Section 88 of Indian Penal Code, 1860 (IPC) provides that nothing, which is not intented 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.
According to illustration to section 88 of IPC, A, a surgeon, knowing that a particular operation is likely to cause the death of Z, who suffers under the 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.
The given situation is similar to the illustration mentioned above. X, the surgeon operates on Y intending in good faith Y’s benefit with Y’s consent to relieve him of his pain. It can be inferred from the situation that Y gave his consent with his will to take the risk of an operation and the likely harm. If Y is of age of majority and of a sound mind his consent will be a valid consent. So, it can be said that X, the surgeon will not be guilty of any offence as the death was not caused intentionally.
General exceptions under Indian Penal Code, 1860 for a person accused of committing any offence The Indian Penal Code, 1860 also provides for general exceptions for a person accused of committing any offence under the Indian Penal Code to plead in his defense. General defences or exceptions are contained in Chapter IV of the IPC. In general exceptions to criminal liability there will be absence of mens rea (guilty mind) on the part of the wrong-doer. The general exemptions are as under:
1.Mistake of Fact- bound by law: According to section 76 of IPC, if any one commits any act which he is bound to do or mistakenly believes in good faith that he is bound by law to do it, he is not guilty. The mistake or ignorance must be of fact, but not of law. If the mistaken facts were true, the act would not be an offence.
Mistake of fact, is a general defence based on the Common Law maxim – Ignorantia Facti Excusat; ignorantia juris non excusat- (Ignorance of fact excuses; Ignorance of law does not excuse). In mistake of fact the accused does not possess mens rea or guilty mind.
2.Act of Judge when acting judicially (section 77): If any judge in his authority in good faith believing authorized by law commits any act, no offence is attracted.
3.Act done pursuant to the judgment or order of Court (section 78): When any act is committed on judgment or order of the Court of Justice which is in force, it is no offence even if the judgment or order of the Court is without any jurisdiction, though the person who executes the judgment and order must believe that the Court has the jurisdiction. Section 77 protects judges from any criminal liability for their judicial acts.
Section 78 extends this protection to ministerial and other staff, who may be required to execute orders of the court. If such immunity was not extended, then executing or implementing court orders would become impossible.
4.Mistake of Fact-justified by law: According to section 79 of the IPC, if any one commits any act which is justified by law or by reason of mistake of fact and not by reason of mistake of law believes himself to be justified by Law.
5.Accident in doing a lawful act: According to section 80, if any one commits any offence by accident or misfortune without malafide or without knowledge in performance of his legal duty in legal manner with proper care and caution is no offence. The protection under this section will apply only if the act is a result of an accident or a misfortune. The word ‘accident’ is derived from the Latin word ‘accidere’ signifying ‘fall upon, befall, happen, chance. It rather means an unintentional, an unexpected act. Thus, injuries caused due to accidents in games and sports are all covered by this section.
6.Act likely to cause harm, but done without criminal intent, and to prevent other harm (section 81):
Any act done by anyone without any criminal intent for saving or preventing harm to third person or property in good faith is no offence. According to the ‘explanation’ to this section, it is a question of fact in such a case whether the harm to be prevented or avoided was of such a nature and so imminent as to justify or excuse the risk of doing the act with the knowledge that it was likely to cause harm.
7.Act of a child under seven years of age (section 82): If any child who is below seven years of age commits any offence, he is not guilty because it is the presumption of law that that a child below 7 years of age is incapable to having a criminal intention (mens rea) necessary to commit a crime.
8 Act of a child above seven and under twelve of immature understanding (section 83): If any minor child is in between seven and twelve years of age and not attained the maturity of what is wrong and contrary to law at the time of commission of offence in not liable to be convicted and punished.
9 Act of a person of unsound mind (section 84): Nothing done by any person of unsound mind is an offence if at the time of doing it, by reason of unsoundness of mind, is incapable of knowing the nature of the act, or that he is doing what is either wrong or contrary to law.
10.Act of a person incapable of judgment by reason of intoxication caused against his will (section 85): Nothing is an offence which is done by a person who, at the time of doing it, is, by reason of intoxication, incapable of knowing the nature of the act, or that he is doing what is either wrong, or contrary to law:
provided that the thing which intoxicated him was administered to him without his knowledge or against his will.
11.Offence requiring a particular intent or knowledge committed by one who is intoxicated (section 86): In cases where an act done is not an offence unless done with a particular knowledge or intent, a person who does the act in a state of intoxication shall be liable to be dealt with as if he had the same knowledge as he would have had if he had not been intoxicated, unless the thing which intoxicated him was administered to him without his knowledge or against his will.
12.Act not intended and not known to be likely to cause death or grievous hurt, done by consent (section 87): When anyone commits any act without any intention to cause death or grievous hurt and which is not within the knowledge of that person to likely to cause death or grievious hurt to any person who is more than eighteen years of age and has consented to take the risk of that harm, the person doing the act has committed no offence.
This section is based on the principle of ‘volenti non fit injuria’ which means he who consents suffers no injury. The policy behind this section is that everyone is the best judge of his own interest and no one consents to that which he considers injurious to his own interest.
13.Act not intended to cause death, done by consent in good faith for person’s benefit (section 88):
Nothing, which is not intented 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. Section 88 extends the operation of consent to all acts except that of causing death intentionally provided that the act is done in good faith for the benefit of the consenting party.
I:- A, a surgeon, knowing that a particular operation is likely to cause the death of Z, who suffers under the 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.
But if surgeon while performing the operation leaves a needle inside the abdomen of the patient who die due to septic- He would be liable criminally for causing death by negligence because he did not perform the operation with due care and caution.
14.On consent of guardian if any act is done in good faith to it (section 89): This section gives power to the guardian of a child under 12 years of age or a person of unsound mind to consent to do an act done by a third person for the benefit of the child or a person of unsound mind. Anything done by the third person will not be an offence provided that it is done in good faith and for the benefit of the child or a person of unsound mind. This section gives protection to the guardians as well as other person acting with the consent of a guardian of a person under 12 years of age or a person of unsound mind.
15.Consent (section 90): The consent is not valid if it is obtained from a person who is 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. The consent is also not valid if it’s 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. The consent is given by a person who is under twelve years of age is also not valid unless the contrary appears from the context.
16.Exclusion of acts which are offences independently of harm caused (section 91): The exceptions in sections 87, 88 and 89 of IPC 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 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.
17.Act done in good faith for benefit of a person without consent (section 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. This defense is subject to certain exceptions.
18.Communication made in good faith (section 93): No communication made in good faith is an offence by reason of any harm to the person to whom it is made, if it is made for the benefit of that person.
Illustration: A, a surgeon, in good faith, communicates to a patient his opinion that he cannot live. The patient dies in consequence of the shock. A has committed no offence, though he knew it to be likely that the communication might cause the patient’s death.
19.Act to which a person is compelled by threats (section 94): Except murder, and offences against the State punishable with death, 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. For this defense to be valid the person acting under threat should not have himself put under such a situation.
20.Act causing slight harm (section 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 harm.
Source: ICSI Guideline Answers, June 2023, Q. 5(a) (Syllabus 2017).