DELHI JOURNAL OF CONTEMPORARY LAW (VOL.

II)
e-ISSN 2582-4570

INSANITY AS A DEFENSE TO CRIMINAL CHARGE –

AN ANALYSIS
Vageshwari Deswal⃰

Abstract
Persons suffering from unsoundness of mind are incapable of committing a crime as they
lack the mental capacity to develop the required mental element, which is an essential
ingredient to constitute any crime. Law exempts such persons from criminal liability
provided they are incapable of understanding the nature, wrongfulness or illegality of such
act. This article seeks to analyse the various tests applied by courts in determining liability
of such persons and the procedure for their trial, detention and discharge.

I. INTRODUCTION
Unsoundness of mind is an absolute defence to any criminal charge as persons suffering
from unsoundness of mind are deemed incapable of possessing the necessary mens rea to commit
a crime. Section 841 of the Indian Penal Code, 1860 exonerates from criminal liability, a person
of mental incapacity who does a criminal act. The settled position of law is that every man is
presumed to be sane and to possess sufficient degree of reason to be responsible for his act
sunless the contrary is proved. The burden of proof that the mental condition of the accused was,
at the crucial point of time, such as is described by section 84, lies on the accused who claims
the benefit of this exemption vide section 105 of the Indian Evidence Act, 1872. The defence has
to prove that unsoundness of mind was present to such an extent at the time of commission of
the offence that the doer of the act could not know the nature of the act he was committing. The
accused has to merely probabilise his defense by preponderance of probabilities.

II. RATIONALE BEHIND EXEMPTION

A person suffering from unsoundness of mind cannot control his will or regulate his
conduct. Such persons are mentally incompetent to understand their actions or judge properly
the repercussions of their acts therefore they cannot be held legally responsible for their actions.
Punishment serves no purpose in case of such persons as they are incapable of understanding
why they are being punished or that they are being punished at all.
The defence under section 84 of the Code is based on the principle that in order to constitute
crime, the act should have been committed with 'guilty' intention, and if the doer of the act not
knowing the nature of the act; the wrongfulness of the act; or the illegality of the act committed
the same, he cannot be held responsible for it.

⃰ Associate Professor, Faculty of Law, University of Delhi. She may be contacted at [email protected]. Inputs
for this article have been taken from Vageshwari Deswal, General Principles of Criminal Liability (Taxmann
Publications, New Delhi, 2013).
1
Indian Penal Code, s. 84. Act 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”.

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III. PRE REQUISITES FOR CLAIMING BENEFIT OF EXEMPTION UNDER

SECTION 84 IPC

Unsoundness of mind
A person suffering from unsoundness of mind is Non compos mentis i.e. ‘not of sound
mind’. Compos mentis means a composed mind. Non compos mentis means not having control
or composure over one’s mind. Unsoundness of mind may be temporary such as in case of
lunatics, permanent (idiocy), natural or supervening, by birth or by illness, e.g., Schizophrenics,
and sometimes also by extreme consumption of, or addiction to alcohol or drugs.

Unsoundness to exist at the time of the commission of the offence

Whenever a plea of legal insanity is set up, the court has to consider whether at the time
of commission of the offence, the accused was suffering from unsoundness of mind or not. The
crucial point of time for ascertaining the state of mind of the accused is the material time when
the offence takes place. In the case of Amrit Bhushan Gupta v. Union of India,2 it was held that
“unless the Court comes to the conclusion that the accused was insane at the point of time he
committed the offence he cannot be absolved of the responsibility of the offence even if it is
found by the Court that he was insane either earlier or in the later point of time of the commission
of offence”. If the accused is at that crucial moment found to be laboring under such a defect of
reason as not to know the nature of the act he was doing, or that even if he knew it, he did not
know it was either wrong or contrary to law then section 84 applies. The state of mind which
entitles the accused to avail the benefit of Section 84 of the Indian Penal Code is to be established
from the circumstances which preceded, attended and followed the crime. There is a duty on the
defence to prove the unsound state of mind of the accused at the time of commission of the
offence. One who is subject to recurring fits of insanity will be entitled to exemption from
criminal liability only if he was subjected to such a fit at the time of the commission of the crime.
If he was capable of understanding the nature and consequences of his actions at the time when
he committed the offence, he would not be entitled to the protection of Section 84 and would be
liable to punishment.

Incapability in the accused person to know

The words ‘incapable of knowing’ clarifies that an accused has to prove that he was
rendered incapable of understanding his actions owing to unsoundness of mind. The capacity to
know a thing a quite different from what a person knows. Whether he knew the nature his actions
or not is immaterial because what is protected under Section 84 is an inherent or organic
incapacity and not a wrong or erroneous belief which might be the result of perverted potentiality.

2
AIR 1977 SC 608.

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This incapability may be due to arrested development of the mind, sudden fit of insanity or
delusion or some other medically accepted ground.
In the case of Lakshmi v. State,3 the Court observed, “A person might believe so many
things. His beliefs can never protect him once it is found that he possessed the capacity to
distinguish between right and wrong. If his potentialities lead him to a wrong conclusion, he
takes the risk and law will hold him responsible for the deed which emanated from him. What
the law protects is the case of a man in whom the guiding light that enables a man to distinguish
between right and wrong and between legality and illegality is completely extinguished. Where
such light is found to be still flickering, a man cannot be heard to plead that he should be
protected because he was misled by his own misguided intuition or by any fancied delusion
which had been haunting him and which he mistook to be a reality. Our beliefs are primarily the
off springs of the faculty of intuition. On the other hand the content of our knowledge and our
realization of its nature is born out of the faculties of cognition and reason. If cognition and
reason are found to be still alive and gleaming, it will not avail a man to say that at the crucial
moment he had been befogged by an overhanging cloud of intuition which had been casting its
deep and dark shadows over them.”

Knowledge of nature of the act

Nature of the act refers to the physical nature and quality of the act, rather than the moral
quality. It covers those situations wherein the doer does not know what he is physically doing.
For example, a person who cuts another’s finger under the delusion that he is chopping a
vegetable; or a person who strikes another, and in consequence of an insane delusion thinks he
is breaking a jar. In both these examples the accused is not aware of the nature of his act.
In the case of Chirangi v. State,4 the accused, Chirangi, Lohar, a 45 year old widower
who was very much devoted to his 12 year old son, was tried for killing his son with an axe while
they had gone to Budra Meta atop a hillock. In defence he pleaded that he killed his son under a
delusion believing him to be a tiger who was about to attack. Medical testimony showed that it
was possible for Chirangi, who was suffering from bilateral cataract prior to the relevant date, to
have because of this disability mistaken 'bona fide' his son for a tiger. There was an abscess in
his leg could have produced a temperature which might well have been responsible after the fall
for a temporary delirium which might have created a secondary delusion to magnify the image
created by the defect in vision. Chirangi suffered from cardio-vascular disease which would have
resulted in temporary confusion, and the injury to his eyebrow could have caused a state of
concussion during which he might have inflicted the injuries on his son without being conscious
of his actions. All this showed clearly enough that Chirangi's fall combined with his existing
physical ailments could have produced a state of mind in which he in good faith thought that the
object of his attack was a tiger and was not his son. The appellant's conduct after the occurrence

3
AIR 1959 All 534.
4
1952 CriLJ 1212.

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was in consonance with that estimate, and it was manifest that he had had no intention of doing
wrong or of committing any offence. Thus he was acquitted.

Knowledge of wrongfulness of act or the act being contrary to law

Knowledge of wrongfulness of act implies the lack of substantial capacity in the accused
person to know or appreciate that his conduct is wrong. Section 84 applies where a person, as a
result of mental disease or defect, lacks substantial capacity to know or appreciate either that the
conduct was against the law or that it was against commonly accepted moral principles, or both.
For example:
(i) A person may kill a child under an insane delusion that he is saving him from sin
and sending him to heaven. Here he is incapable of knowing by reason of insanity
that he is doing what is morally wrong; or
(ii) A person may under insane delusion believe an innocent man whom he kills to be
a man that was going to take his life in which case, by reason of his insane
delusion, he is incapable of knowing that he is doing what is contrary to the law
of the land.5
In the case of Ashiruddin Ahmed v. The King,6 the accused had a dream in which he was
commanded by someone in paradise to sacrifice his own son of five years. The next morning the
accused took his son to a mosque and killed him by thrusting a knife in his throat. He then went
straight to his uncle, but, finding a chaukidar nearby took his uncle to a tank at some distance
and slowly told him the story. On these facts it was held by a Bench of the Calcutta High Court
that the accused did not know that his act of killing his son was wrong as he was labouring under
a belief that his dream was a reality. Acting under delusion of his dream, he made this sacrifice
believing it to be right. Thus he was granted the defence of insanity under Section 84.
However, the above judgment has been criticized in later judgments. In Lakshmi v. State,7
the court observed, “We find ourselves unable to endorse this view of section 84, I.P.C., and
must therefore, express our respectful disagreement with it. We are further of opinion that once
this view is accepted to be correct, it will lead to serious consequences 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 the
criminal act, and he was therefore, protected by section 84. We are of opinion that such a plea
would be untenable, and would not fall within the four corners of section 84.”

5
Queen Empress v. Kader Nasyer Shah (1896) ILR 23 Cal. 60.
6
AIR 1919 Cal 182.
7
AIR 1959 All 534.

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IV. BURDEN TO PROVE INSANITY LIES ON THE ACCUSED

The doctrine of burden of proof in the context of the plea of insanity was stated by the
Supreme Court in the case of T.N. Lakshmaiah v. State of Karnataka, 8 in the following
propositions:
i. The prosecution must prove beyond reasonable doubt that the accused had committed the
offence with the requisite mens rea and the burden of proving that always rests on the
prosecution from the beginning to the end of the trail.
ii. There is a rebuttable presumption that the accused was not insane, when he committed the
crime, in the sense laid down by section 84 of the Indian Penal Code. The accused may rebut
it by placing before the court all the relevant evidence - oral, documentary or circumstantial,
but the burden of proof upon him is no higher than that rests upon party to civil proceedings
i.e. on a preponderance of probabilities.
iii. Even if the accused was not able to establish conclusively that he was insane at the time he
committed the offence, the evidence placed before the court by the accused or by the
prosecution may raise a reasonable doubt in the mind of the court as regards one or more of
the ingredients of the offence, including mens rea of the accused and in that case the court
would be entitled to acquit the accused on the ground that the general burden of proof resting
on the prosecution was not discharged.
In the case of Butu @ Madhu Oram v. State,9 the Court explained that accused is not to
be called upon to prove the ingredients of section 84, IPC beyond reasonable doubt in order to
get an acquittal. Though the burden lies on the accused to prove his insanity at the time of
occurrence it will be sufficient if the materials on record lead to an inference that the
requirements of section 84, IPC may be reasonably probable. Such an inference can be drawn
from materials on record, past history of the accused, conduct of the accused during the
occurrence and thereafter. Absence of motive though not a sine qua non, is a relevant factor for
consideration.

V. ‘MCNAUGHTEN RULES’, THE ‘IRRESISTIBLE IMPULSE TEST’ AND

THE ‘DURHAM RULE’
McNaughten rules10 are principles expounded in 1843 by a panel of fifteen judges in the
House of Lords in response to five hypothetical questions asked by the Lord Chancellor to
understand the application of law to determine the liability for crimes committed by mentally
challenged people. These principles lay down a standard to test the criminal liability of persons
of unsound mind. The McNaughten rules also known as the "right-wrong" test, required the
acquittal of defendants who could not distinguish right from wrong.
In 1929, the District Court of Columbia developed the “irresistible impulse” test which
allowed a jury to inquire as to whether the accused suffered from a "diseased mental condition"

8
AIR 2001 SC 3828.
9
1985 (II) OLR 398.
10
(1843) 8 E.R. 718.

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that did not allow him or her to resist an insane impulse. It required a jury's determination that
the accused was suffering from a mental disease and that there was a causal relationship between
the disease and the act.
In the year 1954, the Durham rule was adopted by an American Court in the case of
Durham v. U.S.,11. Popularly known as the ‘product test’ the rule lays down that “an accused is
not criminally responsible if his unlawful act was the product of mental disease or mental defect".
This rule perpetuated the dominant role of expert testimony in determining criminal
responsibility instead of a jury. However, in subsequent cases the courts overturned this rule and
it was rejected by the federal courts, because of its broad spectrum and range which helped people
such as alcoholics and drug addicts to seek exemption from criminal liability. The Indian law on
insanity contained in section 84 of the IPC is loosely based on the McNaughten’s principles.

VI. ASCERTAINING UNSOUNDNESS

When a Magistrate holding an inquiry has reason to believe that the person against whom
the inquiry is being held is of unsound mind and consequently incapable of making his defence,
the Magistrate shall inquire into the fact of such unsoundness of mind, and shall cause such
person to be examined by the civil surgeon of the district or such other medical officer as the
State Government may direct, and thereupon shall examine such surgeon or other officer as a
witness and shall reduce the examination to writing.12 The words "reason to believe" mean a
belief which a reasonable person would entertain on facts before him. The burden lies on the
accused to establish that he was suffering from the unsoundness of mind. The provisions
regarding the enquiry in the unsoundness of mind are mandatory and the Magistrate is bound to
enquire before he proceeds with the case. Such enquiry is to be held at the threshold.13 The plea
of medical insanity must first be determined by recording the medical evidence.14 The mandate
of Section 329 of the Code is that when the plea of insanity is raised before a Court it shall try
the fact of unsoundness of mind and incapacity of the accused in the first instance. Sub-section
(2) of this section makes, the preliminary trial, of this fact, a part of the trial before the Court.15
According to Section 2(w) of the Mental Healthcare Act, 2017 “prisoner with mental
illness” means a person with mental illness who is an under-trial or convicted of an offence and
detained in a jail or prison. The conduct of the accused, from the time of the commission of the
offence upto the time the proceedings commenced, is relevant for the purpose of ascertaining as
to whether the plea of unsoundness raised was genuine, bona-fide or an after-thought. Courts
usually rely on the following to ascertain the state of mind of the accused at the time of offence.
i. Presence or lack of motive.
ii. Deliberation and preparation
iii. Manner in which the crime was committed.

11
214 F.2d 862.
12
Code of Criminal Procedure (CrPc), s. 328(1).
13
Dr. Jai Shanker v. State of HP, AIR 1972 SC 2267.
14
Gurjit Singh v. State of Punjab, CrLJ 1505 (P&H).
15
Ibid.

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iv. Nature of weapon used.

v. Attempt at concealment of the dead body, weapon of offence or other telltale signs.
vi. Efforts to avoid detection or evade apprehension by authorities.
vii. Conduct of the appellant immediately before the incident, at the time of the incident
and shortly after the incident.
viii. Subsequent conduct of the appellant and his conduct during the trial of the case.
ix. Previous history if any of attacks of insanity, hospitalization or treatment of insanity.
x. Family history of unsoundness if any as sometimes heredity plays a part.
In the case of Raghu Pradhan v. State Of Orissa,16the accused pleaded unsoundness of
mind as a defence to the charge of murdering his wife and minor children. He was also tried for
assaulting a neighbor who tried to intervene and the constable who came to apprehend him. It
was clear from the evidence of the witnesses and the discharge certificate that prior to the
occurrence the appellant was becoming insane periodically and during that period he was
assaulting persons at random for which he was being treated medically. It had also been proved
that there was absence of motive for commission of such crime as he had cordial relations with
his wife. PW 2 had categorically deposed that at the time of occurrence the accused was behaving
like a mad man. The evidence of the A. S. I. (PW 16) also disclosed that immediately after the
occurrence when he reached the place the accused was in a violent mood. Accused was sent for
medical examination as his behaviour was abnormal. The opinion of the Doctor (PW 19), the
medical report and opinion of D. W. 1 proved that immediately after the occurrence there was
contusion in the brain of the accused which is one of the symptoms of insanity. Thus after
considering all the materials on record, the Court concluded that when the appellant committed
the offence, he was not in a position to understand the nature of his act owing to insanity at the
crucial point of time. The facts, evidence and circumstances, indicated above would clearly make
out a case of legal insanity as provided in section 84 of the Code.

VII. PREMENSTRUAL STRESS SYNDROME AS A DEFENSE TO CRIMINAL CHARGE

"Premenstrual stress syndrome (PMS syndrome) is a disorder afflicting many women.'
The symptoms of PMS syndrome include excessive thirst and appetite, bloating, headaches,
anxiety, depression, irritability, and general lethargy. Diagnosis depends on the timing of the
symptoms rather than on their type, number, or severity; not all patients experience all possible
symptoms. The symptoms develop and increase in intensity from seven to fourteen days prior to
the onset of menses and disappear rapidly thereafter. PMS syndrome can range in severity from
mild to incapacitating, in both a physical and psychological sense.17
Hormonal changes can cause women to commit crime during menstruation. Premenstrual
tension is often accompanied by irritability, lethargy, depression and water retention, and these
symptoms alone may be responsible for certain crimes, for example, irritability and loss of
temper may lead to violence and assault, lethargy may lead to child neglect, and depression may

16
1993 CriLJ 1159.
17
Marc P., “Premenstrual Stress Syndrome as a Defense in Criminal Cases”, 32(1) Duke Law Journal 176 (1983).

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lead to suicide.18Menstrual psychosis is a term describing psychosis with a brief, sudden onset
related to the menstrual cycle, often in the late luteal phase just before menstruation. The
symptoms associated to it are dramatic and may include delirium, mania or mutism. 19
Premenstrual dysphoric disorder (PMDD) is a very severe form of premenstrual syndrome
(PMS), which can cause many emotional and physical symptoms every month during the week
or two before you start your period.
In the matter of Regina v. Craddock,20 the accused Sandie Craddock was an East London
barmaid with 45 prior convictions. She was accused of stabbing a fellow barmaid thrice in her
chest, in a fit of rage. She pleaded diminished responsibility owing to premenstrual stress
syndrome. Craddock was convicted only of manslaughter and released on probation. A year later
Craddock was re-arrested for an attempt to murder a policeman. Convicted on three new charges,
Craddock again argued premenstrual stress syndrome to mitigate her sentence and again received
probation which was also upheld in appeal. The Indian law on PMS induced insanity is not well
developed. However in the case of Kumari Chandra v. State of Rajasthan,21 three children were
taken by the accused who was their bhua (aunt)from school on the pretext of showing them a
temple. She further instructed them to follow her so as to show them the well of Nasia also.
Thereupon, she took all the three at the well and then pushed them into the well. Two children
could be pulled out alive while one drowned. In appeal against the judgment of a trial court
convicting her under sections 302 and 307 IPC, she pleaded insanity triggered by premenstrual
stress syndrome. The court ruled that, “The appellant has been able to probabilize her defence
that at the time of incident she was suffering from unsoundness of mind and was labouring under
a defect of reason triggered by premenstrual stress syndrome. Even if the material placed before
the court is held to be not sufficient to discharge the burden under Section 105 of the Evidence
Act,22 it still raises a reasonable doubt as to the existence of mens rea on the part of the accused-
appellant, thus making out a case for extending benefit of doubt to her.”

VIII. LEGAL INSANITY DIFFERENT FROM MEDICAL INSANITY

Every person suffering from mental disease cannot be allowed to avoid responsibility for
a crime by invoking the plea of insanity. A person whose cognitive faculties are so impaired as
to make it impossible for him to know the nature of his act or that what he was doing was wrong

18
Dalton K., “Menstruation and acute psychiatric illnesses”, 1(5115) Br Med J. 148–149 (1959).
19
Brockington IF, “Menstrual psychosis: a bipolar disorder with a link to the hypothalamus”, 13(1) Current
Psychiatry Reports 193–7 (2011).
20
1981, 1 C.L. 49
21
Criminal Appeal No. 44/1987, High Court of Rajasthan, Date of Decision: 01.08.2018
22
S. 105. Burden of proving that case of accused comes within exceptions.—When a person is accused of any
offence, the burden of proving the existence of circumstances bringing the case within any of the General Exceptions
in the Indian Penal Code, (45 of 1860), or within any special exception or proviso contained in any other part of the
same Code, or in any law defining the offence, is upon him, and the Court shall presume the absence of such
circumstances.
Illustration (a) A, accused of murder, alleges that, by reason of unsoundness of mind, he did not know the nature of
the act. The burden of proof is on A.

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or contrary to law, is exempted from criminal responsibility and comes within the purview of
legal insanity.23
Legal insanity means incapability of a person to understand the nature or consequences
of his actions at the time of the commission of the offence. Medical insanity deals with a person’s
behavior and conduct at all times. A person subject to fits of insanity will be termed as medically
insane. Mere abnormalities of mind, partial delusion, irresistible impulses or compulsive
behavior of psychopaths all constitute instances of medical insanity. It includes cases where
insanity affects the emotions and the will subjecting the offender, while the cognitive faculties
are left unimpaired. A person subjected to fits of insanity will get the defence of legal insanity
only if he was subjected to the fit of insanity at the time of the commission of the crime. It is
only unsoundness of mind which materially impairs the cognitive faculties of the mind that can
form a ground for exemption from criminal liability. In order to constitute legal insanity the
nature and extent of the unsoundness of mind required is such as renders the offender incapable
of knowing the nature of the act, or that he is doing what is wrong or contrary to law. It is only
legal insanity that is a total defence to a criminal charge. Medical insanity needs to be
accompanied by legal insanity in order to be accepted as a defence.

IX. CONCLUSION
Insanity does not render a person inhuman. Human rights continue to vest in all human
beings irrespective of their mental condition. Persons of unsound mind who commit a criminal
act are not criminals. They do not deserve punishment, however, they require medical help. They
can be a source of threat to the society and to their own selves, thus it is important to keep them
under supervision. Punishment cannot reform them so they are to be placed either in safe custody
or delivered to some relative or friend or be kept in an asylum.
Whenever a person is acquitted on the grounds of insanity, the court shall specifically
state its findings whether the act had been committed by the accused or not.24 Upon acquittal
such persons are to be kept in safe custody in such place and manner as the court deems fit. Some
friend or relative may be allowed to keep the person upon their making an application and
furnishing security to the Court that such person shall be properly taken care of and prevented
from doing injury to himself or any other person.25 But, where it is not possible for a mentally ill
person to live with his family or relatives, or where a mentally ill person has been abandoned by
his family or relatives, the appropriate Government shall provide support as appropriate
including legal aid and to facilitate exercising his right to family home and living in the family
home.26 Under Section 27, a person with mental illness shall be entitled to receive free legal
services to exercise any of his rights given under the law and it shall be the duty of magistrate,
police officer, person in charge of such custodial institution as may be prescribed or medical

23
Shama Tudu v. State (1986) (I) OLR 506.
24
Supra note 12 at s.334.
25
Id., s. 335.
26
The Mental Healthcare Act, 2017, s.19(2).

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officer or mental health professional in charge of a mental health establishment to inform the
person with mental illness that he is entitled to free legal services under the Legal Services
Authorities Act, 1987 or other relevant laws or under any order of the court if so ordered and
provide the contact details of the availability of services.27

27
Id., s. 27.

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