This blog is written by Niharika Goel, a law student of VIPS, Guru Gobind Singh Indraprastha University on the defence of intoxication under the Indian Penal Code, 1908 and how voluntary and involuntary intoxication are weighed and interpreted differently by the eyes of the law.
“Evidence of intoxication is admissible for the purpose of ascertaining whether he was incapable of entertaining the specific intent charged, where such intent, under the law, is an essential ingredient of the particular crime alleged to have been committed” – Bishop
It is a matter of common knowledge that mens rea and actus reus combined together essentially constitute the majority of the offences under the Indian Penal Code, 1860. The essence of criminal law lies within the maxim ‘actus non facit reum nisi mens sit rea’. The maxim says that the act is not culpable unless the mind is guilty. Therefore, mens rea, in simpler words, the intention to commit a crime plays a major role in determining the guilt of the accused.
As a general principle of law, the presumption exists that a man knows the nature and consequences of his acts and thus is held responsible for it. However, there comes across certain exceptions to the general rule where a person may be excused. In some cases, a person gets totally excused from criminal responsibility by virtue of being a head of a sovereign State or being a representative of the State, United Nations Organisation, etc. Criminal proceedings are not invoked against such personages on the principle that the exercise of criminal jurisdiction would be incompatible with their prestigious position and high status as the Constitution of India, Article 361 guarantees immunity to the President of India and governors of the State from criminal prosecution. However, this prosecution is limited to these terms of service as mentioned under clause 2 of Article 361. Others may be excused from the consequences of punishment by reason of the requisite mens rea necessary for the commission of a particular offence itself does not make a man guilty unless his intentions are so. Such cases have been discussed elaborately under this Chapter.
The framers of the Penal Code have put all instances of exceptions under one chapter of the Code (Chapter IV commencing from Sections 76 to 106) to eliminate the necessity of repeating the same under every Section. Every penal provision, and every illustration of a definition under the penal code shall be construed subject to the provisions contained in this Chapter.The scope of the general exceptions provided in this Chapter is very wide. It is only limited to the offences under the Penal Code, but it extends to the offences under the special or local laws as well as specified in Section 40 of the Code.
Burden of proof
According to Section 103 and Section 105 of the Indian Evidence Act, 1872, the burden of proof stands for such evidence that would conventionally make a reasonable man in the particular circumstance, to act upon the supposition that it exists. Generally, the burden of proving everything essential to the establishment of the charge against the accused lies on the prosecution who substantially asserts the affirmative and not upon the person who denies it, except in offences relating to the dowry death, abatement to the suicide of newly-married woman or rape, etc.
The rule has its origin in the Roman maxim: ei qui affirmat non ei qui negat incumbit probatio, viz., he who seeks the aid of a court should be the first to prove that he has a case and that is the nature of things it is more difficult to prove a negative than an affirmative. Resonating the maxim, the burden of proving that the accused committed the act and did so with a guilty mind is essential to be established to constitute the crime charged and rests upon the prosecution throughout the trial, it never shifts to the defence as held under Woolmington v Director of Public Prosecution.
Alcohol intoxication also known as drunkenness for alcohol poisoning is the negative behaviour and the physical effects caused by a reason raised in consumption of alcohol where symptoms may include mild sedation and poor coordination. At higher doses of alcohol, the person may experience slurred speech, may have trouble walking, and even go through nausea. It is a state by which both the mental and physical condition of a person is disabled because of intake of alcohol or some narcotic substance, commonly known as a state of being toxic. Instead, the person is unable to understand what they have done is right or wrong and is unable to understand the consequences of one’s own actions. An intoxicated person is neither able to control his actions, nor he is able to react in a prerequisite manner.
Act of a person incapable of judgment by reason of intoxication
Legally, alcohol intoxication is often defined as a blood alcohol concentration (BAC) of greater than 5.4 – 17.4 mmol/L (25-80 mg/dl or 0.025-0.080%). A constant blood alcohol level of more than 0.0 % is life-threatening as well as it may result in the death of a person whereas the content of a moderate level can result in blurred vision as it lacks balance while using motor vehicles, inability of judgement etc.
It also has a direct effect on vital organs of humans such as the brain and heart. Drinking causes loss of memory and coordination at the time of intake and also causes long-term side effects. The functioning as well as the structure of the brain changes due to the consumption of alcohol causing damage to the cerebellum resulting in loss of control and imbalance of the body. The heart is also a highly sensitive organ and is directly prone to get affected by excess intake of alcohol. It leads to weakening of the heart, impacts delivery of oxygen in the organs of the body which may lead to an imbalance. Long-term effects include cardiac arrest as well other effects may also include high blood pressure and irregular heartbeat which can result in several long-term problems.
The Indian Penal Code, 1860 in Section 85 and Section 86 has the provisions relating to acts committed by a person by reason of intoxication. Since criminal intent is the basis of criminal liability and an intoxicated person is in the same state of mental condition as an insane person, the function of the mind is temporarily suspended. But, no one can be permitted to wear the cloak of immunity by getting drunk and so, the voluntary transaction is never an answer to criminal charges. If a man, however, is forced to drink through fraud or ignorance, without the knowledge or against his will, the act is a non-voluntary act and is excused from liability.
Therefore, it can be said that the Indian Penal Code divides intoxication into two categories that are voluntary intoxication and non-voluntary intoxication. Involuntary intoxication gets covered under general exceptions and such a case can be excused by the reason of the failure of judgment due to drunkenness, and the act so conducted was not at all voluntary. On the other hand, voluntary intoxication is not immunized by the Indian Penal Code and any conduct followed by the same cannot be absolutely excused.
Delirium tremens is a severe form of alcohol withdrawal that involves sudden and severe mental or neurological changes. Delirium tremens can occur after a period of heavy alcohol drinking, especially when the person does not eat enough food. It may also be triggered by head injury, infection, or illness in people with a history of heavy alcohol use. It is most common in people who have a history of alcohol withdrawal. It is especially common in those who drink the equivalent of 4 – 5 pints of wine or 7 – 8 pints of beer (or 1 pint of “hard” alcohol) every day for several months. Delirium tremens also commonly affects those who have had a history of habitual alcohol use or alcoholism for more than 10 years.
IPC Section 85 and Section 86 describe intoxication as an extenuating element. A joint reading of Sections 85 and 86 shows that the former lays out the rule on intoxication or drunkenness as a shield against a criminal charge, whereas the latter deals with a knowingly intoxicated person’s criminal liability while committing an offence under the influence of a self-administered intoxicant.
Section 85 of the Indian Penal Code provides that nothing is an offence which is done by a person who at the time of doing it by reason of intoxication is incapable of knowing the nature of the act he is doing, and what is either or contrary to the law, provided that the thing which intoxicated him was administered to him without his knowledge or against his will.
Therefore, Section 85 lays down that the test to determine when a person is said to have caused an act as a result of involuntary intoxication so as to claim the benefit of exemption under this Section. Section 85 gives the same immunity to a person intoxicated involuntary as Section 84 gives to a person of unsound mind. That is to say, a man in order to claim exemption from criminal liability on the ground of involuntary intoxication must establish that he was:
- Incapable of knowing the nature of the act; or
- That he was doing what was either wrong or contrary to law;
- That the thing which intoxicated him was given to him without his knowledge or against his will.
The justification for such a provision is based on the contention that the accused had not contributed himself towards his drunkenness and which is not likely to be repeated as in the case of a voluntary act, as established under the case of Mathai Mathew v State, 1992.
Section 86 of the Indian Penal Code provides that in cases where an act done is not an offence and is done with a piece of particular knowledge or intent, then a person who does the act in a state of intoxication shall be liable to be dealt with, as if he had the same knowledge as he would have had if he had not been toxicated unless the thing which intoxicated him was administered to him was without his knowledge or against his will.
Alcohol intoxication or drunkenness has never been recognised as an excuse for inappropriate or criminal misconduct. The authorities have more often than not, asserted on the fact that voluntary drunkenness is considered more of an aggravation than a defence. This view was based upon the common law principle that a man who by his own voluntary act debauches and destroys his will power, shall be no better situated in regard to criminal acts than a sober man. Here, debauches means an extreme indulgence of going beyond socially approved limits of behaviour especially in relation to alcohol and sex.
The case of Reniger v Fogossa states that if a person who is drunk kills another, this shall be a felony, and he shall be hanged for it even if he did it through ignorance, for when he was drunk or he had no understanding and no memory. But, where that ignorance was caused by his own act and folly and he could have avoided it, he shall not be privileged thereby.
It is said that one who sins when drunk, should be punished when he is sober – qui peccat ebrius luat sobrius. The justification for the punishment in such cases is based on the principle that intoxication is the result of a voluntary act of the accused and he must answer for it, although he might not have been capable of self-restraint at the time the crime was committed.
Ingredients of Section 86
Section 86 deals with that class of cases wherein a man enters into intoxication voluntarily. It attributes the same knowledge to such a man that he would have had, had he not been intoxicated, i.e., the knowledge of a sober man with regard to the consequence of his acts. For instance, if A, a man who has consumed too much liquor, takes a knife from his house and goes along the road shouting his intention to kill B, with whom he had quarrelled earlier, and kills C who tried to pacify him, A would be imputed with the same knowledge as he would have had, had he been sober and his act would amount to culpable homicide not amounting to murder punishable under Section 304, IPC and not murder.
In the case of Basdev vs State of Pepsu, 1956, the law of dominance has been very briefly summarised. The appellant Basdev of the village Harigarh was a retired military jamadar, who was charged with the murder of a young boy named Magarh Singh (15 or 16 years old). The two of them and others of the same village went to attend a wedding and to take the mid-day meal; some had settled down in their seats and some had not. The appellant asked Magar Singh, the young boy to step aside a little so that he could occupy a convenient seat but Magar Singh did not move. In a fit of anger, the appellant whipped out a pistol and shot the boy in the abdomen. The injury proved fatal.
While rejecting the plea of the accused to allow him the benefit of Section 86 and reduce the charge from murder to culpable homicide not amounting to murder, the Supreme Court laid down the following rules for guidance:
- The absence of understanding the nature and consequences of an act whether produced by drunkenness or otherwise is not a defence to the crime charged.
- The evidence of drunkenness which renders the accused incapable of forming the specific intent essential to constitute the crime, should be taken into consideration with other proven facts in order to determine whether or not he had this intent.
- The evidence of drunkenness falls short to prove the incapacity of rational judgement, and merely establishing that his mind was affected by a drink which gave way to some violent passion, does not rebut the presumption that a man intends the natural consequences of his acts.
In the case of Dasa Kandha versus the State of Orissa, 1976 the plea of the accused-appellant that under the influence of liquor he could not have formed the requisite intent, and hence this offence is to be treated as a culpable homicide and not murder, was not sustained. In the instant case, the plea could not be upheld because of the clear and cognizant prosecution evidence which established the guilt of the accused.
Insanity arising out of excessive drinking is no defence for attempted rape and murders
In the case of Lucus v Queen (Australia), 1998, a conviction for attempted rape and attempted murder of a seven-year-old child upheld.
- The appellant was convicted in the Supreme Court of the Northern Territory of Australia on 8th August 1968 for the offences of attempted murder and attempted rape of a seven-year-old child. He was sentenced to imprisonment with hard labour for eight years for the attempted murder and five years for the attempted rape, the sentences were to be served concurrently and to commence from 23rd September 1968.
- In an application for leave to appeal from the Supreme Court of the Northern Territory to the High Court of Australia, the appellant relied upon, on establishing the defence of insanity.
First, upon a claim that he had been in a state of delirium tremens at the time of the commission of the offence from excessive consumption of methylated spirits, and secondly, upon statements attributed to him indicating a lack of comprehension of events that had been taking place. While dismissing the appeal, the judge said:
The defence pleaded an absence of intent in the case of each charge due to the state of intoxication at the relevant time and insanity at the time of the performance of the acts constituting the offences due to alcoholic excess.
Firstly that due to excessive consumption of methylated spirit he was in a state of delirium tremens at the time of the commission of the acts constituting the offences, and secondly, some statement attributed to the accused indicated a lack of comprehension of events that were taking place. No medical evidence was called as to the existence of any mental disorder.
As regards the submission of the defence that the two sentences being excessive should be reduced, the court declined to accept the contention of the difference and said that the sentences were well within the proper exercise of discretion of the court in all the circumstances of the case and thus the appeal was dismissed.
In the case of Queen versus Paul Francis Tatten, 2014 the Canadian Supreme Court held that self induced intoxication, short of automatic, cannot be relied upon as an excuse for general intent offence.
Crime of basic intent and crimes of specific intent – distinguished
In Director of Public Prosecution v. Majewski, House of Lords held that it is a rule of substantive law that unless the offence charged required proof that the accused lacked the mens rea normally required for that offence or was in a state of automatism at the material time, he cannot be absolutely excused of the offence.
In this case, a disturbance had occurred in a public house and Majewski was ordered to leave by the landlord. He refused and butted (hit) the landlord in the face and punched a customer. Majewski was ejected from the bar but re-entered. He punched the landlord and started swinging a piece of broken glass at the landlord and a customer, cutting the landlord’s arm.
The landlord managed to restrain Majewski until the police arrived, whereupon a fierce struggle took place to get him into a police car, during which Majewski kicked three police officers. Later he struck a police inspector who entered his police cell. Majewski was charged and convicted on four counts of assault occasioning actual bodily harm and on three counts of assaulting a police constable in the execution of his duty.
His case was that at the material time he was acting under the influence of a combination of drugs (not medically prescribed) and alcohol, to such an extent that he did not know what he was doing. Majewski’s appeal to the House of Lords was dismissed. The decision in the Majewski case affirms the proposition in the Beard case that evidence of self-induced intoxication negate mens rea is a defence to a charge of an offence requiring proof of a specific intent; but where an accused is charged with an offence not requiring a ‘specific intent’ (of basic intent) he can be convicted even though he did not have the mens rea normally required for that offence; and even though he was then in a state of automatism.
In Majewski, the House of Lords recognised as a substantive rule of law that where self-induced intoxication is relied on by a person charged with an offence not requiring specific intent, the prosecution need not prove any intention or other state of mind normally required for that offence. While the definition of specific intent is obscure, it is possible in the light of various judicial decisions to list offences which do, or do not, require specific intent.
Defence of Intoxication in the United States
The intoxicated offenders’ legal responsibility for criminal acts in the United States differ widely according to evolving standards of maturing society and concept of religious, morality, philosophical, medical and social norms. The Victorian era, Common law which had its impact on the American legal system to punish intoxicated and sober offenders equally. For instance, if a person who is drunk kills another, the act would be a murder and he shall be hanged, though he did it through ignorance even though he had no understanding. The reason behind no room of excuse is that the court believes that it happened on account of his folly which he could have avoided had he not been drunk. This was based on the principle of “harm oriented doctrine”.
The modern concept of actus reus and mens rea liability on an “act oriented” framework as against “harm oriented” concept, implied that where there is no mens rea, a man is not liable for any crime ‘irrespective of harm caused. Crime committed under severe intoxication, when a person cannot form a criminal intent due to intoxication, will be excused and the accused will not be liable. On this assumption, the Indiana State Supreme Court in Terry v. State 1984, held that the murder statute clearly requires an intentional act on the part of the perpetrator. In order to form intent the perpetrator must be acting competently. Any situation which renders the perpetrator incapable of forming intent frees him from the responsibility of his acts.
By the late nineteenth century, the American Medical Association in 1995 declared that “alcoholism is a disease” and even self-induced intoxication could be classified “involuntary” comparable to mental illness and shall be exempted from criminal liability. As in case of an insane person, he shall be favoured for rehabilitation instead of punishment.
However, the U.S. Supreme Court in P v. Texas, 1968 by a majority of 5 to 4 held that any induced public intoxication is punishable. A State decides to do so by passing a law of jurisdiction and is not in violation of the Eighth Amendment to US Constitution.
Social contract theory
The social contract theory forfeited the individual right to be exonerated for the intended consequences of his acts in case of intoxication as a result of alcoholism for the greater good of the community’s safety. States began to expand the legal responsibility of intoxicated offenders in the late twentieth century.
The effect of drunkenness on the mind and on men’s actions is well known to everyone and it is the duty of men to abstain from placing themselves in a condition which poses dangers, as in case of abstaining from firing into a crowd, or doing any other act likely to be attended with dangerous consequences.
Partial responsibility doctrine
In view of technical difficulties in applying the specific intent doctrine, the model Penal Code of the United States bifurcated culpability into four parts that is purposely, knowingly, recklessly and negligently with a view to permit the defendant to take the place of exemption from criminal liability in respect of an act that requires specific intent for commission of the crime whereas no such benefit of exemption would be admissible in case of crimes committed recklessly or negligently by an intoxicated man.
In the case of People versus Botting, 1993, the New York Court held that intoxication turns a man into a beast preying upon society. And, a drunk man is as responsible for causing harm as if he unleashed a dangerous ferocious dog upon a defenseless victim (infant) whom the dog bites resulting in his death. Here, the person who released the dog is responsible for the infant’s death because he voluntarily jeopardized his control over the dog.
Court held that the intoxicated person is liable for his criminal act in the same way as in the case of a sober man. The State of Montana enacted a law in 1987, providing that a person who is in an intoxicated condition is responsible for his conduct and his intoxicated condition is not a defence to any offence unless the defendant proves that he did not know that it was an intoxicating substance when he consumed, smoked, sniffed or otherwise ingested the substance which caused the condition.
It can be said that the Indian Penal Code divides intoxication into two two categories that is voluntary intoxication and non voluntary intoxication. Involuntary intoxication gets covered under general exceptions and such a case can be excused by the reason of failure of judgement as the act of drunkenness and the act so conducted was not at all voluntary. On the other hand voluntary intoxication is not immunised by the Indian Penal Code and any conduct followed by the same cannot be absolutely excused.
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