Voluntary intoxication as a criminal defense: A possibility?

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In December 2019, in the case of Suraj Jagannath Jadhav v. State of Maharashtra, the Supreme Court of India declared that, “If the accused was not in a highly inebriated condition, then intoxication would not count as defense”.

In this case, the accused, in a state of drunkenness abused and assaulted his wife, and poured kerosene on her. When she tried to escape, he set her ablaze. The court considered the whole act of setting ablaze his wife and pouring water after she made noise as an act done with guilty intent, and denied to accept intoxication as a defense because the accused was not in a highly inebriated condition.

Legal concept of intoxication as a defense:

Crime has not any concrete definition but it could be understood as any act or omission of act which is punishable by the penal law of the land. The definition of crime could be variable with penal law but the two basic constituents of crime would not change, i.e., criminal act and criminal intent.

The concurrence of these two elements to constitute crime is sin qua non, which led to the legal phrase, “Actus Non Facit Reum Nisi Mens Sit Rea”. It means that in the absence of a guilty mindset, the criminal act alone can’t constitute crime except in cases where the statute specifically expressed that specific intent is not required to constitute crimes like Kidnapping, Abduction, Possession of Obscene Material, etc. and the same was held in the case of Brend v.Wood by C.J. Lord Goddard and in a number of Indian cases. On the basis of this principle, the defense of intoxication has been based.

Intoxication can be of two types, i.e., voluntary and involuntary intoxication. Intoxication in itself is not a defense to criminal charges. But, as per section 85 of the Indian Penal Code, 1860,

“An act is not considered as offense, if because of intoxication of something which was administered to him without his knowledge or against his will, and by reason of such intoxication he became incapable of knowing the nature of the act, or that he is doing what is either wrong, or contrary to law”. The three required conditions for intoxication as defense are as follows;

  1. At the time of the act done, the accused was intoxicated, and;
  2. The intoxication should be involuntary, i.e., it should be administered without the knowledge of the accused or against his will (by fraud or coercion) and;
  3. Such intoxication made the person incapable of knowing the nature of the act or he isn’t aware that his act is either wrong or prohibited by the law.

Involuntary intoxication is a defense to a crime in which intent is required, subject to the condition that at the time of the act done, such intoxication disables him to behave like an ordinary, prudent, and reasonable person and to decide what is right or wrong. But, involuntary intoxication is not defense if required criminal intention, i.e., mens rea is present.

The other face of section 85 is that, voluntary intoxication is no defense for the commission of crime. Earlier voluntary intoxication was considered as an aggravation rather than a defense because if intoxication is self-induced then it was assumed that it was done to commit crime with ease and efficiency.

But now, it does not make a crime more heinous. However, in voluntary intoxication i.e. self-induced intoxication, accused may still have defense in two cases.

First is when the person becomes mentally ill due to his drinking habit and the illness is of such a nature that makes him incapable to think like an ordinary, prudent, and reasonable person.

Second, is in the case in which the offence requires specific intent. This defense is not available if intent has been formed before voluntary consumption of intoxicant or act is done with recklessness. The same can be seen in Section 86 that deals with voluntary intoxication, i.e., self- induced. As per Section 86 of the Indian Penal Code, 1860,

“In cases of voluntary intoxication, if an act-done become offence only when done with a particular knowledge or intent, a person who does such 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”.

Here, it is clear that voluntary intoxication is not a defense in the offence which requires particular knowledge but it is silent in case of specific intent. Knowledge and intent are not identical, but have thin differences.

Voluntary intoxication as a mitigating factor:

A brain affected by alcohol can’t be equivalent to a sober mind for formation of requisite intent. The specific intent in some cases of crime is inevitable and in spite of voluntarily intoxication, the very fact that required intent has not been formed is counted as mitigating factor in his favor.

This mitigates the severity of the punishment; for example, an individual will be punished for the culpable homicide rather than the more serious crime of murder. In the recent case of Suraj Jagannath Jadhav v. State of Maharashtra, the pleading of the appellant was to mitigate the punishment from punishment for murder to culpable homicide. The required conditions to mitigate punishment in case of voluntary intoxication are as follows;

  1. Intoxication should be self-induced or voluntarily.
  2. The required specific intent for crime has not formed.
  3. Whether the specific intent has formed or not can be gathered from facts and circumstances of the cases like degree of intoxication, activities of accused prior and post to the act of offense etc.

Various Indian cases can elaborate the concept like; in the case of Basdev v. State of PEPSU, in a marriage ceremony, a retired military officer who was very drunk shot a young boy in his abdomen.

He was talking coherently and came on his own to the venue of marriage. After he shot the boy, he attempted to get away and he realized what he had done and asked for forgiveness. SC found the required intent for murder.

In the case of Santosh v. State of Maharashtra, husband under drunkenness question the fidelity of his wife and after an argument set her ablaze by lamp oil which was not accidental and forcefully stopped her from escaping. SC found the required intent for murder.

In the case of Kalu Ram v. State of Rajasthan, the accused in drunkenness asked her wife to sell her ornaments so that he could purchase more liquor. Wife refused to demand which led to altercation. He poured kerosene on her and gave her a matchbox to set her on fire.

On her failure to light the matchstick, the accused set her ablaze. But soon he realized that the fire was flaring up, he threw water on her person in a desperate bid to save her. SC found absence of intent and considered it as mitigating factor.

Conclusion:

In general, intoxication in itself is not a defense. But, involuntary intoxication is a defense if it disables the accused to behave like an ordinary, prudent and reasonable person and to decide what is right or wrong.

Whereas, voluntary intoxication is limited, and a weak defense could mitigate the severity of a punishment, but it cannot exculpate a person from liability. Whether voluntary intoxication is a mitigating factor or not depends upon the facts and circumstances of the case.

Author: Sahil Kumar Purvey from Hidayatullah National Law University, Raipur.

Editor: Farsana Sadiq from Faculty of Law, Jamia Millia Islamia.

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