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INTRODUCTION:

Great dissatisfaction regarding the trial of the issue of insanity in criminal cases and the results
thereof is being expressed on all sides. The layman claims that sane men are escaping
responsibility for their crimes on the plea of insanity by reason of the venality of experts, the
strong and corrupt partisanship of counsel for the defense, and the incompetency of the judge
and the prosecuting attorney. The medical profession claims that the inadequate and artificial
tests of the law, the restricted and inefficient methods of taking testimony, the ignorance on
the part of judge and counsel of the medical aspect of insanity, prevent a proper determination
of the question of responsibility. The legal profession replies by saying that the medical experts
are paid to testify on one side, that they cannot agree amongst themselves and that they have
no appreciation of the fact that criminal responsibility is a legal and not a medical question.
Before remedies for this situation can properly be proposed, it is necessary to consider how
such a situation arose. First, it must be noticed that the present views and theories regarding
insanity, even among members of the medical profession, are very modern. Till a century ago
insanity was generally regarded as of supernatural origin, either divine or diabolic. Even the
most learned physicians, says Dr. Maudsley, put the devil but one step further back. The
accepted method of medical treatment consisted of manacles and the lash; and the law had
nothing but its harshest punishments for those who were considered perversely and
diabolically wicked. It was not till the early part of the nineteenth century that there arose an
appreciation of the fact that the abnormalities of the insane were due to disease. At this time
the medical profession recognized two kinds of insanity-partial and total. This classification was
based upon the then prevailing psychological theory that the functions of the brain were
divided into distinct parts, each of which had a considerable independence of the others.
According to this view, any function might be impaired without causing a disturbance of the
others. Consequently, it was believed that a man might be insane on one or more subjects and
perfectly sane as to others; for instance, that he might suffer from an insane delusion and be in
all other respects sane. In the case of total insanity, it was thought that the victim was
completely deprived of the power of understanding. These views of the physicians were
presented in their testimony before the jury in criminal trials, and the judge, following the
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customary practice, commented on this evidence in summing up the case to the jury. The
answers of the judge in M'Naghten's case in 1843 were simply a summary of the summings up
of the trial judges in preceding cases. The "right and wrong test" and the "delusion test" laid.
down by the judges in M 'Naghten's case were but a statement of the prevalent medical and
psychological theories of insanity. These tests, with modifications in some jurisdictions, have
been applied to the present day. In the meantime, however, the views of the medical
profession have been continually changing, and the old theories have been discarded. The
result is that today the legal test of insanity is in sharp conflict with the views of the medical
profession. This fact causes much of the dissatisfaction between members of the two
professions. The inherent difficulties of the problem of determining the proper relation
between insanity and criminal responsibility, coupled with the fact that some physicians are
venal and some lawyers are corrupt, will explain many of the grounds of dissatisfaction stated
at the beginning.
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DEFINATION OF CRIMINAL RESPONSIBILTY AND INSANITY:

It is necessary to consider at this point what criminal responsibility is and how this is affected by
insanity. Criminal responsibility means accountability for one's actions to the criminal law. The
tests of criminal responsibility are the rules of law which determine the guilt (upon which the
punishment is based) of those who cause certain injuries, carefully defined by the law, to
individuals or society in general. Criminal responsibility is then a purely legal question to be
determined by the tests and machinery of the law.

As criminal responsibility is a purely legal question, so insanity is a medical one which must be
answered by the physician. He should decide whether an individual is suffering from a mental
disorder and if so determine its character and its symptoms, just as he is the only one who can
properly diagnose a case of physical ill-health. This being so, the physician's idea of insanity
should be accepted, and according to him the term "insanity" is vague and misleading. The
popular idea is that insanity is a definite, clearly defined state with a sharp line of cleavage
separating it from a state of sanity. To the physician, insanity means nothing but mental
derangement, as general a term as physical unsoundness. Just as there is a gradual, almost
imperceptible shading between physical health and sickness, so there is between mental health
and mental derangement. The physician differentiates between many kinds of mental diseases,
each with its more or less characteristic symptoms.

The problem is to connect the physician's diagnosis of the mental condition of a particular
individual with the legal tests of criminal responsibility.

KINDS OF INSANITY:

Kinds Of Insanity: There are no hard and fast rules in respect of what are the kinds of insanity
which are recognized by courts as legal insanity'. A survey of the case law reveals that the
courts are influenced more by the facts of the case and the nature of crime, rather than any
formal evidence as to the kind of insanity that the accused is suffering from. Law group's
insanity into two broad heads, namely,

1. dementia naturalis i.e. individuals that are insane from birth;

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2. and dementia adventitia or accidentialis i.e. an individual who becomes insane after
birth.

RELATION OF INSANITY TO CRIMINAL RESPONSIBILITY:

According to the English common law, a crime consists of a criminal act done (Actus Rea) with a
criminal intent (Mens Rea). This criminal intent is defined by the law and varies with the
particular crime. In other words, a particular state of mind must accompany and give rise to a
particular act in order to constitute a particular crime. It is true that there has developed a class
of misdemeanors largely statutory, which require no criminal intent. These misdemeanors may
be grouped as public torts and prohibitions under the police power and do not present any
difficulty in the present problem, as no case has been found where insanity has been set up as a
defense to such a misdemeanor and'no such case is likely to arise. There are also a few
decisions to the effect that there may be a conviction for bigamy in the absence of any criminal
intent, but these decisions have been criticized and there are cases contra. For all purposes, so
far as the question of insanity is concerned, it may be taken as a hypothesis that every crime
requires a criminal intent and that any fact which negatives the necessary intent in a good
defense. It follows that when the defendant's mental derangement is set up as a defense to a
charge of crime the question is not whether the defendant is insane, but whether, by reason of
the particular mental disease from which he was suffering, he lacked the intent 'necessary to
the crime with which he is charged. It is not the fact of insanity, but the symptoms thereof that
are important in determining the question of criminal responsibility. The problem is no
different, when insanity is set up as a defense, from what it is when it is claimed that some
other fact negatives. the criminal intent. The question is the same when the defense is physical
ill-health. It means nothing to say that a man who killed another was physically sick at the tine.
Nor does it help to say that he had typhoid fever. But, if it can be shown that he was delirious
by reason of the fever and that the act committed was produced by this delirium, then there is
a good defense.
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DEVEPLOPMENT OF LAW OF INSANITY:

WILD BEAT TEST:

The first known recognition of insanity as a defense to criminal charges was recorded in a 1581
English legal treatise stating that, "If a madman or a natural fool, or a lunatic in the time of his
lunacy" kills someone, they cannot be held accountable. British courts came up with the "wild
beast" test in the 18th Century Arnolds Case, The judge declared that no mentally affected mn
prisoner should escape unless it should appear that he is totally deprived of his understanding
and memory and shows not know what he is doing, no more than an infant, a brute or a wild
beast.

MORDERN ATTEMPTS AT CODIFICATION:

It is interesting to note that Mr. J.E.D Bethune though on different grounds advocated in 1848 a
theory same to absolute liability for criminal acts of insane person. He observed that the
plea of lunacy will be wholly disallowed and it would be left to the prerogative of mercy to
pardon those unhappy people who are alone.are really free from guilt. In Bethunes time
no proper law related to criminal liability of insane person was present in India. Therefore,
Calcutta High Court Nizamat Adawlut by1845, proposed that a law to be passed to empower
the session judge and Nizamat Adawlut to provide custody of acquitted person until certified
for their recovery. The draft was prepared on the model of English statutes and was passed as
The Act VI, 1849 containing 7 sections at all.

Before passing of the above act the law relating to the criminal responsibility of insane person
was chaotic and uncertain in this country as was in England wherefrom the law were being
imported and infused through the courts of East India Company. However, attempts were afoot
to lay down the laws pertaining to the criminal acts done by the insane person. In 1837, Mr.
Macaulay had drafted a code wherein he had provided as follows:
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Section 66: Nothing is an offence which is done by a person in state of idiocy.

Section 67: nothing is an offence which is done by a person in consequences of being mad and
delirious at the time of doing it.

This was felt to be too much favourable to the offender; therefore many suggestions and
amendments were advanced to make laws relating to this to be more precise and direct.
However, no acceptable standards could be laid down until the decision of M Naghetn case
which took place in England in 1843.
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THE BASIS OF THE LAW: THE MNAGHTENS CASE

The MNaghtens case marks as culmination in the development of the law of the insanity in
England which had a hithertho presented a bewildering picture of confusion.

Facts. Defendant was charged with the murder of Edward Drummond, secretary to the Prime
Minister, Sir Robert Peel. Defendant mistook Drummond for Peel and shot Drummond by
mistake. At the time of his arrest, he told police that he came to London to murder the Prime
Minister because the tories in my city follow and persecute me wherever I go, and have
destroyed my peace of mind. They do everything in their power to harass and persecute me; in
fact they wish to murder me. Defense counsel introduced expert and lay witnesses who
testified about Defendants obsession with delusions and that he suffered from acute insanity.
The judge gave the jury an instruction regarding his lack of understanding upon commission of
the act in question. The jury reached a verdict of not guilty by reason of insanity. This ruling
outraged the public, and provoked a redefinition of what insanity was. Therefore, the House
of Lords met, and established the main idea that posed as the question, did the defendant
know what he was doing, or, if so, that it was wrong?Following the trial, there was a meeting
at the House of Lords attended by fifteen judges in order to determine the standards for the
insanity defense.

THE MNAGHTEN RULES:

The Jugdes answers, announced by Tindall, C.J., are known as the MNaghten rules. They may
be summarized as follows:

1. Every person is presumed to be sane, until the contrary is established.

2. It must be proved that the accused, when he committed the act, was laboring under
such defect of reason, from disease of the mind, as not to know, the nature or the
quality of the act he was committing, or, if he did know this, not to know that what he
was doing was wrong.
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3. If the accused was conscious that the act was one which he ought not to do and if the
act was at the time contrary to the law of the land, he is punishable.
4. If the accused labours under partial delusion only, and is not in other respects insane, he
must be considered in the same situation as to responsibility as if the facts with respect
to which the delusion exists were real.

CRITICISM OF THE MNAGHTEN RULES:

There have been four major criticisms of the law as it currently stands:

Medical irrelevance - The legal definition of insanity has not advanced significantly since
1843; in 1953 evidence was given to the Royal Commission on Capital Punishment that
doctors even then regarded the legal definition to be obsolete and misleading. This
distinction has led to absurdities such as
even though a legal definition suffices, mandatory hospitalisation can be ordered in
cases of murder; if the defendant is not medically insane, there is little point in
requiring medical treatment.
diabetes has been held to facilitate a defence of insanity when it causes hyperglycemia,
but not when it causes hypoglycemia.
Article 5 of the European Convention on Human Rights, imported into English law by
the Human Rights Act 1998, provides that a person of unsound mind may be detained
only where proper account of objective medical expertise has been taken. As yet, no
cases have occurred in which this point has been argued.
Ineffectiveness - The rules currently do not distinguish between defendants who represent
a public danger and those who do not. Illnesses such as diabetes and epilepsy can be
controlled by medication such that sufferers are less likely to have temporary aberrations of
mental capacity, but the law does not recognise this.
Sentencing for murder - A finding of insanity may well result in indefinite confinement in a
hospital, whereas a conviction for murder may well result in a determinate sentence of
between ten and 15 years; faced with this choice, it may be that defendants would prefer
the certainty of the latter option. The defence of diminished responsibility in section 2(1) of
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the Homicide Act would reduce the conviction to voluntary manslaughter with more
discretion on the part of the judge in regards to sentencing.
Scope - A practical issue is whether the fact that an accused is labouring under a "mental
disability" should be a necessary but not sufficient condition for negating responsibility i.e.
whether the test should also require an incapacity to understand what is being done, to
know that what one is doing is wrong, or to control an impulse to do something and so
demonstrate a causal link between the disability and the potentially criminal acts
and omissions. For example, the Irish insanity defence comprises the M'Naghten Rules and
a control test that asks whether the accused was debarred from refraining from committing
the act because of a defect of reason due to mental illness (see Doyle v Wicklow County
Council 1974) 55 IR 71. The Butler Committee recommended that proof of severe mental
disorder should be sufficient to negate responsibility, in effect creating an irrebuttable
presumption of irresponsibility arising from proof of a severe mental disorder. This has
been criticized as it assumes a lack of criminal responsibility simply because there is
evidence of some sort of mental dysfunction, rather than establishing a standard of criminal
responsibility. According to this view, the law should be geared to culpability not mere
psychiatric diagnosis.

THE IRRESISTIBLE TEST:

In response to criticisms of the M'Naghten Rule, some legal commentators began to suggest
expanding the definition of insanity to include more than a cognitive element. Such a test
would encompass not only whether defendants know right from wrong but also whether they
could control their impulses to commit wrong-doing.

The Irresistible Impulse Test was first adopted by the Alabama Supreme Court in the 1887 case
of Parsons v. State. The Alabama court stated that even though the defendant could tell right
from wrong, he was subject to "the duress of such mental disease [that] he had ... lost the
power to choose between right and wrong" and that "his free agency was at the time
destroyed," and thus, "the alleged crime was so connected with such mental disease, in the
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relation of cause and effect, as to have been the product of it solely." In so finding, the court
assigned responsibility for the crime to the mental illness despite the defendant's ability to
distinguish right from wrong.

PROVING IRRESISTIBLE IMPULSE:

In jurisdictions that use or incorporate the Irresistible Impulse Test as a criminal defense,
defendants typically must present sufficient evidence to prove: The existence of mental illness;
and That the mental illness caused the inability to control one's actions or conform one's
conduct to the law. As you can see, proving that a defendant was unable to control his or her
actions at the time of a crime can be quite challenging. Often, it may require a medical
examination and expert witness testimony from medical professionals who specialize in mental
health conditions. The evidence would have to prove the diagnosis of a condition as well as its
impact on the defendant's behavior, perhaps due to certain environmental triggers.

CRITICISM OF THE TEST:

The Irresistible Impulse Test gained acceptance in various states as an appendage to the
M'Naghten Rule, under which knowledge of right versus wrong was still considered a vital part
of any definition of insanity. In some cases, the Irresistible Impulse Test was considered to be a
variation on M'Naghten; in others, it was considered to be a separate test. Though the
Irresistible Impulse Test was considered to be an important corrective on M'Naghten's cognitive
bias, it still came under some criticism of its own. For example, it seemed to make the definition
of insanity too broad, failing to take into account the impossibility of determining which acts
were uncontrollable rather than merely uncontrolled, and also making it easier to fake insanity.
The test was also criticized for being too narrow; like M'Naghten, the test seemed to exclude all
but those totally unable to control their actions. Nevertheless, several states currently use this
test along with the M'Naghten Rule to determine insanity, and the American Law Institute in its
Model Penal Code definition of insanity adopted a modified version of it.
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THE DURHAM RULE:

The United States Court of Appeals adopted the Durham Rule for the District of Columbia
Circuit in 1954. In the rule, the court stated, An accused is not criminally responsible if his
unlawful act was the product of mental disease. (Court of Appeals, 1954).

The Durham Rule was considered a very significant advancement of the insanity defense in
history because it replaced moral considerations with more unbiased scientific determinations
as a result of advancements in the field of psychological research.

This required that the jury determine whether the defendant was suffering from disease, and
whether there was a causal relationship between the disease and the act.

CRITICISM OF THE RULE:

The Durham rule sought to solve some of the problems with the McNaughton Law, especially
the psychiatric assessment. However, some problems came up with the Durham Rule:

When determining whether the accused knew the difference between right and wrong
or not, they were asked simply yes or no questions.
It relied heavily on expert testimony. This posed as a problem, and in the 1972 case of
US vs Brawner, it was abandoned.
Many were concerned that the broad medical definition of insanity would let more
criminals out without conviction.
Some critics were worried that defendants would begin to use mental illnesses such as
alcoholism as excuses for their crimes.
 P a g e | 12

INSANITY UNDER THE INDIAN PENAL CODE, 1860 AND Cr.P.C, 1973:

The English law on insanity is based on the Mc'Naghten rules and the Indian Law that is codified
in the Indian Penal Code, 1860 s. 84, is also based on the Mc'Naghten rules. These principles
have been incorporated in the penal codes of almost all the countries in the world.

INSANITY UNDER THE INDIAN PENAL CODE, 1860:

The defence of insanity is discussed in sec 84 of the Indian penal code which reads: 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 doing the act, or that he is doing
what is either wrong or contrary in law.

Principles For The Application Of This Section:

The following principles are to be kept in mind in applying this section:

1. every type of insanity is not legal insanity; the cognitive faculty must be destroyed as to
render one incapable of knowing the nature of his act or that what he is doing is wrong
or contrary to law;
2. the court shall presume the absence of such insanity;
3. the burden of proof of legal insanity is on the accused, though it is not as heavy as the
prosecution;
4. the court must consider whether the accused suffered from legal insanity at the time
when the offence was committed;
5. in reaching such a conclusion, the circumstances which preceded, attended or followed
the crime are relevant consideration;
6. and The prosecution in discharging its burden of the plea of legal insanity has merely to
prove the basic fact and rely upon the normal presumption of the law that everyone
knows the law and the natural consequences of his act.
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ESSENTIAL INGREDIENTS OF THIS SECTION:

UNSOUNDNESS OF MIND:

The term unsoundness of mind has not been defined in the code. But it has been equated by
the courts to mean insanity. This section only deals with incapacity of mind which is a result of
unsoundness of mind' or insanity'. It is not every type of insanity which is recognized medically
that is given the protection of this section. Medical insanity is different from legal insanity. The
insanity should be of such a nature that it destroys the cognitive faculty of the mind, to such an
extent that he is incapable of knowing the nature of his act or what he is doing is wrong or
contrary to law. This section will apply even in cases of fits of insanity and lucid intervals. But it
must be proved in such cases that at the time of commission of the offence, the accused was
surfing from a fit of insanity which rendered him incapable of knowing the nature of his act.

LEGAL AND MEDICAL INSANITY:

It is in the case of every person pronounced to be insane according to medical science to be

excused? No insanity for the purpose of criminal law differs from that in the medical sense.
According to medical experts, every case of mental abnormality is insanity. According to law not
all persons who are medically insane are legally insane because amongst those who are
medically insane some are able to control some times and behave like normal people. He as a
normal man plans the crime; they sometimes can plan better and even execute it even with
more care. He knows what he is doing is wrong. We judge a man's responsibility with regards to
his mens rea. Only those cases where because of insanity he does not know what he is doing or
he does not know what he is doing is a wrong, only they can be excused. So amongst all the
medically insane persons, only a few are legally insane. The law propounds a different test from
that in the medical field. The test in law is simply, whether because of his insanity he is
incapable of possessing mens rea. It is only where the insanity destroys the cognitive faculty of
mind, it is considered as insanity in law. The faculty of reasoning and judgement is also
considered. An insane person is not punished because he does not have any guilty mind to
commit the crime.
 P a g e | 14

CRITICISM OF S.84 :

This Section is still based on outdated MNAGHTEN rules of 1843. Even the country, which had
formulated then had brought some changes in them.

Firstly, this Section considers unsoundness of mind to be equivalent to disorders of cognition.

The other forms of mental illness does not hold good for plea. Various disorders of mind, which
certifies him to be mentally III, might affect his working to such an extent that he might loose
control over his actions. Lots of crimes are committed in a fit of anger or emotion. Just after
committing the act person may realize what he has done. But at that particular moment
emotions have controlled his actions. His cognitive functions might be absolutely normal.

Secondly, it considers such unsoundness to exist at the time of act. Here again no consideration
is given to condition prior to the act. Proper assessment of his pre act status or conditions
leading to' cause of act may help to figure .out reasons for his act. . Pregnancy and childbirth
can lead to psychosis in women due to excessive stress and strain. In this situation she can
commit offence of infanticide. Here although her consciousness is clear and there is no
impairment .of cognition yet her emotional imbalance have led her to commit the offence. If
she is tried under Section 84 she will be convicted. This is an injustice to such females.

Another example can be of a drug addict. His craving for drugs may compel him to commit on
offence. Although this is not to justify his actions but it can be argued that drugs have lead to
emotional imbalance in him. He might have no disorder of cognition but offence may be
committed in, state of emotional instability. In short it can be said that this law does not
consider the emotional aspects of crime, which are in fact the major causes. Law insists .on
regarding insanity as a disease of intellect, whereas it is usually a disease of the affective or
emotional spheres of the mind.

Thirdly, it is mandatory for a person to be acquitted under this action that he is unaware of
nature of act and or, its legality. Sometimes a person knows the illegality of his act but then also
in fit of anger, emotions as delusions he might commit some crime. In such situations,
 P a g e | 15

conditions like irresistible impulse, ' .obsessive-compulsive disorder, delusion, emotions, ' fits of
anger can offer a ground for medical insanity but will not constitute a legal ground for acquittal.

A depressed person may be driven by his mental illness to 'commit suicide, but he may kill his
dependent relatives (e.g. mother) before the act of suicide. If he Is caught before killing himself
he will be punished. As according to Section 84 he is liable, as he knows the nature as well as
legal status of his act." Thus, it can be said that medical proof of insanity is not legal proof for
acquittal.

Although it may be hazardous to consider emotional aspects of crime as basis for acquittal.. As
every criminal will plead them' as' defence and people will .be left with no logically secure place
short of total abandonment of criminal responsibility." But we should not look only at these
small number of cases. Though some criminals might be acquitted wrongly but no non-guilty
should be punished. The question of person's' capacity to resist temptation and of a person's
responsibility is beyond easy understanding; they lie buried in his' consciousness into which no
human being can enter.

JUDICIAL VEIW OF SOME MENTAL DISORDERS:

SCHIZOPHRENIA:

The Supreme Court in Mohinder Singh v. State has held that a person suffering from
schizophrenia at the time of the incident is entitled to successfully claim the plea of insanity as
has been ruled by the Bombay and Rajasthan High Courts also.

SUBSTANCE USE DISORDERS:

(a) Alcohol use: In Director of Public Prosecutions v. Beard it has been held that evidence
of alcohol use which renders the accused incapable of forming a specific intent to
constitute a particular crime should be taken into consideration with other facts proved
in order to determine whether or not he had this (requisite and specific) intent, but
evidence of alcohol use which falls short of proving such incapacity and merely
establishes that the mind of the accused was so affected by drink that he more readily
 P a g e | 16

gave way to some violent passion does not rebut the presumption that a man intends
the natural consequences of his actions.
(b) Cannabis , Opioids, Cocaine, hypnotics and use of hallucinogens Related Disorders:
Cannabiniod Metabolites are present and can be detected in urine samples and these
metabolites can persist in the urine of heavy users for up to a month.
A heavy and habitual ganja smoker killed his wife and children because she prevented
him from going to a particular village. It was held that until the accused habit of smoking
ganja had induced him to such a state of mind as to make him incapable of knowing the
nature of his act or criminality, he could not get the benefit of this section.

DELUSIONAL DISORDERS:

In both Public Prosecutor v. Shibo Koeri and Karma Urang v. State the court has recognised
what leading authorities call melancholic homicidal mania and held the accused not guilty of
murder, having given them the benefit of Section 84. The accused did not, by reason of
unsoundness of mind, know that what he was doing was wrong or contrary to law. Mere
morbid feelings leading to murder does not attract the insanity defence, the authorities
opined.

SOMNAMBULISM [SLEEPWALKING]:

If proved, it would constitute unsoundness of mind which attracts Section 84. In Papthi Ammal
v. State of Madras, the accused who had recently given birth to a child, had jumped into a well
at night along with the newborn. She was rescued but the baby died. Charges of attempt to
commit suicide and murder were framed and the insanity defence was raised on the ground of
somnambulism but failed for lack of proof and adequate evidence.

EPILEPSY:

The accused murdered his mother and wounded his step- father without any apparent cause.
After the murder accused hid in a ravine. The medical evidence showed that the accused was
subject to epileptic fits. It was held that the accused was guilty of the acts charged but not so as
to be responsible in law for action. Where the appellant had produced at the trial a discharge
 P a g e | 17

certificate from the army showing that he was released on account of his suffering from
epilepsy about fifteen years prior to the occurrence and it was clear from the prosecution
evidence that the conduct of the appellant shortly prior to the, at the time of, and after the
commission of the offence by him as well as his mental condition as subsequently found by
medical examination were of such a nature that the appellant was of unsound mind on account
of his having fit of epilepsy at the time of occurrence, his conviction and sentence were set
aside.

PROVISIONS REGARDINF EVIDENC AND BURDEN OF PROVING INSANITY:

Under section 105 of The Indian Evidence Act, 1872 the burden of proof lies on the person
taking the defense of insanity to prove that at the time of commission of the offence he was
not in the right mind. Section 105 of The Indian Evidence Act, 1872 reads as follows:

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. Illustrations:

(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.

With respect to a psychiatrists evidence on insanity of the respondent, it is clear that the
psychiatrist is treated as an expert witness. Section 45 of the Indian Evidence Act, 1872 clearly
applies to any evidence given by a psychiatrist. Illustration (b) to Section 45 of the Act makes
the position crystal clear as to evidence given by a psychiatrist.
 P a g e | 18

Illustration (b) to Section 45 of the Act raed as follows:

45. Opinions of experts.When the Court has to form an opinion upon a point of foreign law or of
science or art, or as to identity of handwriting 35 [or finger impressions], the opinions upon that point of
persons specially skilled in such foreign law, science or art, 36 [or in questions as to identity of
handwriting] 35 [or finger impressions] are relevant facts. Such persons are called experts. Illustrations:

The question is, whether A, at the time of doing a certain act, was, by reason of unsoundness of mind,
incapable of knowing the nature of the Act, or that he was doing what was either wrong or contrary to
law. The opinions of experts upon the question whether the symptoms exhibited by A commonly show
unsoundness of mind, and whether such unsoundness of mind usually renders persons incapable of
knowing the nature of the acts which they do, or of knowing that what they do is either wrong or
contrary to law, are relevant.

And, for once, MNaghtens Rules come to the aid of the medical man conversant in the
disease of insanity. Lord Chief Justice Tindall has clearly marked the boundaries of a
psychiatrists testimony and evidence that can be given by the medical man, in his clear answer
to the fifth query in the MNaghten Case.

In India, it is upon the prosecution to prove beyond all reasonable doubt, both the mens rea
and the actus reus constituting the normal crime. However, since Section 84 of the Indian Penal
Code, 1860 falls under Chapter IV of the Code comprising of General Exceptions, we can here
usefully refer to the authoritative statement of law regarding the burden of proof in an insanity
defence in Dayabhai Chhaganbhai Thakkar v. State of Gujarat where it was held as follows:

It is a fundamental principle of criminal jurisprudence that the accused is presumed to be

innocent and, therefore, the burden lies on the prosecution to prove the guilt of the accused
beyond reasonable doubt. The prosecution, therefore, in a case of homicide, shall prove
beyond reasonable doubt that the accused caused the death with the requisite intention
described in Section 299 of the Indian Penal Code. This general burden never shifts and always
rests on the prosecution. But Section 84 of the Indian Penal Code provides that Nothing is an
offence if the accused at the time of doing that act, by reason of unsoundness of mind was
incapable of knowing the nature of the act or that it was wrong or contrary to law.
 P a g e | 19

The doctrine of burden of proof in the context of insanity may be stated in the following
propositions:

a) 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 lies on
the prosecution from the beginning to the end of the trial;
b) 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 by placing before the court the relevant evidence oral,
documentary or circumstantial, but the burden of proof that rests on him is no higher
than that rests upon a party to civil proceedings;
c) even if the accused is not able to establish conclusively that he was insane at the time
of committing the offence, the evidence placed by the prosecution may raise a
reasonable doubt in the mind of the court as regards one or more 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 that rests on the
prosecution was not discharged. However, at the functional level, the burden is still
heavy and proves a hard nut to crack for the mentally disabled or disordered.
 P a g e | 20

PROCEDURAL SAFEGUARDS UNDER CRIMINAL PROCEDURE CODE, 1973 AND

THE MENTAL HEALTH ACT, 1987:

In Amrit Bhushan Gupta v. Union of India, a Bench of three judges of the Apex Court has held
that our statute law on the subject is based entirely on secular considerations which place the
protection and welfare of society in the forefront (9). What the statute law does not prohibit or
enjoin cannot be enforced. The question whether, on the facts and circumstances of a
particular case, a convict, alleged to have become insane, appears to be so dangerous that he
must not be let loose on society, lest he commits similar crimes against other persons when
released, or, because of his antecedents and character or for some other reason, he deserves a
different treatment, are matters for other authorities to consider after a court has duly passed
its sentence.

Similarly, one of the objects and reasons of the Mental Health Act, 1987 lays down the
following:

The attitude of society towards persons afflicted with mental illness has changed considerably
and it is now realised that no stigma should be attached to such illness as it is curable,
particularly when diagnosed at an early stage. Thus, the mentally ill persons are to be treated
like any other sick person and the environment around them should be made as normal as
possible. The experience of the working of the Indian Lunacy Act, 1912, has revealed that it has
become outmoded. With the rapid advancement of medical science and the understanding of
the nature of the malady, it has become necessary to have a fresh legislation with provisions for
the treatment of mentally ill persons in accordance with the new approach.

In Jaishankar v. State, reported in AIR 1972 SC 2267, it has been held that the Court is bound to
enquire and determine if the accused is of unsound mind and if so, can he make his defence.
This provision will come into play if the Magistrate has reason to believe, as a reasonable
person, that the accused may be of unsound mind. This procedure and enquiry are mandatory
and should be completed at the preliminary stage of the trial. Failure to do so will vitiate the
entire proceedings. Chapter XXV of the Code of Criminal Procedure governs the procedure
where the accused is insane.
 P a g e | 21

Section 335 of the Criminal Procedure Code is a mandatory provision and is a safety valve for
the society at large and the accused himself.

Section 27 of the Mental Health Act, 1987 deals with mentally ill prisoners and is the
corresponding provision to Section 3(4) of the Indian Lunacy Act, 1912 which defined criminal
lunatic and applies to proceedings under Section 335 of the Criminal Procedure Code.

For example, in Krishnan Dutt v. State of Uttar Pradesh, the Court held that the act of the
accused was sudden and medical evidence proved that he suffered from chronic schizophrenia,
it was held that he was eligible to the benefit of Section 84 of the Indian Penal Code. The
Division Bench set aside the conviction but ruled that keeping in view his conduct, behaviour
and medical records, he could not be set free as he would pose a danger to the public.
Directions were passed to shift the accused to a mental hospital.
 P a g e | 22

CONCUSION:

Earlier, when there were no law governing the criminal act of the insane person, most of the
times he were not be held responsible for the act done by him/her. But with the passing of the
time need for the laws relating to this were realized by various jurist and eminent scholars
which led to the development of various methods or tests to calculate the criminal
responsibility of an insane person if an criminal act is done by him/ her. If the court, after taking
the facts in the consideration and using proper method to determine the mental health of the
person during the time he committed the crime, found that that the person is aware of the
nature of the act or the consequences of committing that act then that person should be held
liable for that act. The Indian Law on insanity is based on the rules laid down in the M'Naghten
case. However, the M'Naghten rules have become obsolete and are not proper and suitable in
the modern era.

The M'Naghten rules is based on the entirely obsolete and misleading conception of nature of
insanity, since insanity does not only affect the cognitive faculties but affects the whole
personality of the person including both the will and the emotions. The present definition only
looks at the cognitive and moral aspects of the defendant's actions but ignores the irresistible
impulse that may be forcing him to commit that act. An insane person may often know the
nature and quality of his act and that law forbids it but yet commit it as a result of the mental
disease. The Law Commission of India in its 42nd report after considering the desirability of
introducing the test of diminished responsibility under IPC, s. 84 gave its opinion in the negative
due to the complicated medico-legal issue it would introduce in trial. It is submitted that the
Law Commission's view needs modification since it is not in conformity with the latest scientific
and technological advances made in this direction. There are three compartments of the mind -
controlling cognition, emotion and will. IPC, s. 84 only exempts one whose cognitive faculties
are affected. The provision is regarded as too narrow, and makes no provision for a case where
one's emotion and the will are so affected as to render the control of the cognitive faculties
ineffectual. The Courts must also adopt a broader view of the Insanity and introduce the
concept of diminished responsibility.
 P a g e | 23

BIBLIOGRAPHY:

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

Basu ND, Indian penal code, 9th ed., vol 1, (2nd Ind. Rep.), 2006.
Mehta HS, Taraporewala VJ. Medical Laws and Ethics. in India. Bombay: The Bombay
Sarnachar Pvt. Ltd~. 1963. p. 430.
Mohapatra J, Mohapatra SC. Relation between post Partum ' Psychosis and infilnticide:
Medicolegal & Psycological Parameters. Journal of Forensic medicine and Toxicology,
2003; 20(1): 8.

WEBSITES REFERRED:

www.jstor.com

Books.google.com

www.jstor.org

www.heinonline.com

www.indlaw.com

www.manupatra.com