PENOLOGY & VICTIMOLOGY (HONS.

I)

ASSIGNMENT

SUBMITTEDBY:

SUBMITTED TO:

VIKASH KUMAR BHAGAT

Dr. JULEAN SEAL PASARI

ROLL NO.: 301 A

FACULTY

SEMESTER: VIITH

NATIONAL UNIVERSITY OF STUDY AND RESEARCH IN LAW

Sentencing is the most challenging task of a Judge. If so, it may be said that sentencing
offenders with impaired mental functioning adds a significant layer of complexity to
that task. Discuss.
In India, sentencing is the most challenging task of a judge because neither the legislature nor
the judiciary has issued any structured sentencing guidelines. The Indian Penal Code(IPC)
prescribes offences and punishments for the same. Here, for many offences only the
maximum punishment is prescribed and for some offences the minimum is prescribed. There
is no guidance to the judge in regard to selecting the most appropriate sentence given the
circumstances of the case.
Sentencing procedure is established under the Code of Criminal Procedure, which provides
broad discretionary sentencing powers to judges. 1 Thus, in the absence of any adequate
sentencing policy or guidelines, it comes down to the judges to decide which factors to be
considered and which to be ignored. Since, there is no uniformity in awarding sentencing it
eventually, makes task difficult for the Judges to provide appropriate sentence for the same
offence. Moreover, broad discretionary power opens the sentencing process to abuse and
allows personal prejudices of the judges to influence decisions.
The fair resolution of being severity or leniency is a judge's most important and difficult task.
It is widely accepted that deterrence and rehabilitation are the basic purpose of any sensible
sentencing program. The need to discourage future crime often forces a judge to ignore his
own sympathy for the prisoner. In the case of Jagmohan Singh v. State of Uttar Pradesh2
Court has asserted that the impossibility of laying down standards is at the very core of the
Criminal law as administered in India, which invests the Judges with a very wide discretion
in the matter of fixing the degree of punishment. Various Courts, recognizing the absence of
such guidelines, have provided judicial guidance in the form of principles and factors that
courts must take into account while exercising discretion in sentencing.
Despite, such guidelines judges often awards different sentencing for similar offence
applying different principle. It is true that each case facts and circumstances are different and
guidelines and principle of similar offence to be followed but it is undeniable to ignore the
difficulty of awarding appropriate sentencing even for similar offence. And when the case of
1 Sentencing is covered under sections 235, 248, 325, 360 and 361 of the Code Criminal Procedure, 1974
2 , (1973) 2 S.C.R. 541

sentencing offenders with impaired mental functioning comes it adds a significant layer of
complexity to that task for the judges.
While dealing with the subject of insanity jurists have felt the difficulty for want of medical
knowledge and the controversy between the medical and the legal aspect of the subject. The
legal insanity is different from the medical insanity.
IPC recognizes the concept "actus non facit reum, nisi mens /sit rea", and "amens ne sine
mente" which says that the physical act alone does not make a person guilty but the mental
component in the form of evil intent (guilty mind) is equally considered. It is presumed by
law that every adult individual possess a sane mind and thus liable to take responsibility of
his act. The plea of mental illness or unsoundness of mind is usually brought forward by
defence in order to escape from capital punishment. Here, the layer of complexity arises
among the judges.
Now, it raises various questions like: Are all mentally ill persons to be acquitted for any crime
they commit? What is the degree of mental illness in this regard necessary for acquittal?
What is the legal borderline between sanity and insanity? Are there any provisions for
punishing or restraining mentally ill persons? Are there any provisions to safeguard society
from such individuals? The judges need to maintain a balance between all the above factors
for appropriate sentencing. In India, matters of insanity issues are discussed under section 84
of IPC.
McNaghten Rules has been adopted by the Indian law which says that 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.
There are various degrees of insanity; but law does not recognize all kinds of insanity.
Section 84, recognizes only 3 legal insanity: a. A person is incapable of knowing the nature of the act, i.e., the physical acts he is
doing.
b. A person is incapable of knowing that he is doing wrong.
c. A person is incapable of knowing that what he is doing is contrary to law.
In Kamala Bhunia v. State of West Bengal, the Calcutta High Court has held that to extend
benefit of Section 84 of the Indian Penal Code the Court must be satisfied that at the time of

commission of the offence the accused was suffering from mental illness or was in such a
state of insanity that the accused was not capable of understanding the consequence of
wrongful act done by her/him.
In the landmark case of Surendra Mishra versus state of Jharkhand, the Apex Court has
stated that an accused who seeks defence under Section 84 of the IPC need to prove legal
insanity and not medical insanity. The term insanity carries different meaning in different
contexts and describes varying degrees of mental disorders. Every person who is suffering
from mental illness is not exempted from criminal liability. Only certain degree of insanity is
take into consideration. The crucial point of time for determining the state of mind of the
accused is the time when the offense was committed. However, other facts also needs to be
given importance are: Motive for the crime, the previous history as to mental condition of the
accused, the state of his mind at the time of the offense, and the events immediately after the
incident that throw a light on the state of his mind.
In Dahyabhai Chhaganbhai Thakker versus state of Gujarat, this court has held that even if
the accused was not able to establish conclusively that he was insane at the time he
committed the offense, the evidence placed before the court may raise a reasonable doubt in
the mind of the court as regards one or more of the ingredients of the offense, including mens
rea of the accused and in that case the court would be entitled to acquit the accused on the
ground that the general burden of proof resting on the prosecution was not discharged.
Though the burden is on the accused, he is not required to prove the same beyond all
reasonable doubt, but merely satisfy the preponderance of probabilities. The burden of proof
casted upon him is no higher than that rests upon a party to civil proceedings.
Lastly, it can be concluded that even though we have strict guidelines to determine sentencing
of offenders with impaired mentality. The Indian Penal law ever since it was created follows
the Mc'Naghten rules which has become obsolete and are not proper and suitable in the
modern era of definition of insanity. The provision is too narrow, and makes no room for a
case where one's emotion and the will are so affected as to render the control of the cognitive
faculties. The Indian law needs to adopt a broader view of the insanity and introduce the
concept of diminished responsibility.