International Journal of Pure and Applied Mathematics

Volume 119 No. 17 2018, 1277-1288

ISSN: 1314-3395 (on-line version)
url: http://www.acadpubl.eu/hub/
Special Issue
http://www.acadpubl.eu/hub/

Voluntary Intoxication - As An Exception Under IPC

1
D. Sahana and 2M. Kannappan
1
Saveetha School of Law,
Saveetha Institute of Medical and Technical Sciences,
Saveetha University,
Chennai.
sahanasenapathy1997@gmail.com
2
Saveetha School of Law,
Saveetha Institute of Medical and Technical Sciences,
Saveetha University,
Chennai.
kannappanm.ssl@saveetha.com
Abstract
This paper aims at examining whether a person can be discharged from
criminal liability under Indian Penal Code who is intoxicated voluntarily. It
has been a controversy for years on this issue. If law can set free an
involuntarily intoxicated person from criminal liability under the code of
IPC, stating that mens rea was absent, how can it only punish a voluntarily
intoxicated person, because in this case also, he loses control and has no
knowledge of what he is doing. This was based on the maxim that, actus
non facit reum nisi mens sit rea’, which means that the act does not makes
one guilty unless he has a guilty intention. This is considered a serious
issue because, in law, no innocent person should be wrongly punished. But
this paper clearly elaborates that the situations needed to be considered
and identified before concluding the case. The legal provisions relating to
intoxication and the test used to determine liability on this issue is also well
discussed. The famous ‘Dutch Courage Rule’ is discussed in the paper,
which gives a different connotation to this matter. The different defences
under different laws are also elucidated briefly. This paper compares that,
what are all the exemptions provided under both Indian and English law.
Various Indian and as well as English landmark judgments are discussed to
the better understanding of the concept. The paper finally concludes
whether the law absolves a person from criminal liability completely for
any act done against law or omitted.
Key Words: Criminal liability, indian penal code, voluntary intoxication,
mens rea absent, dutch courage rule, english and indian law, defences.

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1. Introduction
There are three kinds of abnormal person, that is to say, minors, person of
unsound mind and intoxicated person. These persons do not possess the rational
state of mind to understand the nature of the act they are doing, the way the way
adopt to accomplish it and the legal consequences of the act. There are rising
need for the recognition of provisions for the exemption from punishment under
the state of intoxication from the inclusion of mental element in the definition of
most of the offences. Intoxication is a position in which a person acts
abnormally compared to a prudent or cautious person due to the reason of
inhibition of alcohol or drugs, either voluntarily or involuntarily. Chapter IV of
Indian Penal Code, 1860 that talks about General Exceptions, absolves the
criminal liability of a person who in the state of inability to form rational
thinking committed an act that constitutes crime. It is a defence that is available
to the criminal defendants on the ground that, as a result of intoxication, the
defendant loses his or her capacity to understand the nature of the act they are
doing. It is the situation where, the person loses self control and the ability to
judge. Section 85 explicitly deals with the offences committed by the person
who has been intoxication without his or her knowledge. The other one, Section
86 of the code deals with the offences committed, where intoxication is self
induced. Given following are the three conditions, the person must be able to
fulfil in order to escape from liability under the section 85(4) of Indian Penal
Code on grounds of involuntary intoxication.
i. The person should be incapable of knowing the nature of the act.
ii. The person should be incapable of acting and thinking in a responsible
manner and in all possibility he is not aware that his act is prohibited by
the law.
iii. The source of intoxication must have been given forcefully or someone
should have induced the person to consume it.

All England Report in its Annual Review 1989 observed: “Alcoholism may
constitute a disease provided it has damaged the brain to an extent as to grossly
impair the ability to make rational judgments and emotional responses. A killing
attributable to alcoholism is one thing but a killing attributable to the taking of
alcohol is quite another and a line must be drawn between the two though it
may be a fine one in some cases. The taking of alcohol inevitably impairs
judgment and the ability to control the emotion because of the effect it has on
the brain but the transient effects of alcohol cannot be accounted a disease”.
Intoxication is no excuse. However, delirium tremens, an affection of the brain
caused by drunkenness, as it produces a state of insanity, incapacity to
understand the nature of act, whether it is right or wrong. The disease is realised
as an insanity protanto, the person is treated the same manner as that the case of
involuntary intoxication. Therefore, in some exceptional cases the act of an
intoxicated person is excused from criminal liability.

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Objectives
i. To decide whether voluntary intoxication per se reckless all the time.
ii. To analyse the situation where exemption is provided.
iii. To determine whether person has defence is he intoxicates himself with
the intention to commit crime in state of sanity.
Hypothesis

Null Hypothesis – Intoxication is not a strong defence.

Alternative Hypothesis – Intoxication is a valid defence.

2. Review of Literature
The meaning and essential conditions that constitute exemption under
voluntary intoxication, various landmark judgments decided under this issue
and discussed about the voluntary intoxication that constitutes to intention to
cause crime (Pillai,P.S.A., 2017). The information about the scope of
application of general exceptions during investigations, application of mens rea
to legal entities, the landmark judgments regarding the issue under Sections 85
and 86 of the Indian Penal Code, 1860 including the recent legislative
amendments due to changed in criminality and the exemption as Criminal
liability (Ratanlal, Dhirajlal, 2017). The law on intoxicated offending according
to which incapacity resulting from intoxication by alcohol or drugs can form the
basis for imputed Criminal liability and suggests that in law on intoxicated
offending, intoxication it's simultaneously construed as exculpatory abnormality
and morally culpable conduct. (Loughnan, Arlie., 2016). The origin of the
concept, meaning the legal stand on the issue has it has been, explains
intoxication codified in Section 85 and Section 86 of the Indian Penal Code, the
ways in which a person can be intoxicated along with landmark judgments
relating to it and onus of proof and types of intoxication (Madhuri, B., 2015).
The information about the common law and exculpatory doctrine, concept of
voluntary intoxication briefly described, specific intent as technique of
motivation and the findings of scientific research on alcoholism. (Hall, Jorome.,
1993). The history of intoxication defence, the partial responsibility doctrine,
the anomalous defence of voluntary intoxication, the rationale of the full
responsibility rule and that legislative amendments. (Keiter, Mitchell., 2016).
The information about the audience of judicial confusion surrounding the
defence of intoxication after the judgement in Basudev vs. State of Pepsu,
assumption of intent in relation to offences which require such a mental element
in case of voluntary intoxication may not be a rationale choice. (Dadiya, Jinal.,
2016). The information about the need for recognition of an exception from the
criminal liability on the ground of intoxication arises logically from the
inclusion of a mental element in these definition of most offences and from the
fact that drunkenness and in some circumstances it may because the mental
required for the imposition of criminal liability. (Widhanapathirana, Shiran. H.,
2015). Intoxication and its types. The voluntary and involuntary intoxication are

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elaborated with the crimes of specific intent and the approach taken in crimes of
specific intent and basic intent. This provides information about intoxication in
conjunction with other defences and judgments for all sections. (Thakur,
Pushkar., 2014). The information regarding the reason for being intoxication
treated as an exception and why voluntary intoxication is not treated as an
exception. Says that act is not an offence unless it is done with an intention or
particular knowledge. (Sadanandan, Renjith., 2013). Section 85 elucidated the
condition that amounts to crime caused due to the act of the intoxicated person.
So far as the attributing knowledge is concerned, the intoxicated man is treated
as I'd he was sober. So far as intention is concerned, or is gathered from the
general circumstances of the case and the degree of intoxication.( D., Divya,
Kumawat, Pankaj, 2016). Intoxication is a state wherein the person becomes
incapable of their actions because of the ingestion of undue amount of drugs or
alcohol. Intoxication is not itself a defense to a criminal charge if, the legal
requirement of guilt should be present. (P, Pricilla, Hepitha., N, Janani., 2016).
Throughout the recorded history, alcoholic beverages have been used in many
societies for many purposes - as psychoactive substances, intoxicants, liquids to
quench thirst, sources of calories, etc. Whatever the social and personal
valuation of the alcoholic beverage use, positive or negative or mixed; drinking
alcoholic beverages carries with it some potential for social and health harm,
both to the drinker and to others. (Dasari, Harish., Chavali, K.H., Bansal, S,
Yogender, 2015). The insanity defence has a long history, and is evolved after
many tests that have been tried and tested. McNaughton‟s rules stressed on
understandability of right and wrong and intellectual rather than a moral or
effective definition dominated in its formulation. Lack of control and irresistible
drives or impulses were neglected. Going by the current understanding of
neurological evidences of compulsion and lack of impulse control, rationality
tests without the inclusion of lack of control. (Ashokan, T. V. ,2016).
Intoxication is basically a state wherein the person becomes incapable of normal
speech, thought or actions because of the ingestion of undue amount of drugs
and/or alcohol. IPC interestingly has a provision that provides intoxication as a
defence for the crime committed, though not completely (Gupta, Apeksha.,
2013). Voluntary Intoxication can be used as a basis for the insanity defence in
certain caes. The obscure concept of settled insanity is tested and evolution
from a permanent state of mind usually associated with chronic alcoholism to a
current test of temporary insanity wherein the mental disorder must be fixed and
stable (Meloy, Reid, J., 1992). The law related to Voluntary intoxication and
criminal responsibility in the 50 other states. Statutory and case law citations are
provided which govern the use of intoxication evidence in each jurisdiction to
negate mens rea, to support an insanity defence and to mitigate criminal
sentencing. (Marlowe, B, Douglas., 1999). The enfranchisement of all convicted
prisoners is not considered as an option. In recent times however, certain
international human rights bodies, such as the UN nations Human rights
committee questioned the legitimacy of the disenfranchisement of prisoners
(William, Rebecca., 2007). Alcoholic beverages have existed from time

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immemorial, as has the tendency of persons to over-indulge in them. Criminal

behaviour has also existed from time immemorial. Centuries of experience
show that this ancient aspect of human behaviour often intersect a great deal of
crime committed by intoxicated persons (McCord, David., 2007). Involuntary
intoxication is often misunderstood. The predominant „orthodox‟ view is that
involuntary intoxication should lead to acquittal for offences requiring proof of
fault. Strict liability offences are therefore unaffected. (Brooks, Thom., 2015).
Materials and Methods

This is a doctrinal research. The sources used for the study are secondary
sources which includes books, journals, articles, magazines and websites that
talks about the provisions, case laws and elaborates and discusses about
Intoxication as a defence under IPC.

3. Intoxication and Intention

Intoxication voluntarily with intention to commit crime clearly depicts the
criminal intention which is punishable under IPC. A Motive is something that
makes a man to form an intention to do any act. Knowledge is something that
makes the man aware of the act. There are cases where both intention and
knowledge merge into each other and more or less they mean the same thing
and intention can be presumed from knowledge. The line that separates the both
is thin and at the same time they does not depict different idea. There are cases
where men intoxicates in order to create defence to escape from the criminal
liability. The famous landmark case related to voluntary intoxication is Basudev
vs. State of Pepsu1, where some villagers went to attend a marriage party. All of
them went to attend the mid day meal to the bride‟s house. While eating, a
military officer who was highly drunk, asked a young boy to step aside, so that
he can occupy a convenient seat. But when the boy refused to move, the M. O.
took out his pistol and shot the young boy. The injury proved fatal. The
evidence showed that the accused sometimes staggered and sometimes was
incoherent in his talk. But it was shown that he was capable of moving himself
independently and was capable of talking coherently. The evidences are clear to
prove that, the M.O came on his own to the bride‟s house and made the choice
of his own seat after injuring the deceased. The supreme court from the given
facts explicitly elucidates that there was no proved incapacity on the accused to
form the intention to cause bodily harm sufficient in the ordinary course of the
nature to cause death. Due to his incapacity to prove his innocence, the law
presumed that he intended the natural and probable consequences of his act. In
other words he intended to inflict bodily injuries on the victim. The accused was
found guilty.
Intoxication as a Denial Under Mens REA

This concept of using intoxication as a defence under criminal law, is not a

1
1956 AIR 488

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defence either by exculpation or by excuse2 . More likely, it is an aggravating

factor that increases the degree of social disapproval reflected in the sentence
imposed by the court. Lord Denning stated two examples in the case of
Attorney General Northern Ireland vs. Gallagher3.
i. During a christening ceremony, a nurse was drunk. She by mistake due
to drunkenness put the baby in the fire thinking it was a log of wood.
ii. An intoxicated person mistook his friend to be a theatrical dummy and
stabbed him which led to the death of that friend.

According to Lord Denning, in both the above cases, the murderers can seek
defence. A mistake due to drunkenness is conceivable. The rule governing the
factors amounting to state of intoxication was laid down in the case of Director
of Public Prosecutor vs. Beard4 . Where Lord Brickenhead stated that, where a
specific intent is a specific 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 determine whether he had in fact formed
the necessary intent to constitute the particular crime. Where a specific intent is
necessary, that a man can be able to prove that he was highly intoxicated, that
he was unable to form the intent. In that case he cannot be convicted. In another
case, R vs. Kingston5 , the respondent was in conflict with a couple named
Foreman over business matters. The Foreman employed Penn to obtain
damaging information which they could use against the respondent, who was
homosexual with Pedophiliac tendencies. As a part of the plan Penn invited
youth to his room. According to the evidence of the youth, he remember
nothing from the time between he is sitting in Penn‟s room and the next
morning. It was the case for the prosecution, which the jury by their second
verdict must have accepted, that the boy fell asleep due to administration of
drug. The respondent committed gross sexual acts with the boy and Penn took
photographs as it had been planned. Later, the accused was charged guilty
because he was not intoxicated enough not to have formed the required intent,
even though the intoxication is of an involuntary nature. Another important
case, Director of Public Prosecutor vs. Majewski6 , Majewski appealed against
his conviction for his attempt to assault to cause bodily injury under the
influence of drugs and threatened a constable who was on duty. Where the court
held that in case of assault no specific intent is required and accused is charged
as guilty.
Foresee Ability Test

Foresee ability test is used to determine the criminal liability. Every normal
person has the knowledge that consumption of alcohol or ingestion of drugs
cause loss of control of mind and body, both. Hence, any person knowingly
2
http://www.legalserviceindia.com/intoxication-defence/
3
(1963) AC 349
4
(1920) AC 479
5
(1994) 3 WLR 519
6
(1977) AC 443

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intoxicates himself with such substances, is committing rash and negligent act
averse to the possibility of losing control. By this, one attracts the charge of
deliberate intent by consuming substances known to lead to such
consequences.7 Moreover, loss of control may not be instant and without
symptoms. However, combined with the problem of involuntary intoxication,
the position becomes quite contentious. Even states with a strict liability offence
excluding drunkenness as a defence usually need prosecution of the one that
laced the drinks without the prudent of the one who consumed it. This general
rule could however, open a Pandora‟s box with appropriate justification
obtainable even to such criminals who have at most slightly ran over the
specified alcohol limit for drivers. Therefore, in most of the legal systems,
involuntary loss of control is restricted to cases wherever there is no actual loss
of control and in any case exists with recognisable symptoms. For example,
many states have specified a low limit for the blood alcohol level attracting the
commission of an offence of driving under the influence of alcohol so that
people may be liable for exceeding the prescribed limit even without the
noticeable indicative signs. Generally, this defence is not provided to people
who experience symptom of intoxication, who continue to drink laced drinks
even after they became aware of the consequences. The basis for law in this
area rests on the principle of the good of the general public as against the rights
of an individual who recklessly exposes the public to danger8.
Intoxication Induced with the Intention of Committing Crime

A person does not have defence if he voluntarily intoxicates himself with the
intention to commit crime in the state of insanity. This issue was elaborated in
the case of Attorney General Northern Ireland vs. Gallagher9 , where the
husband, who wanted to kill the wife was first fully drunk by whisky
voluntarily and stabbed the wife with knife. The wife was dead. During the trial
the accused (husband) contended that insanity due to intoxication made him
incapable of forming necessary intent at the time of the act. The court rejected
the contention and held that the accused have committed the same act even if he
has not drunk, he is simply creating a defence under intoxication to escape the
criminal liability.
Intoxication and Defences

As discussed several times, voluntary intoxication is not a defence to general

intent crime. It can only be considered as a defence for a crime of specific
intent. However it does not completely absolves the criminal liability though
reduces the culpability. In the case of R vs. Lipman10 , the facts are as given
here, both the defendant as well as victim are drug addicts. One evening both
took a quantity of drug known as LSD. After two days, in early morning, the
defendant, who is resident of USA, checked out his hotel and left the country.
7
http://www.academia.edu/voluntary-intoxication-as-a-defence/html
8
http://www.justia.com/html
9
(1963) AC 349
10
(1970) 1 QB 152

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On next day, the victim was found dead in her room by the landlord. She had
been struck on the head severely and cause of death had been suffocation due to
a sheet that had been crammed in her mouth. When the defendant was charged
for his criminal act, he contended that “the drugs hallucinated him as he is in the
centre of the earth fighting snakes and in that state of mind he had killed the
victim. The court held that, since for a charge of manslaughter no specific intent
is required, hence in this case self induced intoxication will not serve as a
defence. Acquittal is not possible and charge of manslaughter is inevitable. The
defences under statutory laws and common laws are discussed below.
Statutory Law Defences

The Majewski rule is not applicable in cases where the statute expressly
mentions that a particular belief should be defence to a charge. This can be
elaborated by a famous English law case Jaggard Vs. Dickinson11 . In the case
the court held that, for the purpose of statutory defence of lawful excuse, a
drunken belief will find the defence even though this allows drunkenness to
negate basic intent. The authority is limited and the generality of the defence is
not affected. In case under the influence of the drug accused destroys a thing of
another person by mistake considering it as his own, this belief cannot claim
defence, as this act is an act of recklessness. Where in case he destroys a thing
of third person with consent of that person, he is entitled to defence.
Common Law Defences

This is straight to opposite to defences given under statutory defence. A person

(accused) when sets up ay self defence, he is to be judged on the contentions
made by him or facts he believes, whether it is reasonable or not12 . Any
mistake that arises from voluntary intoxication cannot be relied on as a basis for
defence even on charge of murder or other crime requiring specific intent. In the
case of R vs. Moore13 , the court held that the incapacity to form the intent
under intoxication is treated as an offence in criminal law. However, there has
emerged an opinion in common law, which does not treat if as such, causing an
amount of confusion as regards the same. It is assumed that if self defence is a
defence to murder, then it must also be a defence to manslaughter, but it is not
necessarily so. Due to the reason that, an act done in self defence arising from a
gross negligent mistake should be a manslaughter by gross negligence.
Defence under English Law

Over a series of cases the English law has developed and came a long way from
the rigid law that it was earlier. Earlier in the nineteenth century, voluntary
intoxication was never a defence. But there are lots of changes over this issue14.
Voluntary intoxication, the case where defendant consumes alcohol wilfully and
commits acts constituting prohibited conduct of an offence, is a considerable
11
(1981) 1 QB 527
12
http://www.scribd.com/defence-under-intoxication/html
13
(1988) 1 SCR 1097
14
http://www.quora.com/

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problem under English Criminal Law. There is a correspondence between

incidences of drink and crimes of violence, such as assaults and stabbings. In
dealing with this issue and balancing theoretical problems with public policy
issues, the English law has categorised offences into two categories, those of
basic intent and those of specific intent. In the latter, the defendant's
intoxication will be directly relevant as to whether he or she formed the
necessary intent. In the former, the picture is more complicated and unclear,
although it is known that intoxication will not provide a defence where
recklessness can be shown on the accepted facts. Crimes of specific intent
include murder, and those of basic intent most crimes of recklessness, including
manslaughter15 . It is believed over years that consumption of alcohol makes a
person violent, therefore any violent act committed while intoxicated is done
out of control. But in English Law, neither voluntary nor involuntary
intoxication provides defence. No behaviour is excusable merely because it was
done under the influence of intoxication. The phrase – „Drunken intent is still an
intent‟ is not abandoned. Where an individual voluntarily intoxicates himself, it
is not a defence for him to claim that he does not have intention to commit any
act that he did while he was intoxicated. Lord Brickenhead stated that, until
nineteenth century voluntary intoxication was never a defence, based on the
principle that „a man who by his own voluntary act debauches and destroys his
will power shall be no better situated in regard to criminal acts than a sober
man‟16 . Later considering the statement of Lord Brickenhead, Lord Elwyn-
Jones indicated that, a crime was one of specific intent if mens rea went further
than actus reus -viz- the crime is one of ulterior intent.
Distinction between Indian and English Law

Indian Law has its foundation in English Law. In case of English Law, the
defence of intoxication is not codified under any specific section whereas in
Indian law, it is codified under Sections 85 and 86 of Indian Penal Code.
Compared to English Law, in Indian law the clause that the drug has to be
administered against the will of the individual is given more importance.17
Similarly, the division between specific intent and basic intent is given lot of
importance in English law which helps in reducing the severity of the
punishment. Like Indian law, British law has not elaborated the distinction
between knowledge and intent like it had given for basic intent and specific
intent.
Dutch Courage Rule

The word alcohol is generally associated with violence or crime or

aggressiveness. Usually, men consume alcohol not only for pleasure or getting
high but also to tackle depression or to forget hurt or pain in order to soothe
their nerves or to escape from real world or pain or depression. In that state of

15
http://www.thelegalhighness.com/
16
http://www.shareyouressays.com/
17
http://www.senseoflaw.blogspot.com/

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mind he is far from reality and he imagines himself overcoming his problems
bravely.18Apart from this there is another reason for taking alcohol which is to
build up courage19 Drinking causes sense of self restraint and deprives him of
his sense of reason to such an extent that he may not even realise that what he is
doing is illegal. The person before drinking plans what he has to do and build up
courage to do that act which is known as „Dutch Courage‟. There are various
cases among that one is Attorney General Northern Ireland vs. Gallagher .20

4. Conclusion
The idea of intoxication is different during different times in different societies.
Some societies considering alcohol consumption as religious or social rites
whereas some consider it as an immoral or sinful act. Taking into consideration
all this, to bring about a proper society, modern law criminalised intoxication
per se and at the same time adopted more neutral standards based on whether an
act arising from intoxication is voluntary or involuntary. Therefore, the viability
of any defence of a criminal act rests on the combination of the voluntary and
involuntary principle and the universal knowledge that consumption of
intoxicants is likely to induce loss of control. The evolution of law in this area
reflects a careful application of these standards. Over years this issue has come
to an end stating that, intoxication is not a very strong defence and even if it
tries to commute the punishment , it cannot escape a person from his liability.
This is taken into consideration because absolute and cold logic cannot be
applied to human affairs, as they require certain flexibility in their dealing. A
normal person doesn‟t give much value for the law if an intoxicated man attack
him, and the man gets away with his conduct merely because he was too
intoxicated to think clear.

References
[1] Pillai, P.S.A., Criminal law, lexisnexis, 13th edn.,(2017)
[2] Ratanlal, Dhirajlal., The Indian Penal Code, lexisnexis, 35th edn.,
(2017)
[3] Loughnan, Arlie, The Law of Intoxicated Offending, Oxford
University Press, pg.365-373, (2016)
[4] Madhuri, B., Intoxication – A Brief Analysis of Section 85 and 86
of IPC (2015)
[5] Hall, Jorome., Intoxication and Criminal Responsibility, Harvard
Law Review, Vol. 57, pg. 1047- 1050,1993

18
http;//www.pathlegal.in/
19
http://www.termpaperhouse.com/
20
(1963) AC 349

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[6] Keiter, Mitchell, Just Say No Excuse :The Rise and Fall of the
Intoxication Defense, Journal of Criminal lAw and Criminology,
Vol. 87, Iss. 2 Winter, 2016
[7] Dadiya, Jinal., Intoxication as a defence in Criminal law – Can
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[8] Widhanpathrana, Shiran. H., Intoxication as a Defence, Indian
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[9] Thakur, Pushkar., Intoxication as a defence, Indian Journal of
Law , (2014)
[10] Sadanandan, Renjith., Intoxication as a Defence in IPC,
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[11] D., Divya, Kumawat, Pankaj., General Exceptions under the IPC,
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[12] P, Pricilla, Hepitha., N, Janani., Insights of Intoxication – A Legal
Perspective, International Journal of Legal Insight, Vol. 1, Iss. 4,
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[13] Dasari, Harish., Chavali, K.H., Bansal, S, Yogende., Medico legal
implications of Legal Consumptions, J Indian Acad Forensic
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[14] Ashokan, T.V., The Insanity Defence, Indian Journal Of
Psychiatry, Vol. 58, pp.151-158, 2016.
[15] Gupta, Apeksha., Defence under Intoxication, Lexkhoj
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