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Thursday, 24 January 2013



(S 85-86 of IPC)


Himanshu Arora
Roll no. 36/08


Defence of intoxication is a exception, mentioned in section 85 and 86 under
chapterIV (i.e. General Exceptions) of I.P.C 1860.

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 the reason of intoxication, incapable of knowing the nature of the act, or
that he is doing is either wrong, or contrary to law; provided that the thing which
intoxicated him was administered to him without the knowledge or against his will.
The early common law made no concession because of intoxication. The earliest case in
England wherein the court approved the death sentence for a homicide committed in
extreme intoxication is Reninger v. Fogossa.[1] This rigorous law prevailed up to early
nineteenth century, although the efforts by Blackstone and Coke to hold drunkenness an
aggravation met with no success. Moreover, Wharton held the view that, there could rarely
be conviction for homicide if drunkenness avoided responsibility.
But the rule was gradually relaxed in later judicial decisions during that century. And now
the actual insanity produced by drunkenness is a defence against criminal responsibility to
the same extent as if it had originated from other causes. However, only involuntary
drunkenness may be pleaded as an excuse but not voluntary drunkenness. The general rule
in England appears to be that merely to show that a mans mind was so affected by the
drink that he more readily gave way to a violent passion is not a defence. To his general
rule there are two exceptions:-
a) Habitual drinking may occasionally lead to such permanent change in the brain tissues
as to be accounted insanity[2], such as delirium tremens and alcoholic dementia, where the
intellect of a person has been permanently impaired by vicious habits, the reasons for
excluding the plea of incapacity are no longer applicable.
b) Involuntary drunkenness is a defence. This exception may be justified for the reason that
the plea of involuntary drunkenness is not open to same abuse as one of voluntary
drunkenness and the offence is not so likely to be repeated.[3]

Delirium tremens
Delirium tremens is a severe form of alcohol withdrawal that involves sudden and severe
mental or neurological changes.
Delirium tremens can occur after a period of heavy alcohol drinking, especially when the
person does not eat enough food.
It may also be triggered by head injury, infection, or illness in people with a history of heavy
alcohol use.
It is most common in people who have a history of alcohol withdrawal. It is especially
common in those who drink the equivalent of 4 - 5 pints of wine or 7 - 8 pints of beer (or 1
pint of "hard" alcohol) every day for several months. Delirium tremens also commonly
affects those who have had a history of habitual alcohol use or alcoholism for more than 10
Alcohol Dementia
Long-term or excessive drinking can and does cause damage to the brain -- Neurological
damage and memory loss. Some damage can repair itself, but some can become permanent.
Long term excessive use of alcohol or abuse of alcohol.[5]

However, as far as, voluntary intoxication is concerned, different English jurists have
given different views, like,
Stephen, J. said that 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 the 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.
Bishop stated evidence of intoxication therefore is admissible for the purpose of
ascertaining whether he was incapable of entertaining the specific intent charged, where
such intent under the law, is an essential ingredient of the particular crime alleged to have
been committed.[6]

Intoxication is perceived as a state of mind in which a person loses self control and his
ability to judge. In order for a person escape liability under S. 85 of the IPC on grounds of
involuntary intoxication he must be able to fulfil the following three conditions:-

a) The person should be incapable of knowing the nature of the act or,
b) The person should be incapable of acting and thinking in a responsible manner and in all
possibility isnt aware that his act is prohibited by the law or wrong.
c) The source of intoxication must have been given forcefully or someone should have
induced the person to consume it, i.e. without his knowledge or against his will.[7]

Now, what do we mean by the expression without his knowledge or against his
will- This expression simply means ignorance of the fact that what is being administered
is or contains or is mixed with an intoxicant. An act which the doer performed not out of his
own conscious volition but on compulsion by some outside agency by overpowering or
paralysing his will by overt physical acts is an act against ones will.
Voluntary drunkenness is no defence for the commission of a crime. Intoxication is a
voluntary species of madness which is in partys power to abstain from, and he must answer
for it. But where the drunkenness is involuntary, as when a man is forced to drink or when
he is made drunk through stratagem or the fraud of others or through ignorance or when
any intoxicant is administered to him without his knowledge or against his will, then such a
case is exactly on the same footing as unsoundness of mind.
The Director Public Prosecution v. Beard[8], is a landmark case on this point. In this
case, a girl of thirteen years while going to market passed through the gate of a mill where
the accused Beard was the watchmen on the duty. The accused attempted to commit rape.
The girl struggled; therefore, accused placed his hand over her mouth and pressed his
thumb on her throat in a bid to prevent her from screaming. In this endeavour, he
unintentionally killed her. The court of Criminal Appeal found him guilty of manslaughter
but the House of Lords restored the conviction for murder. The following principles were
laid down:-

1) Where a specific intent is an essential element in the offence, evidence of a state of
drunkenness rendering the accused incapable of forming such an intent should be taken
into consideration in order to determining whether he had in fact formed the intent
necessary to constitute the particular crime. If he was so drunk that he was incapable of
forming the intention required, he could not be convicted of a crime which was committed
only if the intent was proved. This does not mean that drunkenness in itself is an excuse for
the crime but that the state of drunkenness may be incompatible with the actual crime
charged and may, therefore, negatives the commission of the crime.
2) Insanity, whether produced by drunkenness or otherwise, is a defence to the crime
charged. The distinction between the defence of insanity in true sense caused by excessive
drinking and the defence of drunkenness which produces a condition such the drunken
mans mind becomes incapable of forming a specific intention, has been preserved
throughout the cases. The insane person cannot be convicted of a crime. The law takes no
note of the cause of insanity. If actual insanity in fact supervenes, as a result of excessive
drunkenness, it furnishes as complete an answer to a criminal charge as insanity induced by
any other cause. Insanity even though temporary, was an answer, where the defence
pleaded was that the accused was of unsound mind at the time of commission of the act and
the evidence established that he was suffering from delirium tremens resulting from over
indulgence in drink, it was held that, drunkenness is one thing and the diseases to
which drunkenness leads are different things, and if a man by drunkenness brings
on a state of disease which causes such a degree of madness ever for a time, which would
have relieved him from responsibility, if it had been caused in any other way, then he would
not be criminally responsible.
3) That evidence of drunkenness which renders the accused incapable of forming a special
intent, essential to constitute a crime should be taken into consideration with other facts
proved in order to determine whether or not he had this intent.
4) That evidence of drunkenness falling short of proved incapacity in the accused to form the
intent necessary to constitute the crime, and merely establishing that his mind was effected
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 the acts.[9]

Analogous law
In laying down that drunkenness excuses a crime the section provides that the drink must
have been administered to him without his knowledge or against his will. This is in
accordance with the English law, under which it is settled that if drunkenness is voluntary, it
cannot excuse a man from the commission of the crime, but it is, on the other hand, an
aggravation of crime. As to artificial voluntarily contracted madness or drunkenness or
intoxication, which depriving men of their reason, puts them in temporary frenzy, our law
looks upon this as an aggravation of the offence rather than as an excuse of any criminal
misbehaviour. Similarly, in Greece, a law of Pittacus enacted, that he who committed the
crime, when drunk, should receive a double punishment, one for the crime itself and the
other for the ebriety (state of being intoxicated) which prompted him to commit it.

Principle -
Since criminal intention is foundation of all the criminal responsibilities, it follows that a
person who is drunk is in the same predicament as a person temporarily insane. Indeed,
such a state has been termed as dementia offectata a form of lunacy in which the
functions of the mind are temporarily suspended. But since no man can be permitted to
wear cloak of immunity by getting drunk, this rule justly not accepts the cases of voluntary
drunkenness. But while such drunkenness is never an answer to a crime, it is relevant in
determining the question of intention and for that purpose, it is permissible to prove in
defence that the prisoner was suffering from a habitual and fixed frenzy brought on by

Scope and Applicability
Sections 85-86 crystallize in tabloid form the law relating to intoxication and drunkenness
as a defence or a plea in mitigation of a criminal offence. Section 85 gives the same
protection to a person as section 84 does to a person of unsound mind, who is by the reason
of intoxication incapable of knowing the nature of the act or that the thing which intoxicated
him was administered to him without his knowledge and against his will. For the
applicability of this section, it must be shown that the accused was in the state of
intoxication, when he committed the crime and not otherwise. This section applies to only
involuntary drunkenness and not voluntary drunkenness. In order to get its benefit, the
intoxication should not have been incurred voluntarily.
Another essential requisite of the section is that the drunkenness must be that the offender
was incapable of knowing the nature of the act or that what he was doing was contrary to
law. Hence, the correct test is whether by the reason of involuntary intoxication, the accused
was incapable of forming an intention of committing the offence. This section deals with
the question of knowledge possessed by an accused person at the time he
commits the offence and leaves quite open the question of intention. A person,
who gets into the state of intoxication voluntarily, is presumed to have the same knowledge
he would have had if he had not been intoxicated. When the state of intoxication is such as
to make him incapable of knowing the nature of the act or that he is doing what is either
wrong or contrary to law, he can only be punished on the basis of knowledge and not for the
particular intention.[11]
However, a person cannot become drunk himself and commit an offence and then come and
say that he had consumed the liquor and the benefit under S 85 should be given to him.
Even if the incident were to occur in a sudden quarrel, the law lays down that the accused
should not be the person to start the quarrel and he should not act in a cruel or inhuman
manner. But in this case, the act of the accused in setting fire to the deceased is cruel;
therefore, it cannot be brought under this exception. [12][13]

What is involuntary drunkenness?
Drunkenness is either voluntary or involuntary: it is involuntary when the person suffering
from it has had the intoxication administered to him either (a) by force (against his will), or
b) by fraud (without his knowledge). The expression without his knowledge means
ignorance of the fact that what is being administered to him is or contains or is mixed with
an intoxicant, as also explained before. But the connotation of the expression against his
will is equally clear as a little reflection show. Will is the faculty of our minds which guides
or controls our actions. So where the mind goes with the act it can be said that a person had
acted in accordance with his will. An act which is against the will must be an act which the
performer performed not out of his own conscious volition but on the compulsion by some
outside agency by overpowering or paralysing his will by overt physical acts. Moral
persuasion, acting as an incentive, has never been considered as an adequate excuse or
imposition on young, experienced or weak minds or adults of superior strength of mind or
will. On this view if friends or relatives persuaded a person to drink a little more than he can
reasonably digest, he cannot complain that he was made to drink against his will.
Where the accused drank the liquor at the persuasion of his father to alleviate his pain, it
was held that the drinking of the liquor by the accused could not be administration of liquor
to him, against his will.[14]
Where a boy of 16 was admitted to a gaming house, where the proprietor plied him with
whiskey in order to cheat him in the game, and the boy, drunk to the point of extreme
intoxication admitted temporary insanity, and in fight killed the operator, it was held that
involuntary intoxication is a very rare thing that can never exist where the person
intoxicated knows what he is drinking and the drinks the intoxicant voluntarily, and without
being so made to do so by force or coercion.[15]

Involuntary Drunkenness as a defence
A person under intoxication can be excused if he had committed any offence provided the
intoxicating material was given to him without his knowledge and consent. Involuntary
drunkenness as a ground of exemption is treated in just the same way as insanity under S
84. Disease of the mind, caused by voluntary drunkenness, which produces mind incapacity,
constitutes insanity and an offence, committed there under, would fall under S 84, although
the disease may be of a temporary nature, and not under this section. For e.g. A, addicted to
excessive use of opium, met B in the field and killed her with a single stroke of his dao as he
passed. The killing was not premeditated, and there was no quarrel and dispute. It was held
that A was not guilty of murder, the case falling under S 84. Thus involuntary drunkenness
per se is no ground of exemption. To be ground of exemption, the involuntary drunkenness
must answer one of the three tests given in this section. The accused must show that he was
so drunk that he did not know either-
(a) Nature of the act, or
(b) That it was wrong, or
(c) That it was contrary to law.

Thus, A, under the influence of a drug, fraudulently administered him, shoots B dead, not
knowing what he does. As act is not a crime.
And, voluntary drunkenness, according to the well-known rule of the English law, and
under the terms of this section is no excuse for crime. The incapacity specified in the section
is no defence if produced by voluntary drunkenness, though it may go towards mitigation of
punishment.[16] Coleridge, J., in one case told the jury thatdrunkenness is
ordinarily neither a defence, nor excuse for a crime, and where it is available
as a partial answer to a charge, it rests upon 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 him restraining himself from committing
the act in question, or to take away from him the power of forming the specific

Drunkenness excuses intention but not the knowledge
Drunkenness makes no difference to the knowledge with which the man is credited and if a
man knew what the natural consequences of his act were, he must be presumed to have
intended to cause them. Now as regards this section, it will be noted that while it recognises
the distinction between intent and knowledge which are the constituents of the most
offences under the code. It lays down that no more than that voluntary drunkenness is no
excuse for not possessing the knowledge of an act, but it says nothing of the intention.
Moreover, since voluntary drunkenness merely creates the presumption of knowledge, such
knowledge would not lead to further presumption of intention since where intention is
presumed from knowledge, it is presumed from actual knowledge and not the when the
knowledge is merely a legal fiction.

The net result of drunkenness as affecting mental responsibility as regards crime may then
be thus stated-
(1) Drunkenness caused without ones knowledge or against ones will excuses the crime
(2) Voluntary drunkenness is an excuse only as regards intention, so that it is a complete
excuse in crimes requiring the presence of an intention to complete a crime.
(3) But voluntary drunkenness is no excuse for a crime which requires the presence merely of
knowledge as distinct from an intention.
(4) In any case, though voluntary drunkenness is no excuse for knowledge, it does not imply
actual knowledge giving rise to the inference of presumed intention.

Drunkenness- How far excuses intention
Sr. Henry James expressed his inability to quote any general or definite rules on the subject
of the extent to which drunkenness can excuse crime, or ought to increase or mitigate
punishment. So he summarises his own views to the effect that in determining the legal
character of the offence committed, drunkenness may be taken into account-
Where it has been established a condition of positive and well-defined insanity.
If it produces a sudden outbreak of passion, occasioning the commission of crime under
circumstances which, in the case of a sober person, would reduce the offence of the murder
to manslaughter.
In the case of minor assaults and acts of violence, it can never be a form of any legal answer
to the charges preferred, but it may either aggravate or mitigate the character of the act
As to the effect that should be given to drunkenness when determining the amount of
punishment to be inflicted, no general rule can be laid down. Its existence may be
considered, and may tend either in the direction of increasing or decreasing the
punishment. [17]

Section 86

86.- Offence requiring a particular intent or knowledge committed by one who
is intoxicated- In cases, where an act done is not an offence unless done with a particular
intent or knowledge, a person who does the act in a state of intoxication shall be liable to be
same 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.

The leading authorities in English Law are Meade and Gallagher.
In R. v. Meade[18], the accused brutally attacked his wife and killed her by a blow with
his fist. He pleaded drunkenness in his defence. He was convicted for murder. It was
contended on behalf of the accused that the presumption that the appellant intended to
murder was rebutted because, by reason of drunkenness, he had no such intent. It was held
that a man is taken to intend the actual consequence of his acts. This may be rebutted in the
case of a man who is drunk by showing his mind to have been so affected by the drinks 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 cause
grievous bodily harm is rebutted. It was further pointed out that if a man be too drunk to
form an intention to kill or do grievous bodily harm, he would, nevertheless, have been
guilty of manslaughter either because he intended to commit a battery upon his wife, or else
because he would have been guilty of gross negligence.

In A.G. for Northern Ireland v. Gallagher[19], there was evidence that the accused
was a psychopath, and that his psychopathy was a disease of the mind which would be
aggravated by drink in such a way as to cause him the more readily to lose his se1fcontrol.
When sober, the accused Gallagher indicated the intention to kill his wife. He then
purchased a bottle of whisky and he may have drunk some of it before he in fact killed his
wife with a knife. The defences of insanity and drunkenness were raised.
The Judge directed the jury to apply the test laid down in M Naghten Rules to the time
when alcohol was taken and not to the time when the actual murder was committed.
Gallagher was convicted. It was observed by the House of Lords that-
"Gallaghers psychopathy was not a disease of the mind caused by drink, but a disease of
the mind which, without the drink, could not have brought the M Naghten Rules into
play because it merely`3 weakened the accuseds power of selfcontrol. The defence of
insanity as opposed to that of drunkenness could not be made good with the aid of whisky,
and the defence of drunkenness was not available because the accused had already formed
the intent to kill when he took the drink."
Lord Denning said that the case had to be decided on the general rule that drunkenness is
no defence to a criminal charge. He accepted two exceptions to this rule, namely, one where
drunkenness prevents the formation of a specific intent, and second, where a disease of the
mind leading to a defect of reason within theMNaghten Rules was induced by drink.
Neither of these exceptions was applicable to Gallagher case because he was not suffering
from such a disease, and he had already for1ned the intention to ki1l before he took the
whisky. Lord Denning suggested that the case would have been different if the accused had
resiled from his intention to kill his wife before taking the drink. In that case, the question
would have been whether the drunkenness was such as to bring the case within the first
exception to the general rule. But "a psychopath who goes out intending to kill, knowing it is
wrong, and does kill, cannot escape the consequences by making him drunk before doing it."
Lord Dennings view is that on a charge of unlawful wounding to which drunkenness is
the only defence, the court is bound to infer that the accused foresaw that his act would
cause some bodily harm to his victim, however drunk the accused may have been. This view
can only be supported on the basis that it is contrary to public policy to allow drunkenness
to be a complete defence to charges of offences against the person on which there is no
possibility of a conviction of a lesser crime, rather than something which may mitigate
liability for a graver crime. Such an approach is perfectly reasonable but there is no modern
authority in favour of it. In conclusion it may be observed that drunkenness is a factor which
will sometimes have to be taken into account in determining the sentence which should be

Basudeo v. State of Pepsu[20], is the leading Indian case on the subject. Basudeo was a
retired military Jamadar, A boy aged about 15 or 16 had accompanied him to a marriage
party. When they had gone to take meal, the appellant asked the boy to step aside so that he
may occupy a convenient seat, but the boy did not move. This enraged the appellant and he
whipped out a pistol and shot the boy in the abdomen. The boy died. The appellant was
drunk at that time. The question was whether the case fell under section 302 or section 304
of the Code. The Supreme Court while holding the accused liable for murder observed as
"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 the 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."

Also , In Dasa Kandha v. State of Orissa[21], the plea of the accused that under the
influence of liquor he could not have formed the requisite intention for committing the
murder of the deceased, hence, his offence be treated as culpable homicide not amounting
to murder, was not accepted. It was held that the normal presumption is that a man intends
the natural consequences of his act unless rebutted by the accused by giving such evidence
of drunkenness as might have affected his faculty of understanding to form the requisite
intent. In this case the plea was not accepted because of the clear and cogent prosecution
evidence which established the guilt of the accused.

In a case A had in his possession two bottles of medicine, one containing a poisonous lotion
and the other a medicine for internal use. While he was in a drunken state A mistakenly
gave his child a dose of the poisonous lotion, as a result of which the child died. Here A is
not entitled to plead the defence of intoxication under section 86 and would be guilty for
culpable homicide not amounting to murder because he was guilty of gross negligence. [22]

Analogous law
This section would at first blush to appear to have been enacted in antagonism to prevailing
doctrine of the English law. But that does not appear to be really in the matter. It gives a
drunken man the knowledge of the sober man when judging of his action but does not give
him the same intention. Consequently, it does not render him liable to be dealt with as if he
had the same intent. The omission to make any express provision in this section as to the
intention of a drunken man is not accidental but appears to have been dictated by the sense
that it would have carried the legal fiction too far. Where therefore, intention is a
constituent of an offence, the question must be dealt with on the general principle of law,
which are the same, both here and in England. The drunkenness may be and should be
taken into consideration on the question of intention.

State of intoxication
The word state of intoxication in sec 86 can only mean intoxication which renders a person
incapable of knowing the nature of the act in question or that he is doing what is either
wrong or contrary to law, when he commits it. It would be extremely dangerous to extend
the protection afforded by sec 86, to persons who commit serious offences under the
influence of liquor in varying stages and differentiate culpability in their favour as opposed
to similar offences by sober persons.
Mere proof of drinking some liquor would not be proof of intoxication and each man has
his own level of intoxication. To substantiate the plea based upon Sec 86, the onus is
squarely upon the shoulder of the accused. It was the duty of the accused to lead the
evidence independently or to bring out cross examination from prosecution witness that he
was in such a state of drunkenness that he could not be in a position to form any intent
essential to constitute the crime.
The absence of qualifying words in S 86 cannot lead to inference that even if the insobriety
(drunkenness) is not so much as to impair the reason of the offender the requisite intent
cannot be presumed. [23]

Scope and applicability-
The Penal Code does not require any particular knowledge or intent to be shown in
connection with some acts in order to constitute them offences, but in the majority of
offences, it requires that the act in order to constitute an offence must have been done with
some specified knowledge or intent, which may be taken to be synonymous with specified
knowledge or intent in order to constitute it an offence. The fact of drunkenness may alter
the nature of the legal offence committed, though it is no excuse for the act. The reason for it
is that in many crimes some particular knowledge or intention is necessary, in order to
render, the accompanying act the crime in question; in such cases it is for the court to take
into account the fact of drunkenness in order to determine whether the accused had that
particular and essential knowledge or intention. This section deals with such cases.
The main part of the section lays down that in such cases 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.

Section Applies only to Voluntary Intoxication
The last part of the section shows that what is said in the main part of the section does not
apply to a case of involuntary drunkenness. It applies only to a case of voluntary
drunkenness. Voluntary intoxication is not a plea which is recognised in law, as an
exception to criminal liability. If a man has voluntarily drunk, then, even if he, by reason of
intoxication, is, in fact, incapable of knowing the nature of his act, or that he is doing what is
either wrong or contrary to law, he is liable to be dealt with as if he had the same knowledge
as he would have had if he had not been intoxicated. His incapacity, which arose by his own
act, will not excuse him. If there is evidence on record to show that the liquor was
administered to the accused without his knowledge or against his will, the court must
attribute, to the accused, the same knowledge of the consequences of his act as if he were
quite sober. If the thing which intoxicated him was administered to him without his
knowledge or against his will, he need not be dealt with as if he were sober, and his
drunkenness, may be taken into consideration in determining whether he had the
knowledge and intent necessary to constitute the offence.[24]

MNaghten Rules
Daniel MNaghten, a Scotsman was tried for the murder of Edmond Drummond, Private
Secretary of Sir Robert Peel, then Prime Minister. MNaghten was under an insane delusion
that Sir Robert Peel had injured him and mistaking Drummond for Sir Robert Peel he shot
and killed him. The accused pleaded insanity in his defence and the medical evidence
produced showed that he was labouring under a morbid delusion because of which he lost
his power of control. The accused was acquitted on the ground of insanity. His acquittal
caused much sensation and became the subject-matter of debate in the House of Lords. The
House of Lords, therefore, referred the matter to a bench of fifteen judges who were called
upon to lay down the law relating to criminal responsibility in case of lunacy. Some
questions were posed to the judges to whom they were asked to answer. The questions and
answers are known as MNaghten Rules, which form the basis of the modem law on
insanity. The following principles can be deduced from the answers given by the judges:-
(l) Notwithstanding the accused did the act complained of with a view, under the influence
of insane delusion, of redressing or revenging some supposed grievance or injury, or of
producing some public benefit. He is nevertheless punishable according to the nature of the
crime committed, if he knew at the time of committing such crime that he was acting
contrary to law.
(2) The jury ought to be told in all cases that every man is to be presumed to be sane and to
possess a sufficient degree of reason to be responsible for his crimes, until the contrary be
proved to their satisfaction, and that to establish a defence on the ground of insanity it must
be clearly proved that at the time of committing the act, the accused was labouring under
such a defect of reason from disease of the mind, as not to know the nature and quality of
the act he was doing, or if he did know it, that he did not know he was doing what was
(3) If the accused was conscious that the act was one that he ought not to do, and if that act
was at the same time contrary to the law of the land, he is punishable, and the usual course,
therefore, has been to leave the question to the jury, whether the accused has a sufficient
degree of reason to know that he was doing an act that was wrong.
(4) If the accused labours under partial delusion only, and is not in other respects insane, he
must be considered in the same situation, as to the responsibility, as if the facts with respect
to which the delusion exists were real. For example, if under the influence of this delusion,
he supposes another man to be in the act of attempting to take away his life, and he kills that
man, as he supposes, in self-defence, he would be exempt from punishment. If his delusion
was that the deceased had inflicted a serious injury to his character and fortune and he
killed him in revenge of such supposed injury, he would be liable to punishment.
(5) A medical man conversant with the disease of insanity who never saw the prisoner
previously to the trial, but who was present during the whole trial and examination of the
witness, cannot be asked to give his opinion as to the state of the prisoners mind at the time
of the commission of the crime or his opinion whether the prisoner was conscious at the
time of doing the act, that he was acting contrary to law, or whether he was labouring under
any delusion at the time because these questions involve the determination of the truth of
the facts deposed to, which it is for the jury to decide, and the questions are not questions
upon mere matter of science. But where the facts are admitted or not disputed, and the
question becomes substantially one of the sciences only, it may be convenient to allow the
question to be put in that general form, though this cannot be insisted on as a matter of
In the opinion of Huda these answers, although they do not amount to judicial decisions,
have been and are still regarded as authoritative expositions of the law relating to insanity.
The following proposition may be drawn from the answers given by the Judges:-
(i) Every man is presumed to be sane and to posses sufficient degree of reason to be
responsible for his crimes, until contrary be proved to the satisfaction of the jury or the
(ii) To establish defence on ground of insanity it must be clearly shown that at the time of
committing the act, the accused was labouring under such a defect of reason from disease of
mind that he did not know the nature and quality of the act he was doing or that he did not
know that what he was doing was wrong.
(iii) If the accused was conscious that the act was one which he ought not to do and if that
act was at the same time contrary to the law, he would be punishable.
(iv) A medical witness who has not seen the accused previous to the trial should not be
asked his opinion whether on evidence he thinks that the accused was insane.
(v) Where the criminal act is committed by a man under some insane delusion as to the
surrounding facts, which conceals from him the true nature of the tact he is doing, he will be
under the same degree of responsibility as he would have been on the facts as he imagined
them to be.[25]

Burden of proof
Section 85 deals with the act of a person incapable of judgment due to intoxication caused
against his will or without his knowledge. Section 86 deals with the offence requiring a
particular intent or knowledge committed by one who is voluntarily intoxicated. Both the
provisions, being part of General Exceptions to criminal liability, put burden of proof on
the persons seeking protection thereof.

To avail the protection of s 85, it is required for an accused to prove that the intoxication
was not voluntary and that he, by reason of intoxication, lost the mental equilibrium to
distinguish a right from wrong or nature of the act committed by him. Both the questions of
involuntary nature of intoxication, as well as its effect on his mental faculties, are questions
of fact that need to be established by an accused. Evidence of drunkenness short of requisite
mental deprivation disentitles him the protective umbrella.

Similarly, the onus of proof that the state of self-induced intoxication has made the accused
incapable of forming the requisite specific intent essential to constitute the crime lies on the
voluntary intoxicated person. A mere proof of that he was labouring under the influence of
self-administered intoxicant is not enough to attract the protection. To substantiate the
plea, he is required to lead evidence that he was in such a state of drunkenness that made
him incapable of forming an intent essential to constitute the crime. 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 the man intends the natural consequences of
his act.

Proposals for reform
Liability for a crime committed by a person under the influence of an intoxicant
administered to him by someone else without his knowledge or against his will is equated
with that of an insane person. Involuntary drunkenness absolves an individual from liability
A voluntary or self-induced intoxication does not operate as an extenuating factor even
though it makes a person mentally incapable to understand the consequences of his act.
Section 86 lays down that voluntary intoxication cannot be pleaded as a defence on the
ground that the intoxicated person did not have the particular kind of knowledge or intent
mentioned in the definition of the offence with which he is charged.
However, phraseology of s 86, as pointed by the apex court in the Basdeo case, is
confusing. Referring to the expression intent or knowledge appearing in the first part of s
86 and the omission of intent in the second part of the section, the Supreme Court queried:
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
The Law Commission of India, with a view to doing away the judicially hinted confusion,
felt it desirable to omit altogether the reference to intention in s 86. It also recommended
the merger of section 85 and 86 in a single provision as both of them deal with the same
subject. The proposed provision reads:
85. Act of a person who is intoxicated.-
(1) 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 such intoxication was not self-induced.

(2) Where an act done by a person in state of intoxication which is self- induced will be an
offence if done with a particular knowledge, he shall be liable to be dealt with as if he did the
act with the knowledge he would have had if he had not been intoxicated.
(3) Intoxication is self induced in a person when he voluntarily causes the state of
intoxication in himself.[26] [27]


S.NO. Name of Book/website Name of the author
1. Indian Penal Code S.N.Mishra
2. Criminal Law PSA Pillai
3. Indian Penal Code S.K Srivasava
4. Penal Law of India Dr. Hari Singh Gaur
5. Indian Penal Code Basu
6. Commentary on Indian Penal Code Batuk Lal



[1] (1551) K.B 75 Eng. Rep.1.
[2] Beard, (1920) A.C 479.
[3] Prof. Misra, S.N, Indian Penal Code , Pg 193 ,14
edition, 2006, Central law publications
[6] Supra note 3 (referred ahead) Pg 194-195.
[8] 1920 A.C 479
[9] Supra note 3 ( referred ahead ) pg 195
[10] Dr. Gaur, Hari Singh , Penal Law of India, Pg 728 and 729, 11
edition, 2004, Law
Publishers Pvt. Ltd.
[11] Srivastav .S.K, Indian Penal Code, Pg 668-669, 19
edition , Luxis Nexis