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This article is written by Kiran Kumar, Student Faculty of Law, Banaras Hindu University on intoxication as a general defense under the Indian Penal code, 1860, how it deals with voluntary intoxication and involuntary intoxication, principles governing it, and recent judgments of the  Supreme Court.

This article has been published by Diganth Raj Sehgal.

Introduction 

It is the general principle of criminal law to punish a criminal for committing an offense, initially, it is required to prove that he has done a wrongful act (actus reus) with a wrongful intention (mens rea). This principle is based on the Latin maxim “actus reus non facit reum nisi mens sit rea” which means that merely a guilty act is not sufficient, it should be coupled with a guilty mind to punish a person. It means that to punish a person it is required to prove that he/she has committed a wrongful act with a wrongful intention. In the case of intoxication, the human brain loses its ability to think as a reasonable man or to foresee the consequences of doing a wrongful act. What will happen if someone under the influence of alcohol pushes a person into a well and he dies, can such a person take the defense of intoxication. Intoxication is dealt in under Chapter IV of the Indian Penal Code, 1860. After reading this article you will get answers to these questions.

Intoxication 

When we refer to the dictionary meaning of intoxication, it means “a condition of by which physical or mental control of a person diminished by the effects of alcohol or drugs

Intoxication is a state of mind where the brain and body of a human are temporarily suspended from working as a result of the consumption of alcohol or narcotic substances. In the state of intoxication, a person loses the ability to understand whether he is doing the right act or wrong act and is unable to understand the consequences of his acts.

Intoxication is against the theory of responsibility. A person committing an act under the effect of intoxication, may not do such a wrongful act if he refrains from taking alcohol at the initial point. It will be harsh to punish a person who committed a crime under the influence of alcohol or intoxication. But at the same time, it may not be in the interest of society to treat all the acts committed under the influence of alcohol as general defense and immune the person from liability because sometimes persons consume alcohol with proper knowledge and intend to commit a crime and in such a situation, it shall not be treated as a defense.

Principles governing intoxication as a general defence under the Indian Penal Code, 1860

There are two provisions in the Indian Penal Code, 1860, Section 85 and Section 86 both provisions deal with intoxication as an extenuating factor. When we read both the provisions collectively we get that the former provision deals with involuntary intoxication or intoxication against one’s will, while the latter deals with the liability of a voluntarily intoxicated person committing the offense under the effect of self-administered intoxication.

Section 85 starts with the same phrase as Section 84 starts, “Nothing is an offense” which means that immunity from liability given to a person intoxicated voluntarily is similar to a person of unsound mind. However, Section 86 provides limited protection to a person voluntarily self-intoxicated.

Section 85 protects a person from criminal liability, if, at the time of committing of offense, he was because of intoxication, incapable of knowing the nature of the act, or he is doing something wrong or against the law under the influence of intoxication, provided that such intoxication was administered to him involuntarily  “without his knowledge” or “against his will”.

The term “without his knowledge” means that the person is ignorant of the fact that he is consuming an intoxicant or something mixed with an intoxicant. And the term “against his will” means that he consumed alcohol involuntarily under someone’s force. Normal persuasion to consume alcohol will not be treated as compulsion or force unless there will be an element of compulsion there. For instance, let’s presume that A and B both are good friends, one day A goes to B’s house to meet him, where B offered coffee to A, A is ignorant of the fact that B has mixed alcohol in the tea due to which he will lose the ability to know the consequences of his act and kills C.

In Mabarik Hussain vs State of Rajasthan (2006) SC, In this case, the accused under the influence of liquor killed his better half and five children. The accused took the defense that he was under the effect of intoxication at the time of committing the offense and unable to understand the consequence of his act.  The Apex Court held that the mere fact of intoxication is not enough to invoke Section 85 of the Indian Penal Code 1860, the accused has to prove that the intoxicant was given to him against his will or knowledge.

Section 86 deals with a situation where a person is voluntarily intoxicated, this section says that even if a self-induced intoxicant person, does any offense under the influence of intoxication, he cannot take a defense that because of intoxication he was unable to know the nature of the act or what he is doing is against the law. In the case of self-administered intoxication, it is irrelevant whether the accused knew committing the offense and its consequences or not because in case of voluntary intoxication it is though to prove whether the accused knows or not, so it is presumed by the court that the accused knows the nature of his act and its consequences.

If the self-induced intoxication will be allowed to take the shield of law to escape from criminal liability then it would be giving a sort of license to the criminals to escape from liability. That’s why drunkenness itself is not a defense against criminal liability.

Essential ingredients of Section 85 and Section 86 of the Indian Penal Code, 1860

To claim exemption on the ground of Involuntary Intoxication under Section 85, the person has to prove the followings:

  1. That he was incapable of knowing the nature of the act at the time of committing such an act;
  2. That  he was unaware of the fact that such an act was illegal or against the law;
  3. That he was ignorant of the thing which intoxicated him or if he had the knowledge, it was given against his will.

Section 86 says that if an intoxicated person does the following things then it should be an offense:

  1. A person does an act in a state of intoxication;
  2. That act must be an offense;
  3. It will be presumed that the accused knows;
  4. Unless it is proved that he was intoxicated involuntarily.

Intoxication

Voluntarily Involuntarily

(Section 86) (Section 85)

*Knowledge presumed * Without knowledge

* Intention gathered from circumstances * Against his will

In the recent case Suraj Jagannath Jadav vs the State of Maharastra, (2020) 2 SCC 693, the accused poured kerosene on his wife, and when she was trying to escape from the house to save herself, the accused threw a lighted match-stick on her and set her on fire. Accused took the defense that he was under the influence of liquor and had no intention to cause the death of her wife. The court held that the evidence of drunkenness which causes the accused to incapacity to form an intention essential for the crime should be taken into account with other facts proved, to determine whether he has the intention or not. In other words, we can say that the intention of the intoxicated person should be gathered from the analysis of the whole circumstances and actions of the accused.

In the case of Basdev vs State of Pepsu, AIR 1956 SC 488, the Supreme Court laid down the following guidelines:

  • The absence of the nature of the act and its consequence is a defense against the crime charged by the accused.
  • The fact of drunkenness of the accused should be taken into consideration with other circumstances or proven facts to determine whether the accused has the malafide intention or not.
  • The fact that the accused has become incapable of forming an intention necessary to constitute a crime and may commit violent acts as a result of such drunkenness, does not negate the reality that a man naturally intends the consequences of his actions.

Foreseeability test

This test checks the liability of a person as to whether he is liable or not for the offense committed. It is true that when a person takes alcohol he starts losing control over his actions. There is a certain limit after which a man fully loses control over his mind or actions. If a person stops before reaching that point then we can say that the person has not fully lost his control. But the question is how do we know that a person crossed that point or not? And does this test apply to both types of intoxications – voluntarily and involuntarily?

This test applies only to voluntary intoxication, whereas in involuntary intoxication, intention and knowledge of the person is not a relevant factor to decide the guilt of the accused.

The foreseeability test checks all the actions of an intoxicated person collectively to see whether he crossed the limit after which a man loses self-control and cannot foresee the consequences of his acts. For example, if an intoxicated person just after the commission of murder tries to hide in a bush, it shows that even if he was under the influence of liquor but he has not lost his consciousness to judge whether he is doing a wrongful act or not.

Burden of proof

It is the general rule of Criminal law that the person who desires the court to accept facts to be true, the burden lies on that person to prove its truthfulness. The term, onus probandi, if a fact has to be proved, the person whose interest it is to be proved should adduce some evidence.

Burden of proof on the accused to prove an exception

If the accused wants to avail protection under Section 85 of the Indian Penal Code 1860, he is required to prove that the intoxication was not voluntary or against his will, and because of intoxication he lost the capacity to distinguish between what is wrong and what is right or understand the nature of his act. Both the above said questions have to be proved by the accused to claim protection under Section 85 of the Indian Penal Code, 1860.

Similarly, the burden of proof on the voluntarily intoxicated person is to prove that the intoxication made him incapable to form the specific intent to constitute the crime. To prove his plea, he must show that he was in such a degree of intoxication that he was incapable of forming the necessary intent to commit a crime, held in Dasa Kandha vs State of Orissa, 1976 Cr LJ 2010 (Ori).

Recent judgments

In the case of Paul vs State of Kerala, (2020) 3 SCC 115,  after a quarrel between the deceased and her mother in law she left home to search for her husband and found that he was consuming liquor with his friends, the accused assaulted his wife in front of his friends and later on the same night at 11:00 PM the accused throttled her to death. The accused claimed that he was drunk heavily and had fallen asleep as soon as he reached home, the next morning when woke up he found that his wife was hanging. The Apex Court reiterated that, so far as the knowledge is a concern in the case of voluntary intoxication, it is to be presumed in the same manner as there was no drunkenness. The intention of the accused must be gathered from the attending general circumstances of the case which has already been proved before the court.

In  Suraj Jagannath vs State of Maharastra, (2020) 2 SCC 693, In this case, the accused said that at the time of the incident he was drunk and under the influence of liquor and had no intention to cause her wife’s death. The Supreme Court held that the evidence of his drunkenness should be read together with the other facts before the court to determine his intention.

Conclusion

As we see intoxication in a larger perspective, in some societies taking drugs, alcohol or other intoxicants is a part of their rituals, cultures, and social rites, and in modern societies, it is taken as an offense. The mens rea or guilty mind plays an important role while deciding whether a person has committed an offense or not and in the case of involuntary intoxication it was presumed by the court that the accused was unaware about the intoxicant or if aware then taken against his will and he didn’t have the intention to do such offense.

But in the case of voluntary intoxication, the court presumes that the accused knew the alcohol he was taking and the intention is gathered from the circumstances and the evidence produced before the court.

References

  1. https://www.lawaudience.com/intoxication-as-a-defence-under-indian-penal-code/#:~:text=c)%20FORESEEABILITY%20TEST%3A,he%20wants%20to%20lose%20control.
  2. https://indiankanoon.org/doc/15924247
  3. https://www.lawaudience.com/intoxication-as-a-defence-under-indian-penal-code/
  4. http://www.legalservicesindia.com/article/205/Intoxication-as-a-Defence.html
  5. https://blog.ipleaders.in/intoxication-defence-indian-penal-code-1860/
  6. https://indiankanoon.org/doc/504992/
  7. PSA Pillai’s Criminal Law
  8. Ratan law & Dhirajlal, The Law of Indian Evidence

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