“Nothing is an offence which is done by a person who at the time of doing it, by reason of intoxication, was incapable of knowing the nature of the act, or that what he is doing 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.”
The above provision makes it clear that voluntary drunkenness is no excuse for the commission of a crime. Nevertheless, drunkenness, does not, in the eye of the law, make an offence more heinous. But if a man is made to drink through stratagem or the fraud of others or through ignorance or any other means causing intoxication without the man’s knowledge or against his will, he is excused.
If a person, by the unskilfulness of his physician or the connivance of his enemies eats or drinks such a thing as causes frenzy, this puts him in the same condition with any other frenzy and equally excuses him.
Section 84 of the Indian Penal Code provides immunity from criminal responsibility on the ground of unsoundness of mind. Unsoundness of mind can be caused due to madness, sickness, lunacy or intoxication. Thus, insanity brought on by drunkenness is a good defence provided it is caused involuntarily.
A person is said to be insane when he does not, and cannot understand the nature and quality of his act, or is incapable of knowing that what he is doing is wrong or contrary to law. Intention or guilty knowledge being an essential element of the crime, the fact that the accused was intoxicated at the time he committed the act may be taken into consideration in deciding whether he formed the intention necessary to constitute the crime.
In order to make the point clear, it would be prudent to refer to the observations made by the Court of Appeal in the famous case of Director of Public Prosecutions v. Majewski. The facts of the case in brief were:
In this case M, a drug addict, took about 20 tablets of deszedrine and the next evening he took about eight tablets of barbiturate, he then went into a public house to take a drink. There was a disturbance and the landlord began to escort M’s friend to the door. The friend cried, “He’s pulling me out.” M got up, abused the landlord, butted him in the face and punched a customer.
The landlord and the customers ejected the pair from the bar, but they re-entered by forcing the other door, and breaking a glass panel. M then punched the landlord and started swinging a piece of broken glass and injuring him. When the police arrived, a fierce struggle took place to get him out.
He shouted at the police, “You pigs, I will kill you all”, and kicked two of the officers. M said he could remember nothing of this incident. The Court found on facts that M was able to respond to a request for assistance by his companion; he was able to direct his violence, and he was able to utter abuses and issue threats before he attacked. Therefore, on these facts his plea of intoxication was rejected.
In R. v. Tandi, the accused, a woman who was habitually taking ‘yarmouth’ or ‘barley’ brand of moderate alcohol daily consumed a full bottle ‘Vodka’ a highly intoxicant variety of liquor on the day of incident. Having lost control over herself and her emotions, and in a fit of aggression, she strangulated her eleven years old daughter to death.
She raised the plea of insanity in her defence. But the Court disallowed her plea and observed that she had deliberately and voluntarily consumed a heavy dose of highly intoxicant ‘Vodka’ instead of her usual mild drink in order to lose her mental ability to think and act rationally. Therefore, it was a clear case of voluntary intoxication for which the defence of insanity must fail.
The High Court of Madhya Pradesh in Jethuram Sukhra Nagbanshi v. State, disallowed the defence of involuntary intoxication to the accused under Section 85 of IPC and held that since the accused drank liquor at persuation of his father to alleviate pain, the intoxication was neither without his knowledge nor could it be said to be against his will.
The Court observed that Section 85 lays down the principle of English law formulated by Baron Parke in Pearson v. R., wherein it was held that “voluntary drunkenness is no excuse for crime. If a party be made drunk by strategies or the fraud of another, he is not responsible”. Likewise this defence may be allowed to a person who had been made drunk by the fraud of another or through ignorance, or coercion practised by his friend or foe.
The Indian case of Manindra Lal Das v. Emperor is yet another illustration of Court’s attitude towards the defence of intoxication. In this case the accused, a police officer, shot a prostitute with whom he was friendly and wounded her. He was charged with the offence of attempt to commit murder under Section 307, I.P.C. and voluntarily causing grievous hurt under Section 326. He set up the defence of intoxication. The trial Judge in his direction observed:
“If an act is done in a state of intoxication and that intoxication is voluntarily incurred he is equally liable before the law as if he had done that act in a state of sobriety.”
In an appeal before the High Court the direction was held to be wrong on the ground that “knowledge” is not synonymous with intention. The Court held that although voluntary drunkenness cannot be an excuse for the commission of an offence yet where the question is whether the act was premeditated or done due to sudden heat and impulse, the fact of the party being intoxicated, is held to be a circumstance proper to be taken into consideration in mitigation of sentence justifying leniency.
In Bablu alias Mubarik Hussain v. State of Rajasthan, the accused (appellant) killed his wife, three daughters aged 9 years, 6 years and 4 years and son aged two and half years on December 9, 2005. He was convicted by A.D.J. (Fast Track), Nagpur for the offence under Section 302, I.P.C. and sentenced to death which was affirmed by the High Court.
The appellant took the plea of drunkenness in his defence under Section 85, I.P.C. which deals with act of a person incapable of judgment by reason of intoxication. Rejecting his plea, the Apex Court held that Section 85 provides defence to a person who shows that intoxication was against his will and or the thing which intoxicated him was administered to him without his knowledge.
There being no specific plea taken in the present case about intoxication having been administered without appellants knowledge simply means an ignorance of fact that what is being administered to him is or contains or is mixed with an intoxicant. The defence of drunkenness can be availed of only when intoxication produces such a conduct as the accused loses the requisite intention for the offence.
The onus of proof about reason of intoxication due to which accused had become incapable of having particular knowledge in forming particular intention is on the accused, which he failed to prove in the instant case.
The act of multiple murders of his wife and innocent children done by appellant in a brutal manner and diabolic in conception and cruel in execution and thereafter coming out of his house shouting that “he had killed the five bastards by strangulation one by one”, itself shows that he was well aware of the nature and gravity of his inhuman act.
The Supreme Court in this case noted that plea of drunkenness can never be an excuse for the brutal, diabolic acts of the accused. There upholding the death sentence awarded to the appellant by the trial court and the High Court, the Apex Court held that the case squarely falls under the category of ‘rarest of rare’ cases to warrant death sentence and therefore, appeal deserves to be dismissed.
The main problem in cases where intoxication is pleaded in defence is whether the offender was really intoxicated at the time of the commission of the offence. Medical evidence quite often helps to reach a correct conclusion in this regard. That apart, a more recent device to determine the alcoholic condition of a person is through the use of an instrument called “drunkometer”.
This apparatus detects the presence of alcoholic percentage in the blood stream of a person and thus helps to find out whether the person was under the influence of liquor or not at a given time. It also helps in determining the extent of alcoholic condition of the drunken person and its effect on his mental faculty.
Studies on drug addiction, however, reveal that the problem of drug abuse and alcoholism is not confined to cities alone but it persists in rural areas as well. It equally affects the economically depressed classes, middle classes, upper classes and ultra-modem social groups. However, in cities mostly youth and students are affected whereas in rural areas the agriculturists and labour classes are generally addicted to drugs.
More recently, special treatment centres have been set up by social welfare agencies to deal with alcoholics and drug addicts. In Bombay, The Samaritans a social welfare agency is doing commendable work in the area of rehabilitation of drug addicts. It is high time that Government should also consider setting up special treatment centres for the rehabilitation of drug-addicts and alcoholics.
The modern processes of development have opened the floodgates of offences and drug offences are no exception to this global phenomenon. It hardly needs to be stressed that alcoholism and drug addiction are the off-shoots of modern fast changing social patterns, hence these twin problems should be tackled in their socio-legal perspective. Then only concrete results may be possible.
Undoubtedly, intensive surveillance on the border check-posts and awareness among the public about the evil effects of drug and alcohol addiction have brought about a decline in drug trafficking in recent years but much more still remains to be done in order to eradicate this menace which is damaging the moral fabric of Indian society and culture.