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Report No. 42

4.31. "Unsoundness of mind" covers mental disease and mental deficiency.-

A few questions arising directly out of the wording of section 84 were considered by us. It will be noticed that while the M'Naghten Rules refer to "disease of the mind" the Penal Code uses the expression "unsoundness of mind". This appears to cover not only any form of insanity or mental disease, but also any form of mental deficiency, like idiocy, imbecility and even feeble-mindedness. A temporary delusion may also be regarded as unsoundness of mind. It might be more in accord with medical terminology to use both the expressions "disease of the mind" and "mental deficiency" instead of the somewhat vague and unprecise expression, "unsoundness of mind". Since, however, no difficulty appears to have been felt in understanding the sense in which this is used in the Penal Code, we do not think it is worthwhile changing it.

4.32. Meaning of "wrong" in M'Naghten Rules.-

The crucial test under section 84 is whether the accused, at the time of committing the offence, is incapable of knowing "that he is doing what is either wrong or contrary to law." The M'Naghten Rules only refer to the accused not knowing that he is doing what is wrong1 The question whether the word "wrong" in these Rules means legal wrong or moral wrong has been debated at length in Australia and in England. In Australia2 the following direction to the jury given by Dixon J. is considered to be a correct statement of the law.-

"The question is whether he was able to appreciate the wrongness of the particular act he was doing at the particular time. Could this man be said to know in this sense whether his act was wrong if, through a disease or defect or disorder of the mind he could not think rationally of the reasons which to ordinary people make that act right or wrong? If through the disordered condition of the mind, he could not reason about the matter with a moderate degree of sense and composure, it may be said that he could not know that what he was doing was wrong."

In England,3 however, it has been emphatically held by the Court of Criminal Appeal that "courts of law can only distinguish between that which is in accordance with the law and that which is contrary to law", and "there is no doubt that in the M'Naghten Rules 'wrong' means contrary to law and not 'wrong' according to the opinion of one man or of a number of people on the question whether a particular act might or might not be justified."

1. See para. 4.26, above.

2. Porter, (1933) 55 CLR 192 (189); approved in Stapleton, (1952) 86 CLR 358 (367).

3. R. v. Windle, (1952) 2 All ER 1 (Lord Goddard, C.J.).

4.33. Ambiguity to "either wrong or contrary to law" in section 84.-

Indian case law on the subject seems to leave the position obscure. In a Calcutta case1, it was observed.-

"We are satisfied that the appellant knew the nature of his act. What we have to see is whether he knew that what he was doing was either wrong or contrary to law. If he knew that what he was doing was wrong, then he will not be protected even if he did not know that it was contrary to law. If he knew that what he was doing was contrary to law, then also he could not be protected even though he did not know that what he was doing is wrong."

According to this view, it would be necessary for the accused to show that, by reason of unsoundness of mind he did not know that his act was wrong and also that he did not know that it was contrary to law.

In a later case,2 however, the same High Court observed.-

"Of the three elements necessary to be established under section 84, any of which must be established by an accused to obtain the benefit of the provisions, it appears that, first, the nature of the act was clearly known to the accused; secondly, that he knew that the act was contrary to law, or we have said this was probably known to him; but (the) third element on which the case really turned is, whether the accused knew that the act was wrong."

Curiously, no reference is made to the earlier judgment.

Inasmuch as it is for the accused to show that He comes within the general exception, or in other words he did not know either the wrongfulness or the criminality of his act, it appears to us that the earlier judgment states the position correctly. The view taken in the later Calcutta case was dissented from by the Allahabad High Court.3

1. Ceron AU v. Emp., AIR 1941 Cal 129 (130) (Sen and Roxburgh, JJ.).

2. Ashiraddin Ahmed v. King, AIR 1949 Cal 182 (183) (Roxburgh and Blank, JJ.).

3. Lakshmi v. State, AIR 1954 All 534 (536).

4.34. "Diminished responsibility".-

Although the M'Naghten Rules still hold the field in England despite the recommendations of the Royal Commission, a new defence to murder, known as "diminished responsibility"', was introduced by the Homicide Act of 1957. If established, it entitles the accused to be found guilty of man slaughter instead of murder. Section 2 of that Act enacts:

"(1) Where a person kills or is a party to the killing of another, he shall not be convicted of murder if he was suffering from such abnormality of mind (whether arising from a condition of arrested or retarded development of mind or any inherent causes or induced by disease or injury) as substantially impaired his mental responsibility for his acts and omissions in doing or being a party to the killing.

(2) *** *** ***

(3) A person who but for this section would be liable, whether as principal or as accessory, to be convicted of murder shall be liable instead to be convicted of man slaughter."

We considered whether it would be desirable to have some such provision in the Code, either restricted to culpable homicide or, more generally applicable to all offences, as a supplement to section 84, but decided against it, mainly because of the complicated medico-legal issues it would introduce in the trial. So far as murder cases are concerned, the Code already gives discretion to the Courts in the matter of sentences, the death sentence not being obligatory.1 As regards other offences also, there is no need to provide specially that, if the "diminished responsibility" is established, the offender will receive lesser punishment. The mental abnormality of the offender will naturally be taken into account by the court like any other extenuating circumstance while deciding upon the sentence to be awarded.

1. See also 35th Report of Capital Punishment, para. 9.24.

4.35. Section 84 to remain as it is.-

In the result, our view is that, in spite of its shortcomings, section 84 need not be altered in any way.

4.36. Sections 85 and 86.-

Section 85 equates involuntary intoxication with unsoundness of mind and lays down the same rule for excusing a person. The next section dealing with voluntary intoxication provides that "where an act done is not an offence unless done with a particular knowledge or intent, a person who does the act in a state of intoxication shall be liable to be dealt with as if he had the same "knowledge as he would have had if he had not been intoxicated". The effect is that voluntary intoxication cannot be pleaded as a defence on the ground that the intoxicated person did not have the particular kind of knowledge or intent mentioned in the definition of the offence with which he is charged.

4.37. Self-induced intoxication and punishment.-

While the Code makes it clear that voluntary or self- induced intoxication does not constitute an excuse for committing an offence, it is silent on the point whether it should be treated as a mitigating or extenuating circumstance for the purpose of sentence. We included in our questionnaire the question.-

"When a person commits an offence in a state of intoxication (self-induced), should that be made a ground for enhanced punishment?"

Only a few were in favour of the suggestion as a general proposition applicable to all cases where a person commits an offence when in a state of intoxication. One or two were in favour of providing enhanced punishment in the case of offences based on rashness or negligence, since intoxication would probably have contributed to that mental state. Another suggestion was that enhanced punishment ought to be provided in those cases where the offender has deliberately intoxicated himself for committing the offence.

The majority, however, were not in favour of the suggestion. They were of the view that no special provision was necessary in the Code, that depending on the circumstances of the case, intoxication could be regarded as enhancing culpability (e.g., where, the offender put himself in that condition in order to commit the crime ruthlessly) or it could be regarded as extenuating the offence, and that these were matters of detail which should be left to the judge to take into account when deciding the appropriate sentence.

Agreeing with this view, we have come to the conclusion that a provision for enhanced punishment is not desirable and that the matter may be left to the discretion of the courts as at present.

4.38. Knowledge and intention under section 86.-

The language of section 86 has caused some confusion. As mentioned by the Supreme Court, "while the first part of the section speaks of intent or knowledge, the latter part deals only with knowledge, and a certain element of doubt in interpretation may possibly be felt by reason of this omission. If in voluntary drunkenness knowledge is to be presumed in the same manner as if there was no drunkenness, what about this excuse where mens rea is required?

Are we at liberty to "place intent on the same footing and, if so, why has the section omitted intent in its latter part?" To this question the Supreme Court's answer is, "So far as knowledge is concerned, we must attribute to the intoxicated man the same knowledge as if he was quite sober, but so far as intention is concerned, we must gather it from the attending circumstances of the case, paying due regard to the degree of intoxication."1 We consider that it would be desirable to rectify this anomalous position by omitting the reference to intention altogether.

1. Basdev v. State of Pepsu, 1956 SCR 363 (365).

4.39. Sections 85 and 8.-combined and revised.-

We recommend that sections 85 and 86 which deal with the same subject may be combined in one section and revised as follows.-

"85. Act of a person who is intoxicated.-(1) Nothing is an offence which is done by a person who, at the time of doing it, is, by reason of intoxication, incapable of knowing the nature of the act, or that he is doing what is either wrong or contrary to law:

Provided that such intoxication was not self-induced."

"(2) Where an act done by a person in a state of intoxication which is self-induced will be an offence if done with a particular knowledge, he shall be liable to be dealt with as if he did the act with the knowledge he would have had if he had not been intoxicated.

(3) Intoxication is self-induced in a person when he voluntarily causes the state of intoxication in himself."

4.40. Sections 87, 88 and 89.-

Sections 87, 88 and 89 deal elaborately with different situations where bodily harm is caused, but with consent given by or on behalf of the person to whom it is caused. After a close scrutiny of the sections we do not find any need to alter them.

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