General Criminal Defences: Insanity, Infancy and Intoxication. Part-1

General Criminal Defences: Insanity, Infancy and Intoxication. Part-1

 Actus Non Facit Reum Nisi Mens Sit Rea

The criminal law covers various punishments for offences which vary from case to case. But it is not always necessary that a person gets punished for a crime which he/she had committed. The Indian Penal Code (IPC), 1860 recognized certain defences in Chapter IV under “General Exceptions.”Section 76 to 106 covers these defences which are based on the presumption that a person is not liable for the crime committed.By tendering a legally recognized defence to a criminal conduct person can escape criminal liability. Some common defences of criminal law, such as insanity, infancy and intoxication are based on the defendant’s lack of capacity to be held legally responsible. These defences depend upon the circumstances prevailing at that point of time, mensrea of person and reasonability of action of that accused.


To use insanity as a legal excuse, the defendant has to show that he/she lacked the capacity to understand that the act was wrong, or the capacity to understand the nature of the act. The logic of the insanity as a defence goes back to the idea of mensrea and culpability. We as a society usually only want to punish those people who knew that any act against the fabric of the society, was wrong. The foundation of this law was first laid in the M’Naughton case by the House of Lords in 1843. The basis of the M’Naughtoncase is the inability to distinguish right from wrong. The basic idea is that some people, under the duress of a mental disorder, cannot control their actions despite understanding that the action is wrong. This general defence is explained under Section 84 of the Indian Penal Code.

Section 84: Act of a person of unsound mind.—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.

So it falls upon the accused to prove his insanity at the time of offence. It needs to be proved by the accused that because of the accused’s unsoundness of mind, he was incapable of knowing the nature of the act or that the act was contrary to provisions of law, or was wrong. In ShrikantAnandraoBhosale V. State of Maharashtra, where a husband killed his wife while he was suffering from paranoia schizophrenia. The Court allowed him the defence of insanity as he was not fully aware of his conduct and its consequences.


Infancy is a legal incapacity to be held responsible for a crime due to the age of the perpetrator. There is a legal incapacity for the crime under seven years of age. DoliIncapaxis a presumption of law which provides that child has no discretion to distinguish right from wrong, thus criminal intention does not arise. The defence of infancy was first time raised before the Hon’ble Supreme Court in GopinathGhosh V. State of West Bengal. The Sections 82 and 83 of Indian Penal Code deals with the criminal liability under infancy.

Section 82: Act of a child under seven years of age.—Nothing is an offence which is done by a child under seven years of age.

Section 83: Act of a child above seven and under twelve of immature understanding.—Nothing is an offence which is done by a child above seven years of age and under twelve, who has not attained sufficient maturity of understanding to judge of the nature and consequences of his conduct on that occasion.

The essential ingredients of Sections 82 and 83 are that children under seven years of age is doliincapax, i.e. he is incapable of committing a crime and cannot be guilty of any offence. In Krishna Bhagwan V. State of Bihar, Patna High Court upheld that if a child who is accused of an offence during the trial, has attained the age of seven years or at the time of decision the child has attained the age of seven years can be convicted if he has the understanding an knowledge of the offence committed by him.


Intoxication is a state of mind in which a person loses self-control and his ability to judge. Intoxication is a defence available to criminal defendant on the basis that, because of the intoxication, the defendant did not understand the nature of his/her actions or know what he/she was doing. The defence of intoxication typically depends on whether the intoxication was voluntary or involuntary and what level of intent is required by the criminal charge.Under the Indian Penal Code the criminal liability under intoxication is mentioned under section 85 and 86.

Section 85: Act of a person incapable of judgment by reason of intoxication caused against his will. — 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 the thing which intoxicated him was administered to him without his knowledge or against his will.

Section 86: Offence requiring a particular intent or knowledge committed by one who is intoxicated.—In cases 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, unless the thing which intoxicated him without his knowledge or against his will.

Section 85 deals with offences committed under the influence of drugs or alcohol which is caused by fraud or coercion. Section 86 deals with intoxication which is self-induced. Bablu alias MubarikHussain V. State of Rajasthan, in this case SC examined Section 85 of IPC and held that evidence of drunkenness, the evidence which proves that the accused is incapable of forming the wrongful intent has also been considered along with the other facts, and then it should be proved of the accused person has the intention to commit crime.These sections do not protect someone who voluntarily consumed intoxicants as the person loses his mental ability because of his consensual act i.e. by self-induced intoxication.


Looking at a larger picture and practicality, these defenses does not have a major significance in the way of deciding the case under criminal law. The crux of criminal law is guilty mind. The court has to look the circumstances and facts of each case to decide whether a particular defence is available to the accused or no. The elements of mensrea are the basic question in determining the guilt of a person. These general defenses provided under IPC basically depend upon the facts and circumstances.

Kiranpreet Kaur

Associate at Aggarwals & Associates S.A.S Nagar, Mohali