Under law, every man is presumed to be sane and assumed to possess a sufficient degree of reason to be responsible for his acts unless the contrary is proved. Every person is presumed to know the natural consequences of his act. Similarly, every person is also presumed to know the law. The prosecution does not have to establish these facts.
On 6th March 1843, there was a discussion in the House of Lords, and Lord Chancellor put five questions to a panel of His Majesty's judges. The five questions were replied on 19th June 1843, and they were construed as McNaughton's rules. The following are the main points of McNaughton's rules:
1.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.
2.An insane person is punishable “if he knows” at the time of crime that what he is doing is either wrong or contrary to law.
3.To establish a defense on insanity, the accused, by defect of reason or disease of mind, is not in a position to know the nature and consequences. If accused was conscious of the act which is one he ought not to do and act at the same time is contrary to law of the land , he is punishable. The test is not in regard to the abstract , but in regard to act committed in particular circumstances with respect to accused's power of reasoning to differentiate between right and wrong.
4.The insane person must be considered in the same situation as to responsibility as if the facts with respect to which the delusion exists were real. He will be under same degree of responsibility as the facts he imagined them to be. Suppose a man due to unsoundness of mind hallucinates about a state of affair where he thinks that another man is trying to attack him . Consequently , due to such hallucination he kills the person in self defence, he will be under same degree of responsibility .
5.It was the jury's role to decide whether the defendant was insane.
McNaughton's rules stressed on “understandability of right and wrong” and “intellectual” rather than a moral or affective definition dominated in its formulation. Lack of control and irresistible drives or impulses were neglected. In essence, it was the “test of knowing” or “test of right and wrong.” If McNaughton's rules had been applied to McNaughton at the time of trial, he could not have been found guilty on the grounds of insanity.
To add to mc naughten rules there are other points which are used to consider the position :
1.The relevant point of time to decide the unsoundness of mind is "at the time of doing the act" , to determine that , the conduct of the accused both before and after the crime can be considered.
2.History of Insanity including medical history can be taken into account.
3. Absence of motive , secrecy , accomplices , arrangement etc are relevant . Its legal insanity which is within the ambit of section 84 , hence , partial delusion , uncontrolled impulses are no defences under section 84.
Section 84 IPC embodies McNaughton rules as follows: “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 the law.”
There are four kinds of persons who may be said to be non compos mentis (not of sound mind), i.e., (1) an idiot; (2) one made non compos by illness (3) a lunatic or a mad man and (4.) one who is drunk. An idiot is one who is of non-sane memory from his birth, by a perpetual infirmity, without lucid intervals; and those are said to be idiots who cannot count twenty, or tell the days of the week, or who do not know their fathers or mothers, or the like, (See Archbold's Criminal Pleadings, Evidence and Practice, 35th Edn. pp.31-32; Russell on Crimes and Misdemeanors, 12th Edn. Vol., p.105; 1 Hala's Pleas of the Grown 34). A person made non compos men-us by illness is excused in criminal cases from such acts as are- committed while under the influence of his disorder, (See 1 Hale PC 30). A lunatic is one who is afflicted by mental disorder only at certain periods and vicissitudes, having intervals of reason, (See Russell, 12 Edn. Vol. 1, p. 103; Hale PC 31). Madness is permanent. Lunacy and madness are spoken of as acquired insanity, and idiocy as natural insanity.
Section 84 embodies the fundamental maxim of criminal law, i.e., actus non reum facit nisi mens sit rea" (an act does not constitute guilt unless done with a guilty intention). In order to constitute an offence, the intent and act must concur; but in the case of insane persons, no culpability is fastened on them as they have no free will (furios is nulla voluntas est).
Supreme Court of India
Bapu @ Gajraj Singh vs State Of Rajasthan on 4 June, 2007
Behaviour, antecedent, attendant and subsequent to the event, may be relevant in finding the mental condition of the accused at the time of the event, but not that remote in time. It is difficult to prove the precise state of the offender's mind at the time of the commission of the offence, but some indication thereof is often furnished by the conduct of the offender while committing it or immediately after the commission of the offence. A lucid interval of an insane person is not merely a cessation of the violent symptoms of the disorder, but a restoration of the faculties of the mind sufficiently to enable the person soundly to judge the act; but the expression does not necessarily mean complete or prefect restoration of the mental faculties to their original condition. So, if there is such a restoration, the person concerned can do the act with such reason, memory and judgment as to make it a legal act ; but merely a cessation of the violent symptoms of the disorder is not sufficient.he standard to be applied is whether according to the ordinary standard, adopted by reasonable men, the act was right or wrong. The mere fact that an accused is conceited, odd irascible and his brain is not quite all right, or that the physical and mental ailments from which he suffered had rendered his intellect weak and had affected his emotions and will, or that he had committed certain unusual acts, in the past or that he was liable to recurring fits of insanity at short intervals, or that he was subject to getting epileptic fits but there was nothing abnormal in his behaviour, or that his behaviour was queer, cannot be sufficient to attract the application of this section.
In insanity defense, there are two aspects of proving an offense, which are as follows:
Commission of crime and
Insanity defense.
The burden of proving the commission of an offense is always on the prosecution, and that never shifts. The prosecution has to prove the same beyond a reasonable doubt. However, the onus of proving the existence of circumstances (Section 84 IPC) for insanity defense would be on the accused (Section 105 of the Evidence Act) and the court shall presume the absence of such circumstances. The accused has to prove by placing material before the court such as expert evidence, oral and other documentary evidence, presumptions, admissions or even the prosecution evidence, satisfying that he was incapable of knowing the nature of the act or of knowing that what he was doing was either wrong or contrary to law.
INTRODUCTION
The concept of responsibility connects with our most fundamental convictions about human nature and dignity and everyday experience of guilt and innocence and blame and punishment. Punishing a person, who is not responsible for the crime, is a violation of the basic human rights and fundamental rights under the Constitution of India. It also brings the due process of law, if that person is not in a position to defend himself in the court of law, evoking the principle of natural justice.The affirmative defense of legal insanity applies to this fundamental principle by excusing those mentally disordered offenders whose disorder deprived them of rational understanding of their conduct at the time of the crime. Hence, it is generally admitted that incapacity to commit crimes exempts the individual from punishment. This is recognized by the legislation of most of the civilized nations. Even in India, Section 84 of Indian Penal Code (IPC) deals with the “act of a person of unsound mind” and discusses insanity defense. However, in the recent past some of the U.S. states (such as Montana, Idaho, Kansas, and Utah) have banned insanity defense. This issue has raised a serious debate among medical, psychology and law professionals across the world.
Very little research has been done on this topic in India, however, there are few studies on exploring the clinical picture of the patients in prison. A landmark study in the forensic psychiatry of Indian setting occurred in 2011, in which 5024 prisoners were assessed on semi-structured interview schedule reported that 4002 (79.6%) individuals could be diagnosed as having a diagnosis of either mental illness or substance use. After excluding substance abuse, 1389 (27.6%) prisoners still had a diagnosable mental disorder. Another study from India portray a very gloomy picture of patients in forensic psychiatry settings and advocate for there is a need to streamline the procedure of referral, diagnosis, treatment, and certification.To address this issue of streamlining the process of evaluation of insanity defense and certification, this article focuses on semi-structured assessment in the Indian context based on landmark Supreme Court decisions. In addition, it will also present a model for evaluating a defendant's mental status examination and briefly discuss the legal standards and procedures for the assessment of insanity defense evaluations.
Terms such as “insanity” and “unsoundness of mind” are legal concepts and are used frequently in the court of law. Though the Mental Health Act, 1987 has clearly recommended the abolition of various offensive terminologies, unfortunately, these terminologies continue to exist in various legislations, rules, regulations, and also even recent case laws.
HISTORICAL PERSPECTIVE OF INSANITY IN INDIA
Insanity defense has been in existence since many centuries; however, it took a legal position only since the last three centuries. There were various tests used to declare a person legally insane such as Wild Beast test, The Insane Delusion test, and “test of capacity to distinguish between right and wrong.”These three tests laid the foundation for the landmark Mc Naughten rule.
In 1843, Daniel Mc Naughten, a wood-turner from Glasgow, shot and killed Edward Drummond mistaking him for Sir Robert Peel. Mc Naughten believed that he was persecuted by the Tories, and evidence was brought to show that he had been totally deluded on this subject for some time. His state of mind was apparent from the outset when he had to be coaxed, and finally tricked, into pleading “not guilty.” After hearing seven medical witnesses testify that he was completely insane, the judge stopped the trial, the jury brought in the special verdict without summing up and without retiring, and Mc Naughten was forcibly committed to the Bethlem Hospital. Immediately thereafter, five propositions were drawn which were called Mc Naughten rules.
This Mc Naughten rule became a legendary precedent for the law concerning the defense of insanity. Even, in India, insanity defense law, Section 84 IPC is solely based on the Mc Naughten rules. Since it is drafted, no changes have been made. However, in 1971, there was an attempt by the Law Commission of India to revisit the Section 84 in their 42nd report, but no changes were made.
Section 84 of IPC deals with the “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.”
On analysis of the Section 84 IPC, the following essential ingredients can be listed. For the sake of easy understanding, the Section 84 IPC can be divided into two broad categories of, major criteria (medical requirement of mental illness) and minor criteria (loss of reasoning requirement). Major criteria (mental illness requirement) mean the person must be suffering from mental illness during the commission of act. Minor criteria (loss of reasoning requirement) mean the person is:
Incapable of knowing the nature of the act or
Incapable of knowing his act is wrong or
Incapable of knowing it is contrary to law.
Both major (mental illness) and minor (loss of reasoning) criteria constitute legal insanity.
Section 84 IPC, clearly embodies a fundamental maxim of criminal jurisprudence that is, (a) “Actus nonfacit reum nisi mens sit rea” (an act does not constitute guilt unless done with a guilty intention) and (b) “Furiosi nulla voluntas est” (a person with mental illness has no free will).[16] This means that an act does not constitute a crime unless it is done with a guilty intention called “mens rea.” Hence, Section 84 IPC fastens no culpability on persons with mental illness because they can have no rational thinking or the necessary guilty intent.
Modern criminal law is based on the belief that humans are morally responsible and not harm causing agents. To be held criminally responsible, two essential elements have to be proven, beyond reasonable doubt, (a) the person committed the act (actus reus) (b) in doing so, the person acted with his or her own free will, intentionally and for rational reasons (mens rea).
Psychiatrists may be asked to assist the court in determining whether certain mental disorders affected a person's ability to form the intent necessary to make that person legally culpable.
Medical insanity versus legal insanity
Section 84 lays down the legal test of responsibility in cases of alleged crime done by a person with mental illness. There is no definition of “unsoundness of mind” in the IPC. The courts have, however, mainly treated this expression as equivalent to insanity. But the term “insanity” itself has no precise definition, carries different meaning in different contexts and describes varying degrees of mental disorders. Every person who is mentally ill is not ipso facto exempted from criminal responsibility. A distinction is to be made between legal insanity and medical insanity. A court is concerned with legal insanity, and not with medical insanity. Any person, who is suffering from any kind of mental illness is called “medical insanity,” however “legal insanity” means, person suffering from mental illness should also have a loss of reasoning power. The term legal insanity also refers to the “mental state” of a person at the time of committing crime and nothing else. This is purely a legal concept and is unrelated to the various psychiatric diagnoses.
In simple words, legal insanity means, at the time of the commission of the act, the person should be suffering from mental illness and also have a loss of reasoning power. This issue is clearly depicted in Section 84 IPC as that person incapable of knowing:
The nature of the act, or
That he is doing what is either wrong or
Contrary to law.
Mere abnormality of mind or partial delusion, irresistible impulse or compulsive behavior of a psychopath affords no protection under Section 84 IPC.
In one of the landmark decisions, in the case of Surendra Mishra V. state of Jharkhand,the Apex Court has stated that an accused who seeks exoneration from liability of an act under Section 84 of the IPC is to prove legal insanity and not medical insanity. Further, it also said that expression “unsoundness of mind” has not been defined in the IPC, and it has mainly been treated as equivalent to insanity. But 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. The mere fact that the accused is conceited, odd, irascible, and his brain is not quite all right, or that the physical and mental ailments from which he suffered had rendered his intellect weak and affected his emotions or indulges in certain unusual acts, or had fits of insanity at short intervals or that he was subject to epileptic fits and there was abnormal behavior or the behavior is queer are not sufficient to attract the application of Section 84 of the IPC.
The Apex Court in its judgment reported that though accused suffered from certain mental instability of mind even before and after the incident but from that one cannot infer on a balance of preponderance of probabilities that the appellant at the time of the commission of the offense did not know the nature of his act; that it was either wrong or contrary to law, hence rejected insanity defense. In a similar case, despite having a medical history of insanity proved by evidence in court, the court convicted the accused based on his subsequent conduct viz., his act of concealing the weapon, bolting the door to prevent arrest and absconding thereafter as the said acts were held by the court to be a display of consciousness of the guilt.
The crucial point of time for determining the state of mind of the accused is the time when the offense was committed. The person suffering from mental illness is one of the facts for Section 84 IPC. However, other facts which 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. To summarize, it is not only the fact that the person is suffering from mental illness but it is the totality of the circumstances seen in the light of the evidence on record to prove that the person was also unable to appreciate the nature of the act or wrongdoing or that it was contrary to the law is appreciated in the court of law for insanity defense.
Burden of proof in insanity defense
Under law, every man is presumed to be sane and assumed to possess a sufficient degree of reason to be responsible for his acts unless the contrary is proved.Every person is presumed to know the natural consequences of his act. Similarly, every person is also presumed to know the law. The prosecution does not have to establish these facts.
In insanity defense, there are two aspects of proving an offense, which are as follows:
Commission of crime and
Insanity defense.
The burden of proving the commission of an offense is always on the prosecution, and that never shifts. The prosecution has to prove the same beyond a reasonable doubt. However, the onus of proving the existence of circumstances (Section 84 IPC) for insanity defense would be on the accused (Section 105 of the Evidence Act) and the court shall presume the absence of such circumstances. The accused has to prove by placing material before the court such as expert evidence, oral and other documentary evidence, presumptions, admissions or even the prosecution evidence, satisfying that he was incapable of knowing the nature of the act or of knowing that what he was doing was either wrong or contrary to law.[The Supreme Court have ascertained that the crucial point of time at which unsoundness of mind should be established is the time when the crime is actually committed and the burden of proving this, lies on the appellant for claiming the benefit of the Section 84 provision.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.
Motivation for a crime
Mere absence of motive for a crime and howsoever atrocious the crime may be, in the absence of plea and proof of legal insanity, cannot bring the case within the ambit of Section 84 IPC.Also the fact that the accused made no attempt to run away from the crime scene, would not indicate that he was insane or, that he did not have the necessary mens rea for the commission of the offense. Further, the Supreme Court have clearly stated that the mere abnormality of mind or partial delusion, irresistible impulse or compulsive behavior of a psychopath affords no protection under Section 84 IPC.
Plea of insanity
The onus of proving unsoundness of mind is on the accused, hence the plea of insanity should be taken by the accused or by his lawyer or his family members or previous history of insanity is revealed, it is the duty of an honest investigating officer to subject the accused to a medical examination and place that evidence before the court and if this is not done, it creates a serious infirmity in the prosecution case and the benefit of doubt has to be given to the accused.[19] Hence, the plea of insanity should be taken during the investigation or during the trial in the lower court not during the appeal to the higher court.
To summarize, the concept of insanity defense is a legal one and not a medical one. Although a psychiatrist's opinion is taken into account ultimately the decision to accept or reject the defense lays with the court the world over. Based upon the reasoning power of the defendant during the circumstances of the crime .
In Halsbury's Laws of England, 3rd edn., Vol. 10, at p. 288, it is stated thus: "The onus of establishing insanity is on the accused. The burden of proof upon him is no higher than which rests upon a party to civil proceedings."
Glanville Williams in his book 'Criminal Law", The General Part, 2nd Edn., places the relevant aspect in the correct perspective thus, at p. 516:
"As stated before, to find that the accused did not know the nature and quality of his act is, in part, only another way of finding that he was ignorant as to some fact constituting an ingredient of the crime; and if the crime is one requiring intention or recklessness he must, on the view advanced in this book, be innocent of mens rea. Since the persuasive burden of proof of mens rea is on the prose- cution, on question of defence, or of disease of the mind, arises, except in so far as the prisoner is called upon for his own safety to neutralise the evidence of the prosecution. No persuasive burden of proof rests on him, and if the jury are uncertain whether the allegation of mens rea is made out ............ the benefit of the doubt must be given to the prisoner, for, in the words of Lord Reading in another context, "the Crown would then have failed to discharge the burden imposed on it by our law of satisfying the jury beyond reasonable doubt of the guilt of the prisoner."
A Scottish case, H.M. Advocate v. Fraser(4), noticed in Glanville Williams' "Criminal Law", The General Part, 2nd Edn., at p. 517, pinpoints the distinction between these two categories of burden of proof. There, a man killed his baby while he was asleep; he was dreaming that he was struggling with a wild beast. The learned author elaborates the problem thus:
"When the Crown proved that the accused had killed his baby what may be called an evidential presumption or presumption of fact arose that the killing was murder. Had no evidence been adduced for the defence the jury could have convicted of murder, and their verdict would have been upheld on appeal. The burden of adducing evidence of the delusion therefore lay on the accused. Suppose that, when all the evidence was in, the jury did not know what to make of the matter. They might suspect the accused to be inventing a tale to cover his guilt, and yet not be reasonably certain about it. In that event the accused would be entitled to an acquittal. The prosecution must prove beyond reasonable doubt not only the actus reus but the mens rea. "
When a plea of legal insanity is set up, the court has to consider whether at the time of commission of the offence the accused, by reason of unsoundness of mind, was incapable of knowing the nature of the act or that he was doing what was either wrong or contrary to law. The crucial point of time for ascertaining the state of mind of the accused is the time when the offence was committed. Whether the accused was in such a state of mind as to be entitled to the benefit of s. 84 of the Indian Penal Code can only be established from the circumstances which preceded, attended and followed the crime.
To establish that the acts done are not offences under Section 84 of the Indian Penal Code, if must be proved clearly that, at the time of the commission of the acts, the appellant, by reason of unsoundness of mind, was incapable of either knowing the nature of the act or that the acts were either morally wrong or contrary to law. The question to be asked is, is there evidence to show that, at the time of the commission of the offences, he was labouring under any such incapacity ? On this question, the state of his mind before or after the commission of the offence in relevant. The general burden of proof that an accused person is in a sound state of mind is upon the prosecution. In Dahuabhai Chhaganbhai Thakkar v. The State of Gujarat (1), Subba Rao, J., as he then was, speaking for the Court said :
(1) The prosecution must prove beyond reasonable doubt that the accused had committed the offence with the requisite mens rea and the burden of proving that always rests on the prosecution from the beginning to the end of the trial.
(2) There is a rebuttable presumption that the accused was not insane, when he committed the crime, in the sense laid down by Section 84 of the Indian Penal Code : the accused may rebut it by placing before the Court all the relevant evidence-oral, documentary or circumstantial, but the burden of proof upon him is no higher than that rests upon a party to civil proceedings.
(3) Even if the accused was not able to establish conclusively that he was insane at the time he committed the offence, the evidence placed before the Court by the accused or by the prosecution may raise a reasonable doubt in the mind of the Court as regards one or more of the ingredients of the offence, 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.
Sheralli Wali Mohammed v. The State of Maharashtra [(1973) 4 SCC 79]however, mere fact that the appellant did not make any attempt to run away or that he committed the crime in day light and did not try to hide it or that motive to kill his wife was very weak, would not indicate that at the time of commission of the act the appellant was suffering from unsoundness of mind or he did not have requisite mens rea for the commission of the offence. It is correct that these facts itself would not indicate insanity.
Section 84 of the IPC carves out an exception, that an act will not be an offence, if done by a person, who at the time of doing the same, by reason of unsoundness of mind, is incapable of knowing the nature of the act, or what he is doing is either wrong or contrary to law. But this onus on the accused, under Section 105 of the Evidence Act is not as stringent as on the prosecution to be established beyond all reasonable doubts. The accused has only to establish his defence on a preponderance of probability, as observed in Surendra Mishra vs. State of Jharkhand, (2011) 11 SCC 495, after which the onus shall shift on the prosecution to establish the inapplicability of the exception. But, it is not every and any plea of unsoundness of mind that will suffice. The standard of test to be applied shall be of legal insanity and not medical insanity, as observed in State of Rajasthan vs. Shera Ram, (2012) 1 SCC 602, as follows:
"19. ... Once, a person is found to be suffering from mental disorder or mental deficiency, which takes within its ambit hallucinations, dementia, loss of memory and self-control, at all relevant times by way of appropriate documentary and oral evidence, the person concerned would be entitled to seek resort to the general exceptions from criminal liability."
The crucial point of time for considering the defence plea of unsoundness of mind has to be with regard to the mental state of the accused at the time the offence was committed collated from evidence of conduct which preceded, attended and followed the crime as observed in Ratan Lal vs. State of Madhya Pradesh, (1970) 3 SCC 533, as follows:
"2. It is now well-settled that the crucial point of time at which unsoundness of mind should be established is the time when the crime is actually committed and the burden of proving this lies on the accused. In D.G.Thakker v. State of Gujarat it was laid down that "there is a rebuttable presumption that the accused was not insane, when he committed the crime, in the sense laid down by Section 84 of the India Penal Code, the accused may rebut it by placing before the Court all the relevant evidence - oral, documentary or circumstantial, but the burden of proof upon him is no higher than that which rests upon a party to civil proceedings.".
If from the materials placed on record, a reasonable doubt is created in the mind of the Court with regard to the mental condition of the accused at the time of occurrence, he shall be entitled to the benefit of the reasonable doubt and consequent acquittal, as observed in Vijayee Singh v. State of U.P., (1990) 3 SCC 190.”
Under IPC, Section 84 recognizes the plea of legal insanity as a defence against criminal prosecution. [refer Surendra Mishra v. State of Jharkhand, (2011) 3 SCC (Cri.) 232]. This defence is restricted in its application and is made relatable to the moment when the crime is committed. Therefore, Section 84 of IPC relates to the mens rea at the time of commission of the crime, whereas the plea of postconviction mental illness is based on appreciation of punishment and right to dignity. [refer Amrit Bhushan Gupta v. Union of India, AIR 1977 SC 608] The different normative standards underpinning the above consequently mean different threshold standards as well.
Accused X vs The State Of Maharashtra on 12 April, 2019
‘Severe Mental Illness’ under the ‘International Classification of Diseases (ICD)’, which is accepted under Section 3 of the Mental Health Care Act, 2017, generally include
1. schizophrenic and delusional disorders
2. mood (affective) disorders, including depressive, manic and bipolar forms
3. neuroses, including phobic, panic and obsessive– compulsive disorders
4. behavioural disorders, including eating, sleep and stress disorders
5. personality disorders of different kinds.
American Bar Association, by its Resolution 122A passed on August 2006, notes as under
(a) Grounds for Precluding Execution. A sentence of death should not be carried out if the prisoner has a mental disorder or disability that significantly impairs his or her capacity (i) to make a rational decision to forgo or terminate postconviction proceedings available to challenge the validity of the conviction or sentence; (ii) to understand or communicate pertinent information, or otherwise assist counsel, in relation to specific claims bearing on the validity of the conviction or sentence that cannot be fairly resolved without the prisoner's participation; or (iii) to understand the nature and purpose of the punishment, or to appreciate the reason for its imposition in the prisoner's own case.
In line with the above discussion, we note that there appear to be no set disorders/disabilities for evaluating the ‘severe mental illness’, however a ‘test of severity’ can be a guiding factor for recognizing those mental illness which qualify for an exemption. Therefore, the test envisaged herein predicates that the offender needs to have a severe mental illness or disability, which simply means that a medical professional would objectively consider the illness to be most serious so that he cannot understand or comprehend the nature and purpose behind the imposition of such punishment. These disorders generally include schizophrenia, other serious psychotic disorders, and dissociative disorders with schizophrenia.
" Following directions need to be followed in the future cases in light of the above discussion a. That the postconviction severe mental illness will be a mitigating factor that the appellate Court, in appropriate cases, needs to consider while sentencing an accused to death penalty.
b. The assessment of such disability should be conducted by a multidisciplinary team of qualified professionals (experienced medical practitioners, criminologists etc), including professional with expertise in accused’s particular mental illness.
c. The burden is on the accused to prove by a preponderance of clear evidence that he is suffering with severe mental illness. The accused has to demonstrate active, residual or prodromal symptoms, that the severe mental disability was manifesting.
d. The State may offer evidence to rebut such claim.
e. Court in appropriate cases could setup a panel to submit an expert report.
f. ‘Test of severity’ envisaged herein predicates that the offender needs to have a severe mental illness or disability, which simply means that objectively the illness needs to be most serious that the accused cannot understand or comprehend the nature and purpose behind the imposition of such punishment."
There are certain principles to be borne in mind before applying Section 84 IPC and they are as follows:-
(a) every type of insanity is not legal insanity; the cognitive faculty must be so destroyed as to render one incapable of knowing the nature of his act or that what he is doing is wrong or contrary to law;
(b) the Court shall presume the absence of such insanity'
(c) the burden of proof of legal insanity is on the accused though it is not as heavy as on the prosecution to prove an offence;
(d) the Court must consider whether the accused suffered from legal insanity at the time when the offence was committed;
(e) in reaching such a conclusion, the circumstances which preceded, attended or followed the crime are relevant consideration; and
(f) the prosecution in discharging its burden in the face of the plea of legal insanity has merely to prove the basic fact and rely upon the normal presumption of law that everyone knows the law and the natural consequences of his act.
There are four kinds of persons, who may be said to be non compos mentis (not of sound mind):
(i) an idiot;
(ii) one made non compos by illness;
(iii) a lunatic or madman; and
(iv) a drunkard i.e. one who is drunk.
The disease "schizophrenia" has been defined in the Medical Dictionary for Lawyers by Bernard S. Maloy (third edition) in the following manner:-
"schizophrenia" (Gr. schizein, to divide + phren, mind). Dementia praecox, or adolescent insanity, an affection marked by melancholia and self-absorption, terminating in mental weakness."
Schizophrenia has been defined in Livingstone's Medical Dictionary as a group of mental illness characterised by disorganisation of the patient's personality, often resulting in chronic life long ill-health and hospitalization. In its simple form the patient is dull, withdrawn, solitary and inactive.
Schizophrenia is one of the forms of insanity.
Each case of schizophrenia has to be considered on its own merits. It is an illness of slow insidious onset developing over years. There may be report of strange, odd inappropriate behaviour.
It is also useful to extract the definition of Paranoid Schizophrenia, Paranoia and Paraphrenia given in Medical Jurisprudence and Toxicology by Justice K.Kannan in page No.898 hereunder:
“Paranoia is now regarded as a mild form of paranoid schizophrenia. It occurs more in males than females. The main characteristic of his illness is a well-elaborated delusional system in a personality that is otherwise well preserved. The delusions are of a persecutory type. The true nature of the illness may go unrecognised for a long time because the personality is well preserved, and some of these paranoiacs may pass off as social reformers or founders of queer pseudoreligious sects. The classical picture is rare and generally takes a chronic course. Paranoid schizophrenia, in the vast majority of case, starts in the fourth decade and develops insidiously.
Suspiciousness is the characteristic symptom of the early stages. Ideas of reference occur, which gradually develop into delusions of persecution. Auditory hallucinations follow which in the beginning, start as sounds or noises in the ears, but later change into abuses or insults. Delusions are at first indefinite, but gradually they become fixed and definite, to lead the patient to believe that he is persecuted by some unknown person or some superhuman agency. He believes that his food is being poisoned, some noxious gases are blown into his room, and people are plotting against him to ruin him. Disturbances of general sensation give rise to hallucinations, which are attributed to the effects of hypnotism, electricity, wireless telegraphy or atomic agencies. The patient gets very irritated and excited owning to these painful and disagreeable hallucinations and delusions. Since so many people are against him and re interested in his ruin, he comes to believe that he must be a very important man. The nature of delusions thus, may change from persecutory to the grandiose type. He entertains delusions of grandeur, power and wealth, and generally conducts himself in a haughty and overbearing manner. The patient usually retains his money and orientation and does not show signs of insanity, until the conversation is directed to the particular type of delusion from which he is suffering. When delusions affect his behaviour, he is often a source of danger to himself and to others.
The name paraphrenia has been given to those suffering from paranoid psychosis who, in spite of various hallucinations and more or less systematised delusions, retain their personality in a relatively intact-state. Generally, paraphrenia beings later in life that the other paranoid psychosis.”
Epileptic Psychosis is a progressing disease and its effects have appropriately been described in the text book of Medical Jurisprudence and Toxicology by Modi, 24th Ed. 2011 where it states as follows:-
Supreme Court of India
State Of Rajasthan vs Shera Ram @ Vishnu Dutta on 1 December, 2011
(in this case accused was given benefit of section 84 on ground of epilepsy)
"Epileptic Psychosis. - Epilepsy usually occurs from early infancy, though it may occur at any period of life. Individuals, who have had epileptic fits for years, do not necessarily show any mental aberration, but quite a few of them suffer from mental deterioration. Religiousity is a marked feature in the commencement, but the feeling is only superficial. Such patients are peevish, impulsive and suspicious, and are easily provoked to anger on the slightest cause.
The disease is generally characterized by short transitory fits of uncontrollable mania followed by complete recovery. The attacks, however, become more frequent. There is a general impairment of the mental faculties, with loss of memory and self- control. At the same time, hallucinations of sight and hearing occur and are followed by delusions of a persecuting nature. They are deprived of all moral sensibility, are given to the lowest forms of vice and sexual excesses, and are sometimes dangerous to themselves as well as to others. In many long- standing cases, there is a progressive dementia or mental deficiency.
True epileptic psychosis is that which is associated with epileptic fits. This may occur before or after the fits, or may replace them, and is known as pre- epileptic, post-epileptic and masked or psychic phases (psychomotor epilepsy) Post-Epileptic Mental Ill-health - In this condition, stupor following the epileptic fits is replaced by automatic acts of which the patient has no recollections. The patient is confused, fails to recognize his own relatives, and wanders aimlessly. He is terrified by visual and auditory hallucinations of a religious character and delusions of persecution, and consequently, may commit crimes of a horrible nature, such as thefts, incendiarism, sexual assaults and brutal murders. The patient never attempts to conceal them at the time of perpetration but on regaining consciousness may try to conceal them out of fear."
Guidelines by Madras High court regarding treatment of mentally ill persons: -
Madras High Court
Kumar @ Selvakumar vs State DELIVERED ON : 24.10.2019
➢ Mental illness can be caused by traumatic experiences that involve abuse, neglect or violence. Other factors may include genetic predisposition, biochemical imbalances or excessive stress brought on by debilitating medical conditions. Some of the mental illnesses are:
• Bipolar disorder.
• Eating disorders.
• Major depression.
• Obsessive-compulsive disorder.
• Panic disorder.
• Personality disorders.
• Phobias.
• Post-traumatic stress disorder (PTSD).
• Schizophrenia.
➢ The patients affected by such mental illness including schizophrenia shall be looked after by minimum two persons as they would behave like a child for sometime and later, they may be aggressive as they would suspect the persons around them.
➢ Since the said mental illness can be diagnosed only with the help of the Doctors, the caretakers should be in a position to identify such symptoms as early as possible.
➢ The schizophrenia patients shall not be isolated in homes and they should be encouraged, motivated and involved in all social functions.
➢ Medications shall not be discontinued without the diagnosis of the Doctors and they have to be taken for periodical mental health check-ups.
➢ There are chances for mood swings, schizophrenia patients shall be monitored and be given regular treatment for such illness.
➢ The caretakers of the patients with mental illness may require to adopt the following strategies:
• Assess a patient’s mental state.
• Establish good communication with the patient.
• Build a relationship with the patient.
• Use language that shows consideration.
• Provide sensitive patient-centered care.
• Consult with knowledgeable mental health professionals.
• Refer a patient to community services.
➢ There are some simple strategies that will help the caretakers to connect with the persons in distress:
• introduce themselves calmly and clearly;
• explain why they are there;
• be polite and non-threatening but also be honest and direct;
• listen to what they are saying in a non-judgmental way;
• avoid confrontation;
• ask them what they see as the main problem;
• do not attempt physical contact, except to prevent serious assault or suicide attempts;
• encourage them to talk to a mental healthcare professional;
• follow up difficult experiences with counselling for themselves.
➢ In order to provide good support to the patients with mental illness, the caretakers shall try to:
• talk openly and encourage them to be honest with their friends and family about how they are;
• read about the mental illness from reputable websites, such as Government or health organisation websites or books by specialists;
• encourage them to take an active role in their mental health recovery, get out and see people and enjoy a healthy lifestyle;
• set limits and let them know what they can do for them and what they are not able to provide;
• find out about any local or online training courses for mental health carers;
join a mental health support group to meet other people in a similar situation;
• take any talk of suicide or self-harm seriously and speak to a mental health care professional about it as soon as possible;
• put plans in place as a back-up in case you go on holiday, have to leave town or you are not able to care for them for any reason.
➢ Above all, the caretakers shall be aware of their own safety and trust their instincts when caring for someone with a severe mental illness. If they ever feel threatened or unsafe, it is important that they shall remove themselves (and any children) from danger straight away. They can always call emergency services from somewhere else if they need to get help immediately.
➢ Lastly, but not least, the caretakers/attendors of such patients must create a second line to ensure that even in their short absence, the next person in the line is able to afford the same care and attention to the patients, so that, the patients do not feel that they are ignored and isolated.
ROLE OF PSYCHIATRIST
A standard evaluation procedure of all patients who plead insanity defense is absolutely necessary. It is unfortunate that till date, no such standardized procedures exist in our country. Psychiatrists are often called for conducting mental health evaluations and treatment. Apart from treatment, courts may also request for various certifications. This includes:
Certifying the presence or absence of psychiatric illness if the defendant claims for an insanity plea (defendant's mental status when the alleged offense took place);
Assessment of fitness to stand trial in cases where mental illness incapacitates cognitive, emotional and behavioral faculties of an individual causing serious impact on the ability to defend the case (defendant's present mental status and his competence during adjudication).[6,31]
Psychiatrist should consider inpatient admission for a comprehensive evaluation of the defendant.
It is the duty of the psychiatrist to educate the court, clarify psychiatric issues, provide honest and objective opinions based on factual data and sound reasoning.
Review of accompanying documents
It is the duty of the psychiatrist to review all the accompanying legal documents and ascertain the referring authority, reason for referral, date and time of referral, and available time in hand to provide the opinion. Further defendant's medical and psychiatric records should be reviewed prior initiating the assessment of the defendant. A careful history should be gathered from all possible sources such as the defendant, accompanying person, FIR, postmortem and autopsy report, photographs of the crime scene, behavior observational report, interviewing the family members, and past treating psychiatrist.
Assessment of history of presenting illness
The accused should be interviewed as early as possible in time to the offense though practically, this may not always be feasible. At the outset of the assessment, the defendant must be informed about the purpose of the evaluation and the lack of confidentiality. Psychiatrist should document the date and time of assessment, demographic details, identification marks and injuries on the body. A comprehensive inquiry should be done into the history of presenting illness, past history, family history, personal history and premorbid personality. Psychiatrist should never forget to do an assessment of substance use in past and present.
Assessment focusing on mental state at the time of the offense
Psychiatrist should make an effort to evaluate the mental status of the defendant at the time of the offense. He should try to get the detailed account of the incident through open-ended questions. It would be prudent to ask the defendant to give a step-by-step account of his behavior, emotions, biological, occupational, and social functioning beginning 1-week prior to the offense and to be enquired till 1-week after the commission of offense. The comprehensive inquiry should be done on his cognition, behavior, emotions, and perception, prior, during, and immediately after the commission of the offense. Psychiatrist should enquire by asking open-ended questions to ascertain the defendant's knowledge of law, nature of his act and also whether he is in a position to appreciate right and wrong.
Psychiatrists should also look into behaviors of the defendant before, during, and after the commission of offense, which can give clues toward patient's complete mental status.
Mental Status and cognitive functioning assessment
Mental status examination should be done without leading questions. The psychiatrist should ask open-ended questions and he should restraint himself from asking leading questions. In-experienced psychiatrist can fall easily into the trap of the malingering patients. Hence, it is advisable to admit the patient and do a serial mental status examination and serial ward observations
Plea of insanity
The onus of proving unsoundness of mind is on the accused, hence the plea of insanity should be taken by the accused or by his lawyer or his family members or previous history of insanity is revealed, it is the duty of an honest investigating officer to subject the accused to a medical examination and place that evidence before the court and if this is not done, it creates a serious infirmity in the prosecution case and the benefit of doubt has to be given to the accused.Hence, the plea of insanity should be taken during the investigation or during the trial in the lower court not during the appeal to the higher court.
To summarize, the concept of insanity defense is a legal one and not a medical one. Although a psychiatrist's opinion is taken into account ultimately the decision to accept or reject the defense lays with the court the world over. Based upon the reasoning power of the defendant during the circumstances of the crime
Illustrative cases :- Queen v. Laxman Dadgu - In this case A suffering from a fever , which caused paroxysms caused him bewilderment . One day , A in fit a rage killed his children because he was annoyed by their crying . After the act he went back to sleep . Accused show no previous symptoms of insanity. Court convicted him , as at the time of doing the act he was not under the influence of paroxysm and was fully conscious of what he was doing.
Queen-Empress vs Kader Nasyer Shah on 15 April, 1896
Kader Nasyer, was tried before the Sessions Court of Rungpur on a charge of murder for causing the death of a boy named Abdul, aged about eight years. His plea was that he "was mad when he strangled the boy." The two assessors were both convinced, for acquitting him on the ground of unsoundness of mind, but the learned Sessions Judge disagreeing with them has convicted him of murder and sentenced him under Section 302 of the Indian Penal Code to transportation for life. the accused had been suffering from mental derangement for some months previous to the date of the occurrence and since the destruction of his house and property by fire; that on one occasion he was seen eating potsherds; and that he often complained of pain in the head. It also appears that when the enquiry preliminary to the commitment was taken up, he was found not to be in a fit state of mind to be able to make his defence; and the enquiry was not resumed, until somewhat more than a year after when he was pronounced fit to be able to take his trial. The murder, moreover, was committed without any apparent sane motive. The evidence shows that the accused was fond of the boy, and he had no quarrel with the boy's father. On the other hand, however, it must be borne in mind that the accused observed some secrecy in committing the murder. He tried to conceal the corpse, and he hid himself in a jungle. Court Held - Accused was not entitled to acquittal but should be convicted. However , court also observed it was a borderline case . So court recommended Governor to give some indulgent consideration to the case.
Emporer v. Gedka Gowla
Accused killed his own children and wife . Court emphasized that one must see whether accused knew at the time of committing murder that he was killing human beings . Although in this case , there was absence of motive , secrecy , want of pre arrangement , want of accomplices etc , these circumstances although relevant were held to be insufficient because : a) Accused knew what he did , he threatened his brother in law that he will kill him too like the rest. b) He went to neighbours house to ask for poison , so that he could take his own life because he killed his children and wife . Accused ran away when neighbour tried to disarm him.
c)He went to his brother . he knew who his brother and sisters were and there he declared his intention to kill.
d) he was clear headed the time of confession.
e) He closed the doors before attacking victims. It is only the insanity which materially impairs cognitive faculties of mind which can form exemption under section 84.
Laxmi v. State - Accused , a drug addict , killed his step brother with an axe and ran away from the scene along with the axe when alarm was raised. Court held his running away along with trying to conceal the incriminatory evidence as a fact , that he knew what he was doing was wrong . He was accordingly held liable.
Supreme Court of India
Shrikant Anandrao Bhosale vs State Of Maharashtra on 26 September, 2002
the prosecution case is that the appellant was a Police Constable. He and Surekha were married in the year 1987. On the date of the incident, they were living in police quarters along with their daughter. On the morning of 24th April, 1994, there was a quarrel between husband and wife. While Surekha was washing clothes in the bathroom, the appellant hit her with grinding stone on her head. The appellant was immediately taken by the police to the quarter guard. Surekha was taken to the Hospital. She was found dead. After usual investigation, the appellant was charged for the offence of murder of his wife.
On appreciation of evidence, the appellant was found guilty by the Sessions Court. The evidence was again appreciated by the High Court. The judgment of the Sessions Court was affirmed. Supreme court allowed the appeal and set aside the judgment of High court. Accused was given benefit of section 84 and was acquitted.
Court held : The burden of proving the existence of circumstances bringing the case within the purview of Section 84 lies upon the accused under Section 105 of the Indian Evidence Act. Under the said section, the Court shall presume the absence of such circumstances.(1) The prosecution must prove beyond reasonable doubt that the accused had committed the offence with the requisite mens rea; and the burden of proving that always rests on the prosecution from the beginning to the end of the trial. (2) There is a rebuttable presumption that the accused was not insane, when he committed the crime, in the sense laid down by s.84 of the Indian Penal Code: the accused may rebut it by placing before the court all the relevant evidence oral, documentary or circumstantial, but the burden of proof upon him is no higher than that rests upon a party to civil proceedings. (3) Even if the accused was not able to establish conclusively that he was insane at the time he committed the offence, the evidence placed before the court by the accused or by the prosecution may raise a reasonable doubt in the mind of the court as regards one or more of the ingredients of the offence, 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."
The circumstances that stood proved in the case in hand are these:
1. The appellant has a family history his father was suffering from psychiatric illness.
2. Cause of ailment not known - hereditary plays a part.
3. Appellant was being treated for unsoundness of mind since 1992 Diagnosed as suffering from paranoid schizophrenia.
4. Within a short span, soon after the incident from 27th June to 5th December, 1994, he had to be taken for treatment of ailment 25 times to hospital.
5. Appellant was under regular treatment for the mental ailment.
6. The weak motive of killing of wife being that she was opposing the idea of the appellant resigning the job of a Police Constable.
7. Killing in day light no attempt to hide or run away.
Paras Ram v. State of Punjab (1981) 2 SCC 508
Where a father and his relatives sacrified a 4 year old so to propitiate a deity . Supreme court held , this does not itself prove insanity. Inhuman act of blood curdling butchery of one's own son needs to be condemned and punished severely to deter such a deviant.