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Report No. 196

(b) Sections 87, 88 and 92 of the Indian Penal Code, 1860:

These sections of the Penal Code are also relevant and their relevancy can be seen in the various judgments that are analysed in the following chapters. For the present, we shall merely refer to these sections.

Section 87 of the Code is relevant. It deals with 'Act likely to cause harm, but done without criminal intent and to prevent other harm'. It reads as follows:

"87. 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 any such person who has consented to take the risk of that harm.

Illustration: A and Z agree to fence with 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."

Section 88 deals with 'Act done in good faith for benefit of a person with consent'. It reads as follows:

"88. Act not intended to cause death, done by consent in good faith for person's benefit: 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 the risk of that harm.

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."

Section 92 deals with 'Act done in good faith for benefit of a person without consent'. It reads as follows:

"92. Act done in good faith for benefit of a person without consent: 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 who it is possible to obtain consent in time for the thing to be done with benefit:

Provided

Firs.- That this exception shall not extend to the intentional causing of death, or the attempting to cause death;

Secondl.- 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 or the curing of any grievous disease or infirmity;

Thirdl.- That this exception shall not extend to the voluntary causing of hurt, or to the attempting to cause hurt, for any purpose other than preventing of death or hurt;

Fourthl.- 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, 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.

(b) Z is carried off a 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 faith 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 no 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 housetop, knowing it to be likely that the fall may kill the child, but not intending to kill the child, and intending, in good faith, 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."



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