CHAPTER-ITI. 1 Abhiram Kerketa vs State of Orissa 1989(1) Cr. L.J. 296 at P. 298 (Orissa). 2 State vs Emercian Lemos A.I.R> 1970 Goa I at P. 6.

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1 26 CHAPTER-ITI THE SUBSTANTIVE LAW OF INSANITY UNDER THE INDIAN PENAL CODE I. SECTION 84 INDIAN PENAL CODE Section-84 of Indian Penal Code deals with Act of a person of unsound mind and is contained in the chapter dealing with General Exceptions. The Section 84 runs as follows:- Nothing is an offence which is done by a person, who at the time of doing it, by reason of unsoundness of rnind, is incapable of knowing the nature of the act, or that he is doing, what is either wrong or contrary to law. The rationale of the law of insanity as embodied in this section has its source in the M Naghten rules. The section embodies the fundamental maxim of criminal law Actus non facit reum nisi mens sit rea (An act does not constitute guilt unless done with a guilty intention). A. Underlying Principle of section 84:- According to Sir Hari Singh Gaur as mentioned in his book named Indian Penal Code the underlying principle of Sec. 84 is that Every man is presumed to be sane. This presumption does not apply to a man whose case is governed by Section-84. The exemption under this Section is based on the principle that in order to constitute crime the act should have been committed with a guilty intention, the doer of the act not knowing the nature of the act or the wrongfulness of the act or illegality of the act.1 Section 84 mentions the legal test of responsibility in case of alleged unsoundness of mind. It is by this act as distinguished from medical test, that the criminality of the act is to be determined. This section, in substance, is same as the M Naghten Rules. These rules inspite of long passage of time are still regarded as the authoritative statement of the law as to criminal responsibility.2 Jurists have given various reasons for the exemption of lunatics from criminal responsibility. It has been said that a mad man is best punished by his own madness. So, it has been said that if a mad man commits an offence he shall not suffer for the act because being deprived of memory and understanding by the hand of God, he is regarded as having broken the mere words of the law, but not law itself. The reason, however, why a mad man is exempted is that his acts being unintentional and involuntary, no court can correct them by 1 Abhiram Kerketa vs State of Orissa 1989(1) Cr. L.J. 296 at P. 298 (Orissa). 2 State vs Emercian Lemos A.I.R> 1970 Goa I at P. 6.

2 27 punishment. Being deprived of free will, a mad man is not placed even in a worse predicament than an infant under 7 years for while the latter can at least control and regulate his acts, the former cannot. Being victim of his impulses, his acts are as involuntary as they are unintelligent. It is idle to talk of his possessing mens rea for even his mind is not his own. He is, therefore in all ages a fit object of commiseration; but as society has to be protected even against the attacks of maniacs, the Criminal Procedure Code provides for his detention to prevent mischief. But this detention is not his sentence. B. SCOPE AND OBJECT:- Section 84 of The Indian Penal Code lays down that 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. It deals with the deficiency of will due to weak intellect. The concept incorporated in the said section is as old as the hills. Jurists have given various reasons for the exemption of lunatics or persons of unsound mind from criminal responsibility. It has been said that a mad man is best punished by his own madness - furiosus furore suo punier.3 It has further been laid down by the jurist that a mad man has no will - furiosus nulla voluntes est. He is therefore in all ages an object of consideration, The legal conception of insanity differs considerably from the medical conception. It is not every form of insanity or madness that is recognised by law as a sufficient excuse. The most elaborate & authoritative exposition of the law of insanity in common law is embodied in Daniel M Naghten s case,4 In the answers of the fifteen judges given in June 1843 to the questions put tojhem by the Lords, in consequence of the popular harm provided by the acquittal of Daniel MC Naughten. The answers given by the judges in the said case have been taken, on all hands, to be an authoritative statement of the law of England on the subject of insanity as a bar to criminal responsibility. At page 722, the learned judges laid down inter alia that Every man is to be presumed to be sane and to possess a sufficient degree of reason to be responsible for his crime until the contrary be proved to their jury s satisfaction and that to establish a defence on the ground of insanity, it must be clearly 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 and quality of the act he was doing or if he did know it 3 A mad man is punished by his own madness alone. 4 (1843) 8 E.R. 718

3 28 that he did not know he was doing what was wrong. Section 84,1.P.C. has incorporated this definition of unsoundness of mind. As the presumption of sanity, it has been observed5 that every man is presumed to be sane until the contrary is proved and this presumption holds as well in civil as in criminal cases. As to insanity, it has further been observed6 that where it can be shown that a person at the time of his committing or omitting an act, the commission or omission of which would otherwise be criminal, was laboring under such a defect of reason, from disease of the mind, as not to know the nature and quality of the act or omission or as not to know that what he was doing was wrong then such a person is not in law responsible for his act. Regarding persons of unsound mind, the same principle has been reiterated after an appraisal of the above mentioned cases, as well as some others7 that all persons who have reached the age of discretion (14 years) are presumed to be sane, and criminally responsible and in cases where a person subject to attacks of insanity has lucid intervals, the law presumes the offence of such person to have been committed in the time of his distemper. In the older cases it was stated that it lay on the accused to prove that he was insane at the time of commission of an offence so as not to be liable to punishment as a sane person. But the modem rule is not so strict since the case of Woolmington V. Director of Public Prosecutions8 in 1935 and it is now established that prisoner need to be no more than adduce evidence which raises in the minds of the jury a reasonable doubt as to his sanity. In the case of Chankau V. Queen,9 the judicial committee observed that in case where the evidence discloses a possible defence of self-defence, the onus remains through out on the prosecution to establish that the accused is guilty of the crime of murder and the onus is never upon the accused to establish his defence any more that it is for him to establish provocation or any other defence apart from insanity. The same is substantially the principle underlying the law in India on the subject as embodied in section 84 of the Indian Penal code and Section 105 of Indian Evidence Act. According to illustration (a) of Section 105 of Indian Evidence Act, the onus of establishing the plea under Sec. 84 EPC rest on the accused. The burden of proving the existence of circumstance bringing the case under Sec-84,1.P.C. is 5 Halsbury s law ofengland 3rd Ed. Vol 29 at P in Halsbury s laws ofengland, 3rd Ed. (Simons) Vol. lo at P in Russel on crime, 11th Ed. At P (1935) A.c. 462 at P (1955) A.C.206

4 29 thrown on the accused and Sec-101 of Indian Evidence Act directs that the court shall presume the absence of such circumstances. In order that Sec-84 I.P.C. may come into play it is to be established that the accused of unsound mind and his cognitive faculties are so impaired that he did not know the nature of the act done by him or that what he is doing is either wrong or contrary to law.10 In a case dealing with the question regarding insanity there are two or three points to be carefully understood and appreciated: i) That every individual is normally presumed to be sane until the contrary is established; ii) That the onus of the prosecution is not merely to establish that the accused committed is criminal act, but also to establish that he had the necessary mens rea, which is also an ingredient of the offence and iii) That under Section 105 of the Indian Evidence Act, the onus of providing one of the General Exceptions like insanity is on the accused. Normally, every person is presumed to be sane, so that the prosecution need not initially establish that the accused was sane, If accused claim the benefit of Section 84 he has to establish that he was non-compos mentis - was not in a position to understand the nature of his act. If the ultimate result of the prosecution evidence and circumstances and/or the defence is that the court is left in a reasonable doubt regarding the mental condition of the accused (that he might have been insane, might not have been insane) at the time of commission of offence then the benefit of that reasonable doubt should go to the accused. C. APPLICABILITY Section 84 deals with the deficiency of will due to weak intellect. The rationale of law of insanity as embodied in the Section has its source in the M Naghten rules. Jurists have given various reasons for the exemption of lunatics or of person of unsound mind from criminal responsibility. It has been said that a mad man is best punished by his own madness - Furiosus Furore Suo Puniter: It has further been laid down by the jurists that a mad man has no will. - Furioss Nulla Voluntus est. : He is therefore in all ages an object of commiseration, but as society has to be protected even against the attacks of a maniac, the code of 10 Digendra Nath Roy V. State, 1970 Cr. L.J. 529 at PP

5 30 criminal procedure provides for his detention to prevent mischief as in Sees. 328 and 339, Cr. P.C. Such detention however, is not his sentence. To earn exemption under Sec. 84 I.P.C. the defence has to prove insanity of the accused at the time of the offending act. The Section embodies the fundamental maxim of criminal law Actus non facit reum nisi mens sit rea (An act does not constitute guilt unless done with a guilty intention). In order to constitute crime, the intent and act must concur, but in the case of Insane persons no culpability is fastened on them as they have no free will. Section 84 of the. Penal Code incorporates two different mental conditions arising from unsoundness of mind which exempt a man from responsibility for his wrongful act namely, i) That his unsoundness of mind was such that he was incapable of knowing the nature of the act, or ii) That he did not know that what he was doing was wrong or contrary to law. Of these, the first 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. The presence of both or either of these two mental conditions relieves the offender from liability to punishment. The first category covers situations, namely automatism and mistake or simple ignorance of fact." The second category is important because it is generally the test in numerous cases where mental disease has only partially extinguished reason. One example of partial extinction in the case of delusions, which apparently leave the mind unaltered outside the special ideas which they affect. It may be noted here that the Indian Law on the subject appears to be wider than English Law, in so far as the test of insanity in the latter part of Section 84 is concerned. In Ashiruddin Ahmed V. The king}2 the Calcutta High Court tried to formulate a third test for insanity. The court held that to get the benefit of Section 84 of the Penal code, the accused must establish any one of the following three namely: " In re Pappathi Ammed, AIR 1959 Mad. Rana Swami J. observed,... though there is no decided case in law on the subject, summonbalism if proved will constitute that unconsciousness of mind, attracting the application of Section 84 I.P.C. 12 AJ.R. 1949, Cal. 182

6 31 (1) That he did not know the nature of the act charged or (2) That he did not know that it was contrary to law or (3) That he did not know that it was wrong. Of course the relevant time in all the three cases is the time when the act charged was performed. The court further held that the third element was established because the accused believed that his dream was a reality. He had been commanded by someone in paradise to sacrifice his own son and believing it to be right, he killed his son. The court s interpretation in this case that wrong and contrary to law are two independent tests run counter to its earlier interpretation of Section 84 in Geron Ali V. Emperor,13 where it found wrong and contrary to law as forming one test only. It is really embarrassing to note that Mr. Justice Roxburg, who was a member of the division bench in both Geron Ali and Ashiruddin Ahmed did not observe or clarify these obviously conflicting decisions. One would have expected a more reasoned and elaborate judgment from Calcutta High Court, particularly in view of the fact that it represented a departure from its earlier decision on the point. The clause in Section 84 or that he is doing what is either wrong or contrary to law is split up into two parts relating respectively to (a) the wrongfulness of the act; (b) the unlawfulness of the act. But the structure of clause shows that the words what is either wrong or contrary to law should be taken as a whole and not split as in Ashiruddin s case, so as to convey the meaning that the accused would get the benefit of the section even in cases in which he was only incapable of knowing that his act was morally wrong but was aware that it was contrary to law and vice-versa. It would be a contradiction in terms to say that an accused who is incapable of knowing that his act is either wrong or contrary to law can t claim the benefit of the section. The court s interpretation in Ashiruddin s case to the effect that wrong and contrary to law are two independent grounds under section 84 was dissented from in Lakshnti V. Stated where the court observed what section 84 lays down is not that the accused claiming protection under it should not know an act to be right or wrong, but that the accused should be incapable of knowing whether the act done by him is right or wrong. The capacity to know a thing is quite different from what a person knows, the former is a potentiality, the latter is 13 AIR 1041 Col 129; Karma Urang V. Emperor AIR 1928 Col, 238; Baalur Rahman V. Emperor AIR 1928 Col.l 14 AIR 1959 All 534

7 32 the result of it. If a person possesses the former he cannot be protected in law, whatever might be the result of his potentiality. However in a later case15 the Gujrat High Court approved the three test laid down in the Ashiruddin s case. This rule if correct provides quarter immunity than other Indian decisions do. However, different High Courts of India in majority of the cases16 have taken the view that so far as the legal tests of responsibility are concerned there are only two tests laid down in Section 84, based largely on the M Naghten s Rules. The expression wrong or contrary to law signifies only test of responsibility and not two independent tests. Law will punish a man for doing something which he knows to be contrary to law, whatever his private opinion may be regarding his ethics. Similarly, if an act is contrary to law its ignorance will not protect him when it is proved that he knew that what he was doing was morally wrong as knowledge of the law is presumed. Thus, it is the incapacity to know the legality as well as the morality of one s act that gives him the benefit of latter part of section 84, and in presence of anyone of them, the accused cannot avail protection of this section. This indicates the confusion which governs the judicial attitude with regard to the interpretation of rules which were formulated in Not every type of mental unsoundness will render a person irresponsible in the eye of law. Only under certain circumstances a person of unsound mind exempted from criminal liability. To establish a defence on the ground of insanity it must be proved that at the time of committing the alleged offence the accused was laboring under such a defect of reason, from disease of the mind as not to know the nature and quality of the act he was doing or, if he did know it, he did not know he was doing what was wrong. Non-liability is limited to those cases in which insanity affects the cognitive faculties of mind and the cases in which insanity affects only emotions and the will subjecting the offender to impulses, whilst, it leaves the cognitive faculties unimpaired, have been left outside the exception because it has been thought that the object of criminal law is to make people control their insane as well as their sane impulses to guard against mischievous propensities and homicidal impulses.17 The accused must be presumed to intend the consequences of the action he takes when his mind or faculties of ratiocination are sufficiently unclouded to understand what he is doing. If the accused was conscious that the act was one which he ought not to do and if that act was 15 Kanbi Kurja Dubo V. State of Gujrat AIR I960 Guj Madho Singh V.State AIR 1959 Pep Chajju V. Emperor (1910) 1 Cr. L.J. 105.

8 33 contrary to the law of the land, he is punishable.ig The standard to be applied is whether according to the ordinary standard adopted by reasonable men the act was right or wrong. It is not mere eccentricity or singularity of manner that will suffice to establish the plea of insanity; it must be shown that the prisoner had no competent use of his understanding so as to know that he was doing a wrong thing in the particular act in question. It is only unsoundness of mind which materially impairs the cognitive faculties. If the cognitive faculties of mind that can form the ground of exemption from criminal liability have not been destroyed, legal insanity under section 84 cannot be established.19 The law with regard to applicability of Section 84 was firmly stated by the highest court of law in Sheralli wall Mohd. V. State of Maharashtra,20 where the court held, all the following ingredients of Section 84 must be proved namely: a) That the accused was insane. b) That he was insane at the time of the commission of the act and not merely before or after the act c) That as a result of the unsoundness of mind, the accused was incapable of knowing the nature of the act or that what he was doing what was either wrong or contrary to law. It is by the test laid down by Section 84 as distinguished from the medical test that the criminality of an act is to be determined. II. EVERY FORM OF INSANITY IS NOT EXEMPTED Section 84 of the Indian Penal Code lays down the legal test of responsibility as distinguished from the medical test. It may be observed that the absence of will arises not only from the absence of maturity of understanding but also from a morbid condition of mind. This morbid condition of the mind, which affords an exemption from criminal responsibility, differs in the medical and legal point of view. According to medical science insanity is another name for mental abnormality due to various causes and existing in various degrees. Even an uncontrollable impulse driving a man to kill or wound comes within its scope. The legal conception of insanity differs considerably from the medical conception. It 18 B.K. Bhattacharya, Insanity and.criminal Law (1964 2nd ed.) 19 Kalicharan V. Emperor AIR 1948 Neg. 20, AIR 1972 SC 2443 approving the decision of Orissa High Court in Sarika Gurdura V. State AIR 1969 orr. 102

9 34 is not every form of insanity or madness that is recognised by law as a sufficient excuse. The most elaborate and authoritative exposition of the English Common Law of Insanity was embodied in the answers of 15 judges given in June 1843 to the questions put to them by the lords in consequences of the popular alarm as provoked by the acquittal of Daniel McNaughten. The learned judges unanimously laid down that to establish a defence on the ground of insanity it must be clearly proved that at the time of committing the act the accused was laboring under such disease of the mind as not to know the nature and quality of the act he was doing, of he did not know it, that he did not know he was doing, of he did not know it, that he did not know he was doing what was wrong.21 A distinction is to be made between legal insanity and medical insanity. A court is concerned with legal insanity and not with medical insanity. Where during the investigation previous histoiy of insanity is revealed, it is the duty of an honest investigator to subject the accused to a medical examination and place that evidence before the court and if this is not done, creates a serious infirmity in the prosecution case and the benefit of doubt has to be given. The crucial point of time, for deciding whether the benefit of this section could be given or not, is material time when the offence takes place. If at that moment a man is 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 this must be applied. In coming to the conclusion, the relevant circumstances are to be taken into consideration. It would be dangerous to admit the defence of insanity upon arguments derived merely from the character of the crime. It is only unsoundness of mind which naturally impaires the cognitive faculties of the mind that can form a ground of exemption from criminal responsibility. The law recognises nothing but incapacity to realise the nature of the act and presumes that where a man s mind or his faculties or ratiocination are sufficiently clear to apprehend what he is doing, he must always be presumed to intend the consequences of the action he takes. Mere absence of motive for crime, howsoever, atrocious it may be cannot, in the absence of plea and proof of legal insanity bring the case within this section. Mere abnormality of mind or partial delusion, irresistible impulse or compulsive behaviour of a psychopath affords no protection under section 84 I.P.C. behaviour, antecedent, attendant and subsequent to the event may be relevant in finding the mental condition of the accused at the time of the event, but not that remote in time. 21 Daniel Me Naughten s case (1843) 10 Clark & fmnelly 2008ER, 718

10 35 O') responsibility alright.23 Every person who is thus mentally diseased is not ipso facto exempted from criminal The mere fact (i) that an accused is conceited, odd, irascible and his brain is not quite (ii) That the physical and mental ailments from which he suffered had rendered his intellect weak and had affected his emotions and will24 (iii) That he was liable to recurring fits at short intervals25 (iv) That he was subject to getting epileptic fits but there was nothing abnormal in his behaviour26 v) That he committed certain unusual acts in the past such as snatching kuqqas from people or hurling brick-bats and giving beating to his uncle (vi) That he used to quarrel with his wife on certain occasions and used to lock her up inside the house whenever he used to go to work (vii) That his behaviour was queer,27 have not been held to be sufficient to attract the application of section 841.P.C. III. WHAT IS UNSOUNDNESS OF MIND Unsound mind is not a medical but a legal expression, denoting an incapacity to manage affairs. It would seem to answer to old legal term non-compos mentis28 which is equivalent to of no sound memory and is of four sorts: (1) An idiot (2) one made non-compos by illness (3) a lunatic or a madman (4) one who is drunk. (1) An idiot is one who is of non-sane memory from his birth, by a perpetual infirmity, without lucid intervals and those are said to be idiots who cannot count twenty or tell the days of the week, or who do not know their father s or mother s or the like.29 (2) A person made non-compos mentis by illness is excused in criminal cases from such acts as are committed while under the influence of his disorder Barelal us State ofm.p.a.i.r MP Abdul Rashid V. Emperor AIR 1927 Lah Ram Adhin V. Emperor (1932) Gr. L.J. 163 at Lakshmi V.State AIR 1959 All In re Raju Shethy AIR 1960 Mys In re Kandeshwami Mudali AIR 1960 mad Taylor s medical jurisprudence 2nd Edn Vol 2P Archbold, 35"'Edition, PP 31-32; Russell, 12 End. Vol. 1, P.105 ; 1 HaleP.C. 34

11 36 S (3) A lunatic is one who is afflicted by mental disorder only at certain periods and vicissitudes, having intervals of reason.31 Madness is permanent. Lunacy and madness are spoken of as acquired insanity, and idiocy as natural insanity. Lucid interval: - A temporary cessation of insanity or a restoration to reason in the person of unsound mind at interval is called lucid interval. Any act done by a lunatic in a lucid interval as in the period between two attacks of insanity will be legal and binding on him. 4. As to persons who are drunk or insanity brought on by drunken is no excuse, but delirium tremens caused by drinking and differing from drunken, if it produces such a degree of madness, even for a time, as to render a person incapable of distinguishing right from wrong, relieves him from criminal responsibility. If habitual drunken has created fixed insanity whether permanent or intermittent, it is the same as if insanity had been produced by any other cause and the act is excused. In order to succeed in a plea of defence of insanity it is not enough to prove that the accused person was having certain abnormal personality traits or imbalance in his behaviour or that he was a mal-adjusted person. He might have been suffering from bounts of depression or exhibiting neurotic behaviour and may be a maladjusted individual. It is not every imbalance in behaviour of maladjustment in the personality that will entitle him to claim exemption under section 84 IPC, from the penal consequences of his acts. The language and message of section 84 is clear and definite as to the requirements of law. At the time of committing the offence charged the accused, by reason of unsound mind, must, be incapable of knowing the nature of the act or that he is doing what is either wrong or contrary to law. In Dhaneswar pradhani V State of Assam32, accused has killed his wife and his daughter aged (17 years) and carried the two dead bodies by a hand cart and arrived at police out-post and made a statement to the Police officer on duty that he cut his wife and daughter to death with an axe and he surrendered to the police. Later on defence of insanity was taken in appeal. The witnesses during cross-examination deposed that sometime they noticed the periodical insanity suffered with by the accused- appellant, not spelt any definite period of such insanity found to have been suffered by the accused-appellant. Insanity, indeed, is a legal defence available to an accused to claim immunity from the penal consequences in a criminal trial provided under section 84 IPC. The provision of 30 1 Hale P.C Ressel, 12Edn. Vol. 1, P. 103; 1 Hale PC (109) Cr.L.J. 733.

12 37 section 84 IPC contemplate that by reason of unsoundness of mind if one becomes incapable of knowing the nature and consequences of the act, he does or becomes mentally handicapped of knowing, what he is doing could legitimately claim the immunity under the said provision. The plea of insanity or unsoundness of mind per se does not allow the accused to avail the benefit of section 84 unless it is proved that at the relevant time of the commission of offence he was suffering from such a degree of unsoundness of mind rendering him incapable of knowing the nature of the act. Mere feeble mindness, emotional imbalance or uncontrollable anger or eccentricity cannot lawfully provide any relief to be claimed under the aforesaid provision, unless it is proved from the evidence, of course, by preponderance of probabilities, that at the relevant time or soon before the commission of offence the accused suffered from such degree of insanity which made him incapable of knowing the consequences of the act, he did. But unfortunately in the present case nothing of the sort is available from the evidence. Unless the symptoms of insanity have its proximity with the commission of crime it would be very difficult to allow legal immunity in favour of the accused-appellant. The appeal failed and therefore dismissed. a. CLASSIFICATION OF MENTAL DISEASES:- The mental disease can be classified as follows :- a) Organic mental disorders include dimension in Alzheimer s disease, vascular dementia and dementia in other diseases, organic amnesia syndrome, delirium not induced by alcohol and other mental, personality and behavioural disorders due to brain disease, damage or dysfunction. b) Mental and behavioural disorders due to psychoactive substance use. c) Schizophrenia d) Mood disorders e) Neurotic Stress-related and somatoform disorders: i) Anxiety disorders ii) Obsessive - compulsive disorder iii) Reaction to stress and adjustment disorders iv) Disociative (conversion) disorder; v) Somatoform disorders. f) Behavioural syndromes associated with physiological disturbances and physical factor: i) eating disorders

13 3! ii) non-organic sleep disorders iii) sexual dysfunction not caused b}brganic disorder or disease; iv) mental and behavioural disordersssociated with the pulrperium; v) abuse of non-dependence producjg substances. g) Personality disorders: i) specific personality disorders ii) habit and impulse disorders iii) gender identity disorders iv) disorders of sexual perversion h) Mental retardation i) Disorders of psychological developn^its. Apart from aforesaid mental diseases are some other types of mental disorders which are as follows : i) Dementia ii) iii) iv) Pre-senile dementia Senile dementia; Arteriosclerotic dementia; v) Secondary dementia 2. Psychosis associated with organic diseas 3. Neurosyphillis (General Paralysis of the sane). 4. Epileptic psychosis. IV. MEDICOLEGAL ASPECTS OF INSffiTY The Indian Penal Code terms insanity as practitioner is expected to have fair knowledge treatment of insanity is the domain of a speciali msoundness of mind though every medical out the unsoundness of mind, diagnosis and It is necessary to have clear understanding of certain technical terms used in such cases. Delirium is a disturbance of consciousness. In :h a state, incoherence of speech, distortion in thinking process, hallucinations are common. Delusions occur due to false beliefs wrong Though delusions may not be strictly cal disorganisation. Due to the defect of delusions, figments resulting in illogical arguments. signs of insanity they reflect mental >erson is liable to commit criminal acts.

14 39 Hypochondriasis is a state in which a person is extremely sensitive to the happenings of his daily life accompanied by uncalled for anxieties. Hallucinations are imaginary acts without any basis. Hallucinations are caused by the addiction to certain drugs. The persons suffering from hallucinations may commit suicide and homicide. Illusions are purely imaginary perceptions by false interpretation. The disease is normally associated with people having emotional stress and brain diseases. Impulse is a sudden uncontrolled desire to do an act without rhyme or reason. Those who are affected by impulse resort to sexual, suicidal and homicidal acts. Some may have impulse to steal things and some have destructive mind i.e. uncontrollable desire to destroy or set fire to objects they come across. Obsession is an anxiety reaction arising out of doubtful mind. Though the patient knows that an act always feels he has forgotten to do something and repeats the act over and over again. Every normal human being may suffer from mild obsession but in some people it is acute and takes the form of mental disorder resulting in total crippling of the patient. Twilight states indicates aggressive behaviour and suffer from vivid hallucinations. It is experienced by persons suffering from injuries, excessive drunkards, in patients of epilepsy and rarely in the case of hysterics. There are several factors which are responsible for mental disorder viz., hereditary factors, various diseases, psychological factors, age, sex and incompatible marriages, widowhood etc. Some of the common diseases which are under the purview of unsoundness of mind are schizophrenia, neurosis, personality disorders and affective disorders. Schizophrenia is characterized by withdrawal symptoms, feeling strange to any external influence, devious thinking leading to incoherent speech at times, depression or elation, paranoid tendencies, delusions, hallucinations and feeling of self deterioration. Neurosis is a group of personality disturbances caused by daily happenings in one s life. The patient suffers from choking, insomnia, palpitation, headache, chest pain etc. due to real or imaginary danger. The patient cannot withstand sound; tantrums from children, wife and other relatives. Hysteric symptoms can be seen in young females and in the old people. Some people under this category suffer from phobic neurosis, i.e. they are afraid of certain situations viz. seeing dead bodies, living in darkness, hearing excessive sound afraid of being poisoned etc. the disease is quite crippling as it interferes with the daily life of a patient. Many patients are known to become addicts to alcohol or drugs to gain confidence.

15 40 Personality disorders are those which show deviant behaviour or abnormal behaviour as compared to normal human being. Those suffering from personality disorders have no normal feelings of love, affection, sympathy, adjustment etc. as is found in the other persons. They are normally anti-social and do not repent for acts of omission and commission. Some people suffering from personality disorders are also associated with sex perversion and may indulge in theft, fraud, forgery and violence. They have scant regard for1 discipline and honour. Affective disorders denote emotional feelings or being moody without any apparent cause and show anxiety. The patients have difficulty in having sufficient sleep, wake up in the early hours. Sometimes they may be in high talkative mood and emotional and other times show depression. V. ESSENTIALS OF SECTION-84 TO BE PROVED:- A) UNSOUNDNESS OF MIND MUST EXIST AT THE TIME OF COMMISSION OF THE ACT The state of mind at the time of the offence, neither ante-offence nor past-offence, which is to be determined, albeit to arrive at the conclusion the mental state of mind both antecedent and subsequent to the event would be relevant. The first thing that a court has to consider when insanity has been pleaded in defence is whether the accused has established that at the time of committing the act he was of unsound mind. The word insanity is not used in Section 84 of the Penal Code. The section uses the expression unsoundness of mind. There appears to be difference in the etymological meaning of the two words which may mean a defect of reason from a disease of the mind. The code has not defined what unsoundness of mind is. Stephen33 explains this term to be equivalent to insanity, which means - A state of mind in which one or more of the above named functions (i.e. of feeling and knowing, emotion and willing) is performed in an abnormal manner or not performed at all by reason of some disease of the brain or the nervous system. The term insanity artificially brings within its scope various condition which we have discussed in earlier title what is unsoundness of mind. To get the protection of section 84 of I.P.C. the person must be non compas mentis at the time of commission of offence. The crucial point of time is the time of commission of 33 A history of criminal law of England Vol. II (1883) P.130

16 41 offence. It is the presumption of law that every person of the age of discretion is sane unless contrary is proved and even if a lunatic has lucid intervals the law presumes the offence of such person to have been committed in a lucid interval unless it appears to have been committed during derangement.34 Section 84 speaks of mental irresponsibility at the time of the act. Thus accused s subsequent incapacity does not affect his crime, though it effects its trial and contingency has been therefore, provided for in the Cr. P.C.35 There is a distinction between incapacity at the time of doing the act charged and incapacity at the time of trial. While both are induced by unsoundness of mind, the former is substantive which excuses the offence under section 84 of the Indian Penal code the latter affects the procedure & merely postpones the trial under section 329 of Cr. P.C. The fact that the accused must be insane at the time of commission of the alleged offence has been laid down in a number of cases. In Sheralli wall mohammed V. state of Maharashtra36, it was held that it must be proved clearly that, at the time of the commission of the acts, the appellant, by reason of unsoundness of mind, was incapable of either knowing the nature of the act or that the acts were either normally wrong or contrary to law. The question to be asked was, was there evidence to show that, at the time of the commission of the offence, he was laboring under any such incapacity? On this question, the state of his mind before and after the offence is relevant. In Govind Bi Alias Subramonia Iyer V. State of Kerala, court observed that it is necessary for the application of section 84 IPC to show (1) that the accused was of unsound mind (2) that he was of unsound mind at the time he did the act and not merely before or after the act and (3) as result of unsoundness of mind he was incapable of knowing the nature of the act or that he was doing what was either wrong or contrary to law. It is not therefore every person mentally diseased who ipso facto is exempted from criminal responsibility. In Madhavan V. State of Kerala37, court observed that what is cmcial in such circumstances is his mental condition at the time of the commission of the offence. In that regard his 34 Chhagan V. State 1976 Cr. L.J. P. 671 at P. 673 (Raj). 35 Sec. 466 (old) Cr. P.C. 36 AIR 1972 SC ker LT 544

17 42 conduct immediately before and after the occurrence may be of relevance.38 To earn exemption under section 84 IPC, the defence has to prove the insanity of the accused at tlie time of committing the offending act. The court should record finding as to the mental condition of the accused at the time of the -%Q occurrence as held in Ram Swamp Thakur V. State of Bihar. In Mayajul Ali V. State of Assam40 it was held: Prevalence of unsoundness of mind at the time of commission of crime is the measure in scale to extend the privilege of the exception of section 84 BPC. It must be independently made out that the accused was actually in a state of unsoundness of mind. No doubt previous record and subsequent developments may play parts as circumstance to the nearness of the people, but that should not be made at the time of commission of crime. Satisfactory evidence must be in regard to establish the plea and liberal consideration will prove dangerous for criminal trial. In Vidhya Devi V. State of Rajasthan41, accused appellant killed his husband with kulhari and at the time of alleged incident, the accused was suffering from the mental disease Schizophrenia and therefore, she was entitled to the benefit of section 84 IPC. Then in Ratanlal V. State of M.P.42 It was settled by court that the crucial point of time at which unsoundness of mind should be established in the time when the crime is actually committed and the burden of proving this lies on the accused. In Sanna Eranne V. State of Karnataka,43 the court held that the crucial point of time ascertaining the state of mind of the accused is the time when the offence was committed and whether the accused was in such a state of mind as to be entitled to the benefit of Section 84 IPC can only be established from the circumstances which preceded, attended and followed the crime. B. INCAPACITY TO KNOW THE NATURE OF THE ACT 38 Raghu Pradhan V. State of Orissa, 1993 I Crimes 430 (Cri); Shaik Ahmed V. State of A.P Cr L.J (AP) (DB); Tola Ram V. State of Rajasthan 1996 Cr LJ. 8 (Raj) (DB); Amruta V. state ofrajasthan 1996 Cr. L.J. 416 (Bom)(DB) Cr. L.J. 426 (pat) 40 (1987)2 Gauhati LR (NCC) (110) Cr. L.J. 2332; State V. Mohinder Singh 1983(2) SCC 274. Anandrao Bhasale V. State of Maharashtara(2002) (SC) AIR 1971 SC Crl. L.J. 403

18 / 43 By nature of the act, context meant the physical nature of the act or the normal effects of the act. A man is properly said to be ignorant of the nature of his act, when he is ignorant of the properties and operation of the external agencies which he brings into play.44 The words incapable of knowing the nature of the act embodied in Section-84 of the Penal code refer to that state of mind when the accused was incapable of appreciating the effects of his conduct. It would mean that the accused is insane in every possible sense of the word and the such insanity must sweep away his capacity to appreciate the physical effects of his acts. As Mayne45 Points out:- The words incapable of knowing the nature of the act may refer to two different states of mind, which are distinguished in the answers of the judges and in the English Draft Code of 1879 by words nature and quality. A man is properly said to be ignorant of the nature of the act, when he is ignorant of the properties and operation of the external agencies which he brings into play. As if for instance an idiot who fires a gun at a person, takes it to a harmless firework. He is ignorant of the quality of his act if he had known the result which will follow, but is incapable of appreciating the elementary principles which make up the heinous and shocking nature of the result, as if, for instance an idiot was unable to perceive the difference between shooting a man and shooting an ape. Both of these states of mind are no doubt intended by the authors of the penal code to be included under the words they have used. This ground of exemption will hardly ever be found to exist, except in the case of idiots or of lunatics where insanity is so complete as to sweep away substantially all the reasoning power which distinguishes a man from a beast. Also before 1916 there was a great controversy over the meaning assigned to the words Nature and quality of the act which occurs in the M Naghten case. But the court of criminal appeals set the long standing controversy at rest in R. V. Codere46 by laying down an objective moral test. Lord reading C.J. delivering the judgment observed that it is argued that the quality is to be regarded as characterising the moral, as contrasted with the physical aspect of the deed. The court is of the opinion that is using the language nature and quality the judges were only dealing with the physical character of the act and were not intending to distinguish between the physical and moral aspect of the act. 44 Rambhrose V. State of M.P. 1974MPLJ406atP417(M.P) 45 Mayne, Criminal Law Part-II (1953-4lh Ed.), P (1916) 12 Cr. APPR.21.

19 44 The same interpretation was followed by our court of law in the state of M.P. V. Ahmadulla41 though our section does not use the word quality because there are no etymological differences between nature and quality. The use of the word knowing in the clause of Section 84 is significant and it implies that in order to entitled an accused to the benefit of Section 84, insanity must have affected his cognitive faculties and not mere emotions or will. Thus in Lachman V. Emperor4*, where the accused who was suffering from a malady in which lucid intervals alternated with complete insanity, it was found that at the time of committing the murder he was insane but was sane enough to know perfectly well that he was committing a crime. The court held him guilty, with a recommendation for the exercise of the powers of clemency. The law clearly stated by the Apex court of law in Amrit Bhushan V. Union, of India. 49, it was held that insanity to be recognised as an exception to criminal liability must be such as to disable an accused person from knowing the character of the act he was committing. If it were not possible to do so, the responsibility could not be absolved. In Kuttappa V. State of Kerala, In a plea of insanity, the antecedents, attending the subsequent conduct of the accused is relevant, but such conduct is not per se enough to show, the state of mind of the accused at the time of the commission of the act. In absence of materials to show that he was incapable of knowing the nature of his action that what he was doing, was wrong or contrary to law. The mere circumstance that without apparent motive he has committed atleast two murders and in all four ghastly murders, in itself does not lead to a reasonable inference that he suffered from insanity. In absence of proper materials such defence, if treated as part of our judicial system would be subversive to life and property50. The accused committed the murder of his wife and two children, was not in a position to know the nature of his act. Benefit under section 84IPC, was given51. Where the accused pushed a four year child into fire resulting in his death, the act was without deliberations or preparedness, the accused was acquitted.52 If at the time of the commission of the offence, the accused knew the nature of the offence, he can t be absolved of the liability of the offending act under the criminal law AIR 1961 SC AIR 1924 All AIR 1977 SC 608 followed in Kesheorao Bhiosani Navale V. State 1979 Cr. L.J Bhan Singh V. State ofm.p Cr. L.J.1861(M.P.) 51 Raghu Pradhan V. State of Orissa, 1993 (1) Crimes Ajay Mahakund V. State, 1993Cr. L.J.1201 (Ori)DB)

20 45 The accused after committing murder absconded for three months; the plea of insanity was rejected.54 The accused stabbed the deceased and thereafter ran away; never had history of mental illness earlier, the plea of insanity was rejected.55 The evidence showed that the accused fully knew the implications of his act when he committed offence, the plea of insanity under section 84IPC was not accepted.56 The accused has not adduced any evidence on the defence side of the alleged insanity and at the time of commission of offence attacked the deceased with an iron rod as weapon of crime and two other witnesses with iron rod. And immediately ran away from the place of occurrence along with weapon of crime. Thus, it could be clearly stated that he knew what he had committed was wrong.57 C. INCAPACITY TO KNOW RIGHT AND WRONG In order to. avail of the defence of insanity under section 84 in later part i.e. or that he is doing what is either wrong or contrary to law it is not necessary that the accused must be completely insane, his reason need not be completely extinguished. What is required is to establish that even thought the accused knew the physical effects of his act yet he was incapable of knowing that he was doing what was either wrong or contrary to law. This part of Section 84 has made a new contribution to criminal law by introducing the concept of partial insanity as a defence to criminal insanity. With regard to this clause. Mayne observes:58 The next ground of exemption is the most important as it is generally the test in the very numerous cases, where mental disease has only partially extinguished the reason. One familiar instance of such partial extinction is case of delusions which apparently leave the mind unaltered outside the special ideas which they affect. The question put by the House of Lords to the judges seem to have been specially addressed to this form of insanity. Their 53 Amrit Bhushan V. Union of India, AIR 1977 SC 608; Venuhopalan 54 Ashok Dattatraya Godasi V. State of Maharastra CrLJ 3450 (Bom) 55 K Madhavan V. State 1994 Cr. L.J S.K. Nair V. State of Punjab'AIR 1997 Sc 1537; 1997 Cr. L.J Selva Vijajan V. State 2008 indlaw Madras Criminal law, VolII (1953 4,h Ed) as quoted in R.C. Nigam, also see question & answer No. 4 put to judges in M Naghten s case.

21 46 answers are perfectly clear, and are embodied in the following clause of the Draft code of 1879, which puts the law in the most satisfactory manner: A person laboring under specific delusion, but in other respects sane, shall not be acquitted on the ground of insanity, unless the delusions caused him to believe in the existence of some state of things, which, if existed would justify or excuse his act, provided that insanity before or after the time he committed the act and insane delusions, though only partial, may be evidence that the offender was, at the time when he committed the act, in such a condition of mind as to entitle him to be acquitted on the ground of insanity. It has been held that this statement of the law is correct59 the statement of the prisoner may suggest that he was capable of knowing the nature of his act that does not suggest that he was capable of knowing that what he was doing was either wrong or contrary to law.60 In Ceron Ali V. Emperor61 the accused killed his own daughter and a man on the day of Ramzan and offered it to a Pir in sacrifice. The question that occurred before the court was could he get the benefit of Section 84? The court answered: A person may be under on insane delusion that he is an executioner and under that delusion beheads his son thinking that he has been ordered by the king. He knows the nature of his act, but obviously he can t be held criminally liable in as much as he did not know that what he was doing was either wrong or contrary to law. In the case the accused knew the nature of his act but he did not know what He is doing was wrong or contrary to law. He considered that he was doing a mysterious act which qualified him for heaven. This state of mind was brought about by insanity. He was given the benefit under the latter part of section 84 of the Indian Penal Code. There are numerous degrees of insanity. It has been said that not every little cloud floating over an otherwise enlightened understanding will exempt from criminal responsibility: nor, on the other hand, will every glimmering of reason over the darkness of a troubled mind, subject the unfortunate being to the heavy pains provided for willful wrongdoing.62 In order to render a man irresponsible for his acts the code prescribes two tests. Namely 59 Bas wantra Bajirao V. Emperor AIR 1949 Nag. 66 at P. 72 : 50 Cr. L.J Kamla Singh V. State AIR 1955 Pat. 209 at P. 215 Cr. L.J. 825 (D.B.) 61 AIR 1941 Cal Harkha, (1906)A.W.H. 194.