J U D G M E N T

M. M. Sundresh, J.

“Was’t Hamlet wronged Laertes? Never Hamlet. If Hamlet from himself be ta'en away, And when he's not himself does wrong Laertes, Then Hamlet does it not; Hamlet denies it. Who does it, then? His madness. if't be so, Hamlet is of the faction that is wronged; His madness is poor Hamlet's enemy.”

-William Shakespeare (Source : Hamlet, W.S. (Play) Act-5 Scene-2 Line-245)

1. While acknowledging the hurt that he has caused to Laertes for causing the death of his father, whom he murdered by way of a mistaken identity, Hamlet pleads temporary madness. While pleading so, he disassociates himself from the act as if it was done by a third person and he was made to suffer the consequence. He thus pleads to treat him as a victim rather than an offender. Though the act of Hamlet does constitute a culpable homicide coming within the definition of Section 300 of the Indian Penal Code, 1860 an act of unsound mind would not attract the same. Through these lines, Shakespeare brings out the agony of a man having to justify his act of madness.

2. Raising the plea of insanity on the mandate of Section 84 of the Indian Penal Code, 1860 (hereinafter ‘the IPC’), the appellant seeks reversal of the order of conviction passed by the Division Bench of the High Court of Bombay at Goa, confirming the order of the Additional Sessions Judge, S.G. Margao-II. As we are dealing with the seminal issue of applicability of Section 84 of the IPC and in the light of the focus made by the counsel for the appellant, we do not propose to go into the merits.

3. We have heard Shri Aftab Ali Khan, the counsel appointed from the Supreme Court Legal Services Committee.

SECTION 84 of The Indian Penal Code, 1860 “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.”

4. Section 84 of the IPC recognizes only an act which could not be termed as an offence. It starts with the words “nothing is an offence”. The said words are a clear indication of the intendment behind this laudable provision. Such an act shall emanate from an unsound mind. Therefore, the existence of an unsound mind is a sine qua non to the applicability of the provision. A mere unsound mind per se would not suffice, and it should be to the extent of not knowing the nature of the act. Such a person is incapable of knowing the nature of the said act. Similarly, he does not stand to reason as to whether an act committed is either wrong or contrary to law. Needless to state, the element of incapacity emerging from an unsound mind shall be present at the time of commission.

5. The provision speaks about the act of a person of unsound mind. It is a very broad provision relatable to the incapacity, as aforesaid. The test is from the point of view of a prudent man. Therefore, a mere medical insanity cannot be said to mean unsoundness of mind. There may be a case where a person suffering from medical insanity would have committed an act, however, the test is one of legal insanity to attract the mandate of Section 84 of the IPC. There must be an inability of a person in knowing the nature of the act or to understand it to be either wrong or contrary to the law.

6. The aforesaid provision is founded on the maxim, actus non reum facit nisi mens sit rea, i.e., an act does not constitute guilt unless done with a guilty intention. It is a fundamental principle of criminal law that there has to be an element of mens rea in forming guilt with intention. A person of an unsound mind, who is incapable of knowing the consequence of an act, does not know that such an act is right or wrong. He may not even know that he has committed that act. When such is the position, he cannot be made to suffer punishment. This act cannot be termed as a mental rebellion constituting a deviant behaviour leading to a crim