Mercy killing is not an offence in India, but it is not exempt from punishment. Section 84 of the Penal Code provides a defence of insanity, but this defence is only available if the person concerned was incapable of knowing the nature of the act or that he was doing what was either wrong or contrary to law.

'Is mercy killing an offence in India? is the merciful question which has fallen for determination in this way side case a jail appeal from a convict under Section 302 I.P.C. The facts are telling and stand almost uncontroverted. The victim was a 3 year old female child of accused Siddheswari. On 26.3.74 at about 9 A.M. when mother of the accused (P.W. 2) was in the cowshed, Pilpili (P.W. 3) and Sumitra (P.W. 4) the two other daughters of the accused, came running to her grand ma and informed that the Nileswari, the child had been killed in their cook shed by their mother with a dao by hacking her on the neck. On Dharmeswar son of P.W. 2 coming from market, he was sent to inform Janiram (P. W. 1), father of the accused, who lodged ejahar at about 1 P.M. of the date of occurrence implicating the accused in the crime.

2. The fact of the death of Nileswari at the hand of the appellant has been testified by none else than her nearest and closed relations noted above. The same cannot therefore be doubted. Autopsy Surgeon (P.W, 6) had found five incised injuries on the person of the deceased, one of which was on the neck and other on the occipital region of the head, which is just over the backside of the neck. As P.WS. 3 and 4 were quite young (aged about 9 years and 7 years at the relevant time,) hacking on back of the head, could have well been taken as on neck. The evidence about killing is thus conclu­sive and clinching.

3. The only point which is urged by Sri Sarma who has appeared as amicus curiae is that Siddheswari had caused the offence due to mental derangement, something about this had been stated by P.W. 4 whose evidence in cross examination was : "My mother is a diseased one. She suffers from mental derangement at times". Our attention has also been invited by Sri Sarma to the evidance of P.W.S. 1 and 2 in this regard. P.W. 1 .had stated that Siddheswari was suffering from illness for about 2 years prior to the occurrence. P.W. 2 has testified that their daughter was ailing. Illness as such is no excuse or exception, though mental derangement would be if the same can be taken care of by section 84 of the penal Code. To get the protection under that section, it is however necessary that the person concerned by reason of unsoundness was incapable of knowing the nature of the act or that he was doing what was either wrong or contrary to law. This requirement under our law is in substance the same as that laid down by the Judges in their answer to the questions put to them at the House of Lords in Me Naughten's case. There is nothing before us to satisfy if mental derangement of Siddhes­wari was of the nature contemplated by section 84. The case therefore does not come within the general notion of insanity.

4. Having known from the confessional statement of the accused which was recorded on 27. 3. 74 (Ext. 5) that the little child had been done to death because she was suffering form illness badly and the accused could not bear the trouble, we thought it fit to examine the question as whether such type of killing, which can be described as mercy killing, is exempt under the Indian Law, if so to what extent. As in framing the Penal Code, inspiration was taken from English Law, the legal position about mercy killing as prevalent under the English Law may first be seen. The principle of 'diminished responsi­bility' as applicable to English Law seems to have taken care of mercy killing in England. But this principle is a product of specific provision introduced into English Law by Section 2(1) of the Homicide Act, 1957 which reads :

"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 of induced by disease or injury as substantially impaired his mental responsibility for his acts or omission in doing or being a party to the