INSANITY AS DEFENCE

Name : Nauman Ali

Roll No :

Year : 2nd.

Professor in-charge : Dr. Saadiya.

ACKNOWLEDGEMENT
I am very thankful to everyone who all supported me, for I have completed my project
effectively and moreover on time.

I am equally grateful to my teacher Dr. Sadiya, who gave me moral support and guided me in
different matters regarding the topic. She had been very kind and patient while suggesting me the
outlines of this project and correcting my doubts. I thank her for her overall supports.
Last but not the least, I would like to thank my parents who helped me a lot in gathering different
information, collecting data and guiding me from time to time in making this project despite of
their busy schedules, they gave me different ideas in making this project unique.

TABLE OF CONTENTS

 Introduction
 Insanity-meaning
 In law
 In Medical term
 English Law
 Development
  Wild Beast Test
 Good and Evil Test
 Right and wrong test
 Origin of the Rules of Insanity Plea
 Constituent elements of the defense
 Criticism
 Indian law
 IPC
 Burden of proof
 Cr PC
 Judicial Interpretation
 Position in other countries
 Conclusion

BOOKS REFERRED

 Ratanlal-dhirajlal’s Indian Penal code.

 KD Gaur’s Criminal law: Cases and materials, Butterworths, India.

 .M. Gandhi, ‘Indian Penal Code’, 2nd ed., 2006, at pp. 125.

 Huda: The Principles of the Law of Crimes in British India, (1982)

 Srivastava, O.P., Principles of Criminal Law, 4th ed., 2005.

 Christopher Slobogin, An End to Insanity: Recasting the Role of Mental Disability in

Criminal Cases, 86 Va. L. Rev. 1199, 1208 (2000).

INTRODUCTION

A crime is a voluntarily act which is an outcome of an intent to cause an evil consequence1. There
are certain essentials of crime. The actor must possess the following conditions2:

(1) free will;

(2) intelligence to distinguish between good and evil;

(3) knowledge of facts upon which the good and evil of an act may depend; and

(4) knowledge that the act is prohibited by law.

Mens Rea is an essential element in every crime. There may be no crime of any nature without an
evil mind. There must be a mind at fault to constitute a criminal act. The concurrence of act and
guilty mild constitutes a crime3. This theory has its basis in the latin maxim ‘actus non facit reum

1
B.M. Gandhi, ‘Indian Penal Code’, 2nd ed., 2006, at pp. 125.

2
Huda: The Principles of the Law of Crimes in British India, (1982) pp. 217.
3
Srivastava, O.P., Principles of Criminal Law, 4th ed., 2005 at pp 228.
nisi mens sit rea’ which means that the act does not makes one guilty unless he has a guilty
intention.

Lord Diplock in the case of Swet vs. Parsley4 said, ‘An act does not make a person guilty of a
crime unless his mind be so guilty’.

But in the case of insane person, he may not understand the nature of the act. He does not have the
sufficient mens rea to commit a crime. Since a criminal intent is an indispensible element in every
crime, a person incapable of entertaining such intent may not incur guilt5. An insane person is,
therefore not punished because he does not have any guilty mind to commit the crime. It is best
said that a mad man is best punished by his own madness(Furiosus furore suo punier);or that a
mad man has no will (Furiosus nulla voluntus est); or a mad man is like one who is absent
(Furiosus absentis loco est).

INSANITY: MEANING

The meaning of insanity in civil law, medicine and neuroscience is different from its meaning in
criminal law.

Insanity in Law

Insanity or unsoundness of mind is not defined in the act. It means a disorder of the mind, which
impairs the cognitive faculty; that is, the reasoning capacity of man to such an extent as to render
him incapable of understanding consequences of his actions. It means that the person is incapable
of knowing the nature of the act or of realising that the act is wrong or contrary to law6. A person,
although of unsound mind, who knows that he is committing an unlawful act, may not get the
benefit of IPC, s. 84. The nature and extent of the unsoundness must be so high so as to impair his
reasoning capacity and that he may not understand the nature of the act or that it is contrary to law.

4
1970 AC 132.
5
Bishop Criminal law as quoted in Basu’s Indian Penal Code, 9th ed. 2006, Vol. 1, pp. 314.
6
Basu’s Indian Penal Code, 9th ed, 2006
It excludes from its preview insanity, which might be caused by engendered by emotional or
volitional factors.

There are four kinds of person who may be said to be non compos mentis (not of sound mind)

(1) an idiot – an idiot is one who from birth had defective mental capacity. This infirmity in him
is perpetual without lucid intervals;

(2) one made so by illness – by illness, a person is made non compos mentis. He is therefore
excused in case of criminal liability, which he acts under the influence of this disorder;

(3) a lunatic or a madman – lunatics are those who become insane and whose incapacity might
be or was temporary or intermittent. A lunatic is afflicted by mental disorder only at certain period
and vicissitudes, having intervals of reason7; and

(4) one who is drunk – this is covered under IPC, s. 85.

Insanity in Medical Terms

There is a difference between the medical definitions of insanity. According to medical science,
insanity is a disorder of the mind that impairs the mental facilities of a man8. Insanity is another
name for mental abnormalities due to various factors and exists in various degrees9. Insanity is
popularly denoted by idiocy, madness, lunacy, to describe mental derangement, mental disorder
and all other forms of mental abnormalities known to medical science. Insanity in medical terms
encompasses much broader concept than insanity in medical terms. Therefore, the scope of the
meaning of insanity in medical terms is much wider when compared to its legal meaning.

Radhey Shyam vs State10 on 8 February, 2010

7
Russell, Vol. 1, (12th ed.), pp. 105
8
KD Gaur
9
Srivastava, R.C., Law Relating to Crime and Punishment, 2006, Manav Law House, Allahabad
10
on 8 February, 2010-India Kanoon
The court in this case said: “It is apparent that there is a distinction between medical insanity and
legal insanity. From a doctors point of view a patient of schizophrenia would be treated as a
mentally sick person. But for the purposes of Section 84 IPC such a person would escape being
classified as a normal person and to be treated insane vis-a-vis the offence only on proof of the
cognitive faculties being impaired at the relevant time i.e. at the time the crime was committed.

cognitive faculties can be impaired due to a psychological reason or an imbalance directly

affecting the brain. In the latter situation would be idiots and lunatics. If proved to be an idiot or
a lunatic, where the disability of the brain is permanent, no further proof of the mental condition
at the relevant time would be needed to discharge the onus which law places on the defence i.e. it
is for the defence to prove the plea of insanity, for the reason an idiot or a lunatic is permanently
mentally disabled and 24 hours a day, for the entire 365 days of the year would not be in a position
to know the nature of his act as also the quality thereof. The problem arises where insanity is
taken up as a defence and sought to be proved not with reference to the accused being a lunatic
or an idiot but suffering from a psychiatric or a psychological disability. To put it in laymens
language, idiocy and/or lunacy may be called permanent insanity and a psychiatric or
psychological disability which may be called temporary insanity.

ENGLISH LAW ON INSANITY

The English law on insanity is based on the Mc’Naghten rules.

Development of the Law11

Pre-M'Naghten history. The development of the insanity defense prior to the mid-nineteenth
century tracked both the prevailing scientific and popular concepts of mental illness, "craziness,"
responsibility, and blameworthiness. In existence since at least the twelfth century, the defense has

11
Christopher Slobogin, An End to Insanity: Recasting the Role of Mental Disability in Criminal Cases, 86 Va. L.
Rev. 1199, 1208 (2000).
always aroused more discussion than any other topic of substantive criminal law, despite that fact
that there were few insanity pleas entered prior to the mid-eighteenth century. Prior to the 1843
M'Naghten decision, the substantive insanity defense went through three significant stages: the
"good and evil" test, the "wild beast" test, and the "right and wrong" test.

Good and evil." The "good and evil" test apparently first appeared in a 1313 case involving the
capacity of a child under the age of seven. The test reflected the moral dogmata of the medieval
theological literature. The insane, like children, were incapable of sinning against their will since,
according to the research done by Bernard Diamond and a colleague, man's freedom "is restrained
in children, in fools, and in the witless who do not have reason whereby they can choose the good
from the evil (1233)."

"Wild beast." The "wild beast" test appeared in Rex v. Arnold, an 1812 case in which the
defendant had shot and wounded a British Lord in a homicide attempt. Judge Tracy instructed the
jury that it should acquit by reason of insanity in the case because "a mad man . . . must be a man
that is totally deprived of his understanding and memory, and doth not know what he is doing, no
more than a brute, or a wild beast, such a one is never the object of punishment."

The emphasis was on lack of intellectual ability, rather than the violently wild, ravenous beast
image that the phrase calls to mind; the test continued to be used until at least 1840.

"Right and wrong." The "right and wrong" test (the true forerunner of M'Naghten) emerged in
two 1812 cases; in the second of the two, the jury was charged that it must decide whether the
defendant "had sufficient understanding to distinguish good from evil, right from wrong . . ."
(Bellingham's Case, pp. 477, 671). The test was expanded upon in 1840 in Regina v. Oxford where
the jury was told that it must determine whether the defendant, "from the effect of a diseased
mind," knew that the act was wrong, and that the question that must thus be answered was whether
"he was quite unaware of the nature, character, and consequences of the act he was committing"
(546–47).
Even with these rigid tests in place, the public's perceptions of abuse of the insanity defense
differed little from its reactions in the aftermath of the Hinckley acquittal nearly a century and a
half later. The public's representatives demanded an "all or nothing" sort of insanity, a
conceptualization that has been "peculiarly foreign" to psychiatry since at least the middle of the
nineteenth century.

The Origin of the Rules on the Insanity Plea

Daniel Mc’Naghten was found to be insane and acquitted on a charge of murdering Sir Robert
Peel’s private secretary, it being his intention to kill Peel. He was committed to the hospital but
there was public outcry about the leniency of the verdict. The matter was debated in the House of
Lords where it was decided to seek the opinion of the judges on legal principles relating to insanity.
The rules laid down were:

(1) everyone is to be presumed sane and to possess a sufficient degree of reason to be responsible
for their crimes until contrary is proved to the satisfaction of the jury;

(2) to establish a defence of insanity, it must be clearly proved that at the time of committing the
act, the accused was laboring under such a defect of reason, from the disease of the mind, as not
to know he was doing what was wrong12;

(3) as to his knowledge of the wrongfulness of the act, the judges said: ‘if the accused was
conscious that the act was one which he ought not to do and the same time the act was contrary to
the law of the land, he is punishable; and

12
Michael Allen, ‘Textbook on Criminal law’, 7th ed. 2003, at pp. 123.
(4) Where a person under insane delusion as to existing facts commits an offence in consequence
thereof, criminality must depend on the nature of the delusion. If he labours under partial delusion
only, and is not in other respects insane, he must be considered in the same situation as to
responsibility as if the facts with respect to which the delusion exists were real. The Halsbury’s
Laws of England explain that where on a criminal charge, it appears that, at the time of the act or
omission giving rise to the offence alleged, the defendant was laboring under a defect of reason
owing to a disease of mind so as not to know the nature and quality of his act, or, if he knew this,
so as not to know that what he was doing was wrong, he is not regarded in law as responsible for
the act. The question whether, owing to a defect of reason due to the disease of the mind, the
defendant was not responsible for his act is a question of fact to be determined by the jury. Where
the jury finds insanity is made out the verdict takes place in the form of not guilty due to insanity13.

The Constituent elements of the Defence

There are three conditions to be satisfied in any case where a defence of insanity is raised:

(1) the accused was suffering from the disease of the mind – disease of the mind is a legal
term and not a medical term. The law is concerned with the question whether the accused
is to held legally responsible for his acts. This depends on his mental state and its cause
complying with legally defined criteria. Lord Denning defined it as ‘any mental disorder
which has manifested itself in violence and is prone to recur is a disease of the mind. At
any rate it is the sort of disease for which a person should be detained in hospital rather
than be given an unqualified acquittal’. The leading decision on what constitutes a disease
of the mind was given in the case of Sullivan14 in which a distinction was drawn between
insane and non-insane person automatism. Lord Diplock defined disease of the mind as
‘mind in the Mc’Naghten rules is used in the ordinary sense of the medical faculties of
reason, memory and understanding. If the effect of the disease is to impair these faculties

13 Halsbury’s Laws of England, 4th ed., Vol. 11, para 30, pp. 27-28, as quoted in Justice Y.V.
13

Chandrachud (ed.), Ratanlal and Dhirajlal, ‘Indian Penal Code’, 29th ed. Rep. 2004, at pp. 320.
14
14 (1984) A.C. 156 at 172 as quoted in Alan Reed and Peter Seago, ‘Criminal law’, 1999.
 so severely as to have either of the consequences referred to in the latter part of the rules,
it matters not whether the etiology of the impairment is organic, as in epilepsy, or
functional, or whether the impairment is itself permanent or is transient and intermittent,
provided that it subsisted at the time of commission of the act’;

(2) this disease gave rise to a defect of reason: where the defence of insanity is to succeed,
the disease of the mind must give rise to a defect of reason. The reasoning power of a
person must be impaired. The defendant must show that he was suffering from such defect
of reason that he did not know the nature and quality of the act he had committed, or if he
did know, that he did not know that what he was doing was wrong. If the accused is relying
on the second limb, he must show proof that he did not know that it was legally wrong;
and as a result, he either did not know that what he was doing was wrong: If the accused’s
defect of reason is to be effective in establishing the defence of insanity, the insanity must
affect his legal responsibility for his conduct as such he is not able to realise that what he
was doing is wrong. Wrong here means something that is contrary to law15.

Where the person knows the nature or quality of the act and knows he was doing wrong, then the
fact that he was acting under a strong impulse will not entitle him to a defence under the rules.

In 1916, in the case of R vs. Codere16, the court of criminal appeal explained the principles:

(1) an objective moral test must be applied in cases where insanity is pleaded. The test of

insanity is ‘the objective standard adopted by the reasonable men’;

(2) an act is wrong according to that standard if it is punishable by law;

(3) the accused must be deemed ‘to know he was doing what was wrong’ if he was aware

that the act was one which was punishable; and

15
R vs. Windle (1952) 2 QB 826 as quoted in Harris, ‘Criminal law’, 22nd ed. 1st Indian Reprint 2000, at pp.92
16
(1916) 12 Cr.App.R. 21.
(4) the words ‘nature and quality’ do not refer to the moral aspects of what the offender

was doing but solely to the physical facts.

Criticism of the Mc’Naghten Rule

The British Royal Commission on capital punishment that made its report in 1953, and criticised
the rule. Experienced lawyers and doctors also criticised the rule. Doctors with experience on
mental disease ‘have contended that the Mc’Naghten test is based on the entirely obsolete and
misleading conception of nature of insanity, since insanity does not only affect the cognitive
faculties but affects the whole personality of the person including both the will and the emotions.
Many scholars criticised the Mc’Naghten test because it only looked at the cognitive and moral
aspects of the defendant’s actions17. An insane person may therefore often know the nature and
quality of his act and that law forbids it but yet commit it as a result of the mental disease18. The
Royal Commission came to the conclusion that the test of insanity laid down in Mc’Naghten rules
is defective and the law must be changed.

Although the Mc’Naghten rules still hold the field in England despite the recommendations of the
law commission, a new defence to murder known as ‘diminished responsibility’ was introduced
by the Homicide Act, 1957. Provisions of the enactment states that:

(1) where a person kills or is in the party of killing another, he will not be convicted of murder if
he was suffering from such abnormality of mind as substantially impaired his mental responsibility
for his acts and omissions in doing or being a party to the killing;

17
The Evolution of the Insanity Defense, 13 J. Contemp. Crim. Just. 224, 226 (1997).
18
Law Commission report, pp. 90.
(2) a person who but for this provision would be liable, whether as principal or as accessory, to be
convicted of murder will be liable instead to of be convicted man slaughter.

INDIAN LAW ON INSANITY

The Indian law relating to insanity has been codified in the IPC, s. 84 contained also the general
exceptions.

s. 84: ‘Acts of a person of unsound mind— Nothing is an offence which is done by a person who,
at the time of doing it, by reason of unsoundness of mind, is incapable of knowing the nature of
the act, or that he is doing what is either wrong or contrary to law’.

IPC, s. 84 and the Mc’Naghten rule:

IPC, s. 84 deals with the law of insanity on the subject. This provision is made from the
Mc’Naghten rules of England. In the draft penal code, Lord Macaulay suggested two sections (66
and 67), one stating that ‘nothing is an offence which is done by a person in a state of idiocy’
and the other stating that ‘nothing is an offence which a person does in consequence of being
mad or delirious at the time of doing it’ to deal with insanity. The Law Commissioners in
replacing these two provisions by IPC, s. 84 have adopted a brief and succinct form of the
Mc’Naghten rules. It has been drafted in the light of the replies to the second and third questions,
which is generally known as Mc’Naghten rules.

But, IPC, s. 84 uses a more comprehensible term ‘unsoundness of mind’ instead of insanity.
Huda says the use of the word ‘unsoundness of mind’ instead of insanity has the advantage of
doing away with the necessity of defining insanity and of artificially bringing within its scope
different conditions and affliction of mind which ordinarily do not come within its meaning, but
which nonetheless stand on the same footing in regard to the exemptions from criminal liability19.

Ingredients

This provision states that an unsoundness of mind is a defence to criminal charges. It is accepted
as a defence to a criminal charge on the theory that ‘one who is insane has no mind and may not
have the necessary mens rea to commit a crime’20. The act of a mad person is unintentional and
involuntary, no court may correct him by way of punishment21. To invoke the benefit of IPC, s.
84, it must be proved that at the time of commission of the offence, the accused was insane and
the unsoundness of mind was of such a degree and nature as to fulfill any one of the test laid down
in the provision. These are:

(1) firstly, the accused was incapable of knowing the nature of the act. It covers two situations,
namely, automatism and mistake of fact due to unsoundness of mind as a defence22; and

(2) secondly, that the accused was precluded by reason of unsoundness of mind from
understanding that what he was doing was either wrong or contrary to law. It covers those cases

19
Huda, S.S. Principles of Law of Crimes in British India, as quoted in K.D. Gaur,
‘Commentary on Indian Penal Code’, 1st ed. 2006, Universal, pp. 271.
20
Gour, Penal Law of India, 11th ed. Vol. 1, 2000, pp. 602: ‘A mad man has no will’;
Furoisis nulla voluntas east; as quoted in KD Gaur.
21
Ibid.
22
Pillai, K.N. Chandrasekharan, General Principles of Criminal Law, 1st Ed., reprint,
2005, Eastern Book Company, Lucknow.
wherein a man by reason of delusion is unable to appreciate the distinction between right and
wrong23. The accused is protected not only when, on the account of insanity, he was incapable of
knowing the nature of the act, but also when he did not know either the act was wrong or it was
contrary to the law. He is however, not protected if he knew that what he was doing was wrong,
even if he did not know that it was contrary to the nature of the law or vice versa24. The defence
of insanity may be established if it is proved that at the time of committing the act, the party
accused was laboring under such a defect of reason, from disease of the mind, as not to know the
nature or quality of the act he was doing, or if he did know it, that he did not know that he was
doing what was wrong25. The benefit of this provision may be taken only if at the time of
committing the crime, the offender by reason of unsoundness of mind was incapable of knowing
the real nature of his act or that the act was morally wrong or contrary to law26. The Cuttuck High
Court has laid down certain principles in the case of Sundra Majhi27

(1) every type of insanity is not legal insanity; the cognitive faculty must be so destroyed as to
render one incapable of knowing the nature of his act or that what he is doing is wrong or contrary
to law;

(2) the court will presume the absence of such insanity;

(3) the burden of proof of legal insanity is on the accused, though it is not as heavy as on the
prosecution;

(4) the court must consider whether the accused suffered from legal insanity at the time when the

(5) in reaching such a conclusion the circumstances which preceded, attended or followed the
crime are relevant considerations; and

23
Ibid.
24
Geron Ali, (1940) 2 Cal 329 as quoted in Ratanlal And Dhirajlal
25
Mc’Naughten case.
26
State of Madhya Pradesh vs. Ahmedullah 1961 INDLAW SC 97, AIR 1961 SC 998, Dahyabhai C. Thakur vs.
State of Gujarat 1964 INDLAW SC 409, AIR 1964 SC 1563

27
1971 Cut LT 565.
(6) the prosecution in discharging its burden in the face of the plea of legal insanity has merely to
prove the basic fact and rely upon the normal presumption of that everyone knows the law and the
natural consequences of his act.

The law on the point has been well summarised by their Lordships of the Calcutta High Court in
Kader Nasayer Shah in the following words: ‘it is only unsoundness of mind which materially
impairs the cognitive faculties of the mind that may form a ground of exemption from certain
responsibility, the nature and extent of unsoundness of mind required being such a nature would
make the offender incapable of knowing the nature of the act, or that he is doing what is (1)wrong
or (2) contrary to law’28.

Burden of proof

The principle that the court follows is that ‘every person is sane unless contrary is proved’29. The
onus of proving insanity is one the person who is pleading it as a defence. In the case of State of
Madhya Pradesh vs. Ahamadullah30, it was observed that burden of proof is on the accused. The
Supreme Court also upheld the principle in the case of S.W. Mohammed vs. State of Maharastra31
and said that the prove that he is insane. However, this requirement of proof is not heavy as on
the prosecution to prove the offence and is based on balance of probabilities.

It has been criticised that the McNaughton rules of the 19th century England, on which IPC, s. 84
is based are outdated since they do not provide protection under IPC, s. 84 to behaviour out of
abnormality of mind, or partial delusion, irresistible impulse or compulsive behaviour of a
psychopath. Court in India also stressed the need for adopting a more progressive attitude in the
application of law related to insanity. The Indian Law of insanity must be amended and the concept
of diminished responsibility must be inserted.

28
1896 ILR 23 Cal 604 (608) as quoted in Gour, Hari Singh, The Penal Law of India,
Vol. 1, 11th ed., 2002, Law Publishers (India) Pvt. Ltd., Allahabad
29
Allen, Michael, Textbook on Criminal Law, 7th ed., 2003, Oxford University Press,
London.
30
1961 INDLAW SC, AIR 1961 SC 998
31
AIR 1972 SC 216
PROVISIONS OF THE CODE OF CRIMINAL PROCEDURE, 197332

The procedure for the trial of insane person is laid down in the Code of CriminalProcedure, 1973,
Chapter XXV. Code of Criminal Procedure, 1972, ss. 328 and 329 deals with the procedure to be
followed in case the accused is a lunatic. It says that when a magistrate while an inquiry feels that
the person is of unsound mind and consequently, incapable of making his defense, he may ask a
medical officer to examine the person and postpone the trial of the case. Code of Criminal
Procedure. 1973, s. 330 provides that when an accused is found to be a lunatic, he will be released
on bail provided that sufficient security is given that he will not harm himself or any other person.
If security is not given or the court thinks that bail may not be granted, the accused will be detained
in safe custody. Code of Criminal Procedure, 1973, s. 331 provides that when an inquiry is
postponed under Code of Criminal Procedure, 1973, ss. 328 and 329, the magistrate will resume
the inquiry at any time after the person concerned ceases to be of unsound mind. The inquiry will
proceed against the accused when the magistrate thinks that he is capable of making the defence
as per Code of Criminal Procedure, 1973, s. 332.

Code of Criminal Procedure, 1973, s. 333 says that when the accused is at the time of the inquiry
is of sound mind, but he was of unsound mind at the time of committing the offence, the Magistrate
will proceed with the case. Code of Criminal Procedure, 1973, s. 334 states that when any person
is acquitted on the ground that at the time of committing the offence, he was by reason of
unsoundness of mind incapable of knowing the nature of the act or that it is contrary to law, the
state will specify whether he committed the act or not. Code of Criminal Procedure, 1973, s. 338
says that when the person detained under Code of Criminal Procedure, 1973, ss. 330(2) or 335 and
the inspector general certify that in his judgment, he may be released without danger to himself or
any other person, the state government may order him to be released or to be detained in custody
or to be sent to a public lunatic asylum. The Code of Criminal Procedure, 1973 also makes
favourable provisions for the infants.

JUDICIAL INTERPRETATION

Radhey Shyam V. State33

32
Code of Criminal Procedure, 1973, ss. 328 to 339.
33
8 th feb 2010
Refering to page 22 of Vol.9 of Halsburys Laws of England, 2nd Edn. : The mere fact that an act
or omission is without apparent motive is not by itself sufficient to establish insanity. But if there
is other evidence of insanity, such a fact may be of importance as helping to prove insanity.

The court in this case said: “ absence of motive in the commission of a crime is merely one out of
the many factors to be taken note of while returning an opinion. The duty of the Court is to evaluate
the conduct of the accused before, at the time of and soon after the crime and then return a finding
of fact, whether the accused was of such unsound mind that by reason of unsoundness he was
incapable of knowing the nature of the act done or incapable of knowing that the act was wrong
or contrary to law”.

Ratanlal vs. State of MP34

The appellant on 22 January 1965, set fire to the grass lying in the khalyan of Nemichand. On
being asked why he did it, the accused said; ‘I burnt it; do whatever you want’. The accused was
arrested on 23 January 1965. He was referred to a mental hospital. The psychiatrist of the hospital
reported that the accused remained silent, was a case of maniac depressive psychosis, and needs
treatment. The report declared the accused to be a lunatic in terms of the Indian Lunatic Act, 1912.
The issue before the courts was whether insanity might be used as defence against a charge of
mischief by fire with intent to cause damage under the IPC, s. 435. The crucial point in this case
was whether unsound mind may be established at the time of commission of the act. The Supreme
Court held that the person was insane and acquitted him.

Dayabhai Chhaganbhai Thakkar vs. State of Gujarat35

In this case, the accused was charged and convicted under the IPC, s. 302 for the murder of his
wife. The accused killed his wife with wife by inflicting her with 44 knife injuries on her body.
The accused raised the plea of insanity at the trial court. Trial court however rejected the contention
on the ground that the statements made to the police immediately after the incident did not showed
any sign of insanity. This conviction was confirmed by the high court. The accused made an appeal
to the Supreme Court. The Supreme Court also upheld the conviction of the accused and laid down

34
1970 INDLAW SC 2, AIR 1971 SC 778.
35
1964 INDLAW SC 409, AIR 1964 SC 1563.
certain criteria according to which a accused in entitled to the defence under the provision. It said
that in determining whether the accused has established his case under the perview of Indian Penal
code, 1860, s. 84, ‘the court has to consider the circumstances which preceded, attended and
followed the crime. The crucial point of time for determining the state of mind of the accused is
the time when the offence was committed. The relevant facts are motive for the crime, the previous
history as to mental condition of the accused, the state of his mind at the time of the offence, and
the events immediately after the incident that throw a light on the state of his mind’.

This was reiterated by the court in Ms.Leena Balakrishnan Nair V. State of Maharashtra36

Ashiruddin vs. King37

In this case, Ashruddin had killed his son while acting under the delusion of a dream believing it
to be right. The accused had dreamt that he was commanded by someone to sacrifice his son of
five years. The next morning the accused took his son to mosque and killed him by thrusting a
knife in his throat. The Calcutta High Court observed that it was a case of insanity under IPC, s.
84 and discharged the accused from criminal liability. The court said that in order to enable an
accused to obtain the benefit of the aforesaid provision, he must establish any one of the following
three elements

(1) the nature of the act was not known to the accused;

(2) the act was not known by him to be contrary of law; or

(3) the accused did not knew that the act was wrong.

The Bench held that the third element was established by the accused, namely, that the accused
did not knew that the act was wrong. This was obvious onthe ground that the accused was laboring
under the belief that the dream was a reality.

36
2010 Cr LJ 3292
37
AIR 1949 Cal 182.
However, this view of the Calcutta High Court was criticised by Allahabad High Court in the case
of Laxmi vs. State38 as ‘it will be open to an accused in every case to plead that he had dreamt a
dream enjoining him to do a criminal act, and believing that his dream was a command by a higher
authority, he was impelled to do a criminal act, and therefore, he would be protected by IPC, s. 84.
It also said that it was a case of medical insanity and not legal insanity.

Hazara Singh vs. State39

In this case, Hazara Singh was under a delusion that his wife was unfaithful to him. One day, being
disturbed by those thoughts, he caused her death by pouring nitric acid over her. Medical evidence
showed that he knew what he was doing and had the ordinary knowledge of right and wrong. He
was convicted for murder.

POSITION IN OTHER COUNTRIES40

The Criminal Codes of many countries provide for a broader scope for the defence of insanity.
Tasmanian Criminal Code, s. 16 says that an accused may not be punished if he may not
understand the nature of the act or that it was against law. They may also not be punished if they
committed the act under an ‘irresistible impulse’.

Penal Code of France, art. 64 provides that ‘there is no crime or offence when the accused was in
state of madness at the time of the act or in the event of his having been compelled by a force
which he was not able to resist’.

Swiss Penal Code, s. 10 states that ‘any person suffering from a mental disease, idiocy or serious
impairment of his mental faculties, who at the time of committing the act is incapable of

38
AIR 1953 All 534.
39
37 AIR 1958 Punj 194.
40
Available at 42nd Law Commission Report
Cavadino, Michael and Dignan, James, The Penal System: An Introduction, 2nd
ed., 1997, Sage Publications, London.
appreciating the unlawful nature of his act or acting in accordance with the appreciation may not
be punished’.

The American Law Institute suggested that ‘a person is not responsible for criminal conduct if at
the time of such conduct as a result of mental disease or defect he lacks the substantial capacity
either to appreciate the criminality of his conduct or to confirm his conduct to the requirements of
law’.

CONCLUSION

The Indian Law on insanity is based on the rules laid down in the Mc’Naghten case.

owever, the Mc’Naghten rules have become obsolete and are not proper and suitable in the modern
era.

The Mc’Naghten rules is based on the entirely obsolete and misleading conception of nature of
insanity, since insanity does not only affect the cognitive faculties but affects the whole personality
of the person including both the will and the emotions. The present definition only looks at the
cognitive and moral aspects of the defendant's actions but ignores the irresistible impulse that may
be forcing him to commit that act. An insane person may often know the nature and quality of his
act and that law forbids it but yet commit it as a result of the mental disease. The Law Commission
of India in its 42nd report after considering the desirablilty of introducing the test of diminished
responsibility under IPC, s. 84 gave its opinion in the negative due to the complicated medico-
legal issue it would introduce in trial. It is submitted that the Law Commission’s view needs
modification since it is not in conformity with the latest scientific and technological advances made
in this direction. There are three compartments of the mind - controlling cognition, emotion and
will. IPC, s. 84 only exempts one whose cognitive faculties are affected.

The provision is regarded as too narrow, and makes no provision for a case where one’s emotion
and the will are so affected as to render the control of the cognitive faculties ineffectual. The Courts
must also adopt a broader view of the Insanity and introduce the concept of diminished
responsibility.
The Indian Government may also look at the provisions of the other countries relating to insanity.
Swiss Penal Code, s. 10 states that ‘any person suffering from a mental disease, idiocy or serious
impairment of his mental faculties, who at the time of committing the act is incapable of
appreciating the unlawful nature of his act or acting in accordance with the appreciation may not
be punished’. This provision is much broader and is better suited for the defence of insanity. Thus,
the defence of insanity is too narrow and must be amended to suit the present demands.