I. Introduction

The Intent and motives that propel an individual to indulge in criminal activity are the centre of the study of criminal law and criminology. The nature of this intent and motive and the abilility of its formation as such, is often not In question and a trial conducted for deciding the culpability of an accused is in most instances a matter of legal evidence. However, it is pertinent to note that the ability of an accused; affected by neurological and psychological limitations; to form balck and white motives and intentions is debatable. Investigating a crime which involves a suspect with history of mental illness invites several grey areas which require the intervention of experts in the field.

Forensic psychiatric experts offer critical insight into deciphering the context to any criminal conduct and actions of a mentally incapicated individual, thus paving a way to establish stonger evidence or weaking the evidentiary value of existing evidence. However, at the stage of investigation their involvement is limited and completely dependent on whether the investigating agency calls for their expertise.

II. Investigating Probable Intent- Mens Rea

The concept of responsibility and Mens Rea form the fundamentals of the Penalisation of convicted offenders and their possible rehabilitation. Punishing someone who is innocent or even someone who has a reasonable possibility of being innocent is a violation of basic human rights1. The assessment of an individual's psychological makeup can be indicative of two directions of clinical evaluations2 , in either establishing that certain sub-psychotic tendencies aggravate the possibility of the commission of the crime or second that the individual is not capable of forming a rational and conscious decision to commit a crime3. In either case, in a criminal trial the question of if clinical psychological assessment is or should be called upon for commenting upon the psychological state of an accused and narrowing the purview of the trial, is mostly subject to the invocation of insanity defense under Section 84 of the Indian Penal Code, 1860 ("IPC").

III. Existing Standards of Practic

1. Historical Models

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 relied upon by Indian Psychiatrists used to declare a person legally insane such a Wild Beast test4, The Insane Delusion test5, and "test of capacity to distinguish between right and wrong6." These three tests laid the foundation for the landmark Mc Naughten rule.

2. Expert Witness under Indian Evidence Act, 1872

In India, barring the insanity defence outlined in Section 84 of the Indian Penal Code7, forensic psychiatrist experts are not often put under the spotlight in a criminal trial. However, the moment an accused invokes his defense under Section 98 of the Indian Penal Code, the forensic psychiatrist expert is empowered with influencing the evidence in his capacity as an expert witness before the court under Section 45 of the Evidence Act, 1872 ("Evidence Act"). The training for and the existing regulatory guidelines governing practice of forensic psychiatric experts in India is virtually non existent. However, there are certain codes of conduct that have evolved over time which guide such experts in their conduct.

Under the Evidence Act an expert witness under Section 45 of the Act may testify to either a fact or to their opinion in a filed of expertise. A forensic psychiatrist expert may either be a a fact witness or an expert witness. The role of the forensic psychiatrist is to "assist the trier of fact to understand the evidence or to determine a fact in issue."8 When a court trying an offence is faced with the questions revolving around the insanity defence it may call upon a forensic psychiatric expert to be a an expert witness when it needs a deeper understading and technical knowledge on the specific psychological subject. On the other hand, when the court requires the psychiatrist to testify as to the mental competence of the Accused persons or suspects, the psychiatrist has to opine as to such fact and is deemed a fact witness. Both testimonies only assist the court in reaching its own independent conclusion as to the culpability of an individual.

Indian Courts have always valued the expert opinion of a psychiatrist when it comes to opining upon the mental condition of an accused whose psychological health is in question. The Hon'ble Madras High Court in a case involving a concivt accused of murder u/s. 302 and sentenced to life, while heavily relying upon the testimony of the psychiatric expert, acquitted the Accused and directed him to be placed in a mental health facility for treatment.9

In another case of murder u/s. 302, the Hon'ble Bombay High Court acquitted the Accused, who according to the report of the Medical Officer at the Prison, was mentally infirmed. The Hon'ble High Court noted that the investigating officer failed to produce the report of the psychiatrist who had examined the accused and accordingly the benefit of the doubt favoured the Accused.10

3. Mc Naughten rule and Section 84, Indian Penal Code.

The Mc Naughten Rules (the "Rule") stem from an age-old case of delusion and confusion marking a culmination in the development of law of insanity in common law. For the first time the court decided to employ an unusual procedure to ascertain the law on the subject. A summary of the same has been briefly set out as under;

  1. Accused is sane unless otherwise proved
  2. The accused must have been operating under the defect of his insanity at the time of commission of the crime
  3. If the accused, at the time of commission of the crime, was aware of the fact that the act he is doing is in fact a crime, he is punishable
  4. Partial delusion is to be treated as Clinical Delusion

Forming a vast based precedent in common law countries, primarily due to lack of any institutionalized alternatives, the McNaughten rules became the letter of the law at the time and also formed the basis of Section 84 of IPC11. Despite an attempt by the Law Commission of India to revisit the provision in its 42nd Report, the Provision remains unchanged and outdated. The section embodies the maxim 'Furiosi nulla voluntas est" meaning that a person with mental illness has no free will12.

4. Assessment Models

The only somewhat standardized tool of forensic assessment which is used for psychiatric evaluations to be submitted before Courts is the 'Forensic psychiatry assessment proforma'. This National Institute Mental Health and Neurosciences offers a 'Detailed Workup Proforma for Forensic Psychiatry Patients-II' which is used in the Institute since many decades for semi structured assessment of forensic psychiatric cases13. This is revised from time to time to suit evolving legal requirements.

IV. The Applicable law and Burden of Proof

The rule and by extension Section 84, both ascertain that if a person is capable of distinguishing between right and wrong, then his culpability is frozen14. However, as per the study and knowledge of several legal as well Psychiatric scientists it is a well-known fact that "insanity does not only, or primarily affect the cognitive or intellectual faculties, but affects the whole personality of the patient, including both the will and the emotions15.

However, what is the focus of a Court of Law is 'Legal insanity' and not 'medical insanity'. Legal insanity concerns itself with the psyche of an accused at the time of commission of offence and nothing else.16 Thus when an Accused claims the defence under Section 84 of the IPC he introduces a second facet to the criminal proceedings, that being proving his incapacity. While the burden of proof to prove that an accused committed the offence beyond the reasonable doubt lies with the prosecution, the burden to prove that the Accused was incapacitated with his insanity making him qualified u/s. 84, lies on the Accused. The insanity defence is not for the prosecution to disprove but rather for the Accused to establish with utmost certainty.

V. Duties Of Forensic Psychiatrist Experts

The field of psychiatry and the law, along with the rest of medicine, is increasingly using an evidence-based approach17. Evidence-based medicine is defined by Sackett et al. as "the conscientious, explicit, and judicious use of current best evidence in making decisions about the care of individuals". Sackett and collaborators made the point that all clinical assessments are, to a certain extent, individualized, based on the unique factors of each case18

For all those who plead insanity, standard procedure is absolutely necessary, one which sadly does not exist in India. However, the evolved role and duties of forensic psychiatrists have come in to being through judicial rulings and guidelines which are detailed as follows:

  1. The psychiatrist has a duty to educate the court and clarify issues with all honesty and objectivity19.
  2. The Psychiatrist must review all accompanying legal documents and ascertaining authority including all accompanying evidence20.
  3. As in any forensic and clinical evaluation, the offender must be interviewed at the earliest stage21. Expert must have a detailed note on the history of illness, substance abuse, trauma and child trauma22.
  4. By employing open ended questions and specific incident-oriented hints the Accused must be aided to give the time to time account of the incident23. The comprehensive inquiry should be done on his cognition, behaviour, emotions, and perception, prior, during, and immediately after the commission of the offense24.
  5. The most important deduction of this entire process is the formation of the opinion of whether the Accused could know if the act he was doing was in fact right or wrong, something which proves to be the most difficult task for a psychiatrist25.
  6. Final diagnosis of the Psychiatric health of the defendant26.

VI. Conclusion and Recommendations

As opposed to the United States there are no formal specialities in the field of Forensic Psychiatry in India. The training of the same is scarce and unsourced. Every case and investigation involving a Forensic Psychiatric Opinion is not without fault or grey areas, which is a grim reality in the Indian Criminal justice system. Thus, the following recommendations are made:

  1. Revisiting the concept of criminal responsibility and thus amending Section 84 of the IPC, specifically to eliminate drawing the conclusion of "Right" or "wrong".
  2. In order to amend the Penal provision, there must be more reliance on Experts in forensic Psychiatry and Scholars with extensive research and Practice in the field.
  3. Experts in the field need to be trained in India. To adapt a formal manual compiled with Sociological and Psychological considerations which dissects every possible theoretical aspect of Forensic Psychiatry along the lines of the American Journal of Psychiatry and Law.
  4. To Develop Forensic Psychiatry Training centres to teach Legal, forensic as well as clinical considerations.
  5. Licensing certain niche psychiatrist who are experienced enough to provide an opinion, varying on the degree of severity of crime, the gradient of license must vary.

The Landscape for Forensic Psychiatric Experts is very ambiguous and dark. There lacks a good law, good research and good sources to build a strong system. With extensive academia on the matter and several researchers emphasizing upon the need for revisiting the entire procedure as well as heavy international material being present, it is time for sociologists and psychologist to marry their expertise to create target precedent on the matter which will help reduce the doubt that comes with deciding culpability of a suspect.



  1. 'Insanity Defense: Past, Present, and Future', Suresh Bada Math, Channaveerachari Naveen Kumar, and Sydney Moirangthem, Indian J Psychol Med. 2015 Oct-Dec; 37(4): 381–387. doi: 10.4103/0253-7176.168559
  2. 'Insanity Defense Evaluations - Basic Procedure and Best Practices' By James L. Knoll IV, MD and Phillip J. Resnick, MD Dec 2, Psychiatric Tims , Vol. 25 Issue 14 (2008).
  3. 'The Quality of Forensic Psychological Assessments, Reports, and Testimony: Acknowledging the Gap between Promise and Practice': Robert A. Nicholson and Steve Norwood Source: Law and Human Behavior, Vol. 24, No. 1, Advances in Assessment and Treatmentof Forensic Populations (Feb., 2000), pp. 9-44.
  4. 'DEFENCE OF INSANITY IN INDIAN CRIMINAL LAW': K. M. Sharma Journal of the Indian Law Institute, Vol. 7, No. 4 (OCTOBER-DECEMBER 1965), pp.325-383.
  5. 'Forensic evaluations in psychiatry', R. K. Chadda, Department of Psychiatry, All India Institute of Medical Sciences, Ansari Nagar, New Delhi, India (2013)


1. Morse SJ, Bonnie RJ. Abolition of the insanity defense violates due process. J Am Acad Psychiatry

Law. 2013;41:488–95.

2. Gostin LO, Larry OG. A Human Condition: The law relating to mentally Abnormal Offenders. Vol. MIND; 1977.

3. Neville K. The Insanity Defense: A Comparative Analysis Senior Honors Theses. Paper 244. 2010.

[Last accessed on 2014 Nov 05]. Available from: http://www.commons.emich.edu/cgi/viewcontent.cgi?

article=1219&context=honors .

4. R. v. Arnold. 1724, 16 St.Tr.695. Also see Lord Ferrer's case 1760, 19 St.Tr.885.

5. Hadfield Case. 1800, 27 St.Tr.128.

6. Bowler's case. 1812, 1 Collinson Lunacy 673

7. Gaur KD. Textbook on the Indian Penal Code. New Delhi: Universal Law Publishing; 2009.

8. Testimony by experts: rule 702. In:Federal Criminal Code and Rules. St Paul: West Publishing; 1995:263.

9. Paneerselvam v. State Criminal Appeal (MD) No. 317 of 2016

10.Sagar Dwarakanath Patil v. The State Of Maharashtra Criminal Appeal No.1357 OF 2012

11. Ranchhoddas R, Thakore DK, Manohar V. Ratanlal & Dhirajlal's the Indian Penal Code. Gurgaon:

LexisNexis; 2013.

12. Bapu @ Gajraj Singh vs State of Rajasthan. Appeal (crl.) 1313 of 2006. Date of Judgement on 4

June, 2007

13. State of Rajasthan v. Shera Ram @ Vishnu Dutta. 2012, 1SCC602.

14. R. v. True [1922] 16 Crim. App. R. 164;

15. Friedmann, Law in a changing society 167 et seq. (1959)

16. Surendra Mishra v. State of Jharkhand. 2011, 11 SCC 495.

17. Glancy GD, Saini M: The confluence of evidence-based practice and Daubert within the fields of forensic psychiatry and the law. J Am Acad Psychiatry Law 37:438–41, 2009

18. Sackett DL, Straus SE, Richardson WS, et al: How to practice and teach EBM. New York: Churchill Livingstone, 2000

19. Dahyabhai Chhaganbhai Thakker v. State of Gujarat. 1964, 7SCR 361.

20. Hari Singh Gond v. State of Madhya Pradesh. 2008, 16 SCC 109.

21. Sudhakaran v State of Kerala. 2010 (10) SCC 582.

22. Kumar D, Viswanath B, Sebestian A, Holla B, Konduru R, Chandrashekar CR, et al. Profile of male

forensic psychiatric inpatients in South India. Int J Soc Psychiatry. 2014;60:55–62

23. Supra, note 13

24. Elavarasan v State RbIoP. 2011 (7) SCC 110.

25. Anandrao Bhosale v. State of Maharashtra. 2002, 7 SCC 748.

26. T.N. Lakshmaiah v. State of Karnataka. 2002, 1 SCC 219.

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