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LLM · Group 5 Criminal Law and Criminal Administration
2016 Examination
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First published on munotes.in on 13 August 2026.
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The question paper reproduced here is the paper as set by the University of Mumbai at the 2016 examination.
Contents
The questions below are the paper as the University of Mumbai set it at the 2016 examination, in the order it was set.
MarksPage
The Paper as Set
The questions in this volume are the questions asked at the 2016 examination, reproduced as the University of Mumbai set them, in the order it set them. Nothing has been reworded, added or left out. Only the answers are ours. See the original question paper.
Duration 3 hours · Total marks 100 · 7 questions answered
How to use this volume
Solve the paper first, under exam conditions and against the clock. Then read the answers here and mark your own. Reading a solution before attempting the question feels productive and teaches very little, because recognising an answer is not the same as being able to write one.
SECTION I
Q.P. Code 12204, printer's form BB-Con. 1658-15. Attempt any four questions, all questions carry equal marks
any four of seven · 100 Marks
(1)Discuss criminal liability under infancy, insanity and intoxication.[25]
Answer
For full marks, cover: the question names three defences and the marks are in the differences between them, not in three separate summaries. Say plainly that infancy is a denial of capacity fixed by age, insanity a denial of the cognitive ability the offence presupposes, and intoxication only a partial and heavily qualified concession. Give the Indian Penal Code section the paper is written in and the Bharatiya Nyaya Sanhita section that has replaced it. Work at least one decided case on each of the three. Finish on the one thing that unites them: each is a claim that the accused could not form the mental element, and each is proved by the accused, not disproved by the State.
Where these three defences sit in the scheme of the Code
All three are General Exceptions. In the Indian Penal Code they are Chapter IV, sections 76 to 106, and the paper's own later questions cite that range. Since 1 July 2024 they are Chapter III of the Bharatiya Nyaya Sanhita, 2023, sections 14 to 44, brought into force by S.O. 850(E) of 23 February 2024. Infancy is now sections 20 and 21, insanity section 22, and intoxication sections 23 and 24. The doctrine did not change with the numbering, and an answer that gives both numbers is answering both the paper and the present law.
The chapter works by subtraction. Section 6 of the Penal Code directed that every definition of an offence is to be read subject to the general exceptions, so the exceptions are not pleas in mitigation bolted on at the end of a trial. They are part of the definition of the offence itself. An act within an exception is not a crime that is forgiven; it is not a crime.
Two consequences follow and both are worth stating. First, the burden. Section 105 of the Evidence Act, 1872, now section 108 of the Bharatiya Sakshya Adhiniyam, 2023, places on the accused the burden of proving that his case falls within an exception, and raises a presumption against the existence of such circumstances. Second, the standard. That burden is not the prosecution's burden. It is discharged on a preponderance of probabilities, and the general burden of proving guilt beyond reasonable doubt never moves off the State.
Infancy: an immunity fixed by age, and what has displaced it
The Code draws two lines. Under section 82, now section 20, nothing is an offence which is done by a child under seven years of age. That immunity is absolute and irrebuttable. It is the common law rule of doli incapax in statutory form: below seven the law declines to enquire into the child's mind at all.
Between seven and twelve the immunity is conditional. Section 83, now section 21, protects a child who "has not attained sufficient maturity of understanding to judge of the nature and consequences of his conduct on that occasion". Three words in that phrase carry the law. "Maturity", not knowledge, so a bright child who cannot yet weigh consequences is protected. "Consequences", not merely nature, so knowing that a blow hurts is not enough. And "on that occasion", so the enquiry is act-specific and a finding of maturity in one context does not travel.
Two Indian decisions show the courts working the section rather than reciting it. In Hiralal Mallick v. State of Bihar, (1977) 4 SCC 44, a boy of about twelve joined his two elder brothers in an attack in which the deceased's throat was cut, and he was convicted under section 302 read with section 34. The Supreme Court did not disturb the conviction, because the manner of the attack itself showed understanding, but it reduced the sentence and used the case to say that the criminal court's function with a child is correctional rather than retributive. The case bears on the question because it shows that section 83 fails on the facts far more often than it succeeds.
Kakoo v. State of Himachal Pradesh, (1976) 2 SCC 215, is the counterpart at the level of sentence. A boy of about thirteen was convicted of the rape of a child of two and sentenced to four years' rigorous imprisonment. The Supreme Court held the conviction good, section 83 being unavailable above twelve, but cut the sentence to one year, holding that a juvenile offender must not be sent into the company of hardened criminals for longer than is unavoidable. Together the two cases mark the real position: the age bar is narrow, and the mitigation that follows it is where the child's youth actually tells.
The candid modern point is that sections 82 and 83 are now residual. The Juvenile Justice (Care and Protection of Children) Act, 2015, governs almost every case in practice. A child is a person under eighteen, and by section 15 a Juvenile Justice Board must conduct a preliminary assessment where a child above sixteen is alleged to have committed a heinous offence, after which section 18(3) permits transfer to the Children's Court for trial as an adult. In Barun Chandra Thakur v. Master Bholu, 2022 SCC OnLine SC 870, the Supreme Court held that the assistance of a psychologist under the proviso to section 15(1) is in substance mandatory unless the Board itself contains such an expert, and that an average intelligence quotient does not establish the capacity to understand consequences. The Court directed guidelines be framed. That is where the real law of infancy now lives.
Insanity: legal, not medical
Section 84, now section 22, exempts a person who, at the time of the act, "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". It is the Indian enactment of the answers the judges gave the House of Lords in M'Naghten's Case, (1843) 10 Cl & F 200, after Daniel M'Naghten, acting under a delusion of persecution by the Tory party, shot Edward Drummond in mistake for Sir Robert Peel and was acquitted.
The Indian section is not a copy. The English formula asks whether the accused knew the act was wrong; R v. Windle, [1952] 2 QB 826, read "wrong" as legally wrong, so a man who knew his act was against the law but believed it morally right was convicted. Section 84 says "either wrong or contrary to law", in the disjunctive, so a defect of reason that destroys the accused's grasp of moral wrongness suffices even if he knew the act was unlawful. That is the single most examinable difference between the two systems and it is in favour of the accused.
Surendra Mishra v. State of Jharkhand, (2011) 11 SCC 495, is the case to work. The appellant was convicted of murder and his only defence was unsoundness of mind, supported by evidence of mental illness. The Supreme Court dismissed the appeal and held that section 84 is available for legal insanity and not for medical insanity: every person suffering from a mental disease is not thereby exempted, and what must be shown is the incapacity the section describes, at the moment of the act. The case bears directly on the question because it separates a diagnosis, which is a doctor's conclusion, from a defence, which is a court's.
Dahyabhai Chhaganbhai Thakker v. State of Gujarat, AIR 1964 SC 1563, supplies the procedure. The appellant killed his wife and pleaded insanity. The Supreme Court held that the burden on the accused under section 105 of the Evidence Act is no higher than that on a party in a civil proceeding, and, crucially, that even where the accused fails to establish the exception, the material he has led may still raise a reasonable doubt about the existence of the intention the offence requires, in which case he must be acquitted on the general burden. The decision therefore gives the plea two lives, and an answer that stops at "the burden is on the accused" has given away the better half of it.
Ratan Lal v. State of Madhya Pradesh, (1970) 3 SCC 533, fixes the moment of enquiry: the crucial point of time is the time of the commission of the offence, and conduct before and after is relevant only as evidence of the state of mind at that instant.
Intoxication: a defence only when the drink was not the accused's choice
The Code splits intoxication in two, and the split is the answer.
Section 85, now section 23, is the complete defence. It exempts a person incapable, by reason of intoxication, of knowing the nature of the act or that it was wrong or contrary to law, but only where the intoxicant "was administered to him without his knowledge or against his will". It is involuntary intoxication, and it is rare.
Section 86, now section 24, deals with the ordinary case of a man who drank of his own accord and is charged with an offence requiring a particular intent or knowledge. It provides that he shall be dealt with as if he had the same knowledge as he would have had if sober. It says nothing whatever about intent, and the gap is deliberate.
Basdev v. State of Pepsu, AIR 1956 SC 488, is the leading Indian authority on that gap. Basdev, a retired military jamadar, went to a wedding at a neighbouring village on 12 March 1954 and drank heavily. At the midday meal he told Maghar Singh, a boy of fifteen or sixteen, to move from a seat; when the boy did not, Basdev drew a pistol and shot him in the abdomen, killing him. The plea was that drunkenness reduced the offence from murder to culpable homicide. The Supreme Court held that knowledge is imputed by section 86 as though the accused were sober, but intention must still be gathered from the whole of the circumstances with due regard to the degree of intoxication, and that on these facts the accused was capable of movement and of coherent speech and had formed the intent. The conviction under section 302 stood. The case bears on the question because it establishes that voluntary drunkenness is a defence only when it was so extreme as to make the requisite intent impossible, and never merely because the accused would not have acted sober.
The English law behind it is Director of Public Prosecutions v. Beard, [1920] AC 479, where Lord Birkenhead reduced the matter to three propositions: insanity produced by drink is treated as insanity; evidence of drunkenness rendering the accused incapable of forming the specific intent is to be weighed with the other facts in deciding whether he had it; and evidence falling short of that merely establishes that his mind was affected so that he more readily gave way to violent passion, which does not rebut the presumption that a man intends the natural consequences of his acts.
The three compared
| Infancy | Insanity | Intoxication | |
|---|---|---|---|
| IPC | 82, 83 | 84 | 85, 86 |
| BNS | 20, 21 | 22 | 23, 24 |
| Nature of the claim | No capacity, fixed by age | No cognitive ability at the time of the act | No ability to form intent, on that occasion |
| Complete defence? | Yes below 7; conditionally 7 to 12 | Yes, if the section is satisfied | Only if the intoxication was involuntary |
| Voluntariness relevant? | Not at all | Not at all | Decisive |
| Infancy | Insanity | Intoxication | |
|---|---|---|---|
| What is imputed against the accused | Nothing | Nothing | Knowledge, by IPC 86 and BNS 24 |
| Governing regime in practice | Juvenile Justice Act, 2015 | Section 84 or 22, on medical evidence | Section 86 or 24, on the whole circumstances |
Where the three defences are criticised
Section 84 is the narrowest of the three and attracts the sharpest criticism. It is purely cognitive. It asks only whether the accused knew, and it therefore has no room for the accused who knew perfectly well what he was doing and why it was wrong but was, by reason of disease, unable to stop. Irresistible impulse is not a defence in India, and Bapu alias Gajraj Singh v. State of Rajasthan, (2007) 8 SCC 66, confirms that mere abnormality of mind, partial delusion or compulsive behaviour does not attract the section. Jurisdictions that have moved on, by a volitional limb or a diminished responsibility plea, have done so because the cognitive test misdescribes a great deal of serious mental illness.
The contrary argument deserves to be put as strongly. A volitional test asks a court to distinguish an impulse that could not be resisted from one that simply was not, which is a distinction no expert can demonstrate and every accused can assert. The cognitive test is crude precisely because it is administrable, and the Indian answer has been to keep the test narrow and to do the work at the stage of sentence and of custody instead.
The criticism of section 86 runs the other way: that it is too kind. A man who drinks himself into a state in which he kills is not obviously less blameworthy than one who kills sober, and the choice to drink was itself voluntary. English law met that objection in Director of Public Prosecutions v. Majewski, [1977] AC 443, by holding that self-induced intoxication is no answer at all to a crime of basic intent, reserving the plea for crimes of specific intent. India has no such doctrinal division, and Basdev achieves much the same result through the presumption about natural consequences rather than through a rule of classification.
Infancy is criticised from both directions at once. The lower age of seven is among the lowest in the world and was left untouched by the Bharatiya Nyaya Sanhita, which reproduced sections 82 and 83 word for word as sections 20 and 21 when it might have raised it. At the same time the 2015 Act, by allowing sixteen-year-olds to be tried as adults for heinous offences, moved in the opposite direction, and the criticism there is that a preliminary assessment of a child's maturity is an enquiry the M'Naghten rules themselves show courts to be bad at.
Conclusion. The three defences are one idea applied to three different causes of incapacity: that criminal liability presupposes a mind capable of the fault the offence describes. Infancy fixes the incapacity by age and is now largely superseded by the Juvenile Justice Act, 2015. Insanity requires legal, not medical, incapacity at the moment of the act, and after Surendra Mishra and Dahyabhai Thakker it is a narrow exception with a second life as a source of reasonable doubt. Intoxication is a real defence only where the accused did not choose to be intoxicated; where he did, section 86 of the Penal Code and section 24 of the Sanhita impute knowledge to him and Basdev leaves intention to be found from the facts. The practical order of strength is therefore involuntary intoxication and infancy below seven at the top, insanity in the middle, and voluntary intoxication at the bottom, where it is not a defence at all but an argument about what the accused actually intended.
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