Criminal Law-1

Continuous Internal Assessment-3

Case analysis- Poonai Fattemah v. Emperor, 1869

Submitted to: Dr. Harish Tiwari

Submitted by: Kumari Pragati (20213076)
Name- Poonai Fattemah v. Emperor

Year- 1869

Facts- In this case the accused was a snake charmer. The snake charmer as a part of his
presentation asked people to allow them to get bitten by his snake and the charmer claimed
that he had the power to protect them from danger. In the same manner the charmer
persuaded the deceased in this case to allow himself to be bitten by a poisonous snake,
making him to believe that he had the power to protect him from the harm. The deceased
gave the consent under the misconception that the accused had the skill to cure snake bites.
But due to the bite, the person died as the charmer could not save him.

Issue- Whether the charmer would get defence under Section 87 1 of Indian Penal Code as
there was a consent from deceased’s side?

Laws involved in the case- Section 87 Of Indian Penal Code, 18602- “Act not intended and
not known to be likely to cause death or grievous hurt, done by consent.—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.”

Analysis- Section 873 is based on the principle ‘volenti non fit injuria’ which means he who
consents suffers no injury. The policy behind this principle is that everyone is the best judge
of his own interest, and that no one consents to what he considers injurious to his own
interest. The justification for this provision is 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 restrictions by
which the rule is limited affect only cases where human life is concerned.

1
Section 87, Indian Penal Code, 1860.
2
Ibid 1.
3
Id.
“The reason on which the general rule which we have mentioned rests is this, that it is
impossible to restrain men of mature age and sound understanding from destroying their own
property, their own health, their own comfort, without restraining them from an infinite
number of salutary or innocent actions.”

The section says that if there is no intention or knowledge to cause death or grievous hurt to
someone, his act is not an offence, even if he may cause or is intended to cause injury to a
person who is over eighteen years of age provided that the person who suffered the injury
gives his express or implied consent to suffer such harm; or by reason of any harm which the
originator knows is likely to be caused to such person who consents to the risk of such harm.

It is important to note that the person giving consent must be over eighteen years of age. This
section also does not excuse the intentional causing of death or grievous bodily harm, or
where the perpetrator knows that death or grievous bodily harm is likely to result in the
consenting person.

It is an absolute and unconditional restriction. Conclusive consent can be inferred from the
facts and circumstances of the case and there can be no general rule in this regard. Wrestling,
boxing, fencing, etc., are such games or sports where implied consent can be presumed
provided the rules of the game are followed. The section does not apply where, for example,
wrestlers wrestle on a hard surface, boxers box without gloves, or where prize fighting is
prohibited by law.

In this case, the deceased consented to the magician being bitten by a snake, fearing that the
savior would save him. Here there was a clear knowledge of the imminent danger that the act
must in all probability cause death. Therefore, the court ruled that the accused is not entitled
to protection based on the consent of the deceased and is responsible for the act.

Conclusion- In this case, the accused had to no intention to kill the person. There was a due
consent given to the accused to take the risk voluntarily but the act was such that in all
probability it would cause death. There was no intention of causing death from accused side
but there was a clear knowledge of imminent danger. The court held that offences would have
been murder but that the persons whose death was caused took the risk of death with his own
consent. By reason of that consent the offence was held to be reduced to culpable homicide
not amounting to murder, and the accused were sentenced to five years' rigorous
imprisonment. The court held that the accused would not get defence under section 87 of
Indian Penal Code, 18604.

4
Supra 1.