UNSOUNDNESS OF

MIND
AS DEFENCE IN LAW

Dr. Shashi Kant

Tripathi
UNSOUNDNESS OF MIND
AS DEFENCE IN LAW
 Content

Sec 84 of Indian Penal Code,1860

Sec. 328 and 329 of Criminal Procedure Code, 1973

Sec. 105 of Indian Evidence Act, 1872

 Introduction
The fundamental principle of criminal liability is that there must be a
wrongful act “actus reus”. This principle is embodied in the maxim
“actus reus non facit reum nisi mens sit rea”. This maxim means an
act does not make one guilty unless his/her mind were so. There are
basically four elements of a crime are as follows:
 Person: (Sec.11 of I.P. C.,1860)
 Mens rea or Guilty intention
 Actus reus i e illegal Act or omission
 Injury under (Sec.44 of I.P.C.,1860)

Continued……..
 Introduction…continued
• Right from the Ancient Law like Manusmriti Vol. VIII, Page 312 speaks about a Child and
Insane Person are immune from Criminal Liability.

• In the case of unsoundness of mind person may not understand the nature of the act.

• He/She does not have the sufficient mens-rea to commit a crime.

• Since a mens-rea is an indispensable element in every crime, a person incapable of

having such mens-rea may not incur guilty.

• An unsound person is not punished because he does not have any guilty mind to commit
the crime.
 Introduction…continued
English Law:- In English Law three maxims are related with
unsoundness of mind -

1. Furiosis nulla voluntas est- a mad man has no will.

2. Furiosus absentis low est- a mad man is like one who is absent.
3. Furiosus furore sui punier- in fact a mad man is punished by
his/her own madness.
 Bare Provision
Sec. 84,I.P.C.,1860

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
 Ingredients of Sec. 84
a) Nothing is an offence :- Complete Immunity from act
b) Act must be done by a person of unsound mind.
Sec.84 does not use the word “Lunacy”, “Insanity”, “Idiocy”
Lunacy:-Lunacy is connected with lunar. Lunacy depends upon the position of
moon.
Idiocy:- (dimentia naturalis) Idiot by birth called an Idiot, it cannot be cured.
Stephen give explain with the help of example Man cut off his friend head only because
of fun that when he will wake up next morning then he will search his head.
Insanity:-Most of countries use the word Insanity. It is of many types.
dementia naturalis :- Born with the Idiocy.
dementia accidentalis:- Due to accident mind affect.
dementia adventuris:- Gradually his madness grows.
Insanity due to behavior
 Ingredients of Sec.
84…..Continued
c) At the time of doing the act by reason of unsoundness of mind he
is incapable of knowing-
- The nature of the act; or
- That he is doing what is either wrong or contrary to law.

Cognitive Faculty i- e Reasoning Faculty is intact or impaired.

 Unsoundness of Mind
- Unsoundness of mind is not defined in the act.
- Surendra Mishra Vs. State of Jharkhand, S.C.2011
-Unsoundness of mind denotes legal insanity.
- It means a disorder of the mind, which impairs the
cognitive faculty, that is the reasoning capacity of man to such an
extent to render him incapable of understanding consequences of his
actions.
- It means that the person is incapable of knowing the nature
of the act or of realising that the act is wrong or contrary to law.
- A person although of unsound mind, who knows that he is
committing an unlawful act may not get the benefit of IPC Sec 84.
 Test of Insanity
• Wild Beast Test:- In the year 1724 Wild beast Teast was evolved in the
R vs. Arnorld case. According to this test a person may claim exemption
from liability if by reason of unsoundness of mind he was unable to
distinguish between good and evil also didn’t know what he did?
• Insane delusion- In the year 1800 the second test was evolved in
Hadfield case.
• Right and Wrong – In the year 1812 the test of capacity to distinguish
between right and wrong was formulated.
• M’naghten Case- In the year 1843 House of Lords clearly propounded
the law relating to insanity.
 M’naughten Rule
The accused Dawel M’naghten suffered from a delusion that sir Robbert Peel the
then prime minister of Britain had injured him. He mistook Edward Drummend
secretary to the prime minister for sir Robert Peel. He shot and killed him. The
accused took the plea of insanity. He was held to be not guilty, by the jury. This
provoked lot of debates in England on the topic. Finally, House of Lords evolved
following principles:
1) Every person is presumed to be sane, until the contrary is proved.
2) To establish the defence of insanity, it must be clearly proved that at the time of
committing the crime, the person was so insane as not to know the nature and
consequence of his act.
3) The test of wrongfulness of the act is the power to distinguish between the right
and wrong not generally speaking but in context of the particular act committed.

Sec. 84, IPC more or less embodies the principle laid down in the above case.
Burning Cases:
 On 25 January 2021 Parents kill daughters in Andhra town: Accused couple have
may suffered from ‘shared delusion disorder’

Delhi Burari Deaths Case: How is 'shared delusion disorder' linked to suicide?

 Police investigation into the mysterious case where 11 members of the

Bhatia family were found hanging at their Chundawat house in Burari, North
Delhi, indicated that the entire household committed ‘mass suicide’ due to
'shared psychotic disorder'.
 Difference between
medical and legal Unsoundness of mind
• Madness comes from emotion that is medical insanity and not
protected under Sec 84.
Examples:- Schizophenia (patient live in a kind of delusion)
• Medical and legal unsoundness are different from each other.
• Medical unsoundness is solely dependant on the medical ground, and
it is not defence.
• Legal unsoundness depends on the factors required to be proved in a
court of law to enable the accused to be acquitted of charge and it
furnishes a good ground of defence.
 Criminal Procedure Code, 1973

 CHAPTER XXV – Provision as to Accused person of Unsound Person (Sec 328- 339)

 Sec 328- Procedure in case of accused being lunatic

 Sec 329- Procedure in case of person of unsound mind tried before Court

 Sec 330- Release of person of unsound mind pending investigation or trial

 Sec334- Judgment of acquittal on ground of unsoundness of mind

 Sec 105, The Indian Evidence Act, 1872 (Burden of Proof)

 The principal that the court follows is that every person is sane unless the
contrary is proved. The onus of proving insanity is one the person who is
pleading it as a defence.

 In the case of State of Madya Pradesh vs. A Hamadullah AIR 1972 SC 216 it
was observed that the burden of proof is on the accused.

 The Supreme Court also upheld the principle in the case of S.W. Mohamhad
vs. State of Maharashtra the accused have to prove that he is insane.

Chapter IV of IPC General Exception of Crime is exception of Adversarial

Rule.
 Rights under Mental Health Care Act, 2017

1) Right to make an advance directive

2) Right to access healthcare services
3) Right to free of cost healthcare services
4) Right to live in a community
5) Right to protection from cruel, inhuman and degrading treatment
6) Right not to be treated under prohibited treatment
7) Right to information
8) Right to confidentiality
9) Right to legal aid and complain
• Universal Deceleration on Human Rights 1948 (UDHR)
-Article 1- All human beings are born free and equal in dignity and rights.
-Article 2- Everyone is entitled to all the rights and freedoms set forth in
this Declaration
-Article3- Everyone has the right to life, liberty and the security of person
-Article5- No one shall be subjected to torture or to cruel, inhuman or
degrading treatment or punishment.

• International Covenant on Civil and Political Rights(ICCPR),1996 and

International Covenant on Economic, Social and Cultural Rights(ICESC),
1966-
Every person with a mental illness shall have the right to exercise all civil,
political, economic, social and cultural rights as recognized in the
• Principles for the protection of persons with mental illness and the
improvement of mental health care
Adopted by General Assembly resolution 46/119 of 17 December 1991

• Convention on the rights of persons with disabilities (CRPD)

The CRPD was passed by the UN General Assembly in 2006. It was
signed and ratified by India in 2007.
Thank You for your time and patience…