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Insanity Defence: A loophole for Criminals


Often tasks assigned to you during your internship can trigger you to scrutinize and to know more about something. To elaborate and analyze the idea of this article we shall look into the development of the principles and rules of insanity or unsoundness of mind in English law and its influence on laws in India. Moving further we shall discuss the practicality added to the subject of the article by Indian Courts .
The primary focus shall be on loopholes that exist to avail insanity as a general defense and how can one exculpate from the criminal liability of his acts. Adding on to information we have discussed various cases to discuss the legitimacy of various provisions and rules.


Insanity or mental abnormality is not precisely defined in the Indian laws in fact “Unsoundness of mind” is the terminology used equivalently though not explained categorically . Through various cases it has been inferred that there are two types of insanity – legal insanity and medical insanity among which only the prior can be used for availing the defense prescribed under Sec 84 of Indian Penal Code . Sec 84 of IPC states – “ 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 is either wrong or contrary to the law.” Conclusively it is the legal insanity or the absence of rationalizing ability which fastens the defense against the criminal liability of the defendant.

History and evolution of principles

All offences are made of two constituents mens rea and actus reus .In cases of availing defense of insanity the defendant argues the absence of the mental ability or incapability to form mens rea . Prior to the trial of James Hadfield insanity and automatism (The performance of actions without conscious thought or intentions) were treated as the same concept.

Hadfield’s planning to shoot King George 3 in an attempt to save the world did not fit well in the then defined concept of insanity. Hadfield was acquitted pertaining to his head injuries of past which led to delusion. But the breakthrough happened when unlike the past acquittals he was not discharged into the society. The parliament then passed the “Criminal Lunatics Act of 1800″ which required the jury to find if the accused was insane at the time of Commission of the act. These provisions advocated the danger posed by insane individuals and that they should be institutionalized and not let scot free.

Later the trial of Daniel McNaughton lay down the thrust of the law and importance of expert evidence and developed the law globally relating to insanity.

In 1843, in an attempt to shoot the Prime Minister, McNaughton shot his private secretary. He was then acquitted on grounds of insanity but was detained in mental hospital. Rules formed by the House of Lord in response to this situation are known as McNaughton Rules.

These rules are derived from 3 tests.

  • Defect of reason – This defect should be cognitive in nature and not mere stupidity.
  • Disease of mind – The disease should be relevant at the time of Commission of the Act.
  • The test of wrongfulness of the Act committed is in the power to distinguish between right and wrong with regard to the particular act committed.

In Durham v. United States (1954) the defendant broke into a house and wanted to take the defense of insanity. In the appeal the McNaughton test and the irresistible impulse test were declared to be obsolete. But later the two tests were again found fit to be still employed in addition to the Durham Rule (The product test)

Two main components of Durham Rule:

1.The defendant must possess a mental disease. This judgement indicates to rely more on objective and psychological standards rather than Focusing on the defendant’s subjective cognition.
2.Only if the criminal act or behaviour is caused by the mental disease then the conduct should be exempted under the circumstances.
This conduct though more dynamic and practical is currently accepted only in New Hampshire as regarded to be too broad by other jurisdictions.

Insanity as a defence in India

Most of Indian laws are inspired from British common law and so is the case here but Indian courts have gone more into the practical aspect of the issues pertaining to availing the defence of insanity.

Suffering from mental disorders is not sufficient to prove insanity. Section 84 of IPC deals with the act of a person of unsound mind and discusses insanity and is solely based on McNaughton rules .

An analysis of section 84 of IPC the following essential ingredients to take the defence have been listed-

  • The person must be suffering from mental illness during the Commission of the act.

In Kannakunnummal Ammed Koya v. State of Kerala (1967) it was said that to take the defence under Sec 84 , the insanity of the accused has to be proven during the commission of the act , mere losing of self control or irresistible impulse provides no defence .

  • Incapable of knowing nature of the act.
  • Incapable of knowing it was contrary to law

Section 84 embodies the legal maxims –

“Actus nonfacit reum mens sit rea”7 Which means an act does not constitute guilt unless done with a guilty intention.

“Furiosi nulla voluntas est”8 Which means a person with a mental illness has no free will.

Hence lack of rational thinking or guilt intent fastens no culpability on persons with mental illness.

Distinction between medical insanity and legal insanity

The defence of insanity is unrelated to the various psychiatric diagnosis. Mere impulsive reactions, abnormality of mind, delusion, compulsive behaviour of a psychopath affords no protection under section 84 of IPC.
A person suffering from any mental illness is called medical insanity however legal insanity refers to the state of mind of the accused during the commission of crime.

Evidences to a certain reasoning power of the defendant during the commission of crime include – Planning, procuring of required weapon , arranging vehicle to escape, avoid detection, concealment of weapons, disposing evidence, threatening witnesses, discarding weapon, eloping from the crime scene, expression of guilt after the offence and many more.

Let us talk of a case to understand it better:

In Jai Lal vs. Delhi Administration, the accused was a recovered patient of schizophrenia. He killed a 6 month old child by stabbing him to death also injured a few others . He pleaded not guilty by the means of insanity but his subsequent behaviour to the crime as hiding knife, locking the door to avoid arrest, attempt to run away through back door and trying to dispense the crowd was taken into consideration by the Hon’ble apex court which then dismissed the appeal .

In Seralli Wali Mohammad vs. State of Maharashtra, the Supreme Court rejected the plea of insanity as mere non presence of motive or no attempt to escape was not sufficient to show the absence of mens rea.

Scrutinising the loopholes existing in the defence of insanity

In numerous cases this defence has been viewed as a lacuna or rather a resort to exculpate from the criminal liability.

An anecdote that is often told while explaining the inability of a person to know the nature of ones conduct is when the accused was asked as to why did he cut the head of man he said “It would be great fun to see him look for it when he woke up.” The defence of insanity could draw a vivid inference from this example that describes an accused’s inability to rationalise.

To know , analyse and verify the mental state and sanity of the accused at the time of occurrence of the act is not an easy task and this is the primary reason why an accused resorts to this defence and takes the privilege of benefit of doubt .There needs to be a strict definition and efficient parameters to judge and acknowledge “ Unsoundness of Mind” and “Insanity” .

Kamala Bhuniya Vs West Bengal State : In this case the court acquitted Kamala from charges observing that she did not escape the crime scene and was incapable of understanding the consequences of the act.

Shrikant Anandrao Bhosale Vs State of Maharashtra : An appeal by Shrikant in the Supreme Court regarding the murder of his spouse under the influence of paranoid schizophrenia against the orders affirmed by both the Sessions court and High Court was granted after it was proven that he had acquired his illness from his father. In this case the Supreme Court held that ‘it is the totality of circumstances seen in the light of the recorded evidence’ that would prove that the offense was committed. ‘The unsoundness of mind before and after the commission of the act is a relevant fact.’

Failure in accuracy of medical evaluation isn’t something new to the ears. It is often the case that defendants are taken for medical examination to psychiatrists and psychologists much later than the event has occurred which makes it near to impossible for the experts to diagnose the reliability of the statements and the capacity of the accused to make an informed decision which shall prevent him from taking the defence of insanity.

Further it can not be ignored that the delay in judicial proceedings often leads to situations where the accused is made to stay with others suffering from some mental illness which in turn can enable him to learn their behaviour patterns and fake the presence of mental illness .

There is dire need to fill in the void that arises from the very nature of the term which often misleads people from interpreting it in it’s true legislative sense and is the prime reason why this defence is used with contention to escape criminal liability. There is need for general guidelines as to when this defence can be put to effect .

The burden of proof is on the accused , hence the jurors have to rely on the evidence provided by the defendant to prove that he not sane at the time of commission of the act .

Insanity defence is barred with no limits : Several cases have come to the notice of the court where accused have been acquitted twice by taking the defence of insanity. The case under the jurisdiction of Bombay High Court acquitted a man named Ilyas Shaikh in the year 2007 on the ground of insanity for the death of his building’s watchman . The same man was also acquitted in a similar trail in the year 2001 .

This bring to us a underlying lacuna that has often been of interest to many and has rendered justice not delivered in its true sense .Their should be an attempt to prevent harm which seems to be missing in this provision of Indian Laws .

Conclusion and My Suggestions

“BREATHE – INTO THE SHADOWS” is a well suited master piece that embraces the wisdom enshrined in this article. This web series of Indian Actor Abhishek Bachchan streaming on OTT platform Netflix talks about the mental capacity and potential of criminals to use the defence to their favour. The series in its first episode highlights how an accused plans the use of the defence by stating that she faced hallucinations but is unable to succeed as her medical evaluation by a psychiatrist and her search history proves contrary to her implied actions .

There is need to add more dynamism to the laws under Section 84 of IPC . The jurors should now adopt more progressive reforms enforced by foreign courts . Another aspect that is important to be taken into consideration is the discretion exercised by the judges . In interest of justice , advice of psychiatry experts and evidences should be weighed more than they are presently . We need a proactive set up to make sure that medical assistance and evaluation is met in time as this will add on to the integrity of the Defence of Insanity.


  1. SCC Online, CNLU LJ (9) [2020] 146 Insanity As a Defense by Shivanshu Bharadwaj R.v.James Hadfield , (1800) 27 St Tr 1281
  2. The Origin of Insanity as a Special Verdict: The Trial for Treason of James Hadfield (1800) R. v. McNaughton, (1843) 10 CI &F 200 :8 ER 718
  3. blog.ipleaders.in/insanity-defence-indian-penal-code/
  4. https://www.law.cornell.edu/wex/insanity_defense
  5. 1967 CriLJ 494
  6. Insanity Defence – A Loophole? By K.G.Prithvi and Gautham. K
  7. findlaw.com/criminal/criminal-procedure/insanity-defense.html
  8. findlaw.com/criminal/criminal-procedure/insanity-defense.html
  9. ncbi.nlm.nih.gov/pmc/articles/PMC4676201/
  10. 1969 AIR 15, 1969 SCR (1) 140
  11. AIR 1972 SC 2443, 1972 CriLJ 1523, (1973) 4 SCC 79, 1973 (5) UJ 204 SC
  12. Y.V.Chandrachud , Ratanlal and Dhirajlal’s – The Penal Code ,1860, 96 (2001)
  13. 2006 (1) CHN 439.
  14. AIR 2002 SC 3399


Ridhika Khanna