Share Link Desktop View

Indian Kanoon - http://indiankanoon.org/doc/504992/

Basdev vs The State Of Pepsu on 17 April, 1956
Equivalent citations: 1956 AIR 488, 1956 SCR 363, 1956 CRI. L. J. 919(2), 1956 SCC
276, AIR 1956 SUPREME COURT 488, 1956 ALL. L. J. 666, 1956 S C J 554, 1956 M P
L J 151, 1956 ANDH L T 593, 58 PUN L R 569
Author: Natwarlal H. Bhagwati
Bench: Natwarlal H. Bhagwati

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
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 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-

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.

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.

"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, (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.
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
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.
: