A and B agree to fence with each other for amusement. This agreement implies to suffer any harm which in course of such fencing may be caused without foul play. While playing fairly A hurts B. What offence…

Question: A and B agree to fence with each other for amusement. This agreement implies to suffer any harm which in course of such fencing may be caused without foul play. While playing fairly A hurts B. What offence, if any, has been committed by A. Give legal provision in support of your answer. [UPCJ 1991, 1999 U.P., A.P.O. Exam. 1996]

Find the answer to the mains question only on Legal Bites. [A and B agree to fence with each other for amusement. This agreement implies to suffer any harm which in course of such fencing may be caused without foul play. While playing fairly A hurts B. What offence, if any, has been committed by A. Give legal provision in support of your answer.]

Answer

Section 87 of IPC lays down:

“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 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.”

This rule is founded upon two very simple propositions: (1) that every person is the best judge of his own interest; (2) that no man will consent to what he thinks harmful to himself. Ordinarily, games, such as fencing, boxing, football and the like are protected under this section.

In the present case, the agreement to fence with each other was implied by B to suffer any harm that arose in course of such fencing without foul play. A also on his part was giving a fair play to B and in the course, B got hurt.

So, by virtue of protection of Section 87 IPC since B has consented to A to receive any such harm may cause during fencing, does not make A liable. A commits no offence.

However, under section 87 consent does not justify causing a) death or b) grievous hurt. It means any harm short of death or grievous hurt may be justified by the consent of the person harmed.

In the Bishambher v. Roomal (AIR 1951 All 500) case, the complainant molested a girl. Immediately, around 200 people gathered to punish him. Three local people intervened and tried to bring out a middle way. All the people gathered before the Panchayat and the plaintiff agreed to follow the decision of the Panchayat.

The Panchayat ordered the plaintiff to take a round of the village with his blackened face. All the intervening people were arrested and prosecuted for Sections 323 and 502 of the IPC.

The Court held that the accused were entitled to the benefit of Section 87 of the IPC because they acted in good faith without any criminal intention to prevent serious consequences arising out from the previous act of the complainant.

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