PETITIONER:
BASDEV
Vs.
RESPONDENT:
THE STATE OF PEPSU
DATE OF JUDGMENT:
17/04/1956
BENCH:
AIYAR, N. CHANDRASEKHARA
BHAGWATI, NATWARLAL H.
CITATION:
1956 AIR 488 1956 SCR 363
ACT
Indian Penal Code, (XLV of 1860), ss. 302-304-86-Murder or
culpable homicide not amounting to murder-Accused under the
influence of drink but his mind not so obscured by the drink
as to cause incapacity in him to form the requisite
intention-Knowledge and intention.
HEADNOTE
So far as knowledge is concerned the court must attribute to
the intoxicated man the same knowledge as if he was quite
sober but so far as intent or intention is concerned, the
court must gather it from the attending general
circumstances of the case paying due regard to the degree of
intoxication. If the man was beside his mind altogether for
the time being, it would not be possible to fix him with the
requisite intention. But if he had not gone so deep in
drinking and from the facts it could be found that he knew
what he was about the court will apply the rule that a man
is presumed to intend the natural consequences of his act or
acts,
That rule of law is well settled:
1.That insanity, whether produced by drunkenness or
otherwise, is a defence to the crime charged;
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2.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
the other facts proved in order to determine whether or not
he had this intent;
3.That evidence of drunkenness falling short of a proved
incapacity in the accused to form the intent necessary to
constitute the crime, and merely establishing that his mind
was affected by drink so that he more readily gave way to
some violent passion, does not rebut the presumption that a
man intends the natural consequences of his acts.
Director of Public Prosecutions v. Board, ([1920] A.C. 479),
referred to.
On the finding in the present case that although the accused
was under the influence of drink, he was not so much under
its influence that his mind was obscured to such an extent
that there was incapacity in him to form the required
intention the offence was not reduced from murder to
culpable homicide not amounting to murder under the second
part of s. 304 of the Indian Penal Code.
JUDGMENT
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 147 of
1955.
Appeal by special leave from the Judgment and Order dated
the 10th May 1955 of the Pepsu High Court at Patiala in
Criminal Appeal No. 93 of 1954 arising out of the Judgment
and Order dated the 21st June, 1954 of the Court of Sessions
Judge at Barnala in Sessions Case No. 18 of 1954.
J.N. Kaushal and Naunit Lal, for the appellant.
Porus A. Mehta and P. G. Gokhale, for the respondent.
1956. April 17. The Judgment of the Court was delivered by
CHANDRASEKHARA AIYAR J.-The appellant Basdev of the village
of Harigarh is a retired military Jamadar. He is charged
with the murder of a young boy named Maghar Singh, aged
about 15 or 16. Both of them and others of the same village
went to attend a wedding in another village. All of them
went to the house of the bride to take the midday meal on
the 12th March, 1954. Some had settled down in their seats
and some bad not. The appellant asked Maghar Singh, the
young boy to step aside a little so that he
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may occupy a convenient seat. But Maghar Singh did not
move. The appellant whipped out a pistol and shot the boy
in the abdomen. The injury proved fatal.
The party that had assembled for the marriage at the bride’s
house seems to have made itself very merry and much drinking
was indulged in. The appellant Jamadar boozed quite a lot
and he became very drunk and intoxicated. The learned
Sessions Judge says "he was excessively drunk’? and that
"according to the evidence of one witness Wazir Singh
Lambardar he was almost in an unconscious condition". This
circumstance and the total absence of any motive or
premeditation to kill were taken by the Sessions Judge into
account and the appellant was awarded the lesser penalty of
transportation for life.
An appeal to the PEPSU High Court at Patiala proved
unsuccessful. Special leave was granted by this Court
limited to the question whether the offence committed by the
petitioner fell under section 302 of the Indian Penal Code
or section 304 of the Indian Penal Code having regard to the
provisions of section 86 of the Indian Penal Code. Section
86 which was elaborately considered by the High Court runs
in these terms:
"In cases where an act done is not an offence unless done
with a particular knowledge or intent, a person who doe& the
act in a state of intoxication shall be liable to be dealt
with as if he bad the same knowledge as he would have had if
he bad not been intoxicated, unless the thing which
intoxicated him was administered to him without his
knowledge or against his will".
It is no doubt true that while the first part of the section
speaks of intent or knowledge, the latter part deals only
with knowledge and a certain element of doubt in
interpretation may possibly be felt by reason of this
omission. If in voluntary drunkenness knowledge is to be
presumed in the same manner as if there was no drunkenness,
what about those cases where mens rea is required. Are we
at liberty to place in-
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tent on the same footing, and if so, why has the section
omitted intent in its latter part? This is not the first
time that the question comes up for consideration. It has
been discussed at length in many decisions and the result
may be briefly summarised as follows:-
So far as knowledge is Concerned, we must attribute to the
intoxicated man the same knowledge as if he was quite sober.
But so far as intent or intention is concerned, we must
gather it from the attending general circumstances of the
case paying due regard to the degree of intoxication. Was
the man beside his mind altogether for the time being? If
so it would not be possible to fix him with the requisite
intention. But if he had not gone so deep in drinking, and
from the facts it could be found that he knew what he was
about, we can apply the rule that a man is presumed to
intend the natural consequences of his act or acts.
Of course, we have to distinguish between motive, intention
and knowledge. Motive is something which prompts a man to
form an intention and knowledge is an awareness of the
consequences of the act. In many cases intention and
knowledge merge into each other and mean the same thing more
or less and intention can be presumed from knowledge. The
demarcating line between knowledge and intention is no doubt
thin but it is not difficult to perceive that they connote
different things. Even in some English decisions, the three
ideas are used interchangeably and this has led to a certain
amount of confusion.
In the old English case, Rex v. Meakin(1) Baron Alderson
referred to the nature of the instrument as an element to be
taken in presuming the intention in these words:
"However, with regard to the intention, drunkenness may
perhaps be adverted to according to the nature of the
instrument used. If a man uses a stick, you would not infer
a malicious intent so strongly against him, if drunk, when
he made an intemperate use of it, as he would if be bad used
a different kind
(1) [1836] 173 E.R. 131; 7 Car. & P. 295.
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of weapon; but where a dangerous instrument is used, which,
if used, must produce grievous bodily harm, drunkenness can
have no effect on the consideration of the malicious intent
of the party."
In a charge of murdering a child levelled against a husband
and wife who were both drunk at the time, Patteson J.,
observed in Regina v. Cruse and Mary his wife (1)
"It appears that both these persons were drunk, and although
drunkenness is no excuse for any crime whatever, yet it is
often of very great importance in cases where it is a
question of intention. A person may be so drunk as to be
utterly unable to form any intention at all, and yet he may
be guilty of very great violence."
Slightly different words but somewhat more illuminating were
used by Coleridge J., in Reg. v. Monkhouse(2)
"The inquiry as to intent is far less simple than that as to
whether an act has been committed, because you cannot look
into a man’s mind to see what was passing there at any given
time. What he intends can only be judged of by what he does
or says, and if he says nothing, then his act alone must
guide you to your decision. It is a general rule in
criminal law, and one founded on common sense, that juries
are to presume a man to do what is the natural con sequence
of his act. The consequence is sometimes so apparent as to
leave no doubt of the intention. A man could not put a
pistol which he knew to be loaded to another’s bead, and
fire it off, without intending to kill him; but even there
the state of mind of the party is most material to be
considered. For instance, if such an act were done by a
born idiot, the intent to kill could not be inferred from
the act. Sol if the defendant is proved to have been
intoxicated, the question becomes a more subtle one; but it
is of the same kind, namely, was he rendered by intoxication
entirely incapable of forming the intent charged?"
(1) [1838] 173 E.R. 610; 8 Car. & P. 541.
(2) [1849] 4 Cox. C.C. 55.
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"Drunkenness is ordinarily neither a defence nor excuse for
crime, and where it is available as a partial answer to a
charge, it rests on the prisoner to prove it, and it is not
enough that he was excited or rendered more irritable,
unless the intoxication was such as to prevent his
restraining himself from committing the act in question, or
to take away from him the power of forming any specific
intention. Such a state of drunkenness may no doubt exist".
A great authority on criminal law Stephen J., postulated the
proposition in this manner in Beg. v. Doherty(1)-
"...... although you cannot take drunkenness as any
excuse for crime, yet when the crime is such that the
intention of the party committing it is one of its
constituent elements, you may look at the fact that a man
was in drink in considering whether he formed the intention
necessary to constitute the crime".
We may next notice Rex v. Meade(2) where the question was
whether there was any misdirection in his summing, up by
Lord Coleridge, J. The summing up was in these words:
"In the first place, every one is presumed to know the
consequences of his acts. If he be insane, that knowledge
is not presumed. Insanity is not pleaded here, but where it
is part of the essence of a crime that a motive, a
particular motive, shall exist in the mind of the man who
does the act, the law declares this-that if the mind at that
time is so obscured by drink, if the reason is dethroned and
the man is incapable therefore of forming that intent, it
justifies the reduction of the charge from murder to man-
slaughter".
Darling, J., delivering the judgment of the Court of
Criminal Appeal affirmed the correctness of the summing up
but stated the rule in his own words as follows:
"A man is taken to intend the natural consequences of his
acts. This presumption may be rebutted (1) in the case of a
sober man, in many ways:
(1) [1887] 16 Cox C.C. 306.
(2) [1909] 1 K.B. 895,
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(2)it may also be rebutted in the case of a man who is
drunk, by shewing his mind to have been so affected by the
drink he had taken that he was incapable of knowing that
what he was doing was dangerous, i.e., likely to inflict
serious injury. If this be proved, the presumption that he
intended to do grievous bodily harm is rebutted".
Finally, we have to notice the House of Lord’s decision in
Director of Public Prosecutions v. Beard(1). In this case a
prisoner ravished a girl of 13 years of age, and in aid of
the act of rape he placed his hand upon her mouth to stop
her from screaming, at the same time pressing his thumb upon
her throat with the result that she died of suffocation.
Drunkenness was pleaded as a defence. Bailhache J. directed
the jury that the defence of drunkenness could only prevail
if the accused by reason of it did not know what he was
doing or did not know that he was doing wrong. The jury
brought in a verdict of murder and the man was sentenced to
death. The Court of Criminal Appeal (Earl of Reading C.J.,
Lord Coleridge J., and Sankey, J.) quashed this conviction
on the ground of misdirection following Rex v. Meade(2)
which established that the presumption that a man intended
the natural consequences of his acts might be rebutted in
the case of drunkenness by showing that his mind was so
affected by the drink that he bad taken that he was
incapable of knowing that what he was doing was dangerous.
The conviction was, therefore, reduced to manslaughter. The
Crown preferred the appeal to the House of Lords and it was
heard by a strong Bench consisting of Lord Chancellor, Lord
Birkenhead, Earl of Reading, C.J., Viscount Haldane, Lord
Denedin, Lord Atkinson, Lord Sumner, Lord Buckmaster, and
Lord Phillimore. The Lord Chancellor delivered the judgment
of the court. He examined the earlier authorities in a
lengthy judgment and reached the conclusion that Rex v.
Meade(2) stated the law rather too broadly, though on the
facts there proved the decision was right. The position
"that a person charged with a crime of violence
(1) [1920] A.C. 479.
(2) [1909] 1 K.B. 895.
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may show, in order to rebut the presumption that he intended
the natural consequences of his acts, that he was so drunk
that he was incapable of knowing what he was doing was
dangerous.................................. which is what is
said in Meade’s case, was not correct as a general
proposition of law and their Lordships laid down three
rules:
(1)That insanity, whether produced by drunkenness or
otherwise, is a defence to the crime charged;
(2) That evidence of drunkenness which renders the accused
incapable of forming the specific intent essential to
constitute the crime should be taken into consideration with
the other facts proved in order to determine whether or not
he had this intent;
(3)That evidence of drunkenness falling short of a proved
incapacity in the accused to form the intent necessary to
constitute the crime, and merely establishing that his mind
was affected by drink so that he more readily gave way to
some violent passion, does not rebut the presumption that a
man intends the natural consequences of his acts.
The result of the authorities is summarised neatly and
compendiously at page 63 of Russel on Crime, tenth edition,
in the following words:
"There is a distinction, however, between the defence of
insanity in the true sense caused by excessive drunkenness
and the defence of drunkenness which produces a condition
such that the drunken man’s mind becomes incapable of
forming a specific intention. If actual insanity in fact
supervenes as the result of alcoholic excess it furnishes as
complete an answer to a criminal charge as insanity induced
by any other cause. But in cases falling short of insanity
evidence of drunkenness which renders the accused incapable
of forming the specific intent essential to constitute the
crime should be taken into consideration with the other
facts proved in order to determine whether or not he had
this intent, but evidence of drunkenness which falls short
of proving such incapacity and merely establishes that the
mind of the accused was so affected by drink that he more
readily gave way to some violent passion does not
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rebut the presumption that a man intends the natural
consequences of his act".
In the present case the learned Judges have found that
although the accused was under the influence of drink, he
was not so much under its influence that his mind was so
obscured by the drink that there was incapacity in him to
form the required intention as stated. They go on to
observe:-
"All that the evidence shows at the most is that at times he
staggered and was incoherent in his talk, but the same
evidence shows that he was also capable of moving himself
independently and talking coherently as well. At the same
time it is proved that be came to the darwaza of Natha Singh
P.W. 12 by himself, that he made a choice for his own seat
and that is why he asked the deceased to move away from his
place, that after shooting at the deceased be did attempt to
get away and was secured at some short distance from the
darwaza, and that when secured be realised what he had done
and thus requested the witnesses to be forgiven saying that
it bad happened from him. There is no evidence that when
taken to the police station Barnala, he did not talk or go
there just as the witnesses and had to be specially
supported. All these facts, in my opinion, go to prove that
there was not proved incapacity in the accused to form the
intention to cause bodily injury sufficient in the ordinary
course of nature to cause death. The accused had,
therefore, failed to prove such incapacity as would have
been available to him as a defence, and so the law presumes
that he intended the natural and probable consequences of
his act, in other words, that he intended to inflict bodily
injury to the deceased and the bodily injury intended to be
inflicted was sufficient in the ordinary course of nature to
cause death".
On this finding the offence is not reduced from murder to
culpable homicide not amounting to murder under the second
part of section 304 of the Indian Penal Code. The
conviction and sentence are right and the appeal is
dismissed.
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