INTRODUCTION:-
Forensic Science or Medical Jurisprudence, also called forensics, the ap plication of science to law. Forensic science uses highly developed technologies to uncover scientific evidence in a
variety of fields. Modern forensic science has a broad range of applications. It is used in civil cases such as forgeries, fraud, or negligence. It can help law-enforcement officials determine whether any laws or regulations have been violated in the marketing of foods and drinks, the manufacture of medicines, or the use of pesticides on crops. It can also determine whether automobile emissions are within a permissible level and whether drinking water meets legal purity requirements. Forensic science is used in monitoring the compliance o f various countries with such international agreements as the Nuclear Non-Proliferation Non-Proliferation Treaty and the Chemical Weapons Convention and to learn whether a country is developing a secret nuclear weapons program. However, forensic science is most commonly used to investigate criminal cases involving a victim, such as assault, robbery, kidnapping, rape, or murder . Medical Jurisprudence which teaches the application of every branch of medical knowledge to the purposes of the law; hence its limits are, on the one hand, the requirements of the law, and on the other, the whole range of medicine. Anatomy, physiology, medicine, surgery, chemistry, physics and botany, lend their aid as necessity arises; arid in some cases all these branches of science are required to enable a court of law to arrive at a proper conclusion on a contested question affecting life or property.
The principles of science and law developed over the centuries in response to their differing objects of interest. Science, engineering, and technology seek knowledge through an open-ended search for expanded understanding, whose wh ose “truths” are subject to revision. Law, too, con ducts an open-ended search for expanded understanding; however, it demands definite findings of fact at given points in time. When these two disciplines meet in the courtroom the differences between the two cultures are magnified. For example, the legal tradition of adversarial proceedings contrasts with the cooperative ethic of science. Even the search for truth does not n ot serve the same aims and may not be subject to the same constraints and requirements. Simply stated, science, engineering, and technology1 aim to understand, predict, modify, and control aspects of the natural and manufactured world, while the law seeks current truth about scientific and other facts
of cases in order to serve the much different goal of justice between parties (as well as other societal goals). In today's high-technology society the two professions are increasingly often forced to interact in legal disputes involving patents, product liability, environmental torts, regulatory proceedings, and criminal cases. Further, law and science encounter each other in the laboratory through a number of federal actions governing intellectual property, research misconduct, access to research data, and conflicts of interest. The fact-finding agendas of the two disciplines now frequently have begun to overlap, if not merge. Because there is a general lack of understanding of each culture, these interactions often lead to a cognitive friction that is both disturbing and costly to society.
Fields of Forensic Science A Medico-legal expert should look at a dead body more with the eyes of a legal man than with w ith the eyes of a medical man.1 Lyons2 has divided the wide field of Medical Jurisprudence under the following heads: I.
Ident dentiifica ficattion ion of of (i) (i) wou wound nded ed and and (ii (ii)) the the dead dead
II.
General examinatio tion of persons. ns.
III. III.
Death: Death: (i) (i) Natur Natural al (ii) (ii) Unnatu Unnatural ral-- homici homicide, de, suic suicide ide,, accide accidenta ntall and fabric fabricate ated. d.
IV
Assaults,wounds and injuries (i) (ii) (iii) (iv) (iv)
V
Homicidal wounds, Sucidal wo wounds Accidental wou wounds Fabr Fabric icat ated ed wou wound ndss and and self self-- infl inflic icte ted. d.
Sexual offences, Virginity, Impotency, Defloration, Pregnency, Birth, Delivery, Abortion,Infanticide, Foeticide and Unnatural sex offences.
VI
Insanity; and
VII
Toxicology
1 Woodroffmand Amie Ali, LAW OF EVIDENCE,(1979) 14 th Edn, p 1301 2 L.A. Lyons, MEDICAL JURISPRUDENCE FOR INDIA, 5 TH Edn,1914
MEDICAL EVIDENCE:-
A medical man is required to provide assistance to the cause of justice by furnishing certificates and reports consequent upon examination of a living person and a dead. I.
In civi civill case cases, s, the the opi opini nion on of of a med medic ical al exp exper ertt is is rev revel elan antt to to pro prove ve,, (i) (i) Age, Age, in matt matter erss of of min minor orit ity y and and majo majori rity ty disp disput utes es,, (ii) (ii) Deat Death, h, whet whethe herr natu natura rall or unna unnatu tura ral, l, (iii) (iii) Ill health health,, requir required ed for for leave leave on on medica medicall ground groundss from from offic offices es and and exempti exemption on from court attendance, (iv) (iv) Certi Certific ficate ate of of fitne fitness ss forG forGovt ovt.. Servic Services es and and other other jobs jobs,, whatev whatever er this this is is required according to rules, (v) (v) Ment Mental al condi conditi tions ons of a pers person on at the the time time of of maki making ng a will will,, (vi) (vi) Mental Mental capabi capabilit lities ies of a person person to manag managee his his own own state state of affa affairs irs,,
I.
In crim crimin inal al mat matte ters rs , the the opi opini nion on of of a medi medica call exper expertt may may be req requi uire red d to prov prove, e, (i) (i) Type Typess of hurt hurt,, inju injuri ries es and and thei theirr seve severi rity ty,, (ii) (ii) PostPost- mortem mortem report report regard regarding ing the cause cause of death, death, time time since since deat death, h, mann manner er of of death, type of weapon or to prove the actual weapon involved in the case, (iii (iii)) Insa Insani nity ty and and oth other er men menta tall diso disord rder ers, s, (iv) (iv) Age, Age, to deci decide de mino minorit rity y or majori majority ty in in sexual sexual assaul assaultt cases, cases, validi validity ty of of marriage and cases of kidnapping, (v) Drun Drunke kenn nnes esss, del delirium rium tr tremen emens, s, et etc, Virginity or otherwise of a woman, (vi) (vii (vii)) Impo Impote tenc nce, e, ste steri rili lity ty of of a man man,, (viii (viii)) Pregna Pregnancy ncy and and chil childbi dbirth rth,, gestati gestation on perio period, d, (ix) (ix) Medi Medico co-- lega legall fact factss in in sexu sexual al off offen ence ces, s, (x) Dying declaration
Other duties Examination of accused persons by medical practioner at the request of police officer under the provisions of Section 53 CrPC,1973- Section 53 states: “(1) When a person is arrested on a charge of commiting an offence of such a nature and alleged to have been committed co mmitted under such circumstances that ther are reasonable grounds for believing that anexamination of his personalwill afford evidence as to the commission of an offence, it shall be lawful for a registered medical practitioner, acting at the request of apolice officer not below the rank of sub-inspector, and for any person acting in good faith in his aid and under his direction, to make such an examination of the person arrested as is reasonably necessary in order to ascertain the facvts which may afford such evidence, and to use such force as it is reasonably for that purpose.
(2) Whenever the person of a female is to be examined under this section, the examination shall be made only by, or under un der the supervision of, a female registered medical practitioner. Explanation- In this section and Section 54, ‘registered medical medical practitioner’ means a medical practitioner who possess any recognized medical qualification as defined in cluse (h) of Section (2) of the Indian Medicsal Council Act, 1956 (102 of 1956), and whose name has been entered in a State Medical Register.” In Kapil In Kapil Kumar v State of Assam3 the Gauhati High Court held that subjecting an arrested person to medical examination under Section 53 forms a part of investigation as defined in Section 2(4) CrPc. Medical examination may include taking of blood, semen, sputum, urine, etc, and taking of their samples as well. The collection of sample may inflict some tourture or pain and this allowed by tlaw. Even such reasonable force can be used to subject an arrested person to medical examination that may discomfort him.
Evidentiary value of dying declaration A dying declaration is relevant and material evidence in the prosecution of the offenders o ffenders and a truthful and reliable dying declaration may form the sole basis of conviction even though it is not no t corroborated. But the court must be satisfied that the dying declaration is truthful. If the court finds that circumstances of the case , consider co nsider it unsafe to convict the accused on the basis of the declaration alone without further corroboration.4 A dying declaration cannot be equated with the evidence of an accomplice or the evidence furnished by a confession as against the maker of the confession. The declaration, like the evidence of an accomplice, does not come form a tainted source. Generally, the maker of a dying declaration cannot be tarnished with the same brush as the maker of a confession or an approver.5 The statement of a medical officer who had attended on the deceased showed that the deceased was in critical condition whe he reached the hospital. He was in severe bodily pain and in state of profound depression resulting from the injury. There was profuse bleeding from his injury, his pulse was feeble, and blood pressure p ressure was not recordable. In these circumstances the deceased could not be said to be in a fit mental and physical condition to make a statement of his own volition after he reached the hospital. 6 3 1983 Cri LJ (NOC) 66 (Gau.) 4 Thurukanni Pompiah v. State of Mysore, IR 1956 SC 939 : (1956) 2 Cri LJ 31 Bombay , AIR 1958 SC 22 : 1958 Cri LJ 106 5 Khushal Rao v. State of Bombay,
6 Balak Ram v. State of U.P., (1975) 3 SCC 219 : 1974 SCC (Cri) 837 : AIR 1974 SC 2165
The dying declaration amply corroborated by circumstantial evidence as also by the medical evidence cannot be ignored or discarded because it did not mention the mane of certain persons and it did not account for certain injuries received by the accused persons. persons.7
The fact that the language used in the dying declaration is chaste, while that used in F.I.R. as well as the statement to the police officer o fficer have some words which are spoken in villages is not in much significance because there is abnormal or unusual chaste and refined language while taking to another.8 Where the deceased gave the narration in Punjabi but the statement was recorded inUdru it was held that in Punjab, the language used in subordinate courts nad that employed by the police for recording of statement has always ben Urdu. The recording, therefore , of the dying declaration in Urdu cannot be a basis for saying that the statement was not correctly reproduced. This is wholly inadequate reason for rejecting the dying declaration.9
When the deceased had died as a consequence of burns caused by her clothes being set on fire by the accused and this is supported by her dying declaration, the correctness of which has not been challenged by cogent reasons, conviction based on such evidence is sustainable.10
In Brij Raj Singh case11, there was mention of one shot in the dying declaration. The autopsy report mentioned two injuries, one inward and the other outward which was indicative of o f two wounds caused by two separate shots. The High Court held that the dying declaration cannot be falsified on the ground that the victim v ictim must have sustained two wounds by two separate shots.
INSANITY:- The meaning of insanity in civil law, medicine and neuroscience is different from its meaning in criminal law.
Insanity in Law
7 Ghurphekan v. State of U.P.,1972 SCC (Cri) 531 8 Barati v. State of U.P., AIR 1974 SC 839 9 Bakhshish Singh v. State of Punjab, AIR 1957 SC 904 10 Tarachand Damu Sutar v. State of Maharastra, AIR 1962 SC 130 11 Brij Raj Singh v. State, 1983 Cri LJ 1916 (All).
Insanity or unsoundness of mind is not defined in the act. It means a disorder of the mind, which impairs the cognitive faculty; that is, the reasoning capacity of man to such an extent as to render him incapable of understanding consequences of his actions. It means that the person is incapable of knowing the nature of the act or of realising that the act is wrong or contrary to law12. A person, although of unsound unsoun d mind, who knows that he h e is committing an unlawful act, may not get the benefit of IPC, s. 84. The nature and extent of the unsoundness must be so high so as to impair his reasoning capacity and that he may not understand the nature of the act or that it is contrary to law.It excludes from its preview insanity, which might be ca used by engendered by emotional or volitional factors. There are four kinds of person who may be said to be non compos mentis (not of sound mind) (1) an idiot – an idiot is one who from birth had defective mental capacity. This infirmity in him is perpetual without lucid intervals; (2) one made so by illness – by illness, a person is made non compos mentis. He is therefore excused in case of criminal liability, which he acts under the influence of this disorder; (3) a lunatic or a madman – lunatics are those who become insane and whose incapacity might be or was temporary or intermittent. A lunatic is afflicted by mental disorder only at certain period and vicissitudes, having intervals of reason13; and (4) one who is drunk – this is covered under IPC, s. 85.
Insanity in Medical Terms There is a difference between the medical definitions of insanity. According to medical science, insanity is a disorder of the mind that impairs the mental facilities of a man14. Insanity is another name for mental abnormalities due to various factors and exists in various degrees15. Insanity is popularly denoted by idiocy, madness, lunacy, to de scribe mental derangement, mental disorder and all other forms of mental abnormalities known to medical science. Insanity in medical terms 12 Basu’s Indian Penal Code, 9th ed, 2006.
13 7 Russell, Vol. 1, (12th ed.), pp. 105. 14 KD Gaur.
15 Srivastava, R.C., Law Relating to Crime and Punishment, 2006, Manav Law
House, Allahabad.
encompasses much broader concept than insanity in medical terms. Therefore, the scope of the meaning of insanity in medical terms is much wider wh en compared to its legal meaning.
ENGLISH LAW ON INSANITY The English law on insanity is based on the Mc’Naghten rules.
Development of the Law The insanity defence has a long history, and is evolved after many tests that have been tried and tested.
Wild Beast test: It was the first test to check insanity that was laid down in the case of Arnold Case in 1724. Justice Tracy, a 13th century judge in King Edward’s court, first formulated the foundation of an insanity defense wh en he instructed the jury that it must acquit by reason of insanity if it found the defendant to be a madman which he described as ‘a man that is totally deprived of his understanding and memory, and doth not know what he is doing, no more than an infant, than a brute, or a wild beast, such a one is never the object of punishment’16. R vs. Madfield . The test laid down Good and Evil test: This test was laid down in the case of R in this case is ‘the ability to distinguish between good and evil’. In this case, the accused accu sed was charged or treason for attempting to kill the King. The defence pleaded that he was not able to distinguish between good and evil and ‘wild beast test’ was unreasonable. He was acquitted. Mc’Naghten test: The law relating to the defence d efence of insanity is to be found in the rules set out in Mc’Naghten17 that delineate the circumstances in which an accused will be held not to have been legally responsible for his conduct.
The Origin of the Rules on the Insanity Plea Daniel Mc’Naghten was found to be insane and acquitted on a charge of murdering Sir Robert
16 Christopher Slobogin, An End to Insanity: Recasting the Role of Mental
Disability in Criminal Cases, 86 Va. L. Rev. 1199, 1208 (2000). 17 (1843) 10 Cl & F 200.
Peel’s private secretary, it being his intention to kill Peel. He was committed to the hospital but there was public outcry about the leniency of the verdict. The matter was debated in the House of Lords where it was decided to seek the opinion of the judges on legal principles relating to insanity. The rules laid down were: (1) everyone is to be presumed sane and to possess a sufficient degree of reason to be responsible for their crimes until contrary is proved to the satisfaction of the jury; (2) to establish a defence of insanity, it must be clearly proved that at the time of committing the act, the accused was laboring under such a defect of reason, from the disease of the mind, as not to know he was doing what was wrong18; (3) as to his knowledge of the wrongfulness of the act, the judges said: ‘if the accu sed was conscious that the act was one which he ought not to do and the same time the act was contrary to the law of the land, he is punishable; and (4) Where a person under insane delusion as to existing facts commits an offence in consequence thereof, criminality must depend on the nature of the delusion. If he labours under 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 ex ists were real. The Halsbury’s Laws of England explain that where on a criminal charge, it appears that, at the time of the act or omission giving rise to the offence alleged, the d efendant was laboring under a defect of reason owing to a disease of mind so as not to know the nature and quality of his act, or, if he knew this, so as not to know that what he was doing was wrong, he is not regarded in law as responsible for the act. The question whether, owing to a defect of reason due to the disease of the mind, the defendant was not responsible for his act is a question of fact to be determined by the jury. Where the jury finds insanity is made out the verdict takes place in the form of not guilty due to insanity19
The Constituent elements of the Defence There are three conditions to be satisfied in any case where a defence of insanity is raised:
18 Michael Allen, ‘Textbook on Criminal law’, 7th ed. 2003, at pp. 123.
19 Halsbury’s Laws of England, 4th ed., Vol. 11, para 30, pp. 27-28, as quoted in
Justice Y.V. Chandrachud Chandrachud (ed.), Ratanlal Ratanlal and Dhirajlal, ‘Indian Penal Code’, 29th ed. Rep. 2004, at pp. 320.
(1) the accused was suffering from the disease of the mind – disease of the mind is a legal term and not a medical term. The law is concerned with the question whether the accused is to held legally responsible for his acts. This depends on his mental state and its cause complying with legally defined criteria. Lord Denning defined it as ‘any mental disorder which has manifested itself in violence and is prone to recur is a disease of the mind. At any rate it is the sort of disease for which a person should be detained in hospital rather than be given an unqualified acquittal’. The leading decision on what constitutes a disease of the mind was given in the case of Sullivan20 in which a distinction was drawn between insane and non-insane person automatism. a utomatism. Lord Diplock defined disease of the mind as ‘mind in the Mc’Naghten rules is used in the ordinary sense of the medical faculties of reason, memory and understanding. If the effect of the disease is to impair these faculties so severely as to have either of the consequences referred to in the latter part of the rules, it matters not whether the etiology of the impairment is organic, as in epilepsy, or functional, or whether the impairment is itself permanent or is transient and intermittent, provided that it subsisted at the time of commission of the act’; (2) this disease gave rise to a defect of reason: where the defence of insanity is to succeed, the disease of the mind must give rise to a defect of reason. The reasoning power po wer of a person must be impaired. The defendant must show that he h e was suffering from such defect of reason that he did not know the nature and quality of the act he had committed, or if he did know, that he did not know that what he was doing was wrong. If the accused is relying on the second limb, he must show proof that he did not know that it was legally wrong; and as a result, he either did not know that what he was doing was wrong: If the accused’s defect of reason is to be effective in establishing the defence of insanity, the insanity must affect his legal responsibility for his conduct as such he is not able to realise that what he was doing is wrong. Wrong here means something that is contrary to law.21 Where the person knows the nature or quality of the act and knows he was doing wrong, then the fact that he was acting under a strong impulse will not entitle him to a defence under unde r the rules.
20 (1984) A.C. 156 at 172 as quoted in Alan Reed and Peter Seago, ‘Criminal law’, 1999. 21 R vs. Windle (1952) 2 QB 826 as quoted in Harris, ‘Criminal law’, 22nd ed. 1st Indian Reprint 2000, at pp. 92.
R vs. Codere22, the court of criminal appeal explained In 1916, in the case of R ex plained the principles: (1) an objective moral test must be applied in cases where insanity is pleaded. The test of insanity is ‘the objective standard adopted by the reasonable men’; (2) an act is wrong according to that standard if it is punishable by law; (3) the accused must be deemed ‘to know he was doing what was wrong’ if he was aware that the act was one which was punishable; and (4) the words ‘nature and quality’ do not no t refer to the moral aspects of what the offender o ffender was doing but solely to the physical facts.
INDIAN LAW ON INSANITY The Indian law relating to insanity has been codified in the IPC, s. 84 contained also the general exceptions. Indian Penal Code, s. 84: ‘Acts of a person of unsound mind— Nothing is an offence which is done by a person pe rson 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’.
IPC, s. 84 and the Mc’Naghten rule: IPC, s. 84 deals with the law of insanity on the subject. This provision is made from the Mc’Naghten rules of England. In the draft d raft penal code, Lord Macaulay suggested two sections (66 and 67), one stating that ‘nothing is an offence which is done by a person in a state of idiocy’ and the other stating that ‘nothing is an offence which a person does in consequence of being mad or delirious at the time of doing it’ to deal with insanity. The Law Commissioners in replacing these two provisions by IPC, s. 84 have adopted a brief and succinct form of the Mc’Naghten rules. It has been drafted in the light of the replies to the second and third questions, which is generally known as Mc’Naghten rules. But, IPC, s. 84 uses a more comprehensible term ‘unsoundness of mind’ instead of insanity. Huda says the use of the word ‘unsoundness of mind’ instead of insanity has the advantage of o f doing away with the necessity of defining insanity and of artificially bringing within its scope different conditions and affliction of mind which ordinarily do not come within its meaning, but which nonetheless stand on the same footing in regard to the exemptions from criminal liability. liability.23 22 (1916) 12 Cr.App.R. 21.
23 Huda, S.S. Principles of Law of Crimes in British India, as quoted in K.D. Gaur, ‘Commentary on Indian Penal Code’, 1st ed. 2006, Universal, pp. 271.
Ingredients This provision states that an unsoundness of mind is a defence to criminal charges. It is accepted accep ted as a defence to a criminal charge on the theory that ‘one who is insane has no mind and may not have the necessary mens rea to commit a crime’. crime’.24 The act of a mad person is unintentional and involuntary, no court may correct him by way of p unishment. unishment.25 To invoke the benefit of IPC, s. 84, it must be proved that at the time of commission of the offence, the accused was insane and the unsoundness of mind was of such a degree and nature as to fulfill any one of the test laid down in the provision. These are: (1) firstly, the accused was incapable of knowing the nature of the act. It covers two situations, namely, automatism and mistake of fact due to unsoundness of mind as a defence26; and (2) secondly, that the accused was precluded by reason of unsoundness of mind from understanding that what he was doing was either wrong or contrary to law. It covers those cases wherein a man by reason of o f delusion is unable to appreciate the distinction between right and wrong27. The accused is protected not only when, on the account of insanity, he was incapable of knowing the nature of the act, but also when he did not know either the act was wrong or it was contrary to the law. He is however, not protected p rotected if he knew that what he was doing was wrong, even if he did not know that it was contrary to the nature of the law or vice versa28. The defence of insanity may be established if it is proved that at the time of committing the act, the party accused was laboring under unde r such a defect of reason, from disease of the mind, as not to know the nature or quality of the act he was doing, or if he did know it, that he did not know that he was doing what was wrong29. The benefit of this 24 Gour, Penal Law of India, 11th ed. Vol. 1, 2000, pp. 602: ‘A mad man has no will’; Furoisis nulla voluntas east; as quoted in KD Gaur.
25 Ibid .
26 Pillai, K.N. Chandrasekharan, General Principles of Criminal Law, 1st Ed., reprint, 2005, Eastern Book Company, Lucknow.
27 Ibid . 28 Geron Ali, (1940) 2 Cal 329 as quoted in Ratanlal And Dhirajlal. 29 Mc’Naughten case.
provision may be taken only if at the time of committing the crime, the offender by reason of unsoundness of mind was incapable of knowing the real nature of his act or that the act was morally wrong or contrary to law30. The Cuttuck High Court has laid down certain principles in the case of Sundra of Sundra Majhi31: (1) 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; (2) the court will presume the absence of such insanity; (3) the burden of proof of legal insanity is on the accused, though it is not as heavy as on the prosecution; (4) the court must consider whether the accused suffered from legal insanity at the time when the offence was committed; (5) in reaching such a conclusion the circumstances which preceded, attended or followed the crime are relevant considerations; and (6) 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 that everyone knows the law and the natural consequences of his act. The law on the point p oint has been well summarised by their Lordships of the Calcutta High Court in Kader Nasayer Shah in the following words: ‘it is only unsoundness of mind which materially impairs the cognitive faculties of the mind that may form a ground of exemption from certain responsibility, the nature and extent of unsoundness of mind required being such a nature would make the offender incapable of knowing the nature of the act, or that he is doing what is (1) wrong or (2) contrary to law32.
Burden of proof
30 State of Madhya Pradesh vs. Ahmedullah AIR 1961 SC 998, Dahyabhai C. Thakur vs. State of Gujarat AIR 1964 SC 1563
311971 Cut LT 565. 32 1896 ILR 23 Cal 604 (608) as quoted in Gour, Hari Singh, The Penal Law of India, Vol. 1, 11th ed., 2002, Law Publishers (India) Pvt. Ltd., Allahabad. Allahabad.
The principle that the court follows is that ‘every person is sane unless contrary is proved’33. The onus of proving insanity is one the person who is pleading it as a defence. In the case of State of State of Madhya Pradesh vs. Ahamadullah34, it was observed that burden of proof is on the accused. The Supreme Court also upheld the principle in the case of S.W. of S.W. Mohammed vs. State of Maharastra35 and said that the accused have to prove that he is insane. However, this requirement of proof is not heavy as on the prosecution to prove the offence and is based on balance of probabilities. It has been criticised that the McNaughton rules of the 19th century England, on which IPC, s. 84 is based are outdated since they do not provide protection under IPC, s. 84 to behaviour out of abnormality of mind, or partial delusion, irresistible impulse or compulsive behaviour of a psychopath. Court in India also stressed the need for adopting a more progressive attitude in the application of law related to insanity. The Indian Law of insanity must be amended and the concept of diminished responsibility must be inserted.
PROVISIONS OF THE CODE OF CRIMINAL PROCEDURE ,
197336
The procedure for the trial of insane person is laid down in the Code of Criminal Procedure, 1973, Chapter XXV. Code of Criminal Procedure, 1972, ss. 328 and 329 deals with the procedure to be followed in case the accused is a lunatic. It says that when a magistrate while conducting an inquiry feels that the person is of unsound mind and consequently, incapable of making his defence, he may ask a medical officer to examine the person and postpone the trial of the case. Code of Criminal Procedure. 1973, s. 330 provides that when an accused is found to be a lunatic, he will be released on bail provided that sufficient security is given that he will not harm himself or any other person. If sufficient security is not given or the court thinks that bail may not be granted, the accused will be detained in safe custody. Code of Criminal Procedure, 1973, s. 331 provides that when an inquiry is postponed under Code of Criminal Procedure, 1973, ss. 328 and 329, the magistrate will resume the inquiry at any time after the person concerned ceases to be of unsound mind. The inquiry will proceed against the accused when the magistrate thinks that he is capable of making the defence as per Code of Criminal Procedure, 1973, s. 332. Code of Criminal Procedure, 1973, s. 333 says that when the accused is at the time 33 Allen, Michael, Textbook on Criminal Law, 7th ed., 2003, Oxford University Press, 34 AIR 1961 SC 998 35 AIR 1972 SC 216
36 Code of Criminal Procedure, 1973, ss. 328 to 339.
of the inquiry is of sound mind, but he was of unsound mind at the time of committing the offence, the Magistrate will proceed with the case. Code of Criminal Procedure, 1973, s. 334 states that when any person is acquitted on o n the ground that at the time of committing the offence, he was by reason of unsoundness of mind incapable of knowing the nature of the act or that it is contrary to law, the state will specify whether he committed the act or not. Code of o f Criminal Procedure, 1973, s. 338 says that when the person detained under Code of Criminal Procedure, 1973, ss. 330(2) or 335 and the inspector general certify that in his judgment, he may be released without danger to himself or any other person, the state government may order him to be be released or to be detained in custody or to be sent to a public lunatic asylum. The Code of Criminal Procedure, 1973 also makes favourable provisions for the infants.
JUDICIAL INTERPRETATION Ratanlal vs. State of MP 37
The appellant on 22 January 1965, set fire to the grass lying in the khalyan of Nemichand. On being asked why he did it, the accused said; ‘I burnt it; do whatever you want’. The accused was arrested on 23 January 1965. He was referred to a mental hospital. The psychiatrist of the hospital reported that the accused remained silent, was a case of maniac depressive dep ressive psychosis, and needs treatment. The report declared the accused to be a lunatic in terms of the Indian Lunatic Act, 1912. The issue before the courts was whether insanity might be used as defence against a charge of mischief by fire with intent to cause damage under the IPC, s. 435. The crucial point in this case was whether unsound mind may be established at the time of commission of the act. The Supreme Court held that the person was insane and acquitted him.
Dayabhai Chhaganbhai Thakkar vs. State of Gujarat 38
In this case, the accused was charged and convicted under the IPC, s. 302 for the murder of his wife. The accused killed his wife with wife by inflicting her with 44 knife injuries on her bod y. The accused raised the plea p lea of insanity at the trial court. Trial court however rejected the contention on the ground that the statements made to the police immediately after the incident 37 AIR 1971 SC 778.
38 AIR 1964 SC 1563.
did not showed any sign of insanity. This conviction was confirmed by the high court. The accused made an appeal to the Supreme Court. The Supreme Court also upheld the conviction of the accused and laid down certain criteria according to which a accused in entitled to the defence under the provision. It said that in determining whether the accused has established his case under the perview of Indian Pena lcode, 1860, s. 84, ‘the court has to consider the circumstances which preceded, attended and an d followed the crime. The crucial point of time for determining the state of mind of the accused is the time when the offence was committed. The relevant facts 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 offence, and the events immediately after the incident that throw a light on the state of his mind’.
Ashiruddin vs. King 39
In this case, Ashruddin had killed his son while acting under the delusion of a dream believing it to be right. The accused had dreamt that he was commanded by someone to sacrifice his son of five years. The next morning the accused took his son to mosque and killed him by thrusting a knife in his throat. The Calcutta High Court Co urt observed that it was a case of insanity under IPC, s. 84 and discharged the accused from criminal liability. The court said that in order to enable an accused to obtain the benefit of the aforesaid provision, he must establish any one of the following three elements (1) the nature of the act was not known to the accused; (2) the act was not known by him to be contrary of law; or (3) the accused did not knew that the act was wrong. The Bench held that the third element was established by the accused, namely, that the accused did not knew that the act was wrong. This was obvious on the ground that the accused was laboring under the belief that the dream was a reality. However, this view of the Calcutta High Court was criticised by Allahabad High Court in the case of Laxmi Laxmi vs. State40 as ‘it will be open to an accused in every case to plead that he had dreamt a dream enjoining him to do a criminal act, and believing that his dream was a command by a higher authority, he was impelled to do 39 AIR 1949 Cal 182.
40 AIR 1953 All 534.
a criminal act, and therefore, he would be protected by IPC, s. 84. 84 . It also said that it was a case of medical insanity and not legal insanity. insanity.
BIBLIOGRAPHY BOOKS REFFERED:1. Woodroffmand Amie Ali, LAW OF EVIDENCE,(1979) 14th Edn 2. L.A. Lyons, MEDICAL JURISPRUDENCE FOR INDIA, 5TH Edn,1914
3. Basu’s Basu’s Indian Indian Penal Penal Code Code,, 9th 9th ed, 2006. 2006. 4. Russ Russel ell, l, Vol Vol.. 1, (12 (12th th ed.) ed.) 5. KD Gaur. 6. Allen, Allen, Michael, Michael, Textbook Textbook on Criminal Criminal Law, 7th 7th ed., 2003, Oxford Oxford Univers University ity Press Press 7. The Penal Law of India, India, Vol. 1, 11th 11th ed., 2002, 2002, Law Publisher Publisherss (India) (India) Pvt. Ltd., Ltd., Allahabad. 8.
