CHAPTER-VI

CONSENT MITIGATING THE

CRIMINAL LIABILITY
 CHAPTER-VI

CONSENT MITIGATING THE CRIMINAL LIABILITY

Introduction
A new dimension appears to be in few offences such as when Death is
caused by Consent (Exception 5 to Section 300 of IPC) and Abetment of

Suicide (306 IPC) which does not exonerate the accused nor held fully

responsible to the act done (as in case of offences under Section 91) rather the

criminal liability is mitigated on the ground that the victim had consented to

the act done. Here giving of consent of the victim will save the accused in

fixing the criminal liability. In other words, quantum of punishment decreases.

The principle behind this mitigation is. that the victim has shared the mens rea

and actus - reus.

Under Exception 5 to Section 300 the victim who is above 18 years

gives consent for sufferage of the harm that is why if death takes place- the

accused will be liable only for culpable homicide but if the victim is under 18

years the accused will be liable for murder as is very clear from illustration

appended to the exception 5. Likewise there is another area under section 305

of IPC where if the abetted person (i.e. the victim) is under 18 years or any

insane person or any delirious person or any idiot or any person under

intoxication, the accused can be punished with death penality as criminal

liability.

If abetment of suicide takes place and the age of the victim is above 18

years (Section 306) then in such a case the punishment has been provided 10
years as maximum for the accused as criminal liability. Now we will study all
 253

the provisions to know the effect of role of consent in such cases. First of all

we will discuss the Exception 5 to Section 300.

Death by Consent (Consent Must be of Above 18 years) Exception 5 to

Section 300.
Consent mitigates the criminal liability if the act was consented by a
person above 18 years, first of all we are to consider the terminology of

exception 5 to Section 300 -

Exception 5. - Culpable homicide is not murder when the person whose death

is caused, being above the age of eighteen years, suffers death or takes the risk
of death with his own consent.
Illustration A, by instigation, voluntarily causes Z, a person under eighteen
years of age, to commit suicide. Here, on account of Z’s youth, he was

incapable of giving consent to his own death; A has therefore abetted murder.
Nature and Scope The Exception refers to cases where an man consent to

submit to the doing of some particular act, either knowing that it will certainly

cause death, or that death will be the likely result; but it does not refer to the

running of a risk of death from something which a man intends to avert if he

possibly can do so, even by causing the death of the person from whom the

danger is to be anticipated.1 It should receive a strict and not a liberal

construction, and in applying the Exception it should be considered first with

reference to the act consented to or authorized and next with reference to the
persons or person authorized and as to each of those some degree of

particularity at least should appear upon the facts proved before the Exception

can be said to apply. It must be found that the person killed was, with a full

knowledge of the facts, determined to suffer death, or take the risk of death;

’ Rohimuddin (1879) 5 Cal 31. See Pot Set (1910) 5 LBR 160: (1910) 11 Cri Lj 345.
 254

and that this determination continued up to, and existed at, the moment of his

death.2
Pigot, J. observed: “I cannot read it [Exception 5] as referring to

anything short of suffering the infliction of death, or running the risk of having
death inflicted, under some definite circumstances not merely of time, but of
the node of inflicting it, specially consented to as for instance in the case of
suttee, or of duelling, which were, no doubt, chiefly in the minds of the
framers of the Code.”3
The Exception will not apply where there is an agreement to fight

between two riotous mobs armed with all sorts of weapons the character of

which is left to individual choice. Where a person kills another who is more
than eighteen years of age, and pleads it was done with the consent of the

deceased, in circumstances in which the court can hold that it is not impossible
that the deceased feeling desperate and depressed asked to be killed, and no
motive is proved against the accused for deliberately killing the deceased of
his own free will, he is entitled to the benefit of this Exception4

Interpretation Exception 5 must receive strict and not liberal construction,

and in applying the Exception it should be considered first with reference to
the act consented to or authorised, and as to each, of those some degree of
particularity at least should appear upon the facts proved before the Exception
can be said to apply. It must be found that the person killed was, with full
knowledge of the facts, determined to suffer death; or take the risk of death,
and that this determination continued upto, and existed at, the moment of his
death.5

Queen Empress v. Nayamuddin (1891) ILR 18 Cal 484 (FB), commenting on certain
observations in Samshere Khan (1880) 6 Cal 154.
Queen Empress v. Nayamuddin (1891) ILR 18 Cal 484 (FB).
Managa Kosavan (1930) 54 Mad. 504.
5
Queen Empress v. Nayamuddin, infra.
 255

In Queen Empress v. Nayamuddin,6 Pigot, J, observed:

“I think the exception should be considered in applying it, first with

reference to the act consented to or authorised and next, with reference to the
person or persons authorised. And I think that as to each of these, some degree

of particularity should appear upon the facts proved before the exception can
be said to apply. I cannot read it as referring to anything short of suffering the
infliction of death or running the risk of having death inflicted under some
definite circumstances not merely of time but the mode' of inflicting it
specifically consented to, as for instance, in the case of Suttee or dueling

which were, no doubt, chiefly in the minds of the framers of the Code.
Nor can I understand that it contemplates a consent to the acts of

persons not known or ascertained at the time of the consent being given. I do
not doubt that the consent may be inferred from circumstances and does not

absolutely need to be established by actual proof of express consent.

I do not think that from such a mere agreement of fight, such consent as
is contemplated by the section can be imputed to each member of each mob to
suffer death or take the risk of death at the hands of anyone of the armed

members of the other mob by means of whichever of such deadly weapons,

used in whatever way that person may please and be able to inflict it.”7

Illustration to Exception 5 It is difficult to understand thg illustration to

Exception 5. It deals with abetment of suicide and. offence expressly made
punishable under Section 305. Again, there is basic and fundamental
difference between murder or culpable homicide not amounting to murder on
the one hand and suicide on the other hand. What is abetted in the illustration
to Exception 5 is suicide and not murder (or even culpable homicide not
amounting to murder).

6 (1891) ILR IS Cal 484 (FB).

7 Ibid, at pp. 489-92.
 256

Premeditated Fight This Exception was held not to apply to a case where

two bodies of men, for the most part armed with deadly weapons, deliberately
entered into an unlawful fight, each being prepared to cause the death of the
other, and aware that his own might follow, but determined to do his best in
self-defence, and in the course of the straggle death ensued.8 In a case in
which it was found that all the accused were armed with deadly weapons, the

fight was premeditated and prearranged and that one of the accused in the
course of the riot, and in prosecution of the common object of the assembly,
killed or attempted to kill a man under such circumstances that his act
amounted to an attempt to murder, it was held that upon such finding the case
did not fall within the Exception.9

‘Consent’ Consent, under this Code, is not valid if it is obtained by either

misrepresentation or concealment; it implies not only a knowledge of the risk,

but a judgment in regard to it, a deliberate free act of the mind. In other words,
before Exception 5 can be applied, it must-be found that the person killed, with

full knowledge of the facts, determined to suffer death, or hake the risk of
death and this determination continued up to, and existed at the moment of his
death.10 An accused who wants to bring his case within the domain of

Exception 5 of Section 300 must not only show that the deceased took the risk

voluntarily, he must further prove that the deceased had the requisite
knowledge that he would die while doing so.1'An accused, pleading consent as

a defence, must show that the person consenting did know what risk he was
undertaking. A patient can hardly be said to accept a risk of which he is not

aware. A doctor, pleading consent to an operation, that might prove fatal, must

8 Rohmuddin (1879)5 Cal 31.

9 Queen Empress v. Nayamuddin (1891) ILR 18 Cal 484 (FB).
10 O’Kinealy J, in Empress v. Nayamuddin ILR 18 Cal 484, 492 (FB).
11 Po Set v. Emperor 1910 (11) Cr LJ 345 Rajinder Kumar Sharma v. Stale 1996 Cr LJ
2510 (Del) (DB).
 257

show that the patient did accept the risk and that, consequently, he was aware
of it.12 A husband, being in sore distress, desired to commit suicide. His wife

asked him to first killed her and then kill himself and he accordingly killed
her, but was caught before he killed himself. It was held that the consent of the
wife was a consent within the meaning of Exception 5 to Section 300, IPC.13
In Queen v. Anunto Rurangat,14 the accused and his wife, being overwhelmed

with grief for the loss of their child, determined to kill themselves. His wife
made repeated requests to him that he should kill her and after a time, he did

so by striking her three blows with an axe. It was held that the case did come
within Exception 5 and that the accused was guilty of culpable homicide not

amounting to murder. In a case, a man tried to persuade his concubine to go on

the ground that a scandal was being created by his association with her. But

she refused took the knife out of his waist, put it into his hand and asked him
to kill her, he, accordingly, cut her neck with the knife. It was held that the
accused was entitled to the benefit of this Exception.15 In a similar case the

accused tried to persuade the deceased to leave him and go- away, but she said

that she would never leave him and suggested that both of them might commit
suicide. The next morning, he killed her. The accused was given the benefit of
this Exception.16 In Masum Ali v. Emperor,17 the accused strangled his.

beloved, aged 16 years, to death upon their decision to die together in despair
of future separation and with the feeling that they could not live apart. It was

Sukaroo Kabiraj v. Empres ILR 14 Cal 566, 568.

Dasrath Paswcm v. State of Bihar AIR 1958 Pat 190; Queen v. Anunto Rurnagat 6 WR
57 (Cr).
6 WR 57 (Cr).
Kanaga Kasvan v. Emperor AIR 1931 Mad 436; Re Nainmuttu Kannappan AIR 1940
Mad 138; Re Ambalalhi Assainar AIR 1956 Mad 97, wherein a contrary view was taken.
Re Nainamvthu Kannappan AIR 1940 Mad 138; Kanaga Koswan v. Emperor AIR 1931
Mad 436; Re Ambaiathi Assainar AIR 1956 Mad 97, but see wherein a contrary view was
taken.
17
AIR 1929 Lah 50.
 258

held that this was essentially the case where the spirit, if not the letter, of

Exception 5 could be appLied. Because, the girl was below 18 years of age, not
capable of giving her valid consent, the accused was convicted of murder
though sentenced to transportation for life. Elad the murdered girl been of 18
years or above the offence would have been culpable homicide not amounting
to murder. However, where in Queen v. Poonai Fatteh.maln, the verdict was
different.

Valid Consent : Illustrative cases Where the accused a pile to be lighted

and persuaded a suttee to reascend it, after she had once left it, and she was
burnt;19 Where the accused acting upon the express desire of an adult
emasculated him, arid death ensued owing to the rough manner of the
operation;20 where the accused was repeatedly requested by his wife, who was
overwhelmed with grief at the death of her child, to kill her, did kill her one
night while see was asleep;21 where the accused killed his concubine at her
request and with her own consent;22 where certain snake charmers, by
professing themselves able to cure snake-bits, induced several persons to let
themselves be bitten by a poisonous snake, and from the effect of the bite three
of such persons died;23 where the accused finding that his life had become
unbearable owing to domestic troubles decided to take his own life and began
to load a gun for the purpose but this having come to the knowledge of his
wife, she pressed him hard to kill her first, and in consequence of what she
said and the taunts then .given to him by his parents, he took her life by firing a
shot at her;24 and where a woman expostulated with her lover to kill her as
owing to the scandal she was ashamed to go back to her village and she could

18 12 WR 7(Cr).
19 Sahebloll Reetoll (1863) 1 RLPJ 174.
20 Baboolun Hijrah (-1866)5 WR (Cr) 7.
21 Anunto Rurangat (1866) 6 WR (Cr) 57.
22 Nainamuthu KannappanAIR 1940 Mad 138: (1940) 41 Cri LJ 322 (Mad).
23 Poonai Fattemah (1869) 12 WR (Cr) 7 : 3 Beng LR (A Cr J) 25.
24 Per Aston and Heaton, JJ, in Puntshotam Nlkant Kasbekar Criminal Confirmation case
No. 9 of 1906, decided on August 2, 1906 (Unrep. Bom).
 259

not find a house to live in although she was wandering from place to place and
she took a knife out of his waist, put it into his hand and asked him to cut and
throw her away and be off and he thereupon cut her neck and returned to his
village;25 where the accused, a student in class X and his wife, aged 19 and a
literate woman entered into a pact that the husband should first kill the wife
and then kill himself because the wife had been informed of the decision of the
husband to commit suicide, but the accused was arrested after killing his wife
n /*

and before he could kill himself. It was held in all those cases that the
accused came under this Exception, because in all of them the element of
consent had entered in a greater or lesser degree.
The accused killed his stepfather, who was an infirm old man and an
invalid, with the latter’s consent, in order to get three innocent men, his own

enemies, hanged. It was held that his act fell within this Exception but he was
guilty of an offence under Section 304, Part I of the Code.27

Invalid Consent: Illustrative cases:- The accused who was in desperate

poverty had an argument with his wife as to what they should do and the

accused tried to persuade her to go to her mother’s house. The .wife refused to
go to her mother’s house and said that if the accused insisted it was better that

she was killed. After asking her two or three times if she did not want to live,
the accused cut her with a penknife and killed her. It was held that this was not

the type of consent which was contemplated by Exception 5 and the accused
was guilty of murder.28

Application, of this exception the following conditions must be fulfilled :

(1) Person whose death is caused must have consented to the causing of
his death or the taking of the risk of death.

Kanaga Kosavan (1930) 54 Mad 504.

Dasrath Pas-wanAIR 1958 Pat 190 : 1958 Cri LJ 548 (Pat).
Ujagar Singh AIR 1918 Lah 145: (1918) 19 Cri LJ 125 (Lah).
Ambalathi Assaienar (1955) 2 MLJ 383 : (1955) MWN 605: (1956) Cri LJ 244 (Mad).
 260

(2) The person consenting must be above the age of 18 years.

The consent contemplated by this exception must be unconditional without

any reservation and must be unequivocal that is, there must be no choice of
alternatives to which the person taking the life more or less has driven the

person. 29
The last exception to murder is causing death by consent. This clause is
a departure from the English rule under which homicide is neither justified nor
extenuated by consent. The authors of the Code justified it on the ground that,

although a man’s life is not only valuable to himself but also to the State, and
he is, therefore, not entitled to determine it by consent, consent has

unquestionably the effect of mitigating crime though it can never exonerate the
offender. For example, the soldier who, at the entreaty of a wounded comrade,

puts that comrade out of pain, the friend who supplies laudanum to a person
suffering from the torment of a lingering disease, or a surgeon who performs a
dangerous operation: e.g. abortion, with the consent of the patient, all these
would be cases of murder without consent but reduced to homicide because of
the consent,30

The consent contemplated by the exception must be unconditional,

without any reservation and must be unequivocal,-that is there must be no

choice of alternatives to which the person taking the life more or less has
driven the person. Therefore, where a wife flatly refused to go back to her

mother and said that if her husband insisted upon her doing so she would
rather be killed, the consent was not the kind envisaged here and the husband
was guilty of murder in killing her.31

In re, Ambalathil Asaanar, AIR 1956 Mad 97 (1955) 2 MLJ 383.

Note M. Reprint, pp. 145 and 146 . Sec. 89, Comm, On the effect of consent general, see
sec. 90 and Commentary.
31
Aribalathi! Assainar, In re, (1955) M.W.N. 605 (2): (1955) 2 M.L.J. 383 (D.B.).
 261

In Dashrath Paswan v. State of Bihar-,32 the appellant was a student of

Class X. His academic record in school was unsatisfactory. He had failed at

the annual examination for three years in succession. The deceased, his wife,
was aged about 19 years. She was a literate woman. The appellant was very

much upset at these failures. He took his last failure so much to heart that he
left home and remained away from the village for about prior to the

occurrence. On return home after a week he told his wife that he had decided
to end his life.

His wife told him in reply that he should first kill her and then kill
himself. In accordance with the pact, about an hour later, the wife spread a mat

on the floor in one of the rooms in the house and lay down quietly. The

appellant at first struck her with a bhala causing a minor injury on her chest.
Then he took up a sharp cutting hasuli and gave her three violent blows on

neck killing her on the spot.

He then ran out of the house with his blood-stained cloths in order to
end his own life, P.W. 7. chased the appellant and brought him under arrest to

his house. The appellant was convicted for the murder of his wife and

sentenced to transportation for life. Held, that it was undisputed that the
deceased was above the age of .18 years and that she had suffered death with

her own consent. It could not be reasonably urged that the deceased have the
consent under fear of injury a misconception of fact and in view of Exception
4 the offence fell under the first part of Section 304 of the Indian Penal Code.33

A being repeatedly requested by his wife B who was overwhelmed with

grief at the death of her child to kill her, kills her one night while she was

32
AIR 1958 Pat. 190.
33
Dasrath Paswan v. State of Bihar AIR 1958 pat. 190 at pp. 191, 193: 1958 BLJ R 60 :
Nainamuthu v. Emperor, 1939 MWN 1132.
 262

asleep. Here A would be liable for culpable homicide not amounting to murder
and not for murder because death was caused with the consent of his wife.
In Ainbalalh.il Assaenar In re,34 X was in desperate poverty and tried to

persuade his wife to go to her mother’s house. She refused and said that if X

insisted it was better that she was killed. After asking her two to three times if
she did not want to live X cut her with a pen knife and killed her. In this case
X will be liable for committing murder of his wife and he will not get the

benefit of exception 5 to Section 300 Indian Penal Code because the consent
given by his wife to kill her was not free consent. Consent of wife to kill her

was wrongfully obtained by coercing her. She has not voluntarily given her
consent. She was being repeatedly coerced by her husband to go to her

mother’s house and therefore she asked her husband to kill her rather insist on
her to go. This cannot be said to be her free consent.

Consent under this exception must be free consent and not a consent
obtained or given under misconception of facts. For example in Poonai
Fattemah v. Emperor,35 the accused who was a snake charmer professed that
he was able to cure from snake-bites and by so professing persuaded one of
this audience to consent to be bitten by a snake on the belief that he would be
able to cure him. The deceased was bitten by a snake and died. It was held that
the case did not fall under this exception because the consent given by the
deceased was founded on misconception of fact based on misrepresentation
made by the accused and the accused knew that the consent was given in
consequence of “such misconception. Therefore, the accused was guilty of
murder.
A, a snake charmer repeatedly asserts in his performance that he is

immune from all kinds of snake poison. He reveals the fangs of his own

AIR 1956 Mad. 97.

(1869)12 W.R. (Cr). 7.
 263

snakes to the audience and gets himself bitten by them several times. One of

the spectators produces a snake and challenges the performer to repeats the
performance by being bitten by the new snake. As a result of the snake bite the
snake charmer dies. The spectator will be liable for culpable homicide not
amounting to murder and is entitled to claim the benefit of exception 5 to

section 300. The snake charmer by his repeated assertions has himself
consented to the causing of injury which resulted in this death.
In Queen Empress v. Nayamuddin,36 the' fight was premeditated and

prearranged, a regular pitched battle or trial of strength between two parties.

Nayamuddin, in the course of riot and in prosecution of the common object of

the assembly killed or attempted to kill a man under such circumstances that

his act amounted to an attempt to murder. The question was whether the
parties could be said to have consented to take the risk of death within the

meaning of the Exception. Pigot, J., observed as follows:

“It is not easy to construe the 5th exception; the wholly anomalous rule
which it lays down is expressed but in a few words, unaided by definitions; but

I think it is not going too far to say that it should receive a strict and not a
liberal construction; I mean it should only be applied to cases which quite

clearly fall within it.

“I think the exception should be considered in applying it, first, with
reference to the act consented to or authorised and next with reference to the
person or persons authorised. And I think that as to each of these, some degree

of particularity at least should appear upon the facts proved, before the
exception can be said to apply. I cannot read it as referring to anything short of

suffering the infliction of death, or running the risk of having death inflicted,
under some definite circumstances not merely of time, but of mode of

36
(1891) ILR 18 Cal 484 (489, 492).
 264

inflicting it, specifically consented to, as for instance, in the case of suttee, or
of dueling, which were, no doubt, chiefly in the minds of the framers of the

Code,
“Nor can I understand that it contemplates a consent to the acts of
persons not known or ascertained at the time of the consent being given. I do
not doubt, that the consent may be inferred from circumstances and does not

absolutely need to be established by actual proof of express consent.

“I do not think that from such a mere agreement of fight, such a consent

as is contemplated by the section can be imputed to each member of each mob,

to suffer death or take the risk of death at the hands of any one of the armed

members of the other mob, by means of whichever of such deadly weapons,

used in whatever way that person may please, and be able, to inflict it.”

O’ Kinealy I, observed:
“Before this section can be applied, it must be found that the person

killed, with a full knowledge of the facts, determined to suffer death or take
the risk of death, and this determination continued up to, and existed at, the
moment of his death. It appears to me difficult to assert that when two parties

armed with lathis and spears go out to fight, the members of each party
consent to suffer death; nor can it, I think, be predicated, as a general rule, that

they consent to take the risk of death.”

To bring it within any of the exceptions , under which prima facie
murder is reduced to the lesser crime of culpable homicide, the person who

committed the act causing death must show that the circumstances which he

claims the benefit of, existed when he did the act. What a person claiming the
benefit of Exception 5 has to show is that the person who death he caused

consented to have the particular act, which caused death, done upon him,
knowing, that it would cause his death, or knowing that his life would be
 265

endangered thereby. It is not sufficient to show that the person whose death
was caused voluntarily took the risk of death.37

The accused was a student of Class X. He had failed at the annual

examination for three years in succession. His wife, aged 19, was literate

woman. The accused was very much upset at these failures and took his last
failure so much to heart that he decided to end his life and informed the wife

of-his decision. His wife asked him to first kill her and then kill himself. In
accordance with the pact the accused killed his wife and was arrested before he

could kill himself. It was held that the deceased did not give consent under
fear of injury or under a misconception of fact and, therefore, the accused was

guilty under Section 304, first part and not under Section 302. It was held
further that in the circumstances of the case a lenient view of the case should

be taken and the accused should be sentenced to 5 years’ rigorous

* •
imprisonment.
Where the accused killed his step-father, who was an infirm old man,

with his consent in order to involve some of their enemies in trouble by

charging them with the murder, it was held, that the case was covered by the
fifth Exception.39

The consent given by the victim who though not yet eighteen is

approaching that age mitigates the gravity of the offence of murder in the
sense of making it unnecessary to pass the extreme sentence of death.40

Delay in lodging F.I.R. and in sending F.LR. to the Magistrate-effect:-

Section 157, Code of Criminal Procedure requires the FIR to be sent forthwith

to the Magistrate competent to take cognizance of the offence. Where in a

P. 0 Set v. Emperor 11 Cr. LJ 345 : 5 LBR 160.

AIR 195S Pat 190 (Dasrath).
Ujagar Singh v. Emperor AIR 1918 Lah 145 : 19 CrLJ 125 : 45 PR 1917 (Cr).
Masitm Ali v. Emperor 30 Cri LJ 855.
 266

murder case the incident occurred on December 25, 1976 ,at 8.15 P.M. The
same day was sent out from the police station on the morning of December 26,

1976 to the court of the magistrate which was nearby and no explanation was
offered for the extraordinary delay of 12 HOURS IN SENDING THE
\

REPORT TO THE Magistrate, it was held that the delay provided legitimate
basis for suspicion that the F.I.R. was recorded much later than the stated date
and hour affording sufficient time to the prosecution to introduce improvement
and embellishment and set up distorted version of the occurrence.41

Non-disclosure of assailant’s name in FIR-effect : Non-disclosure of the

names of assailants by the informant in the F.I.R. whom he knew from before,
makes his testimony in court wherein he names them, unworthy of credence.42

Where the solitary eye witness does not disclose the assailant’s name
immediately after the occurrence, although the assailant is know to him, it
would be unsafe to accept his testimony. In the under noted case, an accused
was charged of committing murder of the deceased by throwing a big stone on
his head while he was asleep. The only eyewitness deposed that on the night
the incident occurred, he was sleeping along with the deceased, that he woke
up on hearing the shrieks of the deceased and found the accused running away.'
This exception has no reference to duelling, for, in duelling the parties
do not consent to take the risk of death which they wish to avoid, if possible.
Their primary object is to kill their adversary, and the only thing they consent
to is to fight in accordance with the rales and practice of dueling.43 This view
was dissented from by White and Field, JJ. Who held the clause wide enough
to embrace the case of dueling,44' but on the whole question going up before

Kamaljit Singh v. Stale of Punjab 1980 Cr LJ 542 see also Swaran Singh v. State 1981 Cr
LJ 364.
Bhagwan Dass v. Stale 1980 CrLJ 1033.
Per Ainslee, J. in Rohimuclin v. Emperor, I.L.R. 5 Cal. 31.
Shamshere Khan v. Emperor, I.L.R. 6 Cal. 154. overruled. in Queen-Empress v.
Nyamuddin, I.L.R. 18 Cal. 484 (F.B).
 267

the Full Bench, this view was all but overruled by it,45 the view there taken
being in accordance with the earlier case. The view taken by the Full Bench is
that such consent as is here contemplated cannot be inferred from a mere
agreement to fight together, but at the same time there may be cases where the
risk of death is expressly covenanted for, in which case it would be a question
whether the clause should not be held applicable. But it was a question which
that Court was not called upon to decide, and did not decide. At the same time,
it did decide that such consent cannot'be inferred from a general consent to
suffer the consequences of a free fight.
As is explained by the authors the clause was really intended to apply
0

to cases in which the deceased courts death at the hands of the accused or
where death is the direct result of the consentient act in which the deceased

knew of the risk of death and consented to it. Such, for instance, would be the

case of a person consenting to undergo dangerous operations, such as,

emasculation at the hands of the accused, himself an eunuch, and who
thereupon performed it by cutting off his private parts with a knife, which
caused his death, or where a person immolates another as in the case of a
suttee46 or the car of Juggernath, or where two lovers agree to die together in
each other’s embrace. In a case, the accused and the deceased who were a

married couple, had so resolved to die out of grief for the loss'of their only
child, a boy 5 years old. The wife requested her husband, the accused, to kill

her first and then kill himself. He thereupon killed her by striking her three
blows with an adze. But after killing her he did not proceed to kill himself, but
called in his brother who seized his adze from him, and the accused reported
the facts to the police. It was held that his offence fell under this exception.47

Nyamitddin v. Emperor, I.L.R. 18 Cal. 484 (F.B).

Saheboll Reetloll. (1863)1 R.J.P.J. 174: Rohimuddin v. Emperor, I.L.R. 5 Cal. 31.
Aminto Ritrnagat v. Emperor. 6 W.R. 57.
 268

Consent to the risk of Death The accused was a snake-charmed and he

persuaded his audience to believe that, if they got themselves bitten by the
poisonous snake which he was exhibiting, he possessed the antidote to cure

them. The deceased believed in his assurance and submitted himself to be

bitten and died. It was held that the case of the accused did not fall under this

exception, because the consent given by the deceased was founded on a

misconception of facts, which the accused knew. The evidence of consent
which would be sufficient in a civil transaction, must be equally sufficient for

mitigation of an offence.
Euthanasia or mercy killing According to Oxford Dictionary, “euthanasia”

means “the bringing about of gentle and easy death in the case of incurable

and painful disease”. It is the causing or hastening of death, particularly of

incurable or terminally ill patients at their request. Normally, such act is illegal
and contrary to law, the reason being that it is very difficult to draw a line of

distinction between justifiable and unjustifiable circumstances to cause death.

Euthanasia or mercy killing is a phenomenon of comparatively recent origin.

Under it the victim, or any other person on his behalf chooses death mainly
because of medical conditions of the victim and then he is put to death by

someone else. The victims are mostly terminally ill and the concept of dying
with dignity is involved in such cases. In 1984, an old German woman who

was suffering immense bodily pain as she was an acute case of cancer which
had almost eaten away her mouth, a cheek and an eye, and thirteen radiation
treatments had reduced her body into a lawful mess, requested her doctor to

help her to die, and the doctor talked with her for long over this matter and
also discussed it with other doctors, lawyer and her friends and finally gave
 269

her a cyanide dose and she died. A flood of discussions began thereafter.48

Questions of right to die became quite vociferous during the first and second

world wars, the Vietnam war, the Iraq-Ran war, the recent war in Iraq and
such wars and battles in which life became almost unbearable for a very large

number of persons maimed as a result. An eminent French cancer special is

has publicly announced that he has hastened the death of a large number of
terminally ill patients.49 A newspaper report says that even though euthanasia

is not recognized in China a large number of such deaths have taken'place in

Chinese hospitals during the past years. Most of these deaths were caused by
passive euthanasia by discontinuing the life sustaining equipment in terminally
ill cases on the request of the close relatives or friends of the patient.10 The

New Jersey Supreme Court has held that constitutional right of privacy

protects the right of a patient to refuse life sustaining treatment. The next-of-

kin of the patient are also entitled to order a treatment to be discontinued

allowing the patient to die.51 In 1984, a person was imprisoned for a period of

nine months only -by a court in London for attempting to help a terminally ill
very old woman who begged to be assisted in suicide, and the court admitted
that the accused was guided solely by compassion.52

These developments have prompted debates on euthanasia in India as

well. The Indian Society for the Right to Die (ISRD), New Delhi and the
Society for the Right to Die with Dignity (SRDD), Bombay have already come

into existence in favour of euthanasia, while the Respect Life Society (RLS),

Bombay, an anti-euthanasia body has also been formed. A private Bill

favouring active euthanasia was introduced in the Parliament in 1980 but

Edward Hughes, Dying with Dignity : The Hard, Choice.

Robert A Burt, ‘Taking care of Strangers: The Rule of Law in Doctor-Patient Relations’,
The Times of India, Jaipur Edition, July 14, 1988.
70N.J. 10.
52
John C.Fletcher, ‘Is Euthanasia Ever Justifiable?’
 270

nothing came out of it, A private Bill favouring passive euthanasia was
introduced in the Maharashtra Legislative Council’ sometime back but it

seems that it has also met the same fate.

Therefore, the law in India remains as it had been all along, and causing
death with consent continues to be governed by exception 5 of section 300 of
the Indian Penal Code.
r')

Benefit of Doubt In Sharad Birdhi Chand Sarda v. State of Maharashtra,

the appellant accused and the deceased were a newly married couple. Nearly

four months after the marriage, the deceased was found dead in her bed. The
medical evidence showed that the cause of death was unnatural. It was held by
the Supreme Court that the prosecution had failed to make out the case beyond

reasonable doubt as to murder by the accused, therefore, the accused is entitled

to benefit of doubt. He was set at liberty.
In Mahantappa v. State of Karnataka,34 it was alleged that seventeen

persons having formed an unlawful assembly assaulted deceased with sword

and thereafter threw her dead body in a hut and set it on fire. The evidence of
eye-witnesses was corroborated by objective finding of investigating officer

and medical evidence. They were acquitted by the trial court but in appeal the
High Court acquitted three accused and convicted eleven of them under

Sections 148, 302, 307, 449, 436, and 201 all read with section 149, I.P.C.
While three of them died during pendency of appeal and hence the appeal
against them abated. It was held by the Supreme Court that the participation of
five accused persons A-l, A-2, A-4, A-5 and A-8 and their active roles in

incident was established by two or more eye-witnesses, hence their conviction

was proper. I-Iowever conviction of two accused persons A-6 and A-7 solely

1984 CriLJ 1738 (SC).

1999 Cri.L.J. 450 (S.C.)
 271

based on identification by one witness only was set aside. It was further held

that there was no evidence to establish that the remaining accused persons A-
10 and A-13 were members of unlawful assembly, their presence at place of

occurrence as onlookers cannot be ruled out, hence they were given benefit of
doubt. It was further ruled that A-12 was not named in the F.I.R., hence he is

also entitled to benefit of reasonable doubt.

In Kalpana Mazitmdar v. State of Orissa*5 the F.I.R. was lodged by

Chitranjan Mohanty (PW-7). Fie reported that four appellants and Sumanchal
Pahdi had kidnapped his nephew on 30th April, 1997 and subsequently killed

him. It was stated that on 1st May, 1997 in the early morning while PW-7 had
gone out to attend the call of nature he saw that a person was bringing

something on his shoulders and he came towards the pond. That person was
accused No. 3. PW-7 caught him and raised an alarm. People gathered there,

some of them who gathered were named in the FIR. They found that A-3 was

carrying the dead body of the deceased and on being asked he said that he has
not murdered the child alone but some other persons were also involved in the
murder and he can identify them. He took all the persons to the house of

accused No. 2 (A-2) who finding A-3 and others threatened to assault

everyone and his servants also came with lathi and tangi. At that time they
came back but alongwith some other villagers they again went to the house of

A-2 and then found that there was none in the house. In the prayer room of the
house they found the nails of the dead child lying with the blood as also the

hair of the child. A-3 told them that in that room the nail, hair and tongue of
the child were cut and Sumanchal Padhi offered prayers, whereafter they took
the child alive in the jeep of A-2 to the house of Accused No.. 1 (A-1) where
the child was murdered by holding his leg and hand and throttling his neck.

55
2002 Cri . L.J. 3756 (S.C.):
 272

Sumanchal Padhi, A-l and A-2 told A-3 that they will pay Rs. 25,000/- to
throw the boy. When he was throwing the boy in the pond PW-7 caught him
red handed. After hearing this all of them went to the house of A-l. There

Sumanchal Pathi ‘The Tantrik5 said that he had killed the boy and he can give
life to him. Padhi offered prayers near the dead body for three hours and told

everybody to wait but he failed to give life to the boy and ran away from the
house but was caught with his associates and handed over to the police.
Harichand Sahu (PW-14) who was an employee of A-l was an eye witness of
the entire episode. Pie deposed that the day of incident when PW-14 was called

by A-l at about 7 p.m. at llis house, A-3 brought a child.

It is not beyond the keen of experienced, able and astute lawyers to

raise doubts and uncertainties in respect of the prosecution evidence either

during trial by cross-examination or by the marshalling of that evidence in the

manner in which the emphasis is placed thereon. But what has to be borne in

mind is that the penumbra of uncertainty in the evidence before a Court is

generally due to the nature and quality of that evidence. It may be the

witnesses are lying or where they are honest and truthful, they are not certain.
It is, therefore, difficult to expect a scientific or mathematical exactitude while

dealing with such evidence or arriving at a true conclusion. Because of these

difficulties corroboration is sought wherever possible and the maxim that the

accused should be given the benefit of doubt becomes pivotal in the

prosecution of offenders which in other words means that the prosecution must

prove its case against an accused beyond reasonable doubt by a sufficiency of

credible evidence. The benefit of doubt to which an accused is entitled is

reasonable doubt-the doubt which rational thinking men will reasonably.

Honestly and conscientiously entertain and not the doubt of a timid mind

which fights shy - though unwittingly it may be - or is afraid of the logical

 273

consequences, if that benefit was not given or as one great Judge said it is “not
the doubt of a vacillating mind that has not given or as one great Judge said it

is ‘not the doubt of a vacillating mind that has not the moral courage to decide
but shelters itself in a vain and idle scepticism”. If does not mean that the
evidence must be so strong as to exclude even a remote possibility that the
accused could not/ have committed the offence. It that were so the law would

fail to protect society as in no case can such a possibility be excluded. It will

give room for fanciful conjectures or untenable doubts and will result in

deflecting the course of justice if not thwarting it altogether. It is for this

reason the phrase has been criticized. Lord Goddard, C.J., in Rex v. Kritz,56

said that when in explaining to the juries what the prosecution has to establish

a Judge begins to use the words “reasonable doubt” and to try to explain what

is a reasonable doubt and what is not, he is much more likely to confuse the

jury than if he tells them in plain language. “It is the duty of the prosecution to
satisfy you of the prisoner’s guilt”. What in effect this approach amounts to is

that the greatest possible care should be taken by the Court in convicting an
accused who is presumed to be innocent till the contrary is clearly established

which burden is always, in the accusatory system, on the prosecution. The

mere fact that there is only a remote possibility in favour of the accused is
cn
itself sufficient to establish the case beyond reasonable doubt.
Cases In a case of murder, where intention is one of the essential elements
of the offence, it is always necessary that there should be a definite finding as
to whether the necessary guilty intention is or is not present and finding as to

whether the necessary guilty intention is or is not present,,and when it is

56 (1950) 1 K.B. 82 atp. 90.

57 ■ Himachal Pradesh Administration v. Om Parkash, AIR 1972 S.C. 975 at p. 981 : 1972
S.C.D. 128; Hamimant Das v. Vinay Kumar, AIR 1982 SC 1052 : 1982 Cr.L.J. 977 (SC);
Gopal v. State of Haryana, 1993 Cr. L.J. 2724 at pp. 2728-30 (P. & 1-1.) : K. ASHOKAN
v. STATE OF KERALA, 1998 Cr. L.J. 28 ATP. 2835 (SC).
 274

reasonably doubtful upon the evidence of the prosecution whether the

intention is present then the accused is entitled to the benefit of that reasonable
doubt, and he must be acquitted of the charge of murder even if he is to be
convicted of the change of culpable homicide not amounting to murder. The
accused should not be convicted of murder even in the alternative.58 An act

done with the knowledge of its consequences is not prima facie murder. It
becomes murder only if it can be positively affirmed that there was no excuse.

The requirement of Section 300 are not satisfied by the act of homicide being
one of extreme recklessness. It must in addition be wholly inexcusable. When

a risk is incurred, even a risk of the gravest possible character which must
normally result in death, the taking of that risk is not murder unless it was
inexcusable to take it.59 In the above cited case, a wife with a baby in her aims,

fearing her husband, was trying to escape from him, and in panic created by

the sight of her husband pursuing her, she jumped into a well with the baby,
and the child died. It was held that she had an excuse and that excuse was

panic or fright and she was not guilty or murder but only of culpable homicide.
Therefore, if the act of the accused was likely to result in death of the deceased

but the death of the deceased was not the most probable result of his action, he

should be convicted not for murder but for culpable homicide not amounting
to murder.60 The question as to whether the case is within one of the

exceptions to Section 300,1.P.C. does not arise for determination, unless and
until the prosecution has established a case of murder. If the prosecution has

proved that culpable homicide (under Section 299) has been committed by the
accused but has failed to prove that such culpable homicide amounted to

Ghulam Hyder Imam Baksh v. Emperor, A.I.R. 1938 Sind 63 at p. 65 : 39 Cr. L.J. 460 :
174 I.C. 497.
Emperor v. Mst. Dhirajia, AIR 1940, 486 at p. 489: ILR (1940)All. 647 : 1940 A.W.R.
(HC) 488.
60 Khiman v. Emperor, 1936 ALJ 73: 1936 AWR 190.
 275

murder (under Section 300) it is improper, and indeed useless, to consider

whether any of the excluding factors were present.61 If upon a review of all the

available evidence a doubt arises as to whether appellant has committed

murder or whether he has committed culpable homicide by reason of

exceeding the right of private self-defence, he is entitled to be found guilty of
the lesser offence only.62

If one deliberately administers a common poison the effects of which

are well-known, it is no defnece to say that 'one failed to grade the exact does
correctly so as to cause some injury short of death.63

Now we will study another batch of sections i.e. Section 305 and 306 of

I.P.C. for determining the role of consent in fixing criminal liability of a

person who has abetted to commit suicide. In other words the study will reveal

why the accused is punished with heavy punishment in case the consenting
victim is under 18 years of age etc and why the lesser punishment when the

victim is above 18 years.

A very important fact which is necessary to note is that section 305 and

306 apply only when suicide has been committed. These sections do not apply

to cases of attempted suicide.

Now first of all we take up Sections 305 and 306 for deep discussion
with ‘consent’ point of view for seeking criminal liability of accused.

Section 305. Abetment of suicide of child or insane person If any person

under eighteen years of age, any insane person, any delirious person, any idiot,

or any person in a sate of intoxication, commits suicide, whoever abets the

commission of such suicide, shall be punished with death or * [imprisonment

Nga chit v. King, AIR 1939 Rang, 225 at p. 230: 46 Cr. L.J. 725: 183 I.C. 145.
Nga Pyru Thin v. Emperor, AIR 1937 Rang, 343 at p. 344:38 Cr. L.J. 1095 171 l.C. 586
Chhagcm Dame v. State of Gujarat, AIR 1994 SC 454 at p. 456.
63
Minai v. Emperor, AIR 1938 Nag. 318 at pp. 318, 319 : 39 Cr, L.J. 455: 174 I.C. 380.
 276

for life], or imprisonment for a term not exceeding ten years, and shall also be

liable to fine.
Object This and the following sections have been inserted because the
ordinary law of abetment is inapplicable. Sections 305 and 306 apply when

suicide is in fact committed, whereas Section 309 applies where a person

attempts to commit suicide.

‘Suicide’ is self-destruction by a person.

The Law Commission observed: “It seems to use that the rule would
fall to be applied under these clauses chiefly in such a case as this, where a
person legally bound to take care of the person of another has by an illegal

omission of his duty intentionally given him the opportunity, or permitted him
to obtain the means of killing himself. It would apply also, we conceive, in the

case of a person seeing another preparing to destroy himself, say by hanging,

and allowing him to accomplish his purpose without any attempt to prevent
him, if, as may °be expected, the law of procedure makes it a- common duty
incumbent upon all men to assist in preventing offences about to be committed

in their presence. The intention here would • be inferable from the

circumstances. In the former case collateral proof of the intention would be

requisite. But we apprehend that it is active aid which is principally intended

in these clauses, and to which the higher penalties are meant to be applied.”64

Section 306. Abetment of suicide If any person commits suicide, whoever

abets the commission of such suicide, shall be punished with imprisonment of
either description for a term which may extend to ten years, and shall also be
liable to fine.
/

(i) Extent and scope Section 306, IPC.65 Punishes abetment of suicide. For

instance, if one person persuades another to kill himself by taking poison and

64
First Report, Sections 322, 323.
65
Kans Raj v. State of Punjab, 2000 (3) Supreme RI 556.
 277

he takes it, the. person would be liable as an abettor under this section. The
offence of ‘abetment’ must conform to the definition of ‘abetment’ given in

section 107 of the Penal Code, i.e., there must be instigation, or engaging in
conspiracy, or assistance in the commission of the offence.66 However, the

instigation must be intentional to bring a case within the purview of Section

306,1.P.C. For instance, in a recent case Sanju alias Sanjay Singh v. State of
Madhya Pradesh,67 the Supreme Court has quashed the charge-sheet framed

by the additional Sessions Judge for an offence under section 306, I.P.C. and

the order of the High Court. The Court held that words uttered in a quarrel or
on the spur of moment, such as “to go and die”, cannot be taken to be uttered

with mens rea. It is in a fit of anger and emotion. So when the appellant used

abusive language and told the deceased “to go and die”, suicide by the
deceased was not the direct result of the quarrel. This does not constitute the

ingredient of “instigation” under Section 107, I.P.C. as the word ‘instigate’

denotes incitement or urging to do some drastic or indivisible action or to

stimulate or incite. The deceased alone and no one else was responsible for his
or her death.

Section 306, I.P.C. creates a specific offence and the liability arises
only when the suicide is committed. Section 306, I.P.C. will not apply in case

of an attempted suicide, which will attract Section 309, I.P.C. The punishment
in such a case may extend up to ten years of imprisonment of either

description and also fine.

(2) Suicide -meaning Suicide is self-murder and the person committing

suicide is beyond the reach of the law. But it does not. follow that suicide is not
forbidden by the Code. And a man encouraging another to commit suicide is

See Commentary under section 107, I.P.C. for detail discussion on the subject.
(2002)5 SCC 371.
 .278

certainly criminal and his act is punishable in law, and such an act is

condemnable from every point of view.

In Mohit Pandey,68 the deceased having lost her husband, resolved to
immolate herself and thus become a sad. She prepared herself for it in the

presence of the accused. They followed her to the pyre and stood by her, her
step-son crying ‘Ram. ’ 4Ram ’. One of the accused told her to repeat 4Ram ’

4Ram. ’ and she would become sad. These facts were held to prove active
connivance and unequivocal countenance on their part justifying the inference
that they had engaged with her in a conspiracy for the commission of the
suicide by sad. They were consequently convicted of the offence. A person

assisting a widow to become sad (self-immolation on the pyre of the dead

body of her husband) is guilty of abetment of suicide under this section.69 An

abettor cannot escape on the ground that he expected a miracle to happen and
did not anticipate that the pyre would be ignited by human agency.70
(3) Abetment of suicide by a married woman To combat the ever-

increasing menace of dowry deaths, Criminal Law (Second Amendment) Act,

1983 has provided that where a married girl commits suicide within seven
years of her marriage, the court may presume that her husband and relatives of
her husband had abetted her to commit suicide by virtue of insertion of section

113A in the Evidence Act, 1872. Section 113 A states that-

Presumption as a abetment of suicide by a married woman When the

question is whether the commission of suicide by a woman had been abetted

by her husband or any relative of her husband and it is shown that she had
committed suicide within a period of seven years from the date of her
marriage and that her husband or such relative of her husband subjected her to

68
(1871)3 NWP3I6.
69
Emperor v. Ram Day^al, 1913 ILR 36 All 26; Tej Singh, AIR 1958 Raj 169.
70
King Emperor v. Vldya Sager Pande, 1928 ILR 8 Pat. 74.
 ' 279

cruelty, the Court may presume, having regal'd to all the other circumstances

of the case, that such suicide had been abetted by her husband or by such
relative of her husband.

Explanation. - For the purposes of this section ‘cruelty’ shall have the same
meaning as in Section 498A of the Indian Penal Code (45 of I860).”
Iqbal Singh In State of Punjab v. Iqbal Singh.,11 the Apex Court held that

the accused-husband, mother-in-law and sister-in-law are liable for abetment

of suicide under Section 306, I.P.C. for creating such circumstances which
provoked or forced the deceased to commit suicide, by setting herself and her

three children ablaze. The facts of the case are very pathetic. The accused was
married to Mohinder'Kaur seven years before the incident. They had tow

daughters and one son. The deceased was working as a teacher while her
husband was a clerk. Soon after the marriage there were disputes between

them on the question of dowry that led to ill treatment and harassment of the

deceased.
Apprehending danger to her life and life of the children she sought
protection of the police on 12th October, 1977. Divorce deed was executed but

was not acted upon on the persuasion and intervention of some relatives and

friends. Efforts by the deceased to secure transfer of her service to another

school was also foiled by husband. However, the situation did not improve and
the demand of Rs. 35,000 to Rs. 40,000 by way of additional dowry was
stepped up by the husband on the death of the deceased’s father from the

provident fund and gratuity received by her mother. On the deceased’s refusal
to oblige she was ill treated and beaten by the husband at the instigation of her

mother-in-law and sister-in-law, who had conspired to kill her on the night of
6th June, 1983 by sprinkling kerosene/petrol on her. But their plan misfired.

71
AIR 1991 SC 1532.
 280

Being feci up on account of ill treatment and beating by her husband,

torture and humiliation by his family members she finally ended her life and
life of the children to spare them of the present and future agony and torture in
the afternoon of 7th June, 1983. Before doing so she informed to the Deputy

Commissioner of Police the circumstances that compelled her to take this

extreme step.
The trial court convicted all the three accused - the husband, his mother

and sister under Section 306,1.P.C. However, the High Curt acquitted them on
the ground that the prosecution did not establish the ingredients of Section
306,1.P.C.

Setting aside the order of the High Court and restoring the trial court’s
verdict, the apex court held that where the husband or his relative by their
willful conduct create a situation which they know will drive the woman to
commit suicide and she actually commits suicide, the case would fall within

the ambit of Section 306, I.P.C. In such a situation the conduct of the person
would tantamount to inciting or provoking or virtually pushing her to put an

end to her miseries by committing suicide. The court said it was evident from
the conduct of the accused that a carefully chalked out strategy was planned to

provoke or force her into the only alternative left open to her, namely suicide.
No stone was left unturned in executing the well thought out plan of

eliininating her by creating an atmosphere of terror. The last straw on the

camel’s back fell when she was severely beaten and an attempt was made to
kill her on the night of 6th June, 1983, a day before the incident by sprinkling

petrol on her.

Brij Lai :-Similarly, the apex court in Brij Lai, held the accused husband liable
under Section 306, IPC for abetting his wife Veena Rani to commit suicide by

72
Brij Lai v. Pram Chanel, AIR 1989 SC 1661.
 281

setting fire to herself. Deceased Veena .Rani, who had died of bum injuries on 15th
September, 1975 was married to the respondent Prem Chand in 1973.
While allowing the appeal and restoring the trial court’s verdict, the apex
court held that from the very beginning Veena Rani had an unhappy married life
because of the accused constantly demanding her to get money from her parents
and the household expenses were borne by her out of her salary. Besides
tormenting Veena Rani to get more and more money from her parents, the
accused was also beating her frequently. She complained to her parents, brother
and brother-in-law about the cruel treatment meted out to her by the accused, and
for demand of a sum of Rs. 1,000 on 10th and 14th September, 1975, the day
before she committed suicide.

The fact of instigation to commit suicide becomes further clear from the
fact that on Veena Rani pleading her inability to make immediate payment, the
accused told her that he did not care if she went to hell but he wanted immediate
payment. When the deceased stated in despair that she had enough of torment and
that she preferred death to living, the accused added fuel to fire by saying that
‘she may put an end to her life the very same day and she need not wait till the
next day to quiet this world.’
The court rightly held that such an utterance by the accused would have
certainly been seen by Veena Rani as an instigation to her by the accused to
commit suicide. No mother, however distressed and frustrated, would easily make
up her mind to leave her young child of one and a half year old in lurch and
commit suicide unless' she had been goaded to do so by someone close to her and
in this case it was none else than her own husband.
Where the deceased stated in her dying declaration that the accused
(mother-in-law) maltreated and taunted her for bringing less dowry and this led
her to take the extreme step of committing suicide, it was held that the mother-in-
 282

law was guilty of abetment of suicide.73 Similarly, in Gurbachcm Singh,74 when a

newly married girl committed suicide because of harassment and constant taunt

and torture at the. instance of her husband and in-laws, the accused where held
liable under Section 306, 1.P.C. for abetment of suicide.
In Gian Kaur7^ the Constitutional Bench consisting of five judges
dismissed the petition challenging the constitutional validity of Section 306,
I.P.C., in view of the judgment in P. Rathinam.76 (overruled) and held both
Section 306 and Section 309,1.P.C. as constitutional.
‘Abetting suicide’ and ‘consent lolling’ - Abetting suicide is distinguishable
from killing by consent. The former is punishable under Section 306,1.P.C., while
the latter is homicide by consent, which is one of the forms of culpable homicide

not amounting to murder as defined in Exception 5 to Section 300, I.P.C. and

punishable under Section 304, I.P.C. For example, if a doctor to hasten his
patient’s death, who is terminally ill (incurable disease) injects poison with the
patient’s consent, the doctor will be liable for culpable homicide not amounting to
murder under Section 304, I.P.C., but if the doctor places the poison by the
patient’s bed side and he takes it, the doctor will be liable for abetting the patient
to commit suicide punishable under Section 306, I.P.C.
Abetting sati The Commission of sati (Prevention) Act, 1987 (4 of 1988)
The Act, drawn up in the wake of an incident of sati at Deorala, in Rajasthan,
stipulates punishment not only for the practice of sati but also for its glorification.
An important component of the Act is the establishment of special courts for trial
of offences under the Act. The Act defines sati as the practice of burning or

73 Nirmala Devi v. State of Punjab and Haryana, (1983) Cr LJ 230. See Wazir Chand v.
State of Haryana, AIR 1989 SC 378; Lotika Sircar, Women and the Law, XXIV ASII.
(1988) 372,373.
74 Gurbanchan Singh v. Satpal Singh, AIR 1990 SC 209.
75 AIR 1996 SC 1257. The appellant, Gian Kaur and her husband Harbans Singh, were
convicted by the trial court under section 306, I.P.C. for abetting the commission of
suicide by Kulwant Kaur. High Court confirmed the sentence. They appeal
unsuccessfully to the apex court
76 AIR 1994 SC 1844. See for details commentary under sec. 309, I.P.C.
 283

burying alive the widow along with the body of her husband, or with any article

or object, irrespective of whether such burning is voluntary on the part of the

widow. The Act also prohibits glorification of sati, which includes the observance
of ceremonies, taking out of processions, collection of funds or construction of
temples to perpetuate the memory of a widow who has become sati.
Abetment of sati means inducing a widow to become sati, to persuade or
to instigate a widow to believe that the act would bring some spiritual benefit to
her or her husband other family. Abetment also means obstructing the police from
performing the legitimate duty of preventing the women from becoming sati. Any
person guilty of abetting the act of sati directly or indirectly, shall be punished
with the death sentence or life imprisonment and fine. Those guilty of glorifying
sati may be punished with imprisonment up to seven years and fine. The Act also
provides for appeal against the order of the court within 30 days. The onus
proving innocence lies with the accused.
The District Magistrate has been empowered to prevent construction of
sati temples and seize funds collected for the purpose of glorification of sati. The
magistrate can also issue a ban order as a preventive measure and get sati temples
under construction demolished. It is important to note that there are about 140 sati
temples in the country, of which more than 30 are in Rajasthan alone.
India : Euthanasia Illegal In India, euthanasia (consent killing) is illegal and
punishable under Section 300 Exception 5 of the Penal Code as culpable homicide
not amounting to murder. However, there is a growing awareness amongst jurists
and social scientists that euthanasia should be made legal in case of terminally ill.
. If enacted, such a law must provide sufficient safeguards, appropriate supervision
and control to avoid misuse of the provision. It may be noted that euthanasia is
not lawful at common law in England, Australia, Canada in spite of public
demand to this effect possibly because of its likely misuse.
 284

Similar is the situation in other countries except Holland which is perhaps

the only country where euthanasia is legally permitted. Of course, some of the
States in the United States of America as noted above have taken positive steps in
formulating ‘Living Will’ legislations, that allows a person to opt for euthanasia
before one becomes, terminally ill.
Latest case on abetment of suicide (years 2008) Didigam Bikshapathi & Anr.
v. Stale of AP,77
Facts Budida Krishnamurthy (hereinafter referred to as the ‘deceased’)had
close friendship with the appellant (Al). About four years back he appellant (A
1). About four years back he appointed deceased and others as field officers in his
finance firm namely: Uma Hire Purchase and Finance. While so, the appellant
No. 1 joined as a partner in Kanaka Mahalaxmi Real Estate Ventures run by
Mekala Ravi and Mekala Venu. The deceased and two other field officers
namely: Budida Laxmaiah (L. W. 7) and Thandra mallaiah (L. W 8) sold about 15
plots in that group to ICommaipalli villagers and collected various amounts from
them and handed over the same to the appellant No. 1. As he did not pay the
money to the Kanaka Mahalaxmi Real Estate Ventures, the other partners did not
register the plots in favour of the persons, who paid the money to the deceased.
Since the deceased demanded for registration of the plots in favour of the
prospective purchasers, he (appellant No. 1) escaped with his family from
Jangaon and was staying at his in-laws house. The deceased went there and
demanded registration of the plots, but the appellants abused him in filthy
language and the accused neither registered the plots nor returned the amount.
Due to the mental harassment and unable to bear the pressure from the purchasers
of the plots. The deceased committed suicide by falling under an un-known train
in the night of 17.4.2001 leaving a suicide note narrating the reasons for his
committing suicide.

77
AIR 2008 SC 527.
 285

Held The suicide note clearly refers to the background in which the victim took
the extreme step of taking away his own life by committing suicide. It is not a
case where there is no reference to any act by the accused. In the instant case the
suicide note clearly refers to the acts of the accused appellants and the roles
played by them. Therefore, the High Court rightly rejected the prayer of exercise
of power under Section 482 of the Code. We make it clear that any observation
made by the High Court and by us while dismissing of the present appeal shall be
construed to be determinative factor in the trial Appeal dismissed.
Abetting suicide in England The common law offence of attempt to suicide is
abolished in England vide section 1 of the Suicide Act, 1961.78 However, old law
of aiding and abetting suicide continues to be an offence by making it a statutory
crime to aid, abet, counsel or procure a suicide or attempted suicide.79 The Act
provides penalty that may extend to 14 years of imprisonment for procuring the
suicide of others, for some nefarious purpose of their own.
on
Complicity in Suicide In R. v. McShane, the appellant was convicted inter
alia of attempting to counsel or procure her mother’s suicide contrary to Section
2(1) of Suicide Act, 1961. The appellant’s grandmother died leaving the bulk of
her estate to the appellant’s mother having a life interest in the income from it.
The mother suffered from fantasies and had threatened to commit suicide. In 1975
the appellant visited her mother at her residence and was seen to pin a packet
containing Nembutal tablets (sleeping pills) inside her mother’s clothing so that
she could take them. Suicide was discussed, the appellant telling her mother the

Suicide Act, 1961, section 1 : The rule of law where it is crime for a person to commit
suicide is hereby abrogated see Williams, Glanville. Text Book of Criminal Law, 2nd ed.
Pp. 578-582 see Smith and Hogam, Criminal Law Cases and Materials, 5'1' ed. (1983) pp.
335-228.
Id. Section 2(1) A person who aids, abets, counsels or procures the suicide of another, or
an attempt by another to commit suicide, shall be liable on conviction on indictment to
imprisonment for a term not exceeding fourteen years.
80
(1977) 121 Sol. J 632, 66 Cr App Rep 97 CA.
 286

number of tablets it was necessary to take but that she, the appellant, must not be
connected with the taking or she would not inherit under her grandmother’s will.
She was also heard to say:
‘Do not let’s make a mess of it this time. We thought we had done so well

before.’
Upholding the conviction, the court said that the appellant had been rightly
convicted of abatement to suicide as the case was not one of a suicide pact, nor
was it in. the nature of an attempt to commit an impossible crime for the mother to
have taken the sleeping tablets.
O I

In a recent case R. Pretty v. Director of Public Prosecutor, the House of

Lords was confronted with a very complex and pathetic case. The appellant
Mrs. Dianne Pretty is critically ill and has no hope of recovery. She expressed her
desire to her husband Pretty to help her in the process of bringing her life to a
peaceful end as her physical incapacity is such that she can no longer, without
help take her own life. Her husband agreed provided he was assured of not being
prosecuted under .Section 2(1) of the Suicide Act, 1961 for aiding and abetting
suicide by the Director of Public Prosecutions under Section 2(4) of the Suicide
act, 1961 The Director, however, refused to accord any such undertaking. Being
aggrieved by the refusal, Mrs. Pretty moved the Queens Bench “Division Court”
for Judicial review of the decision, which turned down the petition.
In Denmark Section 240 of the Penal Code of Denmark provides that
any person who assists some other person in committing suicide shall be liable to
a fine or to simple detention.
In Switzerland The Swiss Penal Code requires selfish motives to be
established for a .person to be severely punishable for aiding suicide.

(2002)1 A11ER 1(H.L.).

The 1961 Act provides as follows; 2(4) No proceedings shall be instituted for an offence
under this section except by or with the consent of the Director of Public Prosecutions.
 287

Physician assisted suicide and euthanasia (consent killing)

Distinguished Of late, physician assisted suicide, consent killing (euthanasia)

and mercy killing have been again in focus of public attention and debate all over
the world. The desirability of punishing a person in such cases are being
questioned especially in case of a terminally ill, where it is done either at the
patient’s own request or at the request of a close relative to relieve the dying man
of pain, misery, mental agony, torture and humiliation. Propagators of consent
killing (euthanasia) plead that existence in a persistent vegetative state (P.V.C.) is
not a benefit to terminally ill.
Euthanasia TEuthanasia” is derived from Greek roots eu means ‘well’ or
‘good’ and thanalos means ‘death’ meaning ‘good death’.83 In common
terminology ‘euthanasia’means the act or practice of putting to death painlessly,
esp. in order to release a man from incurable suffering. There may be three
situations when euthanasia might take place viz.
(i) ‘Voluntary euthanasia’ occurs when a person voluntarily requests the
termination of his or her life;
(ii) ‘Non-voluntary euthanasia’ when a person is not mentally fit to make
an ‘informed request’ for tennination of life;
(iii) ‘involuntary euthanasia’ when a person has not made a request for
termination of his or her life.
Euthanasia is popularly taken to mean any form of termination of life by a
doctor. The definition however, is narrow. It means the termination of life by a
doctor at the express request of the patient. It must be voluntary, explicit and
carefully considered and it must have been made repeatedly.
In Holland Holland (Netherland) is perhaps the only country where
euthanasia is legal Dutch Government Commission on Euthanasia (1985) has
defined it as:

83 Thomas L. Beachamp, The Justification ofPhysician Assisted Death, 29 Ind L Rev 1173,
1175 (1996).
 288

“A deliberate termination of life on an individual’s request, by another, in

medical terminology, the active and deliberate termination of life on patient’s
request, by a doctor.”
A question arises, in the context of a dying man, who is terminally ill or is
in a persistent vegetative state (P.V.C.) as to whether he or she may be permitted
to terminate it by a premature extinction of his or her life, and a person assisting
in the process be held criminally liable for causing death of such a person or not.
The opinion is divided on this complex question of life and death. No consensus
has emerged in opposing the right of the State to regulate the involvement of
others in exercising power over an individual ending his life and individual’s
freedom to end one’s life.
Some of the cases in which the courts have been confronted with the
difficult question of permitting withdrawal of artificial measures for continuance
of life and right to refuse unwanted treatment, etc., are being discussed below:
Withdrawal of artificial measures : Airdale NHA TrustThe House of Lord
in Airdale NHA. Trust v. Bland,84 held that in a case of withdrawal of artificial
measures for continuance of life by a physician, in the context of existence in the
persistent vegetative state (P.V.C.) of no benefit to the patient, the principle of the
sanctity of life cannot be said to be absolute. In such a case, the court said a
distinction be made between:
(1) Cases in which a physician decides not to provide, or to continue to
provide, for his patient treatment or care which could or might prolong his
life; and
(2) Cases in which a physician decides, for example, by lethal drug, actively
to bring his patient’s life to an end.
. After making a careful analysis of the two situations the court ruled that it
is not lawful for a doctor to administer a drug to his patient to bring about his

84
(1993)2 WLR 316 (HL).
 289

death, even though the course is prompted by a humanitarian desire to end his
suffering, might be.
Refusal of medical treatmentIn a recent case Re B (Adult/5 decided on 22nd

March, 2002 the Court of Family Division upheld the right of a patient to refuse
treatment. The Court said a patient’s request for cessation (stopping) of treatment
is to prevail over the desire of the medical and nursing profession to keep the
patient alive.

In 1999 the claimant, who was then 41 years old, suffered a hemorrhage of
the spinal column in her neck. She was admitted to a hospital run by the defendant
NHS trust. Although the claimant recovered sufficiently to return to work, her
condition deteriorated at the beginning of 2001. She was readmitted to the
hospital after suffering an intrameduallary cervical spine cavernoma (disease). As
a result of the cavernoma, she became teraplegic and suffered complete paralysis
from the neck down. She'was transferred to the hospital’s intensive care unit and
began to experience respiratory problems. She was treated with a ventilator, upon
which she had been entirely dependent ever since. After neurological surgery to
remove the cavernous haematoma, she was able to move her head and articulate
words. She gave formal instructions to the hospital through her solicitors that she
wished artificial ventilators to be removed, even though she realized that that
would almost certainly result in her death.
o/

Right to refuse unwanted treatment: re Quinlan The first landmark

decision granting a patient more control over his or her medical decision in the
United States is re Quinlan, (1976) from the state of New Jersey in which the
state Court of Appeal observed that a man has a constitutional right to refuse
unwanted medical treatment, MS. Karen Quinlan was twenty years old when she
went into a persistent vegetative state after taking a mixture of drugs and alcohol.

85
Re B (Adult: Refusal of Medical Treatment), 2002 2 All ER 449 (FD).
86
355 A. 2d 64? (N.J.) Certiorari denied, 429, US 922 (1976).
 290

■ She was successfully resuscitated (to bring a person who is already dead back to
life) and placed on a ventilator. After six months, being informed by Quinlan
neurologists declared that there was no chance of recovery, her parents requested
the authorities for removal of respirator.
At the time of request, Quinlan was neither competent nor terminally ill.
Allowing plaintiffs request for removal of respirator, the Appellate Court, after
carefully balancing the Quinlan’s right to privacy’ against ‘the State’s interest in
preserving life’, held that the State’s interest under the circumstances of the case
‘weakens and the individual’s ‘right of privacy’ grows as the degree of bodily
invasion increases and the prognosis (a doctor’s opinion, based on medical
expertise, of what course a disease will probably take) dims.’
Distinction between ‘assisted suicide’ and withdrawal of life sustaining
treatment A fine distinction has been drawn between ‘assisting suicide’ and
‘withdrawing life sustaining treatment’ or the principle of causation and intent.
For instance,

(a) when life-sustaining treatment is refused or withdrawn, the cause of death

is the underlying disease,
(b) whereas in the case of assisted suicide the patient is killed by
medication,87 which is an offence.
The patient’s right to forego (refuse or withdraw) unwanted medical treatment
including artificially delivered nutrition and hydration, even though the patient’s
death will result, is a constitutional right to decide about Iris or her life. The court
has equated the concept or ‘right to die’ (not accepted in India - Cyan Kaur)m, on
the basis of the constitutional right to privacy and the common law right of
‘ informed consent’.

Vacco v. Quill (Quill 111), 521 US 793, 797 (1997).

AIR 1996 SC 1257.
 291

The doctrine of ‘informed consent’ is an extension of the right to ‘self-

determination’, which is the ‘functional equivalent' to the moral principle of
respect for autonomy.’
Meday In Meday,89 a case from the State of Nevada of the United States, a

patient, who was terminally ill filed a petition to the District Court permitting
discontinuance of his respirator. The District Court granted permission, which in
/

appeal was upheld by the Supreme Court of the State of Nevada. The court after
balancing the interest of the patient against the relevant State interest, affirmed by
a majority of two to one the District Court’s opinion and held that the desire of the
patient for withdrawal of respirator did not tantamount to suicide, the same was
rather an exercise of his constitutional and common law right to discontinue
unwanted medical treatment. One of the judges however, expressed dissenting
view.
Doctor’s refusal to give more treatment to a patient : Cambridge Health
Authority The Court of Appeal in R. v. Cambridge Health Authority,90 decided

in March, 1995 overturning the ruling by the lower court, held that the judges
have no right to question a decision by the doctor’s refusal to give more treatment

to a 10 year old girl dying of leukaemia (blood cancer). The court’s ruling in
favour of the health authority sets a vital precedent for terminally ill patients
fighting for a share of the limited resources of the Britain’s State run health
services.
In the impugned case the doctors in the University town of Cambridge
held that they could not justify chemotherapy and a second bone marrow
transplant for the cost of 75,000.00 Pounds (over Rs. 57 lakh). The treatment cost
could better be spent helping others. On the girls’ father challenging the decision,

89
Meday v. Bergstedt, reported in P. Rathiname v. Union of India, AIR 1994 SC 1844
(1849); Gian Raw v. State ofPunjab, AIR 1996 SC 1257, 1960.
90
(1995)2 A1IER 129.
 292

the High Court did not intervene but asked the authorities to “reconsider” their
decision. Justice John Laws said:
“He could not force the authority to.pay up but said ‘life’ was the .
most fundamental human right and doctors could not deny her only
chance of survival, howsoever slim, while “tolling the bell for tight
resources”.91
Perhaps the Court of Appeal’s verdict needs review in view of the possible
abuse of the provision on the ground of limited resources of the State, and as the
costs for medical care increases there is danger that such a provision is likely to
be abused.
Living WillAs a result of recent judicial and legislative innovations, competent
terminally ill patients have a well-recognized right to hasten their death by

choosing to withdraw or forego life-sustaining medical treatment including

nutrition and hydration.92
Judicial creation of a “right to die” in response to technological
encroachment on patient’s self-determination was parallel by the legislative
development of the “Living Wills’ in the West. There is a growing concern
among people to execute ‘Living will’93 to be sure that they do not receive
excessive or burdensome treatment that may simply prolong dying or live a
severely damaged state. A “Living Will” is a written directive (wish)' to the
family, physician, health care providers to stop medical care if the person
becomes terminally ill and is unable to express his or her wishes about slopping
treatment. It is made when a man is capable of to understand the nature and
consequences of his Act.

R.S. Macoy, Physician Assisted Suicide and Euthanasia, New Strait Times, June 2, 1995
(Malaysia).
Carol A. Pratt, Efforts to Legalize Physician Assisted Suicide in New York, Washington
and Oregon: A Contrast between Judicial and Legislative Approaches. Who should
decide? Orgon Law Review 1027,1031 (1998).
93
Supra n 1. p. 7.
 293

The first legislation giving legal recognition to “Living Will” was enacted
in the United States, in the State of California in 1976. Thereafter other States
followed suit and enacted “Living Will” legislations giving legal validity. It
exempts the physician from civil and criminal liability for withholding treatment
or removing artificial respirator etc., and in case the attending physician does not
want to follow the instructions, he has to remove himself from the case. However,
0

in India and in the countries of South East Asia the concept of “Living Will” is
almost unknown.
United States : Physician assisted Suicide-Crime In New York, as in most of
the States in the United States, it is a crime to aid another to commit to' attempt to
commit suicide,94 but patients may refuse to take even life saving medical
treatment. 95
QuillIn Timothy E. Quill,96 respondent physicians and three gravely ill patients
who have since died, brought action challenging the constitutionality of New
York statutes making it a crime to aid persons in committing suicide or attempting
to commit suicide on the ground that it violates the equal protection clause of the
14th Amendment to U.S. Constitution.97 The United States District Court,
Southern District of New York dismissed the claim, and physicians appealed. The
Court of Appeal affirmed in part and reversed in part. Certiorari was granted and
matter came before U.S. Supreme Court.
The doctors’ asserted that although it would be “consistent with the
standards of their medical practice” to prescribe the lethal medication for

94 New York Penal Law section 125.15 Manslaughter in the second Degree: ‘A person is
guilty of manslaughter in the second degree when... (3) He intentionally causes or aids
another person to commit suicide’.
Section 120.30 Promoting a suicide attempt: ‘A person is guilty of promoting a suicide
attempt when he intentionally causes or aids another person to attempt suicide’
95 Quill v. Kopell, S70 F. Supp, 78,84 (S.D.N.Y 1994). It is established under the New York
Law that a competent person may refuse medical treatment, even f withdrawal of such
treatment will result in death.
96 521 US 793 (1997).
97 XIVth Amendment to U.S. Constitution: “...NO state shall deny to any person within its
jurisdiction the equal protection of the laws”
 294

‘mentally competent, terminally ill patients” who are suffering great pain and
desire a doctor’s help in taking their own lives, they-are deterred from doing so by
New York’s ban on assisting suicide. Similar was the contention in the
Washington v. Gluckberg.9S Rejecting the petitioner-respondent’s contention, the
U.S. Supreme Court unanimously held that there is a difference between the
patients common law right “to refuse treatment”, and “assisting a person to
commit suicide.” It is based not on the principle of “right to hasten death,” but on
well-established “traditional rights to bodily integrity and freedom from unwanted
touching.”
The distinction between ‘refusing life saving treatment’ and ‘assisted
suicide’ is not arbitrary and ‘irrational’. By permitting one to refuse unwanted
medical treatment and while prohibiting another from assisting a suicide, the New
York law follows a long-standing and rational distinction under the “due process
clause,” which supports the distinction between ‘assistance to suicide’, which is
banned; and practices, such as ‘termination of critical life support and death
hastening pain medication,” which is permitted.
Washington :- In Washington v. Gluckberg99 five physicians, three terminally ill
plaintiffs, who wished to hasten their death (who have since died) and
Compassion in Dying, a non-profit organization (that counsels people considering
physician-assisted suicide), sued in District Court seeking a declaration that
Washington Law100 banning assisted suicide is unconstitutional because it “places .
an undue burden” on the exercise of constitutionally protected “liberty interest”,

“Due Process Clause” which extends to a personal choice by a mentally

98 521 US 702 (1997), 117 SC 2258 (1997).

99 Washington v. Glucksberg, 521 US 702 (1997), 117 S. Ct. 2258 Jane Roe was an elderly
retired physician diagnosed with terminal cancer, Joh Doe a 44 years old gay was a
terminally ill man with AIDS, James Poe was a terminally ill man with emphysema. Roe
and Doe died before the District Court delivered its judgment and Poe died while the
matter was pending before the Ninth Court.
100 Washington Rev. Code (RCW 9A, 36.60) (1) A person is guilty of promoting a suicide
attempt when lie knowingly causes or aids another person to attempt suicide. (2)
Promoting a suicide attempt is Class C felony.
 295

competent, terminally ill adult to commit physician assisted suicide, relying

primarily on Planned Parenthood ofSouth-eastern Pennsylvania v. Casey.101

The District Federal Court agreeing with the petitioner’s contention held
Washington Assisted suicide ban unconstitutional. The Court of Appeal however
reversed the District Courts findings. The physicians moved the U.S. Supreme
Court.

Rejecting the petitioner’s contention, the Supreme Court held that—

(1) asserted right to assistance in committing suicide was not fundamental
liberty interest protected by “Due Process Clause,” and
(2) Washington’s ban on assisted suicide was rationally related to legitimate
government interests.
The court said that legalizing physician assisted suicide (PAS) is a policy choice
to be decided by the people through their political process and not a constitutional
right to be conveyed by the judiciary.
Oregon Death with Dignity Act, 1994 On November 8, 1994 Oregon became
the first state in the United States to legalize physician assisted suicide for
competent, terminally ill adults. The Oregon’s death with Dignity Act of 1994
commonly known as Oregon’s Rights of the Terminally III Act, 1994 seeks to
provide competent terminally ill patients with an opportunity to decide to
hasten his or her death with certain safeguards to ensure that no one commits
physically assisted suicide (PAS) involuntarily.
These safeguards include: (1) restricted eligibility; (2) voluntariness; (3)
patients-’ capacity or competence; (4) informed decision-making; (5) waiting
periods; (6) second medical opinions; and (7) witnesses.

101 505 US 833 (1992).

102 Heller v. Doe, 509. US 319-391. The Government interests: inter «//a0include prohibiting
killing and preserving human life; preventing the serious public health problems of
■ suicide, ‘especially among the young, the elderly, and those suffering from depression or
other mental disorders, protecting the medical professions’ integrity and ethics and
maintaining physicians’ role as their patients’ healers; protecting the poor, the elderly,
disabled persons in other vulnerable groups from indifference.
 296

According to the Act of 1994 any capable adult (above 18 years of age)
suffering from terminal disease with less than six months to live, who is a
resident of the State of Oregon, “may make a written request for medication for
the purpose of ending his life in a human and dignified maimer” provided that the
patient has “voluntarily expressed his or her wish to die”.
The attending physician must inform the patient of all the relevant medical
facts and results of taking the medication sought, and tire patient’s right to rescind
the request at any time and that the patient must notify next of kin. After the
mandatory fifteen days waiting period, the patient may make a second oral
request to the attending physician and the physician may point out again that the
patient may rescind the request, if so desires. The patient must sign the original
written request in the presence of witnesses (two) and wait for additional 48 hours
before receiving the request prescription.
On November 23, 1994, fifteen days before the Oregon Act was to take
effect, the constitutionality of the Act was challenged in Lee.104 The petitioner
claimed that the Act violated the First and Fourteenth Amendment to U.S.
Constitution, etc.
Allowing the petitioner’s contention the District Federal Court (in August
1995) declared the Oregon Act unconstitutional as it violated ‘the Equal
Protection Clause’ and issued injunction restraining the implementation of the
Oregon Act. However, in appeal the Northern Circuit Court reversed the District
Court findings on the ground that the plaintiffs did not have the standing
(i.e. locus standi) and the U.S. Supreme Court did not grant Certiorari. The court

“Terminal disease” is defined as “ an incurable and irreversible disease that has been
medically confirmed and will, within reasonable medical judgment, produce death within
six months.”
Lee v. Oregon, 89' F. Supp ' 1421 (1995). Of the four plaintiffs, two had been diagnosed
as terminally ill. Duston was an AIDS patient and was diagnosed life of less than six
months’ Eisner who had suffered from a muscular dystrophy had not been given
diagnosis of six months and had survived more than what was expected; Weinkauf was a
healthy ‘diabetic’ and had not been given a diagnosis of six months life; and Scoiler, who
had cancerous tumour survived after a surgical operation
 '297

listed five interests that justified operating an exception under the Oregon Act for

terminally ill persons; viz-

(1) avoiding unnecessary pain and suffering;
(2) preserving and enhancing the rights of the competent adults to make their
own critical health care decisions;
■ (3) avoiding tragic cases of attempted or successful suicides in a less humane
and dignified manner;
(4) protecting the terminally ill and their loved ones from financial hardships;
and
(5) protecting the terminally ill and their loved ones from unwanted intrusions
into their personal affairs.
Movement for legalization of Euthanasia, i.e., Physician assisted suicide in
the United States :-The opponents of PAS plead that the right to active assistance
in hastening one's death does not legally or morally flow from a right to refuse or
forego medical treatment. The distinction between the two is primarily based on
ethical and legal distinction between “letting die5 and “killing”.
It is said that when a person choose “to refuse life sustaining devise
(treatment)” the death occurs naturally from the underlying disease; whereas in
case of physician assisted suicide (PAS) an overt act and not the disease causes
“death”.
In one case it is the disease and in the other case it is physician that brings
about death of a man. Accordingly, withdrawing life-sustaining treatment is
ethically defensible because the physician’s intention is to respect patient’s
wishes, whereas complying with requests for assistance in dying is ethically
unacceptable because the physician’s intent is to kill the patient.
Perhaps this distinction is untenable to appreciate the ethical validity of
the double ‘effect’; if a physician prescribes dose of pain medication. With the
 298

primary object of relieving the patient’s agony, the fact that the physician knows
that it will also hasten his death does not constitute an ‘intent’ to kill.
It is claimed that once the PAS is legalized, it will open the floodgates to
suicide. Perhaps it may not be true as is evident from the fact that in Oregon it
was only five months after the implementation of the law that one person opted
for PAS on March 24, 1998.105

Canada : Euthanasia - Physician Assisted Suicide Illegal : - In Roudriguez v..

■ British Columbia,106 the Supreme Court of Canada in 1993 by a majority of 5 to 4
dismissed the application of the plaintiff to permit her to seek the assistance of a
doctor to commit suicide. The appellant sought a declaration in a court of law to
. the effect that she was entitled to have assistance in committing suicide when her
condition became no longer bearable. The appellant does not want to die so long
as she still has the capacity to enjoy which she might, when she is no longer able
to enjoy life, by her own hand, at the time of her choosing, end her life.
The appellant pleaded that Section 241(b)107 of the Criminal Code of
Canada that makes if’an offence for any one to aid or abet a person to commit
suicide be declared invalid on the ground that it violates her right under Sections
yios, ]2109 anci 15(1)110 of the Canadian Charter, of Rights and Freedoms
guaranteed under Constitution Act, 1982 and is therefore, to the extent it

Carol A. Pratt. Effects to Legalize Physician Assisted Suicide in New York, Washington
and Oregon: A contrast between Judicial and Legislative Approaches. Who should decide
Oregon Law Review 1027, 1031 (1998).
(1993) DLR Lexis 1426 107. DLR 4* 342.
Section 241 Counselling or aiding suicide. Every one who (a) Counsel a person to
commit suicide; or (b) Aids of abets a person to commit suicide, is guilty of an indictable
offence and liable to imprisonment for a term not exceeding fourteen years.
Section 7 : Life, Liberty and Security of person: Everyone has the right to life, liberty and
security of the person and the right not to be deprived thereof except in accordance with
the principles of fundamental justice.
Section 12 : Treatment and Punishment: Everyone has the right not to be subjected to any
cruel and unusual treatment or punishment.
Section 15(1) : Equality before and under law and equal protection and benefits of law.
Every individual is equal before and under the law and has the right to equal protection
and benefits to the law without discrimination... based on race. Age or mental or physical
disability.
 299

precludes a “terminally ill” person from committing “physician assigned suicide”

is of no force and effect-by virtue of Section 52(1)U1 of the Constitution appeal to
the British Columbia Court was dismissed and finally, the Supreme Court of
Canada also rejected her appeal with no relied to the applicant.
1 19
Rejecting the appellant’s contention the Court said that Section 241(b)
of the Criminal Code (R.S. 1985), which makes it an offence to aid or abet suicide
infringes on the security interest of the appellant within the meaning of section 7
of the Canadian Charter of Rights and Freedom, but does not deprive of her
security in any manner which does not accord with the principles of fundamental
justice. No doubt, the prohibition deprives the appellant of autonomy over her
person, causing her physical pain and psychological stress in a manner which
impinges on the security of her person, nevertheless, in general Section 241(b) is
valid and desirable legislation keeping in view the State’s objectives of preserving
life and protecting the vulnerable person.
The blanket prohibition on assisted suicide is neither arbitrary nor unfair
in the sense of being unrelated to the State’s interest in protecting the vulnerable.
This purpose is grounded in the State interest in protecting life and reflects the
policy of the State that ‘human life should not be depreciated by allowing life to
be taken’. The active participation by one in the death of another is intrinsically,
morally and legally wrong and there is no certainty that abuses can be prevented
by anything less than a complete prohibition. The Court further said:
“A prohibition on giving assistance to commit suicide is rationally
connected to the purpose of Section 241(b), which is to protect and
9

maintain respect for human life.”

111 Section 52(1) : Primacy of Constitution of Canada: The Constitution of Canada is the
Supreme law of Canada, and any law that is inconsistent with the provision of the
Constitution is, to the extent of the inconsistency of no force of effect.
112 Section 241 : Counselling or aiding suicide : Every one who-
(a) counsels a person to commit suicide, or
(b) aids or abets a person to commit suicide,
Whether suicide ensues or not, is guilty of an indictable offence and liable to
imprisonment for a term not exceeding fourteen years.
 • 300

With due respect, it is submitted that the majority opinion of the Court has
not tried to go into tire merit of the case and attempted to modify the literal
approach by creating exception(s) or formulating safeguards to protect
individual’s interest in extreme situations where the plaintiff is left with no
alternative, option and choice but to die. As stated by Justice Perlamer Chief
Justice of Canada (dissenting) Section 241(b) of the criminal Code infringes the
right to equality as guaranteed by Section 15(1) of the Canadian Charter of Rights
and Freedoms. Section 241(b) creates an inequality, since it prevents persons
physically, since it prevents persons physically handicapped and unable to end
their lives unassisted, from choosing suicide when that option is in principle
available to other persons (since suicide is legal in Canada) solely because of
physical disability, a personal characteristic .which is among the grounds of
discrimination listed in Section 15(1) of the Charter.
The verdict of the Canadian Supreme Court is perhaps a sad commentary
on the plight of terminally ill patients, which needs reappraisal by the law-makers
as well as judiciary in the changing scenario.
Australia : Euthanasia Illegal The State of Northern Territory of Australia in
1995 enacted ‘The Right of Terminally III Act, 1995 to permit the terminally ill
patients to opt for mercy killing, i.e., euthanasia under the strict supervision of
medical practitioners in accordance with the guidelines provided in the Right of
Terminally III Regulations, 1996. However, the life of the Act did not last long
and it was finally turned down by the courts as unconstitutional and on March 24,

1997 the Australian National Senate repealed the Northern Territory’s law which
permitted euthanasia.
i i -j

Holland : Euthanasia Legal In Holland, where euthanasia and assisted

suicides are punishable with imprisonment which may extend upto 12 years and 3

113
Radha Krishna, New Strait Times, June 2, 1995 (Malaysia).
 301

years respectively, the doctors are not guilty for euthanasia, if following
requirements have been adhered to:
(i) a voluntary and durable request;
(ii) full information;
(iii) no acceptable alternative left; and
(iv) consultation with other physician sought.