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1956 SCR 363 : AIR 1956 SC 488 : 1956 Cri LJ 919 (2)

In the Supreme Court of India

(BEFORE N.H. BHAGWATI AND N. CHANDRASEKHARA AIYAR, JJ.)

BASDEV … Appellant;
Versus
STATE OF PEPSU … Respondent.
Criminal Appeal No. 147 of 1955* , decided on April 17, 1956
Advocates who appeared in this case :
J.N. Kaushal, Senior Advocate, for the Appellant;
Porus A. Mehta and Mr P.G. Gokhale, Advocates, for the Respondent.
The Judgment of the Court was delivered by
N. 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 12th March, 1954. Some had settled down in their seats and
some had not. The appellant asked Maghar Singh, the young boy to step aside a little
so that he 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.
2. 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.
3. 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 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.”
4. 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 intent 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
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summarised as follows:
5. 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 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.
6. 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.
7. In the old English case, Rex v. Meakin1 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 he had used a different kind 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.”
8. 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 wife2
“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.”
9. Slightly different words but somewhat more illuminating were used by Coleridge
J., in Reg. v. Monk house3 .
“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 consequence 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 head, 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. So, 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?
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,
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or to take away from him the power of forming any specific intention. Such a state
of drunkenness may no doubt exist.”
10. A great authority on criminal law Stephen J., postulated the proposition in this
manner in Reg. v. Doherty4 —
“…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.”
11. We may next notice Rex v. Meade5 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 manslaughter.”
12. 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: (2) it may also be
rebutted in the case of a man who is drunk, by showing 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.”
13. Finally, we have to notice the House of Lord's decision in Director of Public
Prosecutions v. Beard6 . 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. Meade5 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 had 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 Dunedin, 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. Meade5
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 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 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
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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.
14. The result of the authorities is summarised neatly and compendiously at p. 63
of Russel on Crime, 10th Edn., 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 rebut the presumption that a man intends the
natural consequences of his act.”
15. 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 he came to the darwaza of Natha Singh PW 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 he did attempt to get away
and was secured at some short distance from the darwaza, and that when secured
he realised what he had done and thus requested the witnesses to be forgiven
saying that it had 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.”
16. 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.
———
*
(Appeal by special leave from the Judgment and Order dated 10th May, 1955 of the Pepsu High Court at Patiala
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in Criminal Appeal No. 93 of 1954 arising out of the Judgment and Order dated 21st June, 1954 of the Court of
Sessions Judge at Barnala in Sessions Case No. 18 of 1954)
1 (1836) 173 ER 131 : 7 Car & P. 295
2 (1838) 173 ER 610 : 8 Car & P. 541
3 (1849) 4 Cox CC 55
4
(1887) 16 Cox CC 306
5 (1909) 1 KB 895
6 (1920) AC 479

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