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PETITIONER: BASDEV

       Vs.

RESPONDENT: THE STATE OF PEPSU

DATE OF JUDGMENT: 17/04/1956

BENCH: AIYAR, N. CHANDRASEKHARA 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;        364        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

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      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        365        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-        48        366

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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.        367        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

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      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.        368        "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,        369        (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

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      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.        370        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        371        rebut  the  presumption  that  a  man  intends  the  natural        consequences of his act".        In  the  present  case the learned Judges  have  found  that

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      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.        372