. Williams, 1923 1 KB 340.
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 CONCLUSION

The above discussion highlights that the defences of consent can be used in order to defend
the accused in a criminal case. However, there exist certain limitations to each and every facet
of consent not being a true consent as given in the aforementioned chapters. A child above
seven years of age may or may not be held liable for committing a crime, this depends upon
the intelligence that his brain possesses. Only, voluntary intoxication may be used as a
defence and there are different ways in which a person is coerced to consume in toxifying
substance. Moreover, a person, incapable of giving his consent as a result of unsound mind
cannot be charged with a criminal liability until and unless he does not have the mens rea to
commit an act. All such limitations were studied in detail and we thus may conclude that
defences as mentioned in chapter IV of General Exceptions of the code, may be used at
significant times to rescue the accused off the charge of criminal liability.

BIBLOGRAPHY

• PSA Pillai, Criminal Law, 12th Edition.

• Ratanlal & Dhirajlal, The Indian Penal Code, 31st Edition.
• SK Sarvaria, RA Nelsons Indian penal Code, Volume 1, 10th Edition.
• Matthew Lippman, Contemporary Criminal Law- Concepts, Cases and Controversies,
2ndEdition.

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