ledge com- dealt with as if he had the same knowledge as he would have mitted had if he had not been intoxicated, unless the thing which voluntary intoxicated him was administered to him without his knowintoxi during cation. tended and to cause death or ledge or against his will 1. Act not in- 87. Nothing, which is not intended to cause death or not known grievous hurt 2, and which is not known by the doer to be to be likely 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 grievous to cause, to any person above eighteen years of age, who has by consent. 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. hurt, done Act not in cause Illustration. A and Z agree to fence with each other for amusement. This agreement implies the consent of each to suffer any harm which, in the course of such fencing, may be caused without foul play; and if A, while playing fairly, hurts Z, A commits no offence. 88. Nothing, which is not intended to cause death, is an tended to offence by reason of any harm which it may cause, or be death done intended by the doer to cause, or be known by the doer to be by consent in good likely to cause, to any person for whose benefit 3 it is done in faith for good faith, and who has given a consent 5, whether express or implied, to suffer that harm, or to take the risk of that harm. benefit of person. Act done in good Illustration. A, a surgeon, knowing that a particular operation is likely to cause the death of Z, who suffers under a painful complaint, but not intending to cause Z's death, and intending, in good faith, Z's benefit, performs that operation on Z, with Z's consent. A has committed no offence. 89. Nothing, which is done in good faith for the benefit of a person under twelve years of age, or of unsound mind, benefit of by or by consent, either express or implied, of the guardian faith for child 1 See as to this section supra, p. Cr. 24, where Glover J. said that voluntary drunkenness is generally taken into account as throwing light on the question of intention. 2 Sec. 320. 3 Sec. 92, expl. 4 Sec. 52. 5 Sec. 90. of unsound mind, by or other person having lawful charge of that person, is an or person 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 or by conlikely to cause, to that person: Provided 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 2, or the curing of any grievous disease or infirmity; Thirdly. That this exception shall not extend to the voluntary causing of grievous hurt 2, or to the attempting to cause grievous hurt, unless it be for the purpose of preventing death or grievous hurt, or the curing of any grievous disease or infirmity; Fourthly. That this exception shall not extend to the abetment of any offence, to the committing of which offence it would not extend. Illustration. A, in good faith, for his child's benefit, without his child's consent, has his child cut for the stone by a surgeon, knowing it to be likely that the operation will cause the child's death, but not intending to cause the child's death. A is within the exception, inasmuch as his object was the cure of the child. sent of guardian. 90. A consent is not such a consent as in intended by any Consent section of this Code, if the consent is given by a person under known to be given fear of injury, or under a misconception of fact, and if the under fear person doing the act knows, or has reason to believe, that ception. the consent was given in consequence of such fear or misconception-or or miscon unsound If the consent is given by a person who, from unsound- Consent of ness of mind or intoxication, is unable to understand the person of nature and consequence of that to which he gives his consent; mind, inor, unless the contrary appears from the context 5, if the or under 1 As to attempts see sec. 511, and supra, p. 67. * See sec. 320. * See secs. 107, 108. • It does not seem to matter whether the intoxication is voluntary or involuntary. * See sec. 375, cl. 5. toxicated, 12. Acts which are offences inde consent is given by a person who is under twelve years of age1. 91. The exceptions in sections 87, 88 and 89 do not extend to acts which are offences independently of any harm which pendently they may cause, or be intended to cause, or be known to be caused to likely to cause, to the person giving the consent, or on whose person con- behalf the consent is given. of harm senting. Act done in good faith for benefit of person, without consent. Illustration. Causing miscarriage (unless caused in good faith for the purpose of saving the life of the woman) is an offence independently of any harm which it may cause or be intended to cause to the woman. Therefore it is not an offence by reason of such harm;' and the consent of the woman or of her guardian to the causing of such miscarriage does not justify the act. 92. Nothing is an offence by reason of any harm which it may cause to a person for whose benefit it is done in good faith, even without that person's consent, if the circumstances are such that it is impossible for that person to signify consent, or if that person is incapable of giving consent, and has no guardian or other person in lawful charge of him from whom it is possible to obtain consent in time for the thing to be done with benefit. Provided First. That this exception shall not extend to the inten tional 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 hurt2, or the curing of any grievous disease or infirmity; 3 Thirdly. That this exception shall not extend to the voluntary causing of hurt 2, 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, 1 This section should be in Chap. II. with the other definitions. 'Consent' occurs in secs. 87, 88, 89, 91, 92, and 300, exc. 5. 2 See sec. 321. 3 See note 1, p. 119. 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. (6) 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 faith1 intending Z's benefit. A's ball gives Z a mortal wound. A has committed no offence. (c) A, a surgeon, sees a child suffer an accident which is likely to prove fatal unless an operation be immediately performed. There is not time to apply to the child's guardian. A performs the operation in spite of the entreaties of the child, intending, in good faith, the child's benefit, A has committed no offence. (d) A is in a house which is on fire, with Z, a child. People below hold out a blanket. A drops the child from the house-top, knowing it to be likely that the fall may kill the child, but not intending to kill the child, and intending, in good faith1, 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. cation in good faith. 93. No communication made in good faith1 is an offence by Communireason of any harm to the person to whom it is made, if it made for the benefit of that person. Illustration. A, a surgeon, in good faith', communicates to a patient his opinion that he cannot live. The patient dies in consequence of the shock. A has committed no offence, though he knew it to be likely that the communication might cause the patient's death. sion. 94. Except murder and offences against the State, punish- Compulable with death2, nothing is an offence which is done by a person who is compelled to do it by threats, which, at the time of doing it, reasonably cause the apprehension that instant death to that person will otherwise be the consequence; provided the person doing the act did not of his own accord, or from a reasonable apprehension of harm to himself short of instant death, place himself in the situation by which he became subject to such constraint. Explanation 13.-A person who, of his own accord, or by reason of a threat of being beaten, joins a gang of dacoits, knowing their character, is not entitled to the benefit of this 1 See sec. 52. 2 See secs. 121, 132. * This and explanation 2 are illustrations, rather than explanations. Act caus ing slight harm. Private defence. Right of exception, on the ground of his having been compelled by his associates to do anything that is an offence by law. Explanation 2.-A person seized by a gang of dacoits, and forced, by threat of instant death, to do a thing which is an offence by law, for example a smith compelled to take his tools and to force the door of a house for the dacoits to enter and plunder it, is entitled to the benefit of this exception. 95. Nothing is an offence by reason that it causes, or that it is intended to cause, or that it is known to be likely to cause, any harm, if that harm is so slight that no person of ordinary sense and temper would complain of such harm1. OF THE RIGHT OF PRIVATE DEFENCE. 96. Nothing is an offence which is done in the exercise of the right of private defence. 97. Every person has a right, subject to the restrictions private de- contained in section 99, to defend fence of body and property. Right of private defence First. His own body, and the body of any other person, against any offence affecting the human body; Secondly. The property, whether moveable or immoveable, of himself or of any other person, against any act which is an offence falling under the definition of theft, robbery, mischief, or criminal trespass, or which is an attempt to commit theft, robbery, mischief, or criminal trespass 2. 98. When an act, which would otherwise be a certain offence, is not that offence, by reason of the youth, the want against act of maturity of understanding, the unsoundness of mind, or of person of unsound the intoxication of the person doing that act, or by reason of mind, &c. any misconception on the part of that person, every person has the same right of private defence against that act which he would have if the act were that offence. 1 e. g. picking pods, value three pies, off a moringa tree standing in a waste piece of Government ground, 5 Bom. H. C., Cr. Ca. 35. But sec. 95 does not deprive of its criminality a blow (though almost painless) across the chest with an umbrella, where the striker was a dismissed policeman and the person stricken a District Superintendent of Police, 24 Suth. Cr. 67. The 'person of ordinary sense and temper' must be a member of the class to which the complainant belongs; Mayne, P. C. p. 84. Sec. 95 does not affect the Madras Regulations as to .trivial offences, XI of 1816, sec. 10, and IV of 1821, sec. 6. 26 Bom. Appx. 9. 'Theft' is defined in sec. 378; 'robbery' in sec. 390; 'mischief' in sec. 425; and 'criminal trespass' in sec. 441. |