Section 87 - 93

 Penal code does not define the word “consent”.

 Ratanlal & Dirajlal lLw of Crimes; an act of reason,
accompanied with deliberation, the mind weighing, as in a
balance, the good and evil on each side.
 Smith J in ABDUL HAMID V PP; An act of reason accompanied
with deliberation of mind weighing in balance between good
and evil
 Stephen- “A consent freely given by a rational and sober
person so situated as to be able to form a rational opinion
upon the matter to which he consents. Consent is said to be
given freely when it is not procured by force, fraud or threats
of whatever nature”
 Every consent must have submission but not
all submission must have consent
 R v OLUGBOJA[1981]
 ‘Nothing 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
18 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.
◦ maxim” “he who consents suffer no injury”
 If the doer intends or knows that death or
grievous hurt would be caused, consent is
no defence.
 If the doer intends or knows that the act
from its nature would cause harm less than
grievous hurt, consent is a defence.
 It is important that the act is not from its
nature the one that would cause death or
grievous hurt.
 A person capable of giving consent must be
above 18 years of age.
1) Not intended to cause death/grievous hurt
◦ -if the doer intends or knows that grievous
hurt or death would be the result, consent is
not a defence
2) Or not known by the doer it is likely to
cause death/grievous hurt
3) Age of a person who gives consent must be
above 18 years
 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.
 Facts; complainant had molested a girl .He
was not beaten but instead blackened the
face and shoe beaten
 Held: Consent of the complainant was
obtained in writing and for his own benefit.
 The victim believed himself to immune from
harm caused by a “da”(sharp instrument),
had asked the accused to slash his arm with
a “da”. The accused did so with moderate
force which severed some arteries leading
the victim’s death. The court accepted the
accused’ defence under section 87 on the
ground that he had no intention to cause
death or grievous hurt and that he might
not even know that his act was likely to
cause any such result.
 SECTION 88- consent to harm for a beneficial
purpose
 Act not intended to cause death, done by

consent in good faith for the benefit of a

person
 “Nothing, which is not intended 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 that risk of that
harm”
 Section 88 provides for the situation where the
doer does not intend to cause the death of the
person though he knows he is likely to cause death.
 However, the doer’s act must be done in good faith
for the benefit of the person with the person’s
consent.
 The word “benefit” does not include pecuniary
benefit.
 Deal with person who is acting for the benefit of
another eg. doctor
 Unlike section 87, no age limit expressly provided
under section 88.
 Not intended to cause death
 By reason of which harm done
 In good faith
 For the benefit of the person who suffer
that harm
 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 ad intending
in good faith, Z’s benefit, performs that
operation on Z, with Z’s consent. A has
committed no offence
 Facts; A who was skilled in surgery operated
surgery on a man for internal piles and the man
died from hemorrhage
 Held: the accused could not rely on section 88
because the requirement that he must have
intended in good faith of victims’ s benefit had not
been satisfied since he had experimented without
any knowledge of the subject
 Further, the deceased could not be said to have
accepted a risk he was unaware of.
 “Nothing, which is done in good faith for the
benefit of the person under 12 years of age,
or of unsound mind, by or by consent, either
express or implied, of the guardian or other
person having lawful charge of that person, 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 that person”
 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, in as much
as his object was the cure of the child
 Benefit to a person who cannot consent
 This section covers act done in good faith for

the benefit of a person under 12 years of age

by consent of his guardian.
guardian
 Section 89 enables the guardian or other
person having lawful charge of a child
under 12 years of age to consent to the
child being harmed for that child’s benefit.
 The illustration of section 89 expressly

states that the parent who has consented to

his child having an operation for the child’s
benefit id protected by the section even
though the child had not consented to
undergoing the operation.
 A common occurrence involving section 89 is
a school teacher’s infliction of corporal
punishment on an errant pupil under 12
years of age.
 An act done
 In good faith (sec 52)
 For the benefit of a child under 12 years or
person of unsound mind
 By the consent implied/express of
guardian/person lawfully in charge of that
person
 A teacher in a public elementary school
had authority to inflict corporal punishment
on a pupil as long as it is an authority to
administer moderate and reasonable
corporal punishment

 LAM KWOK WENG V NOOR

AHMAD(SINGAPORE CASE)
 EMPEROR V. G.B GHATAGE
 Section 91 “the exceptions in section 87, 88
and 89 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”
 Section 91 states that the defence of consent under
section 87, 88 and 89 do not extend to offences
involving acts which are independent of any harm
caused to the consenting party.
 If the act is an offence independently of the harm
which it has caused then the doer will not be
protected by the consent given.
 The word “harm” in the section means “physical
injury”.
 Examples of offences where the defence of consent
is excluded by virtue of section 91 are affrays,
rioting, gross indecency, miscarriage and etc.
 Section 92 provides for situation where it is impossible to
obtain the consent of the person of the persons capable of
giving consent.
 This section empowers a person, who may be complete
stranger to the victim, to perform a harm causing act upon
victim under certain restrictive conditions. They are;
◦ 1- that the circumstances were such that the accused
cannot obtain the consent the victim, or victim’s guardian
if he is or she was under 12 years of age or suffering from
an unsound mind
◦ 2- that he accused intended in good faith for victim’s
benefit in performing the act; and
◦ 3-the limitations concerning the type of harm and their
purpose specified in the proviso to section 89 were met.
 A consent is not such a consent as is intended by
any section of this Code-
◦ (a) if the consent is given by a person 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.
◦ (b) if the consent is 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; or
◦ (c) unless the contrary appears from the context, if the
consent is given by a person who is under 12 years of age.
 Penal code does not defines the word “consent”.
Nevertheless section 90 clearly list out what does
not amount to consent.
 This section laid down general principle of consent.
A consent is vitiated if it is given ;
◦ i-under fear of injury or misconception of facts or
the doer knows or has reason to believe that the
consent was given as a consequence of such fear
or misconception of fact
◦ ii-if consent given by person of unsoundness of
mind or intoxication and does not know the
nature or consequences of consent given
◦ iii-given by a person under 12 years
 A snake charmer induced the deceased
person to allow himself to be bitten by a
poisonous snake. He claimed that he could
cure the bite of poisonous snake. He invited
someone to volunteer and the snake bit the
person and as a result, he died.
 Held; The accused was held liable because
of the misrepresentation and misconception
of facts. In other words, the consent was
vitiated by the misrepresentation and
misconception.
 A 19 years old girl, together with her mother, went
to see the accused for medical advice to cure her
fits/illness. The accused brought the girl into an
adjoining room and had sexual intercourse with
her. The girl made feeble resistance, believing that
the accused was treating her medically and was
performing a surgical operation.
 Held; By fraud and false representation, the girl was
induced and persuaded to allow the accused to
have sexual intercourse with her. No evidence of
consent. She submitted to his treatment solely
because she believed that he was treating her
medically and performing a surgical operation. The
accused was held guilty.
 NG SHWE KIN V EMPEROR [1915]
 R V CLARANCE [1889]