On one hand, where the Indian Penal Code, 1860 provides for punishment for different offences there, on the other hand, it also mentions some general exceptions. All the offences defined in the Code are subject to these general exceptions. As S.6 of  Indian Penal Code, 1860 states that- “Throughout this Code, every definition of an offence, every penal provision, and every illustration of every such definition or penal provision, shall be understood subject to the exceptions contained in the Chapter entitled “General Exceptions”, though those exceptions are not repeated in such definition, penal provision, or illustration.”

“Aristotle pointed out that some misconduct was morally excusable when it was the result of what lawyers would nowadays call a mistake of fact; and that the insane, as well as the sane, could be mistaken in this way.”[1]

Plato also says that a madman is himself punished by his illness. In nutshell a maxim defines it all i.e. ‘Actus non facit reum nisi mean sit rea’ which means that ‘an act does not make a person guilty unless done with the guilty mind or criminal intent’.”

Mc Naughten Rule as Genesis of S.84 of Indian Penal Code

The Defence of insanity as stated in S. 84 of IPC, 1860 is developed by Common Law of England. Though it existed for many centuries it got its statutory recognition only since the last three centuries. It should be pointed out here that earlier there were various tests to judge a person as an insane such as the ‘Wild Beast Test’, the ‘Irresistible Impulse Test’, ‘Durham Test’ and the ‘Substantial Capacity Test’. All these four tests acted as the roots of the Mc Naughten rule formulated by the House of Lords in the famous case of R. vs. Daniel Mc Naughten[2]. PM’s office, misapprehending him to be Sir Robert Peel. In the above-mentioned case, the defendant’s plea of insanity was accepted and he was given the benefit of Defence of insanity.

“After summarizing the rule the following propositions may be drawn:

  1. Every man is presumed to be sane and to possess a sufficient degree of reason to be responsible for his crimes until the contrary be proved to the satisfaction of the jury or the court.
  2. To establish a defence on ground of insanity it must be clearly shown that at the time of committing the act, the accused was labouring under such a defect of reason from disease of the mind that he did not know that what he was doing was wrong.
  • If the accused was conscious that the act was one which he ought not to do and if that act was at the same time as contrary to the law, he would be punishable.
  1. A medical witness who has not witnessed the accused previous to the trial should not be asked his opinion whether on evidence he thinks that the accused was insane.
  2. Where the criminal act is committed by a man under some insane delusion as to the surrounding facts, which conceals from him the true nature of the act he is doing, he will be under the same degree of responsibility as he would have been on the facts as he imagined them to be.”[3]

From the prodromal, it is perspicuous that Mc Naughten’s rules stress on “understandability of right and wrong” and intellectual rather than a moral or effective definition dominated in its possession formulation.

Integrant of Insanity Defence in India

By splitting S.84 of IPC, 1860, we can gather three basic ingredients, for the Defence of insanity in India. It has to be established that the accused was ‘incapable of knowing the nature of the act, or that he is doing what is either wrong or contrary to law’ because of the reason of ‘unsoundness of mind’ ‘at the time of doing it’.

Therefore, the following are the essential ingredients of S.84 of IPC:

  1. Incapable of knowing the nature of the act, or that he is doing what is either wrong or contrary to the law’

This ingredient can be understood by the very basic fact that to constitute a crime ‘actus reus’ i.e. the guilty act and ‘mens rea’ which means the guilty mind is required. Another Latin maxim states that ‘Actus Non Facit Reum Nisi Mens Sit Rea’ meaning thereby that an act does not make anyone guilty unless there is criminal intent or a guilty mind, and it is well established that ‘a madman has no will’. [Furiosi nulla voluntas est].

The accused would be liable for his actions if he had senses to (i) understand the nature of the act or that (ii) he is doing what is wrong or (iii) what is contrary to law. The accused is not protected if he knew that what he was doing was wrong, even if he did not that it was contrary to law or the vice-versa[4].

Under S.84 of IPC, it is not every mental derangement that exempts an accused person from criminal responsibility for his acts, but the derangement must be shown to be one which impairs the cognitive faculties of the accused i.e. the faculty of understanding the nature of his act in its bearing on the victim or with himself i.e. his responsibility.

But if at the time of the offence the accused, because of insanity, was incapable of knowing that his act is ‘wrong’ or ‘contrary to law’ he would be protected from any criminal liability u/s[5] 84 IPC.

“The word ‘wrong’ is interpreted to mean a moral wrong and not a ‘legal wrong’ since S.84 uses the alternative phrase ‘contrary to law’”.[6]

  1. ‘Unsoundness of Mind’

To establish the plea of insanity under S.84, first of all, it is necessary to set up that the accused was incapable of knowing the nature of the act because of ‘unsoundness of mind’. The above-written expression i.e. ‘unsoundness of mind’ has not been defined in any section of Indian Penal Code, 1860. But in Jai Lal vs. Delhi Administration[7] it was held that-“The term unsoundness of mind symbolizes a state of mind in which accused is incapable of intending the nature of his act or that he is incapable of knowing that he is doing is wrong or contrary to law.

“It is only ‘unsoundness of mind’ which consistently impairs the cognitive faculties of the mind that can form a ground of exemption from criminal responsibility.[8]

To understand this term i.e. ‘unsoundness of mind’, first of all, it is essential to know the meaning of insanity as both the terms are treated to be corresponding to each other by the Court. Stephen in his book “Stephen: History of Criminal Law” defines insanity as “Insanity means a state of mind in which one or more functions of feeling, knowing, emotion and willing is performed abnormally or is not performed at all because of disease of the brain or nervous system.[9]

Giving an example Stephen says that if a person cuts off a sleeping man because ‘it would be great fun to see him looking for it when he woke up’, it would be a case where the perpetrator of the act would be incapable of knowing the physical effects of his act.[10]

But the mere fact that the accused was conceited, odd, irascible and his brain is not quite alright, or that the physical and mental ailments from which he suffered had rendered his intellect weak and distressed his emotions and satiate in certain unusual fits of insanity at short intervals or that he was subject to epileptic fits and there was abnormal behaviour or that behaviour is queer are not sufficient to attract the provisions of S.84[11].

  1. ‘At the time of doing it’

One of the main points to be highlighted under this section is that the law is concerned only with the insanity that existed at the time of committing the offence[12].

Also in the case of State of Madhya Pradesh vs. Ahmadulla[13], the Hon’ble Apex Court held that- “The crucial point of time for deciding whether the benefit of S.84 should be given or not is the material time when the offence takes place.”

The entire conduct of an accused right from the time of immediately before the commission of the offence up to the time the sessions proceeding to commence becomes relevant in ascertaining as to whether the plea of insanity raised by the accused is genuine, bonafide or an afterthought[14].

Further, in the case of Jai Lal vs. Delhi Administration [15], the accused was a schizophrenic who was treated and cured. He stabbed a ½-year-old child, as a result of which he died and also that person injured the others. A plea of insanity was raised as a defence. But the Hon’ble Apex Court took into consideration his subsequent behaviour, as he had hidden the knife, also locked himself in the house to prevent arrest and attempted to run away from the back door. He also tried to dispense the crowd by throwing bricks from the roof.

The Hon’ble Apex Court held that the nature of evidence required to establish the existence of insanity at the time of the commission of the offence depends on the facts and circumstances of each case.

Understanding the battle between Legal  Insanity and Medical Insanity

“Under S.84 of IPC, the legal test of mental illness has been laid down but nowhere in the statute there is a precise definition of the terms such as ‘unsoundness of mind ’or‘ insanity, therefore have they carried a different meaning in different contexts and describes varying degrees of mental disorders.”[16]

To simply differentiate the two, a person suffering from a mental illness is called ‘medically insane’ and in the scenario of legal insanity person suffering from mental illness also losses his reasoning power at the time of the commission of the crime.

Legal insanity denotes or precludes the state of mind of a person at the time of the commission of the crime and hence is a purely legal concept.

Discrepancies in the S.84 of IPC

  • The Law Commission miserably failed at this point

The Law Commission of India even admitting the fact that the expression ‘unsoundness of mind’, compared to the expressions ‘disease of the mind’ and ‘mental deficiency used in Mc Naughten Rules, is somewhat ‘vague and imprecise’, failed to see any worth in proposing changes in S.84 of IPC.[17]

  • Insanity Defence is not accepted in all jurisdictions

Not every country accepts the insanity defence and some have abolished it. For example, United State of America’s constituent states such as Montana, Idaho, Kansas and Utah have banned insanity defence. In Victoria, the defence of insanity has been replaced by the defence of ‘mental impairment’ after the introduction of Crime (Mental Impairment and Unfitness to be Tried) Act, 1997.

In Canadian Law “the new provisions also replaced the old insanity defence with the current mental disorder defence”.[18]

  • It is misemployed in many cases

To know whether the accused was sane or insane, at the time of the occurrence, is not at all easy and this is why the defendants take the privilege of the defence of insanity as the benefit of the doubt is given to the accused.

A study was undertaken with the objectives of estimating the success rate of insanity pleas in Indian High Courts and determining the factors associated with the outcome of such insanity pleas. The data was collected from the websites of 23 High Courts of India using the keywords ‘insanity’ and ‘mental illness’ and the judgments delivered between 01/01/2007- 31/08/2017 were retrieved.

Information regarding nature of the crime, diagnosis provided by the psychiatrist as an expert witness, documents used to prove mental illness, and the judgment pronounced by the High Court was retrieved. A total of 102 cases were examined from 13 High Courts and the result was out of 102 cases courts convicted the accused in 76 cases (74.50%), thereby rejecting the insanity defence. The High Courts acquitted the accused u/s 84 of IPC in 18 cases (17.65%)[19].

From the above-mentioned records, it is crystal clear that Insanity pleas in India had a success rate of about 17% only.

  • The extra-financial burden on the State

Medical examinations by the specialists to investigate whether the accused was sane or not at the time of offence incur a lot extra-financial burden on the State and many of these medical examinations fail.

  • Wastage of time of courts

Many defendants falsely claim the defence of insanity as it is very difficult to examine whether the defendant was able to understand the nature of his act or not, at last many of them fail to take the defence. This is simply the wastage of time.

  • There may be a tussle between Medical Experts

Since there is a lot of difference in legal insanity and the insanity in the medical field, therefore, there may be a battle between the medical experts to understand what is required in the case. Some Medical Experts also have different views on this point.

Morris (Professor, Criminologist, Advocate and Mental Health Reformer) in his literary work[20] mentioned that“By the extra-ordinary language of special defence, we have not selected those who commit criminal acts and are most psychologically disturbed, nor do many people think we have. Therefore, the special defence of insanity is psychologically false.”

He further states that ‘social adversity’, with its generations of destroyed families, is much more criminogenic than psychosis, and is even more unavoidable for the child born to an impoverished inheritance. Therefore, he made it clear that the defence of insanity is morally false classification. It is pretentious to think that anyone has a sufficiently sensitive calibre to make delicate moral judgments.

  • Changes across other countries

In England, the branch of criminal law has undergone a significant change. The Mc Naughten Rules are no longer dominant in England.

“Under S.2 of the Homicide Act, 1957, if two Psychiatrists certify that the homicidal act of the accused was influenced by an abnormal condition of his mind though not amounting to legal insanity within the meaning of Mc Naughten Rules, still he cannot be convicted of murder, but his offence will be regarded only as manslaughter which is equivalent to culpable homicide not amounting to murder under the IPC, 1860. It is hoped that the Indian Law too would be changed on this score with due regard to the modern developments in the field of psychology of criminal behaviour[21]

  • Insanity Defence is barred with no limits

There have been cases where the accused has been acquitted second time by taking the plea of insanity. Therefore insanity plea acted as a dorsum for him again and again.

The Bombay High Court’s division of Justice Bhushan Gavai and Sarang Kotwal acquitted Ilyas Shaikh on the ground of insanity for the offence of murdering his building’s watchman in the year 2007. Before this Ilyas Shaikh had similarly been acquitted by a trial court for the murder of another man in the year 2001.[22]

From the above instance, it is crystal clear that the defence u/s 84 IPC, is not equipped with any sort of limitations. A man can be acquitted number of times, despite the fact he kept committing the offence provided that the offence should be endorsed by the plea of insanity.

Plato in his literary work recommended that- “If anyone is insane, let him not be seen openly in the town, but let his kinfolk watch over him as best as they may, under penalty of a fine.”[23] Such a rule, however, does not mean that mad people who do serious harm- or their kin- were exempt from the usual consequences. Whatever they might be, it was an attempt to prevent harm.


It is further comprehended that the most direct way of bringing persons who are guilty of a criminal act under the criminal justice system, even though they are insane is by abolishing the insanity defence.[24]. States need not amend state codes, they need to enact a Criminal Mental Procedures Act that applies to all persons who are accused of a crime but are incapable of undergoing trial due to mental impairment.

The act would provide the full procedure of hearing coupled with the most important aspect i.e. the right of full and effective treatment. If the insanity defence would be left as it is then there will be always a chance of two-part verdict. When the defendant raises the defence of insanity then the court needs to have a look on the fact that whether the state has proved beyond a reasonable doubt that the defendant committed the prescribed and alleged act or not.

The second aspect which should be looked into by the Courts will be whether the defendant realized the nature and quality of the act or not. As a result of which the verdict would be guilty but not responsible because of insanity. It would be morally as well as legally wrong to prevent the detention of non-dangerous persons who are mentally ill to the persons who were excused from the responsibility for a crime by the reason of insanity. The persons who need treatment must be classified as offenders and must also be subjected to the criminal justice system. The onus of proving the trait of being non-dangerous will be on the defendant as a condition of release.

It is suggested that there should be a more deep interpretation of the expression ‘mental insanity’ to avoid various controversies that arise in understanding the ‘mental disease’. S.84 of the Indian Penal Code should be amended to incorporate the defence of diminished responsibility for murdering insane persons. The scope of S.84 should also be expanded to incorporate the defence of automatism under the defence of an unhealthy mind. In the time of corruption, the false evidence is a day to day task as there may be chances for him to act as a pressure group that funded the political parties. This practice is quite evident in the Indian perspective.


ayush srivatava Ayush Srivastava | Faculty of Law, University of Allahabad, Prayagraj


[1] The Annals of the American Academy of Political and Social Science Vol.477, The Insanity Defense (Jan.1985), pp. 25-30.

[2] 1843 8 Eng Rep 718.

[3] Mishra S.N, Indian Penal Code, Central Law Publications, Twenty-First Edition, Pg. 201.

[4] Mishra S.N., Indian Penal Code, Central Law Publications, Twenty-First Edition,  Pg. 201

[5] Under Section

[6] Pillai P.S., Criminal Law, Lexis Nexis, 14th Edition.

[7] AIR (1964)

[8] Kader Hasyer Shah, (1896) 23 Cal 604, 607

[9] Stephen: History of Criminal Law [Volume II, p. 130]

[10] Stephen: History of Criminal Law [ Volume II, p.166]

[11] Surendra Mishra vs. State of Jharkhand, AIR 2011 SC 627, (2011) 11 SCC 495

[12] Dahyabhai Chhaganbhai Thakkar vs. State of Gujarat, AIR 1964 SC 1563 (1964) Cr LJ. 472 (SC).

[13] AIR 1961 SC 998, (1961) 2 Cr LJ. 43 (SC)

[14] RAJU V.B., Indian Penal Code, Eastern Book Company, Fourth Edition, 1982.

[15] AIR 1969 SC.

[16] Hari Singh Gond vs. State of Madhya Pradesh. AIR 2019

[17] Law Commission of India, ‘Forty- Second Report: the Indian Penal Code’, Government of India, 1971, p.93.

[18] Pilon, Mailyn (2002), Mental Disorder and Canadian Criminal Law, Government of Canada.

[19] Ramamurthy P, Chathoth V, Thilakan  P.,  How does India decide insanity plea? A review of High Court judgments in the past decade.

[20] Morris N., THE FUTURE OF IMPRISONMENT, University of Chicago Pr,  (1974).

[21] Ratanlal and Dhirajlal, The Indian Penal Code, Lexis Nexis, 35TH Edition, 2017, p.119.

[22] Thomas Shibu, Times of India, Mumbai City, 11/07/2018, 6:11 IST.

[23] Plato: The Laws (circa 350 B.C.).


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