08/07/2019
Penal Code, 1860 (Act No. XLV of 1860).
Act not intended to
88. 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 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.
89. Nothing which is done in good faith for the benefit of a person under twelve
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:
Provided
Firstly.That this exception shall not extend to the intentional causing of death, or
to the attempting to cause death;
Secondly.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;
Thirdly.That this exception shall not extent to the voluntary causing of grievous
hurt, or to the attempting to cause grievous hurt, unless it be for the purpose of
preventing death or grievous hurt, or the curing of any grievous disease or
infirmity;
Fourthly.That this exception shall not extend to the abetment of any offence, to
the committing of which offence it would not extend.
Illustration
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, inasmuch as his object was the cure of the child.
90. A consent is not such a consent as is intended by any section of this Code, 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; or
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
Unless the contrary appears from the context, if the consent is given by a person
who is under twelve years of age.
cause death, done by
consent in good faith
for person’s benefit
Act done in good faith
for benefit of child or
insane person, by or
by consent of
guardian
Consent known to be
given under fear or
misconception
Consent of insane
person
Consent of child
Exclusion of acts
which are offences
independently of
harm caused
91. The exceptions in sections 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
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