INSANITY

INTRODUCTION
A person who commits a crime while suffering from a mental disorder may
raise insanity as defence. Justification for the defence is that we do not
punish those whose actions are attributable to illness rather than responsible
choices on their part.
Defence is stated in section 12, penal code. At Section 11, there is a
rebuttable presumption that every person is sane. That presumption can only
be rebutted by the accused on proof on insanity. However, the criminal
responsibility of the accused, whether sane or insane, has first to be
determined. This defence restricted to the time of commission of the offence,
not time of making confessions and other processes.
The defence is only available if the accused person is able to prove that at
the time of commission of the offence, he was suffering from a disease of the
mind, and on its account was incapable to understand what he was doing or
incapable of knowing that what he was doing was wrong.
THE MNAGHTEN RULES
The M'Naghten Rules of 1843 were not a codification or definition of insanity
but were a reaction to the acquittal in 1843 of Daniel M'Naghten on the
charge of murdering Edward Drummond, whom McNaghten had mistaken for
British Prime Minister, Robert Peel. M'Naghten fired a pistol at the back of
Peel's secretary, Edward Drummond, who died five days later. The House of
Lords asked a panel of judges, presided over by Sir Nicolas Conyngham
Tindal, Chief Justice of the Common Pleas, a series of hypothetical questions
about the defence of insanity. The principles expounded by this panel have
come to be known as the M'Naghten Rules, though they have gained any
status only by usage in the common law and M'Naghten himself would have
been found guilty if they had been applied at his trial.
The House of Lords delivered the following exposition of the Rules:
the jurors ought to be told in all cases that every man is to be
presumed to be sane, and to possess a sufficient degree of reason to
be responsible for his crimes, until the contrary be proved to their
satisfaction; and that to establish a defence on the ground of insanity,
it must be clearly proved that, at the time of the committing of the act,
the party accused was labouring under such a defect of reason, from
disease of the mind, as not to know the nature and quality of the act
he was doing; or, if he did know it, that he did not know he was doing
what was wrong.
The central issue of this definition may be stated as "did the defendant know
what he was doing, or, if so, that it was wrong?"
The rules are summarized as follows:

(a)
Presumption of sanity
Sanity is a rebuttable presumption and the burden of proof is on the party
denying it.
(b)
Disease of the mind
Whether a particular condition amounts to a disease of the mind within the
Rules is not a medical but a legal question to be decided in accordance with
the ordinary rules of interpretation. It seems that any disease which
produces a malfunctioning of the mind is a disease of the mind and need not
be a disease of the brain itself.
It seems then that any impairment on the functioning of the mind caused by
internal factors would result into a disease of the mind. Anything which
restricts supply of blood into the brain or in any way causes deterioration of
mental ability, or results in such confusion that the accuse dis not aware of
what they are doing qualifies to be a disease of the mind.
The term has been held to cover numerous conditions:
R v Kemp [1957] 1 QB 399
A devoted husband of previous good character made an entirely motiveless
and irrational violent attack upon his wife, during a blackout, with a hammer
causing her grievous bodily harm. The medical evidence showed that he
suffered from arterial-sclerosis, a condition which restricted the flow of blood
to the brain. This caused a temporary lapse of consciousness. Devlin J ruled
that for the purposes of the defence of insanity, no distinction was to be
drawn between diseases of the mind, and diseases of the body affecting the
operation of the mind. Also, it was irrelevant whether the condition of mind
was curable or incurable, transitory or permanent. The jury returned a
verdict of guilty but insane. Devlin J: The law is not concerned with the brain
but with the mind, in the sense that mind is ordinarily used, the mental
faculties of reason, memory and understanding.
R v Sullivan [1984] AC 156
The appellant kicked a man. At the time of the attack he was suffering from
epilepsy. The trial judge ruled that on the evidence the appropriate defence
was insanity not automatism. The appellant appealed. Held: The appeal was
dismissed. The trial judge was correct in only allowing insanity to be put for
the jury's consideration. Epilepsy was an internal condition and a disease of
the mind, and the fact that the state was transitory was irrelevant.
R v Hennessy [1989] 1 WLR 287
The defendant was charged with taking a motor car without authority and
driving while disqualified. He claimed that he was suffering from hyperglycaemia (high blood sugar level caused by diabetes) at the time because

he had not taken any insulin to stabilise his metabolism, nor eaten properly
for days, and as a result was acting unconsciously. He pleaded automatism
but the trial judge indicated that he would only be prepared to direct the jury
on the defence of insanity.
The Court of Appeal, in confirming the correctness of the trial judges ruling,
held that the defendant's loss of awareness had not resulted from the
operation of external factors upon his body, such as the injection of insulin
(as in R v Quick [1973]), but instead had resulted from an inherent physical
defect, ie diabetes. The hyper-glycaemia suffered by diabetics, which was
not corrected by insulin, was to be regarded as a disease of the body which
affected the mind for the purposes of the M'Naghten Rules.
R v Burgess [1991] 2 WLR 1206
The defendant visited a woman to watch a video in her flat. During the
course of the evening she fell asleep on the sofa. She was awoken by the
defendant smashing a bottle over her head. Before she could stop him he
had picked up the video recorder and brought it down on her head causing
cuts and bruises. At his trial the defendant adduced expert medical evidence
to the effect that he had been sleep-walking at the time of the attack and
that the defence of automatism should be put before the jury. The trial judge
ruled that the only defence the evidence revealed was that of insanity, and
the jury in due course found him not guilty by reason of insanity.
The Court of Appeal dismissed the defendant's appeal. Lord Lane CJ, We
accept that sleep is a normal condition, but the evidence in the instant case
indicates that sleepwalking, and particularly violence in sleep, is not normal.
(c)
Defect of Reason
The disease of the mind must have given rise to a defect of reason which
had one of two consequences: either
(a) the defendant did not know the nature and quality of his act, or
(b) he did not know his act was wrong.
The phrase defect of reason seems to mean that the powers of reasoning
must be impaired, not merely confusion or absentmindedness.
Incapacity to understand what one is doing
This phrase refers to the physical nature and quality of the act. It covers the
situation where the defendant does not know what he is physically doing.
E.g. A kills B under the insane delusion that he is breaking a jar or a madman
cuts a woman's throat under the idea that he was cutting a loaf of bread.
R v Clarke [1972] 1 All ER 219
The defendant, a diabetic, was charged with theft of items in a supermarket.
Her defence was that she had no intent to steal. There was evidence that she

had behaved absent-mindedly in the home. She said that she must have put
the items in her bag in a moment of absent-mindedness. Her doctor and a
consultant psychiatrist testified that she was suffering from depression,
which the consultant accepted to be a minor mental illness which could
produce absent-mindedness.
The trial judge was convinced that the defence was in truth a defence of
insanity. However, the Court of Appeal held that the MNaghten Rules do not
apply to those who retain the power of reasoning but who in moments of
confusion or absent-mindedness fail to use their powers to the full. She had
capacity to understand what she was doing.
Incapacity to know what one is doing is wrong
If the defendant knew what he was doing then he will still be insane if he did
not know that he was doing something legally wrong. The standard to be
used here is whether the accused knew that according to the ordinary
standard adopted by a reasonable man, the act was right or wrong, or that
the act was wrong in law.
R v Windle [1952] 2 QB 826
The defendant had killed his wife by administering an overdose of aspirins to
her. Medical evidence showed that although he was suffering from a mental
illness he knew that what he was doing was wrong, and amounted to a
crime; hence his remark to the police, at the time of arrest, "I suppose they
will hang me for this". The trial judge refused to allow the defence of insanity
to go to the jury on the ground that he had known his actions were unlawful.
This decision was upheld on appeal
(d)
Insane Delusions
This is an insane belief which cannot be eradicated from the persons mind
by reasoning with him. An accused suffering from such delusion must be
treated as being in the same position of responsibility as if the facts with
respect to which the delusion exists were real.
Judges were asked in M'Naghten's Case if a person could be excused if he
committed an offence in consequence of an insane delusion. They replied
that if he labours under such partial delusion only, and is not in other
respects insane, he must be considered in the same situation as to
responsibility as if the facts with respect to which the delusion exists were
real.
This rule emphasises that delusions, which do not prevent the defendant
from having mens rea, will afford no defence. A case often discussed is that
of a man who is under the insane delusion that he is obeying a divine
command. If the accused knows that his act is forbidden by law, it seems
clear he is liable.

R v Bell [1984] Crim LR 685

The defendant had been charged with reckless driving, having used a van to
smash through the entrance gates of a Butlins' holiday camp. When
interviewed he told the police: "It was like a secret society in there, I wanted
to do my bit against it". The defendant contended that he had not driven
recklessly because, although he knew there was a risk of his causing criminal
damage, he felt that he was able to cope with it because he was being
instructed to act by God. Following the rejection of his submission of "no
case" on this basis, he changed his plea to one of guilty.
The Court of Appeal held, dismissing the appeal that as the defendant had
been aware of his actions he could not have been in a state of automatism,
and the fact that he believed himself to be driven by God could not provide
an excuse, but merely an explanation for what he had done. In other words
he could not rely on the defence of insanity either because the evidence was
that he had known what he was doing, or had known that what he was doing
was illegal.
MISCALENEOUS MATTERS
Burden and standard of proof
The burden of proof is on the accused and the standard of proof is on a
balance of probabilities. If a court thinks it is more likely than not that the
accused is insane within the meaning of the Rules, then they are entitled to a
verdict in their favour.
The accused must therefore produce such a preponderance of evidence as to
show that he was most likely insane at the time of committing the offence.
The burden of proof is less than that of the prosecution.
When to raise?
It may be raised either during the prosecution case or during the defence
case. It can be raised either by the prosecution or defence. The defence may
raise it during the prosecution case by cross examining the prosecution
witnesses on it. If the prosecution or defence do not raise it, then the court
may raise it. If it is apparent during the prosecution case that the accused
may rely on insanity, and it s ascertained that no evidence shall be called to
support his plea, the prosecution may, before closing its case, call evidence
as to the state of mind of the accused.
The court may also on its own motion infer it from the facts presented in
court. Totally inexplicable behavior by accused may lead to such inference.
The accused is however under a duty to lead evidence during the defence
case on his state of mind in support of a plea of insanity. The prosecution

only calls such evidence if the accused does not intend to. court inferences
are rare.
The proper course is usually to plead the defence at the onset of trial.
Evidence required?
Insanity is a legal, not a medical fact. Though medical evidence is in most
cases the most credible, it is only considered alongside other evidence by
witnesses to arrive at the decision.
Failure to raise the defence during trial would bar the accused from raising it
during the appeal. Appellate courts hold such as being too late in the day
and raising it as an afterthought.
COURT FINDING
Upon successfully pleading and proving the defence, and if the prosecution
proves the actus reus of the offence the court must enter a finding of guilty
but insane- Section 166 of Criminal Procedure Code.
Such finding leads to a sentence of detention at the pleasure of the
president. Such is an infinite sentence i.e. not defined. Its thus a caution that
accused persons pleading this defence should only plead it in capital
offences as they may lead to an indefinite sentence.
The finding of guilty but insane is not a conviction but an acquittal as it
suggests no responsibility for the criminal act. The detention at pleasure of
president is not punitive but preventative. It is meant to guarantee the safety
and welfare of the accused. Therefore, no appeal lies upon the finding of
guilty but insane.
INSANITY AT TRIAL?
An insane person would be unable to understand and participate ina atrial or
even present his defence. Section 162 CPC provides that where it appears
the accused has mental disorder making him/her incapable of standing trial,
the court should make an enquiry as to his ability to fully understand, follow
and participate in the proceedinsg and conduct his defence.
If incapacity is proven, the proceedings should be adjourned to allow accused
seek treatment. In capital offences, such persons are remanded in custody
while they are granted bail in other cases. for the remandees, the case
records should be forwarded to the minister in charge of prisons for the
Presidents consideration. The President may order the accused to be
remanded at a mental hospital or other facility until it is certified that he is fit
to stand trial.

Upon being fit, a medical officer in the detention facility or one attending to
the patient should issue a certificate to that effect to the DPP. Such a
certificate should be forwarded to the DPP to facilitate prosecution. The DPP
should inform the court, which then causes the accused to be produced in
court for its assessment. The court evaluates medical evidence and its own
observation to arrive to a verdict on whether the accused is fit to stand trial.
ACTS INDEPENDENT OF WILL/ NON-INSANE AUTOMATISM
Exists where a person commits a crime in circumstances where their actions
can be said to be involuntary. This could be where for example an involuntary
natural reaction occurs such as sneezing or being chased by a swarm of
bees. A finding of non-insane automatism may also exist where the
defendant is not conscious of their actions due to an external factor often as
a result of medication.
Penal Code, Section 9(1).
9. (1) Subject to the express provisions of this Code relating to negligent acts
and omissions, a person is not criminally responsible for an act or omission
which occurs independently of the exercise of his will, or for an event which
occurs by accident.
(2) Unless the intention to cause a particular result is expressly declared to
be an element of the offence constituted, in whole or part, by an act or
omission, the result intended to be caused by an act or omission is
immaterial.
(3) Unless otherwise expressly declared, the motive by which a person is
induced to do or omit to do an act, or to form an intention, is immaterial so
far as regards criminal responsibility.
It mainly covers instances in which the accused was not in control of
movement of his muscles, especially due to external factors.
R v Quick [1973] 3 WLR 26 Court of Appeal
The appellant was a charge nurse in a hospital. He attacked one of his
patients whilst on duty. The patient was a paraplegic and suffered a fractured
nose, black eyes and bruising. The appellant was charged with assault
occasioning ABH under s.47 OAPA 1861. The appellant sought to raise the
defence of automatism as at the time of the attack he was hypoglycaemic, in
that he had taken too much insulin and eaten very little on the day in
question. In addition he had consumed alcohol before the attack. The trial
judge ruled that this gave rise not to automatism but insanity. The defendant
then changed his plea to guilty and appealed. Held: The appeal was allowed
and the conviction was quashed. His hypoglycaemia was caused not by his
diabetes but by the external factor of insulin. The Judge noted, In this case
Quick's alleged mental condition, if it ever existed, was not caused by his
diabetes but by his use of the insulin prescribed by his doctor. Such
malfunctioning of his mind as there was, was caused by an external factor

and not by a bodily disorder in the nature of a disease which disturbed the
working of his mind. It follows in our judgment that Quick was entitled to
have his defence of automatism left to the jury and that Mr. Justice Bridge's
ruling as to the effect of the medical evidence called by him was wrong. Had
the defence of automatism been left to the jury, a number of questions of
fact would have had to be answered. If he was in a confused mental
condition, was it due to a hypoglycaemic episode or to too much alcohol? If
the former, to what extent had he brought about his condition by not
following his doctor's instructions about taking regular meals? Did he know
that he was getting into a hypoglycaemic episode? If yes, why did he not use
the antidote of eating a lump of sugar as he had been advised to do? On the
evidence which was before the jury Quick might have had difficulty in
answering these questions in a manner which would have relieved him of
responsibility for his acts. We cannot say, however, with the requisite degree
of confidence, that the jury would have convicted him. It follows that his
conviction must be quashed on the ground that the verdict was
unsatisfactory.
R v Whoolley (Unreported)
The defendant lorry driver, was travelling on the M62 in a queue of slow
moving traffic. He suffered a sneezing fit, losing control of his vehicle he
knocked into the car in front. This car in turn knocked into the car in front
causing a domino effect involving 7 cars. The Magistrates allowed the
defence of automatism. The appeal court held that the Magistrates were
right to do so and that an attack of sneezing could amount to an involuntary
action for the purposes of the defence of non-insane automatism.
R v Bingham [1991] Crim LR 43
The appellant, a diabetic, was charged with theft of a can of coke and some
sandwiches. At the time of the offence he was suffering from hypoglycaemia
(low blood sugar level due to an excess of insulin) causing him to be absent
minded and lacking in full consciousness. He had 90 in his pocket at the
time. The trial judge wrongly held that this gave rise to the defence of
insanity. The appellant pleaded guilty and appealed the judges ruling. Held:
The appeal was allowed and the appellant's conviction was quashed. The
automatism was induced by an external factor of insulin rather than the
internal disease of diabetes. The correct defence therefore, was non-insane
automatism.
R v T [1990] Crim LR 256
T took part in a robbery and was charged with robbery and causing GBH. She
raised the defence of automatism since at the time of the offence she was in
a dissociative state, suffering from Post Traumatic Stress Disorder caused by
the external factor of rape. Held: The rape constituted an external factor and
therefore the non-insane automatism was open to the jury despite the fact

that Post Traumatic Stress Disorder is generally perceived as being a

condition of the mind.
INTOXICATION
THE LAW
This is covered in Section 13 Penal Code
13. (1) Save as provided in this section, intoxication shall not constitute
a defence to any criminal charge.
(2) Intoxication shall be a defence to any criminal charge if by reason
thereof the person charged at the time of the act or omission
complained of did not know that such act or omission was wrong or did
not know what he was doing and (a) the state of intoxication was caused without his consent by the
malicious or negligent act of another person; or
(b) the person charged was by reason of intoxication insane,
temporarily or otherwise, at the time of such act or omission.
(3) Where the defence under subsection (2) is established, then in a
case falling under paragraph (a) thereof the accused shall be
discharged, and in a case falling under paragraph (b) the provisions of
this Code and of the Criminal Procedure Code relating to insanity shall
apply.
(4) Intoxication shall be taken into account for the purpose of
determining whether the person charged had formed any intention,
specific or otherwise, in the absence of which he would not be guilty of
the offence.
(5) For the purpose of this section, intoxication includes a state
produced by narcotics or drugs.
Alcohol and narcotic drugs have the effect of removing inhibitions, exposing
the person to aggression, violence and other resultant breaches of the law. It
is obviously not in the public interest for criminals to escape liability simply
by asserting they were so drunk they did not know what they were doing.
This is often seen as an aggravating factor rather than a mitigating factor,
particularly where the defendant put himself in that position.
There is need to strike balance between two issues: imposing criminal
liability on a party who did not have the mental element of the crime and on
the other hand, protecting the public from those who deliberately put
themselves in a position where they are unable to control their actions. For
this reason the law draws a distinction between voluntary intoxication and
involuntary intoxication. The law is generally more accomodating to those
who have not voluntarily put themselves into an intoxicated state.
Kenyan law seems to provide for three forms of intoxication
i)
General involuntary intoxication
ii)
Intoxication leading t insanity

iii)

Intoxication negativing mens rea.

i)
Involuntary Intoxication
The most obvious example of involuntary intoxication is where a person has
had their food or drink spiked without their knowledge. However, it may also
cover where a particular drug has an unexpected result to that anticipated:
R v Hardie [1985] 1 WLR 64 Court of Appeal
The defendant set light to a wardrobe after consuming some out of date
valium tablets which had been prescribed to his partner. He took the valium
tablets as he was feeling stressed as his partner had asked him to leave their
home. He was charged with arson at his trial he stated that he remembered
nothing of starting the fire due to his intoxicated state but accepted that he
must have started it as he was the only one in the room when it started. The
trial judge directed the jury that as the defendant had voluntarily consumed
the valium, his intoxication could be no defence to the crime committed. The
defendant appealed. Held: The appeal was allowed. Parker LJ: In the present
instance the defence was that the Valium was taken for the purpose of
calming the nerves only, that it was old stock and that the Appellant was told
it would do him no harm. There was no evidence that it was known to the
Appellant or even generally known that the taking of Valium in the quantity
taken would be liable to render a person aggressive or incapable of
appreciating risks to others or have other side effects such that its selfadministration would itself have an element of recklessness. It is true that
Valium is a drug and it is true that it was taken deliberately and not taken on
medical prescription, but the drug is, in our view, wholly different in kind
from drugs which are liable to cause unpredictability or aggressiveness. It
may well be that the taking of a sedative or soporific drug will, in certain
circumstances, be no answer, for example in a case of reckless driving, but if
the effect of a drug is merely soporific or sedative the taking of it, even in
some excessive quantity, cannot in the ordinary way raise a conclusive
presumption against the admission of proof of intoxication for the purpose of
disproving mens rea in ordinary crimes, such as would be the case with
alcoholic intoxication or incapacity or automatism resulting from the selfadministration of dangerous drugs.
This form of intoxication is described in section 13(2)(a), where, if one is
involuntarily intoxicated and it ends up making him either:
Not know what he is doing
Not know that such act or omission is wrong
Then, as per section 13(3), the accused should be discharged.
ii)
Intoxication Amounting To Insanity
If the intoxication leads to insanity, as defined in section 13(2)(b), then the
defence to raise is insanity and is governed by the principles of insanity

explained above. The danger of this defence as pointed out earlier is

detention at the pleasure of the President which is indefinite.
iii)
Intoxication Negativing Mens Rea
Section 13(4) further defines this intoxication as one which makes the person
charged not to have formed any intention to commit an offence, specific or
otherwise. Whether intoxication incapacitates the accused from the requisite
mens rea is inferred by the court from the facts presented.
Buzoya & Another v R [1975] EA 215
One of the appellants, while extremely drunk had grabbed a woman and
attempted to sexually assault her. The woman raised alarm, and when the
deceased came to answer her cries, the other appellant hit her on the head
with a pounding stick. She bled to death. The appellants were too drunk to
notice and continued drinking, remaining at the scene of crime, in the same
room with the body, all night. The court inferred that their actions of
remaining at the scene were inconsistent with persons aware of their guilt
and the intoxication had made them not the second appellant not be in a
position to form an intention to kill when he struck the stick. The first
appellant was set free and the second appellant convicted of the lesser
offence of manslaughter.
In this kind of intoxication, the court does not only look at intoxication alone,
but other factors including: absence of quarrel, lack of provocation, aimless
actions and possession and use of weapon. The posession and use of weapon
helps the court assess whether despite drunkenness, had malice
aforethought at the time of the killing.
DUTCH COURAGE INTOXICATION
Where a person deliberately gets himself intoxicated to give himself "Dutch
Courage" to commit a crime, his intoxication will not be a defence even to
crimes that can only be committed with a specific intention. He is to be
"blamed" to the same extent as the person who intentionally commits a
crime.
A-G for N. Ireland v Gallagher [1963] AC 349
The defendant decided to kill his wife. He bought a knife and a bottle of
whisky which he drank to give himself "Dutch Courage". Then he killed her
with the knife. He subsequently claimed that he was so drunk that he did not
know what he was doing, or possibly even that the drink had brought on a
latent psychopathic state so that he was insane at the time of the killing. The
House of Lords held that intoxication could not be a defence in either case as
the intent had been clearly formed, albeit before the killing took place. Lord
Denning, If a man, whilst sane and sober, forms an intention to kill and
makes preparation for it, knowing it is a wrong thing to do, and then gets
himself drunk so as to give himself Dutch courage to do the killing, and

whilst drunk carries out his intention, he cannot rely on his self-induced
drunkenness as a defence to a charge of murder, not even as reducing it to
manslaughter. He cannot say that he got himself into such a stupid state that
he was incapable of an intent to kill. So also when he is a psychopath, he
cannot by drinking rely on his self-induced defect of reason as a defence of
insanity. The wickedness of his mind before he got drunk is enough to
condemn him, coupled with the act which he intended to do and did do.
Stephen Maina Macharia v Republic CACRA No 14 of 1983
The appellant earlier in the day while sober gave instructions for sharpening
of a panga and fitting it with a handle. He then later came home heavily
drunk and used the panga to kill the wife. He was convicted of murder but
appealed, pleading drunkennness. The court held that his acts prior to the
killing point at pre-meditation and he only rook alcohol to arm himself with
dutch
courage
necessary
to
commit
the
offence.
BURDEN & STANDARD OF PROOF
The burden rests on the defendant to provide some evidence of intoxication
which can be put before the jury; the onus will then be on the prosecution to
establish beyond all reasonable doubt, that despite such evidence, the
defendant still had the necessary mens rea. The key question to be asked
was, taking into account the defendant's intoxicated state, did he form the
necessary specific intent?
EFFECT
a. The effect of a defendant successfully relying on the defence will be to
reduce his liability to the lesser included basic intent crime. For
example, in the case of murder, the defendant's liability will be reduced to
that of the lesser included basic intent crime of manslaughter. Similarly
assault causing GBH is reduced to simple assault.
b. Where there is no lesser included offence however, the defendant
should be completely acquitted, as would be the case with theft, burglary
with intent to steal, and obtaining property by deception.
PROVOCATION
It only a partial defence applying only to murder. In manslaughter and other
offences its only treated as a mitigating circumstance. It is a partial defence
only capable of reducing a murder charge to a manslaughter charge.
Sections 207 and 208 penal code
207. When a person who unlawfully kills another under circumstances
which, but for the provisions of this section, would constitute murder,
does the act which causes death in the heat of passion caused by
sudden provocation as hereinafter defined, and before there is time for
his passion to cool, is guilty of manslaughter only.

208. (1) The term provocation means and includes, except as

hereinafter stated, any wrongful act or insult of such a nature as to be
likely, when done to an ordinary person or in the presence of an
ordinary person to another person who is under his immediate care, or
to whom he stands in a conjugal, parental, filial or fraternal relation, or
in the relation of master or servant, to deprive him of the power of selfcontrol and to induce him to commit an assault of the kind which the
person charged committed upon the person by whom the act or insult
is done or offered.
(2) When such an act or insult is done or offered by one person to
another, or in the presence of another to a person who is under the
immediate care of that other, or to whom the latter stands in any such
relation as aforesaid, the former is said to give to the latter provocation
for an assault.
(3) A lawful act is not provocation to any person for an assault.
(4) An act which a person does in consequence of incitement given by
another person in order to induce him to do the act and thereby to
furnish an excuse for committing an assault is not provocation to that
other person for an assault.
(5) An arrest which is unlawful is not necessarily provocation for an
assault, but it may be evidence of provocation to a person who knows
of the illegality.
Once legal provocation is established, the murder charge automatically
reduces into manslaughter charge. The following elements must be proved:
Heat of passion: One must prove that the killing was done in a heat of
passion, affording no time to cool down.
Provision must be sudden
The provocative act must be in prescience of accused or close relative
Provocation should consist of an unlawful/wrongful act
The provocation should lead to loss of self control
There action leading to the offence should be in retaliation to the
provocation.