The legal provision relating to consent has been defined under Section 90 of the Indian Penal Code, 1860 which defines that the consent which is necessary under any part of the provision should be a free consent that is it should not be effected by any misconception relating to any fact or subject matter or the person giving consent is not capable of giving a valid consent by reason of infancy, insanity or intoxication.
The main focus of the paper is on the second part of the aforementioned section that is:
Infancy (Section 82-83)
Insanity (Section 84)
Intoxication (Section 85-86)different provision should be an free consent and the second aspect of it is the person consenting is capable. Consent has been defined under Section 13 of the Indian contract Act, 1872 which states that a consent is when two person agrees on the same thing in the same sense that is when there is consensus ad idem i.e., meeting of mind.
There is a controversy that both the consent and submission are the same thing but they are not the same thing as the same was clarified in the case of R v. Day.
Consent given by a person of unsound mind, the degree of unsoundness and the in-voluntary intoxication by a person would give rise as a defence to avoid criminal liability.
The main rule present under the criminal law is that no innocent person should be subjected to any type of punishment or the liability of the offence for which he is not the prime offender. So, the same principle of the criminal law is justified by exempting a person of the liability of which he does not understand the nature and consequence of it. Punishing a person who had a guilty intention for the commission of the offence and the person who innocently commits an offence by reason of infirmity of mind, or the age, or under the temporary unsoundness of mind, if such a persons would also be subject to the similar punishment as prounced to a mind with guilty mind, the main aim of the criminal law would be defeated and the ends of the justice would not be met.
CRITICAL ANALYSIS OF INFANCY WITH CASE LAWS
Section 82 of Indian Penal code says that “Nothing is an offence which is done by a child under the age of seven years”. So, in order to convict a child for an offence it is needed that the person who has committed an offence and to be liable for it must be above the age of seven year old in order to inflict the punishment provided under the code. The main reason why a child who is below the age of seven years is not liable because the child don’t have sufficient maturity level and knowledge of the act what he is doing. Mens rea which is one of the important element of the crime is not present in the case when the offence is committed by a child below the age of seven years. The Legal Maxim ‘actus non facit reum nisi mens sit rea’ which says that both the act and intention should constitute together in order to constitute a crime or offence but in case where an offence is committed by a child below the age of seven years there is only an act but not an intention to commit those act that’s why they are held not liable for the offence committed by them.
For example- If a child who is below the age of seven years goes to his neighbour’s house and find a diamond ring on a table and starts playing with it and innocently takes away the ring with him. The child is held not liable because in this case the child didn’t had the knowledge that what he is doing is wrong and neither he had an intention to steal the diamond ring. So, because of that reason he is held not liable for an offence.
The provision relating to Section 82 has been laid down under criminal law subject to the provisions of civil law. Common law is also same under the provision that the child is not liable for an offence if he is below the age of seven years. The child below the age of seven years is termed as doli incapax i.e., incapable to commit a crime.
Under English Law, the provision relating to offence committed by a children below the age of seven years is different as compared to Indian Law. The English law specifically provides that nothing is an offence which is committed by person below the age of fourteen years of age.
Section 83 of the Indian Penal code, 1860 provides that “When an offence is committed by the person above the age of seven years of age but below the age of twelve years of age incapacity to commit an offence can only arise when the child doesn’t have sufficient maturity level to understand the nature and consequence of the act”. So The legal provision regarding section 83 specifically provides that in order to constitute an offence committed by a child below the age of twelve years of age then, the maturity level of the child would be testified in order to convict him for the said offence.
For Example- If a child who is of twelve years of age goes to his neighbour’s house and found a diamond ring lying on a table and silently hide that diamond ring in his toys and in the way to his house he went to the Gold Smith to give him that ring and recover the said amount from him. In this particular case, the child would be liable because in this case he was having sufficient maturity level that when he will sell that diamond ring to the Goldsmith he would be able to fetch money from him and the maturity level of the child is particularly established and he guilty of the offence.
In England, there is a presumption that a boy below the age of fourteen years is not guilty of any sexual offence whereas there is no such presumption under the Indian law.
The burden of proof regarding that the parson below the age of fourteen years of age does not have sufficient maturity level is on the person wishing to take an advantage under the said legal provision.
In the case of Krishna bhagwan vs. state of Bihar it was held by Patna high court if a child who is convicted of an offence and is below the age of Seven years if at the time of proceedings or at the time of the decision has attained the age of seven years and has developed sufficient maturity level can be held liable for an offence.
In the case of Abdul Satar Vs. The Crown Two accused boys who were below the age of twelve years of age opened the locks of two shops and has went inside with an intention to steal. In one shop they stole a pulse bag and in another shop there was nothing to steal and they impleaded the defence of lack of maturity level. The court has held that the very act of the accused to open the locks of the shop shows the presence of maturity level.
EXCEPTION TO THE RULE
Under section 168 of the Indian Railway Act, 1989 if a minor commits any offence even though he is below the age of 12 years and did not had the intention to commit the said offence would be liable to offence.
CRITICAL ANALYSIS OF INSANITY WITH CASE LAWS
‘INSANITY’ refers to a state of mind where the person is in such a position where he cannot determine what is right and what is wrong and does not understand the nature and the consequence that he has to suffer because of that act. Insane persons are given special protection that is to exclude them from the liability of an offence committed by him.
The origin of the privileges and the protection of mentally ill person has been evolved from the universal declaration of Human Rights 1948. The rights given to mentally ill person is guaranteed by constitution of India in order to protect, preserve the interest of mentally ill person and to protect them from being exploited in any manner.
All the laws which has been in force in recent time has taken due care of the insane persons. In penal code also the protection provided to mentally ill persons is paramount. In the case of X Vs. State Of Maharashtra , in which the accused was guilty of rape and murder of two minor girl and when the matter went for hearing to the supreme court it was pleaded that the accused at the time of the commission of the offence was of unsound mind. The Supreme court held that according to the provision of article 21(right to privacy) that is not to disclose the name of the accused and also allowed the petition for commutation of death sentence to imprisonment for life and the court also declared that the accused should be given treatment and mental health care facility inside the jail.
The defence of insanity was first applied by the British court and it thereby lead to the formulation of the “wild beast test”. The legal provision relating to insanity has been enshrined under section 84 of the IPC which states as “ Nothing is an offence which is done by a person of unsound mind who at the time of commission of offence does not know the nature and consequence of the act and that such act is either wrong or contrary to the law” . The Indian law takes into consideration only the legal insanity and not the medical insanity.
LAW RELATING TO INSANITY IN ENGLAND
In R V. Arnold , Defendant wounded Lord on slow and it was sufficiently proved that the mental condition of the accused was tempered and his conviction was set aside. “Tracy J. observed that the defendant could not distinguish between good and evil and hence not liable”.
The rules relating to insanity was first framed by the English court and came to be known as Mc Naughton rules which states as:
That, all are presumed to be sane person unless the contrary is proved, and are liable.
In order to constitute a defence to escape criminal liability it has to be proved at the time of commission of offence, the offender was insane.
Offender did not know the nature and consequence of the act
Offence did not know that the act is regarded as wrong.
In the case of Kamala Vs. West Bengal State in which the accused was guilty of murder of her husband and it was pleaded that there was no motive and neither any attempt to commit the murder and the plea of insanity was thereby prayed and the investigating officer stated that the accused at the time of commission of the offence was insane because after the commission of the offence she neither escaped nor removed the axe with which she struck her husband . So, she was held guilty of culpable homicide and not murder.
In the case of Rattan lal Vs. State of M.P it was held and established that in order to constitute a defence under Section 84 it has to be proved beyond reasonable doubt that at the time of the commission of offence the accused was of unsound mind.
CRITICAL ANALYSIS OF INTOXICATION WITH CASE LAWS
INTOXICATION refers to a state of mind where a person temporarily loses his self control and in such a case section 85 of the Indian penal code would be applicable provided that it should be involuntary in toxication in case of voluntary intoxication the defence is not applicable. Involuntary in toxication refers to the situation when alcohol or any other drug is administered to that person by force, coercion or without the knowledge of such person in such a state of mind when such person commits any offence the criminal liability would be exempted. In order to attract Section 85(4) of the Indian Penal Code, 1860 the following three condition has to proved beyond reasonable doubt:
The accused should be incapable of knowing the nature and consequence of his act.
The accused at the time of the commission of the offence was not aware that the act is contrary to the provision of the law.
The administration of the drug should be involuntary .
There are several case where a person becomes habitual to drinking and in such a state of mind where a person turns into a mad that person would be treated as an insane person.
Intoxication concept : mens rea
Intoxication is not considered as a defence under Criminal law. It is considered as more aggravated offence because of the unethical nature and social disapproval. In the case of Northern Ireland V. Gallagher, In this case nurse got so drunk that she took a baby and put the child in a fire thinking that it is a log of wood. Lord Denning stated that such mistake would give rise to the defence to the murder.
In the case of Director of Public Prosecution V. Beard Accused committed rape of a minor girl and took the defence of in toxication . The court held that the plea of intoxication is not sufficient to constitute a valid defence. The main thing which has got to be proved is the formation of mensrea. If mens rea or the intention has been formed that will not exempt the accused of the liability.
Involuntary Intoxication : Presence of Mens Rea
In the cases where the intoxication is involuntarily i.e., forceful administration of drug or without the knowledge administration of drug would provide as a defence in order to exempt from the criminal liability provided that prior to the commission of the offence mensrea or the intention to kill such person would not have been formed and if the same has been formed it will not be treated as a defence.
For example- A wanted to kill his bitter enemy B and under the influence of drug administered to him by C kills B by stabbing him a knife. In this case A is not entitled to take the defence of involuntary intoxication.
LEADING CASES ON INTOXICATION
Basudev, a retired military person was accompanied by a boy of 16 years of age to a marriage ceremony and while the appellant asked the boy to move so, that he can sit comfortably, the boy refused to move and the appellant took out his pistol and shot in the abdomen of the boy as a result of which the boy died and it was revealed that the appellant was drunk at the time of the commission of the offence. The supreme court has held the appellant liable for murder
The accused leaded the defence before that the murder committed by him was under the influence of drunkenness and he be charged for culpable homicide not amounting to murder . The court rejected the plea when the the grounds for conviction was validly proved by the prosecution against the accused.
The rule relating to exemption from the liability on the basis of the infancy, insanity and intoxication of a person is subject to certain exception to. It cannot be solely stated that a person failing under any of the following category would be completely exempted from the liability it is not so. The remarks whether a person would be excluded from liability is solely in the hands of the court which would take a paradigmatic view of the situation relying on the medical evidence and the facts and instances of the case, but it has been looked from the past onwards that culprit tries to escape from the liability by showing false evidence that they falls under any of the following stated category. It is recommended that stringent punishment should be given to the person who falsely take unjust benefits of the provisions.
Indian Penal Code 6th edition (author- K.D. GAUR)
Indian Penal Code 34th edition (author – Ratan lal Dhiraj lal)