DR.

RAM MANOHAR LOHIYA NATIONAL LAW UNIVERSITY, LUCKNOW

SESSION (2020-2021)

INDIAN PENAL CODE

PROJECT

ON

‘THE DEFENCE OF INSANITY IN INDIA’

UNDER SUPERVISION OF: SUBMITTED BY:

Mr. Malay Pandey Atrey Tripathi

Assistant Professor of Law IV Semester

Dr. Ram Manohar Lohiya National Law University B.A. LL.B. (Hons.)

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 ACKNOWLEDGEMENT

I would like to take this opportunity to extend a word of my gratitude to my esteemed Criminal Law
teacher Mr. Malay Pandey and Dr. K.A. Pandey for providing me with the opportunity to make a
project on the topic “THE DEFENCE OF INSANITY” and for being constant source of inspiration
for me in the pursuance of this project. Both of them have been gracious enough to guide me on the
right path which has enabled me to strengthen my efforts pertaining to the comprehensive research
and efforts put into the making of this project.

I would also wish the reader of my project a knowledgeable experience. The project has been
researched meticulously and has been materialized whilst making sure that the utmost level of care
and finesse is undertaken so as to see that the information mentioned is concurrent with the highest
benchmarks of accuracy, precision and perfection.

Thanking You

Atrey Tripathi

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 TABLE OF CONTENTS

ACKNOWLEDGEMENT ......................................................................................................... 2

TABLE OF CONTENTS ........................................................................................................... 3

INDEX OF AUTHORITIES...................................................................................................... 4

INTRODUCTION ..................................................................................................................... 5

THE DEFENCE OF INSANITY IN INDIA ............................................................................. 6

A. Disjunctive v. Conjunctive View...................................................................................................7

B. Cognitive Knowledge v. Affective Knowledge .............................................................................8
C. Moral v. Legal Wrong .................................................................................................................10

INSANITY IN 21ST CENTURY: A WAY FORWARD ......................................................... 10

CONCLUSION ........................................................................................................................ 11

REFRENCES ........................................................................................................................... 13

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 INDEX OF AUTHORITIES

Cases

Ambi v. State of Kerala, 1962. .................................................................................................. 7

Bapu alias Gujraj Singh v. State of Rajasthan, (2007) 8 SCC 66 .............................................. 9

Kader Nasayer Shah, 1896 ILR 23 Cal 604. .............................................................................. 7

Pancha v. Emperor AIR 1932 All 233 ....................................................................................... 7

R v. Windle, [1952] 2QB 826 .................................................................................................. 10

R. v. McNaughten, (1843) 8 E.R. 718. ...................................................................................... 5

S.K. Yadav v. State of Maharashtra, 2008 Crl. 509 Mah .......................................................... 8

Stapleton v. R, (1952) 86 CLR 358. ........................................................................................ 10

Stapleton v. The Queen (1952) 86 CLR 358. ............................................................................ 9

Sudhakaran v. State of Kerala, 2010 (10) SCC 582 .................................................................. 5

Sunil Sandeep v. State of Karnataka, 1994 (1) ALT Cri 303. ................................................. 10

Sweet v. Parsley, 1976 AC 132; ................................................................................................ 7

Statutes

Sec. 27 of Mental Health Act, 1987. .......................................................................................... 7

Sec. 330 of The Code of Criminal Procedure, 1973. ................................................................. 7

Sec. 84 of I.P.C. ............................................................................................................... 7, 8, 11

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 INTRODUCTION

"Mental disorder raises difficult questions for the criminal justice process. Not only questions
of definition, but of the very basis of the criminal responsibility."1

Criminal law is premised on the ‘free will’ of the actor. The law presumes that individuals are
rational, autonomous moral agents who are capable of making free choices as to how they
behave. This exercise of choice is what makes an action commendable or culpable. 2
However, this liberty of choice of a person may be adversely affected by reasons of coercion,
mistake or mental condition. Insanity deals with the last variety of lack of choice. If a mental
condition impairs a person’s free will, and he does a criminal act under its influence, he will
not be possessed of any mens rea for the same. And criminal law shies away from convicting
people for crimes without the satisfaction of the mens rea element, as a consequence no
responsibility can be attached to the accused for his actions. It is for this autonomy-based
reason that most legal systems provide for insanity as defence excusing a person from
criminal liability.3 ‘Excusing’ does not destroy the blame or the undesirability of the act
instead shifts it from the actor to the excusing conditions.4

The defence of insanity has been well known in the English Legal System for centuries now.
In earlier times, it was advanced as a justification for seeking pardon. Over a period of time,
it was used as a complete defence to criminal liability in offences involving mens rea.5 The
foundation for the law of insanity was laid down in the well-known M’Naghten case in 1843.6
The following principles were enunciated by House of Lords which eventually became the
premises on which Sec. 84 of I.P.C was formulated:

1. Every man is presumed to be sane, and to possess a sufficient degree of reason to be

responsible for his crimes, until the contrary be proved to the satisfaction of the jury.

2. To establish a defense on the ground of insanity, it must be clearly proved that at the
time of committing the act, the party accused was laboring under a defect of reason
from disease of mind.

1
G.P. Fletcher, R ETHINKING C RIMINAL LAW, 835-36 (Little, Brown and Company, 1978).
2
Karan Lahiri, Insanity and Intoxication as Defences: An Appraisal, C OCHIN LAW R EVIEW, 31(1), 172
(2007).
3
Andrew Ashworth, PRINCIPLES OF C RIMINAL LAW, 202 (Oxford University press, 7th edn., 2013).
4
P.S.A Pillai, C RIMINAL LAW, 99 (Lexis Nexis, 12 th edn., 2014).
5
Sudhakaran v. State of Kerala, 2010 (10) SCC 582.
6
R. v. McNaughten, (1843) 8 E.R. 718.

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 3. This defect of reason should have affected the accused so as not to know the nature and
quality of the act he was doing or if he did know it that he did not know that what he
was doing was wrong.

4. He should not be aware that act was at the same time contrary to the law of the land and
he is punishable.

Where a person under an insane delusion as to existing facts commits and offence in
consequence thereof, the judges indicated that the answer must depend on the nature of the
delusion; but making the assumption that he labors under a 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 rationale behind making insanity a defence to criminal responsibility was that,
punishment for offences seeking mens rea is so severe inflicting the same on an insane
person would not only be cruel, but also it would not serve as any deterrent; further a lunatic
is punished by his madness alone. 7

THE DEFENCE OF INSANITY IN INDIA

Insanity in the Indian Criminal law, more or less embodies the M’Naghten rule of insanity
and permits the defence of ‘not guilty by reason of insanity’ with reference to the time of
commission of the act constituting an offence. The defence contained in Chapter IV Sec. 84
of the Indian Penal Code (hereinafter ‘I.P.C.’) reads as follows:

"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."

Section 84 of the Indian penal Code, 1860 mentions the legal test of responsibility in case of
alleged unsoundness of mind and it is by this test as distinguished from a medical test 8 that
the criminality or the mens rea of the actus reus is to be determined. The law under this
provision considers only disturbance of cognition i.e. the reasoning ability as unsoundness of
mind (commonly termed as insanity) which renders an individual incapable of understanding
the consequences of one’s act.

7
Homer D. Crotty, History of Insanity as a Defence to Crime in English Criminal Law , C ALIFORNIA LAW
R EVIEW, 12(2), 106 (1924).
8
A Court is concerned with legal insanity and not medical insanity.

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The burden of proof to prove insanity rests on the accused himself, which arises by virtue of
Section 105 of the Indian Evidence Act, 1972 and is not so onerous as that upon the
prosecution to prove that the accused committed the act with which he is charged. The burden
on the accused is no higher than that resting upon a plaintiff or a defendant in a civil
proceeding. Like all the exceptions enumerated in Chapter IV of the I.P.C., insanity if
successfully pleaded operates as a complete defence to all offences. There is however, one
significant difference between insanity and the other defences. The accused when acquitted
under the defence of insanity will normally be detained in a mental institution at the
discretion of the magistrate or judge, and thus plea of insanity does not result in unqualified
acquittal.9

The defence of insanity in criminal cases in India 10 embodies a fundamental maxim of

criminal jurisprudence, that an act does not constitute a crime unless it is done with a guilty
intention i.e. actus non facit reum nisi mens sit rea.11 In order to constitute a crime, the
intent and the act must concur. Thus, the section fastens no culpability on insane persons
because they cannot have rational thinking or the necessary guilty intent.

Now, there are two significant issues to this rule of Insanity, which are essentially the two
mental conditions exempting the accused from his responsibility for his wrongful act, that:
1. his unsoundness of mind was such that he was “incapable of knowing the nature of the
act”, or
2. it had precluded him from understanding that the act he was doing was either wrong or
contrary to law.12

A. Disjunctive v. Conjunctive View

Of these, the first condition seems to refer to the offender’s consciousness of the bearing of
his act on those who are affected by it. The second, to his consciousness of its relation to
himself. These two elements need not be simultaneously present in each case, nor indeed, are
they invariably so present. The absence of both or either relieves the accused from the
criminal liability. This is the so-called ‘disjunctive’ view which entitles the accused of the
benefit of Sec. 84 if any of the three incapacities i.e. the nature of the act, contrary to law, or
wrongfulness is established. 13 For instance, a case in which the accused either is incapable of
knowing the wrongness but knows the illegality, or is incapable of knowing illegality but
knows wrongness. In this respect, if the disjunctive view is preferred, the accused will
succeed under Sec. 84, while if conversely conjunctive test applies, he will not. For instance,

9
Sec. 330 of The Code of Criminal Procedure, 1973. Sec. 27 of Mental Health Act, 1987.
10
Sec. 84 of I.P.C.
11
As Lord Diplock opined in the case of Sweet v. Parsley, 1976 AC 132; “An act does not make a person
guilty of a crime unless his mind is so guilty. Ambi v. State of Kerala, 1962.
12
Pancha v. Emperor AIR 1932 All 233; Kader Nasayer Shah, 1896 ILR 23 Cal 604.
13
Andrew Phang, Of Legal History, Jurisprudence and Insanity “Wrong or Contrary to Law” in Section
84 of the Penal Code Re-Considered, SINGAPORE J OURNAL OF LEGAL STUDIES , 321 (1995).

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The accused is not protected if he knew that what he was doing was wrong, even if he did not
know that it was contrary to law, and also if he knew that what he was doing was contrary to
law even though he did not know that it was wrong, in the latter approach. 14 It can therefore
be inferred that Ashiruddin case offered the solution within the perview of the former, which
was rejected by the Allahabad High Court in Lakshmi v. State, holding it to be untenable,
leading the application of Insanity defence in India towards conjunctive approach.

However, from a justice or policy point of view a disjunctive solution might be preferred if
the end purpose of punishment is reform and rehabilitation to offenders, a disjunctive
approach whereby a more appropriate treatment (i.e. in a mental institution) would be more
useful and should be given effect to. 15 Additionally, in interpreting penal statutes strictly, if
there is any doubt as to the interpretation of Sec. 84, it should be resolved in favor of the
accused.16 That is, disjunctive view should be preferred from the points of view of the policy
of interpretation of penal statutes and the rehabilitative aim of punishment and hence, is a
justification for departure from Geron.

B. Cognitive Knowledge v. Affective Knowledge

In order to seek the defence of insanity under Sec. 84 of I.P.C., it is necessary for an accused
to prove that he, because of ‘unsoundness of mind’, was incapable of knowing the nature of
the act; or that the act was contrary to law; or that the act was wrong. 17

The term ‘unsoundness of mind’ has not been defined in the I.P.C., but the courts have
equated it to mean insanity which for the purpose of Sec. 84, should be of such a nature that it
completely impairs the cognitive faculties of the mind as opposed to the emotional/ volitional
capacities of mind.18 It is the reasoning ability of the accused which must be affected and
simply failure to use the powers of reasoning which he had would not suffice. This aspect of
the insanity test is illustrative of the law’s basic premise of responsibility wherein guilt
cannot be adduced in the absence of the capacity to reason.

“In dealing with the legal aspect of the question we are concerned with the effect insanity
has on the mind and with special reference to the question whether the sufferer has that

14
S.K. Yadav v. State of Maharashtra, 2008 Crl. 509 Mah.
15
Phang, supra note 32 at 324.
16
Phang, supra note 32 at 322.
17
Dr. Madhusudhan, The Insanity Defence: An Analysis with Specific Reference to Section 84 of the Indian
Penal Code, 1860, INTERNATIONAL J OURNAL OF HUMANITIES AND SOCIAL SCIENCE I NVENTION, 4(9), 24
(2015).
18
M. Cheang, The Insanity Defence in Singapore, ANGLO-AMERICAN LAW R EVIEW, 245 (1985).

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minimum of knowledge and intelligence and that freedom of will which are at once the basis
of responsibility and the justification for punishment.”19

Prima facie “unsoundness of mind”20 implies a much broader scope than M’Naghten Rule’s
“laboring under such a defect of reason, from disease of mind” because the former covers
mental defects which are both congenital and post-natal and can be temporary or permanent
as also under the English law. Similarly, it is irrelevant whether the condition of the mind is
curable or incurable. Thus, in the words of Huda,

“The use of the more comprehensive term 'unsoundness of mind' has the advantage of doing
away with the necessity of defining insanity and of artificially bringing within its scope
various conditions and affections of the mind which ordinarily do not come within its
meaning, but which none the less stand on the same footing in regard to exemption from
criminal liability.” 21

The word ‘know’ in the rule can either be interpreted to mean its cognitive meaning i.e. the
defendant/accused is able to perceive correctly certain objective features of their conduct, or
it can have a more affective meaning namely, whether the defendant is able to fully
appreciate the significance of cognitive observations i.e. understand what he objectively
knows.22 The term ‘know’ has been broadly interpreted by the High Court of Australia in
Stapleton v. The Queen23 as to be equivalent to the accused being ‘incapable of reasoning
with some moderate degree of calmness’ as to the nature or wrongness of the act. Since under
Sec. 84 the question is whether the accused was ‘incapable of knowing’, this interpretation is
be preferred because under the M’Naghten Rules the question is simply whether or not the
accused knew, which suggests a narrower defence because it is possible not to know a thing
but still not be incapable of knowing it, as was laid in Lakshmi.

However, the above distinction while theoretically may be sound but is of little practical
significance. For any distinction between the incapacity to know and the actual lack of
knowledge must be understood in the relation the requirement of unsoundness of mind. 24
Further the test of incapacity as supported by the Allahabad High Court, restricts the
availability of the defence compared to the lack of knowledge. The element of incapacity is
narrower than the lack of knowledge because it is possible for a person to generally possess
the cognitive capacity to know the nature of his or her act or that it was wrong, but not to

19
Id.
20
In Bapu alias Gujraj Singh v. State of Rajasthan, (2007) 8 SCC 66: The Supreme Court answer “What is
unsoundness of mind?” as follows "The standard to be applied is whether according to the ordinary
standard, adopted by reasonable men, the act was right or wrong.”
21
As cited in K.D. Gaur, C OMMENTARY ON T HE INDIAN PENAL C ODE ,273 (Universal Law Publishers, 2006).
22
Criminal Liability: Insanity and Automatism, 28 (Discussion Paper, The Law Commision of U.K., 2013).
23
Stapleton v. The Queen (1952) 86 CLR 358.
24
Supra note 42 at 29-30.

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have known of the same at the time when the crime was committed. 25 According to the above
interpretation, the law recognizes nothing but the incapacity to realize the nature of the act
and consequently presumes that where a person’s mind or his faculties of ratiocination are not
sufficiently dim to apprehend what he is doing, he must be presumed to intend the
consequences of his action, although extenuation might be considered. 26

C. Moral v. Legal Wrong

In the alternative limb of the test of responsibility under Sec. 84, it must be asked whether, if
the accused knew what he was doing was ‘wrong’. The English law premised on the
M’Naghten rules uses the word ‘wrong’ only, which has been held to mean ‘contrary to law
or a legal wrong.27 However, in the context of Sec. 84 under the I.P.C. the phrase “wrong or
contrary to law” is used and consequently wrong is interpreted to mean ‘morally wrong’ i.e.
‘wrong according to the standards adopted by reasonable men’. 28 It is important to
acknowledge this difference in wording and interpretation because, as laid down in Windle,
so long as the accused knew that the act is prohibited by law he would not be entitled to the
benefit of the defence of insanity under English law. However, under Sec. 84 of the code,
because the phrase is “wrong or contrary to law”, Windle ought to have been acquitted since
he believed it to be morally right to relieve his wife, as was the reasoning in Ashiruddin.

Thus, the word ‘wrong’ in narrow terms as under English law, would mean a particular
crime; however, in the broader context as under the Indian code, wrong would take into
account the defendant’s individual beliefs about the desirability of his or her conduct.29 The
justification of the court in Ashiruddin case premised on this very connotation of ‘wrong’ as a
moral wrong. Thus, the formulation of three exclusively independent tests in Ashiruddin case
can be accepted to be correct, as opposed to the view expressed in Lakshmi.

INSANITY IN 21ST CENTURY: A WAY FORWARD

At present, the court is not bound by the opinions of medical experts in determining criminal
liability of an accused seeking the defence of insanity. It is at the discretion of court to even
get a medical examination done before disposing-off the appeal. This leads to inconsistency
as well as many a times even miscarriage of justice, where the court fails to fully appreciate
the evidence. It is to overcome this uncertainty and have scientific reasoning for the decision

25
Supra note 42 at 30.
26
Sunil Sandeep v. State of Karnataka, 1994 (1) ALT Cri 303.
27
R v. Windle, [1952] 2QB 826.
28
Stapleton v. R, (1952) 86 CLR 358.
29
Pillai, supra note 4 at 113-114.

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delivered it is important that medical opinions are analyzed meticulously. Because the area of
insanity is specific to medical science, therefore, the criteria for evaluation of the defence of
insanity should be weighed in favor of medical and not legal opinion.

Further, is high time that the Scottish doctrine of diminished responsibility be introduced in
the Indian Criminal Justice System, on the lines England, Singapore, Barbados, etc. as a
partial defence to a criminal responsibility for reducing the charge of murder to manslaughter
if the accused is suffers from a mental abnormality. 30 The expression ‘Abnormality of mind’
used here is different from the expression ‘defect of reason’, the former means a state of mind
which is so different from that of ordinary human beings that any reasonable man would be
able to categorize the person as abnormal.31 Thus, it is wide enough to encompass the mind’s
activities in all its aspect and not only the perception of physical acts, the matters, the ability
to form a rational judgment whether an act is right or wrong, also the ability to exercise will
power to control the physical acts in accordance with rational judgment. Therefore, it is
suggested that Indian law should also be amended in order to incorporate the concept of
diminished responsibility under Sec.84 of I.P.C., i.e. it is recognized to invoke a partial
defence to reduce the liability of murder, for instance to culpable homicide not amounting to
murder.

CONCLUSION

In the last 150 years, the law relating to insanity as under Sec. 84 of I.P.C. as an extenuating
factor has remained static in India. Legislature as well as courts in India, in spite of a number
of indicia provided by modern medical science and psychiatry for ascertaining the state of
mind of the accused pleading insanity and of some progressive statutory and judicial inroads
made in the overseas jurisdictions including in the country of its origin, have not been able to
bring any reforms in the law of insanity. Thus, a case can be made for restating the defence in
more appropriate terminology to take into account the developments in the area of mental
health that are becoming available for a better assessment of legal responsibility.

It cannot be stressed more the need for adopting a more progressive attitude in the application
of the principle enunciated in Sec. 84 for determining criminal responsibility of a person
suffering from ‘mental disorders’ in the light of recent advances in medical science,
especially in the field of psychiatry. The development of psychiatry as a recognized branch of
medical science should be a strong reason of revision in our opinion as to what constitutes
unsoundness of mind for the purpose of Sec. 84 with a scientific reasoning because at present
legal insanity restricts itself only to impaired cognitive faculties of mind. This cognitive test

30
Sec. 2, Homicide Act of 1957.
31
Leo, supra note 65 at 243.

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provides a narrow ground of exemption and ought to be expanded. Adopting such a
restrictive view has serious implications, because a host of medically recognized psychotic
disorders all of which seriously impair a person’s mental faculties but without necessarily
affecting the cognition, are excluded from its purview. If it can be established that any of
these disorders impair the ability of a person to form mens rea, there is no reason as to why
these shouldn’t be allowed as defences.

The rule of ‘incapability’ as laid in Laxmi can be supplemented with the advancement in
medical science as an enlightening influence on this subject such that the accused must not
only be ‘capable’ of knowing the nature of the act, whether it is right or wrong, but also that
he was not impelled to do the act by an ‘irresistible impulse’, which means that his reasoning
power were so affected by his diseased mental condition as to deprive him of the will power
to resist the insane impulse to perpetuate the deed, though knowing it to be wrong.

It seems fairly evident that what is required now is a more flexible sentencing policy which
would allow the courts to dispose of the accused in a manner most appropriate to the offence
and his mental state. This can be done with incorporation of medical evidence and the
concept of diminished responsibility. The criminal justice system in India thus, would be
armed with a power to recognize the borderline cases of insanity and take into account the
variations in human behaviour which have infinite ramifications. This broader view of court
accompanied by a proper test of insanity, which is flexible and closely linked with current
psychiatric concepts of mind and body will further empower judiciary to effectively maintain
a balance between the rights of a defendant and the imperative to protect the society. For, a
wrongful rejection of the insanity defence will deprive the court of the opportunity to fit the
disposal to the defendant's condition; it must be at least as likely that an untreated defendant
will re-offend after being sent to prison as it is that the same defendant will re-offend after
treatment.

Thus, Lakshmi represents the departure of Indian judiciary from a liberal attitude of insanity
in Ashiruddin to a very cautious approach in accepting the plea of insanity over the years in
favor of the imperative to protect the society. This however, has rendered this defence
ineffective in 21st century with the advancement in medical science pertaining to mind and
body as well as the social changes and pressures in modern societies.

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 REFRENCES

BOOKS

1. Andrew Ashworth, PRINCIPLES OF CRIMINAL LAW, 202 (Oxford University press, 7th edn.,
2013).
2. G.P. Fletcher, RETHINKING CRIMINAL LAW, 835-36 (Little, Brown and Company, 1978).
3. K.D. Gaur, COMMENTARY ON THE INDIAN PENAL CODE,273 (Universal Law Publishers,
2006).
4. P.S.A Pillai, CRIMINAL LAW, 99 (Lexis Nexis, 12th edn., 2014).
ARTICLES
1. Andrew Phang, Of Legal History, Jurisprudence and Insanity “Wrong or Contrary to Law”
in Section 84 of the Penal Code Re-Considered, SINGAPORE JOURNAL OF LEGAL STUDIES,
321 (1995).
2. Dr. Madhusudhan, The Insanity Defence: An Analysis with Specific Reference to Section
84 of the Indian Penal Code, 1860, INTERNATIONAL JOURNAL OF HUMANITIES AND SOCIAL
SCIENCE INVENTION, 4(9), 24 (2015).
3. Homer D. Crotty, History of Insanity as a Defence to Crime in English Criminal Law,
CALIFORNIA LAW REVIEW, 12(2), 106 (1924).
4. Karan Lahiri, Insanity and Intoxication as Defences: An Appraisal, COCHIN LAW REVIEW,
31(1), 172 (2007).
5. M. Cheang, The Insanity Defence in Singapore, ANGLO-AMERICAN LAW REVIEW, 245
(1985).
MISCELLANEOUS

Criminal Liability: Insanity and Automatism, 28 (Discussion Paper, The Law Commision of
U.K., 2013).

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