University of Kashmir

School of Law

General Defences-II

Subject: Crime-I

Submitted to: Dr. Saba Manzoor

Submitted by:
Name: Sakib Altaf
Enrollment no.19043122038
Course: LLB (1st semester).
Shift: Morning
In criminal justices system anywhere, there is a punishment for every act of
crime. But it is not always necessary that a person gets punished for a crime,
they may have committed. By offering a legally recognized defence to an act of
crime, a defendant can escape criminal liability. Some common defences of
criminal law are based on the defendant’s lack of capacity to be held legally
responsible. Among these are insanity, infancy, intoxication and consent. These
defences depend upon the circumstances prevailing at the point of time when the
crime occurred, mensrea of person and reasonability of action of the accused.

Below we discuss insanity and consent as defences in criminal law.

Insanity

An underlying principle of criminal justice system is that the defendant had knowledge
or intent while committing a crime. It follows that a person who can prove that he was
incapable of such knowledge at the time of committing a crime is entitled to defence of
insanity.

In an insanity defence the defendant admits to the action but asserts a lack of
culpability on the ground of mental illness. The insanity defence in the court is generally
taken as an excuse rather than a justification of the crime.

This law has been in force in many parts of the world for hundreds of years.
However, it has been drastically changed in some countries. For instance, some states
of the USA have shifted the burden of proof onto the defendant. It is the same in India.
Earlier, the prosecutor was to prove beyond reasonable doubt that the defendant was
not insane at the time of committing the crime. But now the defence counsel has to
prove that the defendant was, indeed, insane. Some states of the USA have altogether
abolished the defence of insanity. . In Idaho, Kansas, Montana, and Utah, the defense
of insanity was eliminated entirely. Instead, defendants may be found “guilty, but
insane” and sentenced to psychiatric institutionalization instead of prison. Instead, a
defendant may be found “guilty, but insane.” Such a defendant does not go to prison
but is sentenced to psychiatric institutionalization or institutional psychiatric care.
Establishing Insanity:

In US and some other countries, there four different tests to determine whether a
defendant is legally insane. Local laws decide which of these four tests applies.

Under the M’Naghten Rule test, the criminal defendant must either not understand
what he or she did, or be unable to distinguish right from wrong. This test relies on the
notion that defendants may be diseased such as they are incapable of understanding
their own actions.

The Durham Rule holds that if a criminal defendant’s “mental disease or defect” was
the reason that he or she committed a crime, the defendant is not guilty by reason of
insanity. This test is currently used only in New Hampshire, since it has been deemed
too broad by other states and jurisdictions.

The irresistible impulse test is used to determine whether, as a result of a mental

disease or defect, a defendant was unable to control or resist his or her own impulses,
thus leading to a criminal act. If so, the defendant is not guilty by reason of insanity.
Some states consider this test in combination with the M’Naghten test, holding that
when a defendant could not understand his or her own actions, nor control them, the
insanity defense applies.

Under the Model Penal Code in the US, the insanity defense applies when, because of
a diagnosed mental disorder, the defendant could not understand the criminality of his
or her actions or was unable to “act within the confines of the law.” It was this test led, in
1982, to the acquittal of John W Hinckley who made an attempt on the life of the US
President, Ronald Reagan. This test attracted a lot of criticism after the verdict.

Types of Insanity:

• Temporary insanity: This is a condition where a person is insane only

periodically or at a specific point of time. Some temporary mental illnesses or
insanities include depression, anxiety disorders, addictive behaviors and
schizophrenia.

There are two possible outcomes in the defence of temporary insanity:

o “Not guilty because insane”.

o “Guilty but cannot be tried because insane”.

• Permanent insanity: This is a condition of continuous mental illness. It can be

proved from past records and events that show the person is permanently insane
and is incapable of understanding the gravity of any situation.
History of the Insanity Defense and the Burden of Proof:
For several hundred years, the insanity defense has acted as a defense against criminal
charges for a defendant who was incapable of understanding what he or she was doing,
or in determining right from wrong.

In the US, originally the law in most states required that when a defendant asserted a
defense of insanity, the prosecutor was required to prove beyond a reasonable doubt
that the defendant was not insane. However, when in 1982, John W. Hinckley was
acquitted of the attempted assassination of President Ronald Reagan on the basis of an
insanity defense; several states changed their insanity laws. Many states shifted the
burden of proof from the prosecutor to the defense, requiring defense attorneys to show
by clear and convincing evidence or by a preponderance of the evidence that the
defendant was insane, indeed. Some states abolished the defense of insanity altogether
while others modified the law drastically. Under the amended law in these states the
defendants may be found “guilty but insane” and sentenced to psychiatric
institutionalization instead of prison.

For federal crimes, the Hinckley case led to the passage of the Insanity Defense Reform
Act, which requires that defendants prove the defense of insanity by clear and
convincing evidence.

In India too, the burden of proof is on the defendant which means his or her counsels.

Indian law on insanity defence:

In India, Section 84 of IPC describes the defences available to the person of an

unsound mind. Under this section, a person is exonerated from liability for doing an act
on the ground of unsoundness of mind if he, at the time of doing the act, is either
incapable of knowing (a) the nature of the act, or (b) that he is doing what is either
wrong or contrary to law. The accused is protected not only when, on account of
insanity, he was incapable of knowing the nature of the act, but also when he did not
know either that the act was wrong or that it was contrary to law, although he might
know the nature of the act itself. He is, however, not protected if he knew that what he
was doing was wrong, even if he did not know that it was contrary to law, and also if he
knew that what he was doing was contrary to law even though he did not know that it
was wrong.

Distinction between Legal and Medical Insanity:

Section-84 of the Indian Penal Code sets out the legal responsibility test as
distinguished from the medical test. According to the medical point of view, it is probably
correct to say that every person, when committing a criminal act, is insane and therefore
needs an exemption from criminal responsibility; while as the legal point of view is that a
person must be held to be sane as long as he is able to distinguish between right and
wrong; as long as he knows that the act carried out is contrary to the law.
In the case of Surendra Mishra v. State of Jharkhand, It was observed that ‘every
person suffering from mental illness is not ipso facto exempt from criminal liability.’
Furthermore, in the case of Shrikant Anandrao Bhosale v. State of Maharashtra, the
Supreme Court, while determining the offense under Section 84 of the IPC, held that’ it
is the totality of the circumstances seen in the light of the recorded evidence’ that would
prove that the offense was committed.’ It added: “The unsoundness of the mind before
and after the incident is a relevant fact.”

In Rattan Lal v. State of M.P, it was well established by the court that the crucial point
of time at which the unsound mind should be established is the time when the crime is
actually committed and whether the accused was in such a state of mind as to be
entitled to benefit from Section 84 can only be determined from the circumstances that
preceded, attended and followed the crime. In other words, it is the behavior precedent,
attendant and subsequent to the event that may be relevant in determining the mental
condition of the accused at the time of the commission of the offense but not those
remote in time.

In dealing with cases involving the defence of insanity, distinction has to be made
between cases, in which insanity is more or less proved and the question is only as to
the degree of irresponsibility, and cases, in which insanity is sought to be proved in
respect of a person, who for all intents and purposes, appears sane. In all cases, where
previous insanity is proved or admitted, certain considerations have to be borne in mind.
Mayne, the author of the book Criminal Law in India, summarises these considerations
as under:
• Whether there was deliberation and preparation for the act;
• whether it was done in a manner which showed a desire to concealment;
whether after the crime, the offender showed consciousness of guilt and made
efforts to avoid detections
• Whether, after his arrest, he offered false excuses and made false statements.
All facts of this sort are material as bearing on the test, which Bramwall,
submitted to a jury in such a case: ‘Would the prisoner have committed the act if
there had been a policeman at his elbow’? It is to be remembered that these
tests are good for cases in which previous insanity is more or less established.
These tests are not always reliable where there is, what Mayne calls, “inferential
insanity”.

In Kamala Bhuniya v. West Bengal State, the accused was tried for her husband’s
murder with an axis. A suit was filed against the accused, she alleged to be insane at
the time of the incident, the investigating officer recorded at the initial stage about her
mental insanity. The prosecution’s duty was to arrange for medical examination of the
accused, it was held that there was no motive for murder. The accused made no
attempt to flee, nor made any attempt to remove the incriminating weapon Failure on
the part of the prosecution was to discharge his initial responsibility for the presence of
mens-rea in the accused at the time of the commission of the offence. The accused was
entitled to benefit from Section 84. And hence accused was proved insane at the time of
the commission of the offence and was held guilty of culpable homicide not Murder.

The defence of insanity has drawn severe criticism across the world, many
saying that the provision is liable to be misused.

In March this year, the U.S. Supreme Court, through a verdict, limited the rights
of criminal defendants. The Court declared that states can bar the defendants from
using the so-called insanity defense. The ruling came in a case involving a Kansas man
sentenced to death for killing four members of his family.

The justices ruled 6-3 that a 1995 Kansas law eliminating the insanity defense -
which bars holding criminally responsible mentally impaired defendants who do not
know right from wrong - did not violate the U.S. Constitution. The justices affirmed a
2018 decision by the Kansas Supreme Court upholding the conviction of the man at the
center of the case, James Kraig Kahler.

Under the Kansas law, defendants cannot argue they were insane and unable to
make a moral judgment as an excuse to criminal liability. But the law allowed
defendants to argue that, due to mental defect, they did not intend to commit the crime.

Writing in dissent, liberal Justice Stephen Breyer observed that “Kansas has not
simply redefined the insanity defense. Rather, it has eliminated the core of a defense
that has existed for centuries,” Breyer wrote.

Like Kansas, some other states in the US like Idaho, Montana and Utah have
discarded the traditional insanity defense, while 45 other states, the federal criminal
justice system and the District of Columbia have retained it.
 Consent

Introduction:

In certain circumstances, an apparent criminal act may have been committed, but it will
qualify as a crime only if the victim was opposed to the crime happening. As such one
defence available to the defendant is that the victim had actually consented to the act
and as such the act did not amount to crime.

Consent and Bodily Harm:

It is important to note that consent may be expressed or implied. Some crimes for which
consent may be a defence include those that result in bodily harm. In very limited
circumstances, victims can be held to have consented to these crimes. One common
example is physical-contact sports. Participants in a sports competition are deemed to
have consented to physical contact and possible bodily harm. This is laid down in
section 87 of the IPC, which reads as follows

“Nothing which is not intended to cause death, or grievous hurt, and which is not
known by the doer to be likely to cause death or grievous hurt, is an offence by reason
of any harm which it may cause, or be intended by the doer to cause, to any person,
above eighteen years of age, who has given consent, whether express or implied, to
suffer that harm; or by reason of any harm which it may be known by the doer to be
likely to cause to any such person who has consented to take the risk of that harm.”

Section-87 illustrates thus;“A and Z agrees to fence with each other for amusement.
This agreement implies the consent of each to suffer any harm which, in the course of
such fencing, may be caused without foul play; and if A, while playing fairly, hurts Z, A
commits no offence.”

Section-88 of the IPC lays down that an act, not intended to cause death, done with
consent in good faith for a person’s benefit, and is not an offence even of it causes
harm.

Case law: In R.P.Dhanda vs. Bhure lal

The appellant, an eye surgeon, performed a cataract operation with the patients
consent. The operation failed, resulting in the patient losing his eyesight. The court held
that the doctor operated in good faith for the benefit of the patient and , as such, was
protected under section 88 of the code.

Section-89 makes similar provision for an act done in good faith for the benefit of a
child below 12 years or of an insane person, with consent of his or her guardian.
However it says that the exception shall not extend to intentional causing of death or to
attempting such death.
Illustration;
“A, in good faith, for his child’s benefit without his child’s consent, has his child cut for
the stone by a surgeon. Knowing it to be likely that the operation will cause the child’s
death, but not intending to cause the child’s death. A is within the exception, inasmuch
as his object was the cure of the child.”
Section-90 says that consent known to be given under fear or misconception shall not
be recognized as consent. Same applies to the concert given by an insane person or a
child aged below 12.

Case law: In Queen Vs. Poonai Fattenah 1969

The deceased had allowed himself to be bitten by a snake on the misconception

created in his mind by the accused, who was a snake charmer, that he (the accused)
had the power to protect him and that he would not die from the snake bite. The court
held that the deceased had consented to snake bite under a misconception of fact and
that the accused also knew or had reason to believe that the deceased had given his
consent under this misconception. It was held that in this case, the defendant had the
knowledge of imminent danger that the snake bite must in all probability cause death.
The defence was rejected as the consent given by the deceased was held invalid.

Section-91 deals with the acts which are offences independently of harm caused.
There may be cases which are acts of crime irrespective of any harm caused to the
person giving his consent. For instance, causing miscarriage (unless done in good faith
for the purpose of saving the woman’s life) is an offence independently of any harm
which it may cause to the woman. Therefore it is not an offence by reason of such
harm, but the consent of the woman or her guardian for the miscarriage does not justify
the act.

Section-92 lays down that nothing is an offence by reason of any harm which it may
cause to a person for whose benefit it is done in good faith, even without that person's
consent. This may happen when the person is incapable of giving consent and has no
guardian or other person in lawful charge of him who could give consent on his behalf.

Illustration;

Example 1:
Z is thrown from his horse, and is insensible. A, a surgeon, finds that Z requires to be
trepanned. A, not intending Z’s death, but in good faith, for Z’s benefit, performs the
trepan before Z recovers his power of judging for himself. A has committed no offence.

Example 2:
A is in a house which is on fire with Z, a child. People below hold out blanket. A drops
the child from the house top knowing well that the child may fall to death, but he has no
intention of killing the child and is dropping him in good faith. Here if the child dies A has
committed no offence. However Sec52 of IPC says that nothing is said to have been
done in good faith, if it is done without due care and attention.