How far intoxication is taken as a ground of defence in a criminal prosecution?

Question: How far intoxication is taken as a ground of defence in a criminal prosecution? [U.P.C.J. 1982, 1991, 1997]

Or

Discuss the liability of an intoxicated person under the Indian Penal Code. [UPCJ 2003, UPHJS 1982]

Find the answer to the mains question only on Legal Bites. [How far intoxication is taken as a ground of defence in a criminal prosecution?….]

Answer

The provisions relating to intoxication as a defence in the Indian Penal Code are laid down in section 85 and 86 which runs as follow:

“Section 85: Act of a person incapable of judgment by reason of intoxica­tion caused against his will – Nothing is an offence which is done by a person who, at the time of doing it, is, by reason of intoxication, incapable of knowing the nature of the act, or that he is doing what is either wrong or contrary to law; provided that the thing which intoxicated him was administered to him without his knowledge or against his will.”

“Section 86: Offence requiring a particular intent or knowledge committed by one who is intoxicated – In cases where an act was done is not an offence unless done with particular knowledge or intent, 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 intoxicated unless the thing which intoxicated him was administered to him without his knowl­edge or against his will.”

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.

A person seeking immunity from section 85 is required to prove that he was:

1. incapable of knowing the nature of the act performed, or
2. doing what was either incorrect or contrary to the statute, and
3. performing the thing which intoxicated him without his consent or against his will.

In Mubarak Hussain v. State of Rajasthan [(2006) 13 SCC 116], the appellant killed his wife and five children under the influence of alcohol. The SC held that “The mere proof of intoxication is not sufficient to invoke section 85. The accused must take the plea and prove that the intoxicant was administered to him without his knowledge or against his will.”

In Jojomon v. State of Kerala [(2011) ILR 2 Kerala 789], it was held that “A person is not entitled to immunity from corresponding criminal liability because, due to a self-intoxicant, he or she loses his or her mental ability to know the nature of the act or that what he or she does was wrong or contrary to law.”

In Shankar Jaiswara v. State of West Bengal [(2007) 9 SCC 360], the SC declined to invoke section 86 in favour of the defendant who, in a state of drunkenness, insulted the deceased in a filthy language and, when he was told to leave him alone, stabbed him with a sharp weapon seven times before his death, as he was not out of his senses because of intoxication.

He was conscious and capable of understanding the consequences of his behaviour. His conduct was ‘not without intention’, and the SC accordingly upheld his conviction in accordance with section 302 of the Criminal Code.

Basdev v. State of Pepsu, 1956 AIR 488, the court held that 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 section 304 of the Indian Penal Code.

It is to note that a person entering a state of intoxication is presumed to have the same awareness as he would have had if he had not been intoxicated. For instance, if the accused was in a state of intoxication at the time of the alleged crime and the impairment is unintentional, he would be assumed to have understood at the time of the act under section 86, IPC, to have known at the time of the act that it is likely to cause death and he will be liable for punishment.

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