LAW 2007

Criminal Law

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Introduction

Criminal law includes a variety of penalties vary depending on the circumstances, and also there
are several defenses available in addition to the punishments. ‘Intoxication’ is one of the
defense to specific intent crimes such as murder, robbery burglary etc. when consider about what
is meant by ‘Intoxication’, ‘A state in which alcohol, marijuana, hallucinogens or narcotic drugs
impair a person’s ability to act as normal. In this, individual loses all their senses, mental control
and the ability to distinguish between right and wrong as well as, the ability to comprehend the
consequences of their actions1. In, DPP v. Bread Lord Birkenhead stated, ‘Where a specific
intent is a specific element in the offence, evidence of a drunken state rendering the accused
incapable of forming such an intent should be considered in determining whether he had in fact
formed the necessary intent to constitute the particular crime. Where a specific intent is required,
a man cannot be convicted of that particular offence if he can prove that he was so intoxicated
that he was unable to form the intent.’2 Accordingly, in this ‘Mens Rea’ element or ‘intention’
is important to determine defendant can use intoxication as a defense. So in this, when defender
use intoxication as a defense the liability of the defendant could be reduced depending on the
facts and evidence of the case and strength and persuasiveness of the arguments3. This
intoxication defense divide in two areas, Involuntary intoxication and voluntary intoxication.
Involuntary intoxication is the person who has been intoxicated without his or her knowledge
and voluntary intoxication means intoxicating oneself with knowledge of getting impaired.
Intoxication is one of the defenses provided in general exceptions in Section 78 and Section 79
of Sri Lankan penal code and section 78 is about Involuntary intoxication and section 79 is
about voluntary intoxication.

1
Shruti Mulgund, ‘Critical analysis of intoxication as a defense in IPC,1860’ (2020)
2
[1920] AC 479
3
Harsha Vidanapathirana ‘Intoxication as a defence’

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Analyze about section 79 of Sri Lankan penal code compare to section 86 of Indian penal
code

When consider about how section 79 of Sri Lankan penal code describe the voluntary
intoxication, ‘’In cases where an act done is not an offence unless done with a particular
knowledge or intent, 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, unless
the thing which intoxicated him was administered to him without his knowledge or against his
will.’’4 According to this, when a person is intoxicated voluntarily, court assumed that he has the
same level of knowledge as if he were sober, but this cannot be said for intention. As well as
there is a loophole in this section 79, What if the intoxicant has been prescribed by a medical
professional? For example, if person use drug that prescribed by doctor and then he intoxicated
because of that drug and after that he commit a crime then how he defenses himself by the crime
he did because of the intoxicated using prescribed drugs for his illness? there is no clause about
that include in section 79, and it should be add to the section 79 and haven’t explanation about
how measure the amount of intoxicated he was at the time of the crime, according to my opinion
I think it should add the explanation with illustrations about how the measure amount of
intoxication of the defendant at the time of he did the crime.

Admissibility and Application of Voluntary intoxication as a defense for murder in Sri

Lanka evaluate with different limbs of section 294 of penal code

‘All murders are culpable homicide, but all culpable homicides are not murders’, section 294 of
Sri Lankan penal code is about murder and it has different limbs that when culpable homicide
consider as murder. In this, voluntary intoxication is one of defense that use by the accuses for
reduce murder to culpable homicide. Sometimes, using voluntary intoxication as defense for
murder is criticized, because it has some weakness points. In this, by proving the intoxication
and proving the absent of murderous intention, accuse who committed the crime can reduce his
liability of murder to culpable homicide. According to the section 296 of Sri Lankan penal code,
‘whoever commit the murder shall be punished with the death’5 and according to the section

4
Penal code 1883, s 79
5
Penal code 1883, s 296

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297, ‘20 years of imprisonment is the punishment for the culpable homicide’ 6. In this, when
accused used voluntary intoxication as a defense he can reduce his death penalty to the
imprisonment, because of that it sometimes unjust for the victim who deceased. So, this
voluntary intoxication is mostly connected with the people’s mind and court can see the actus rea
of every crime but sometimes court can’t find out actual intention of the accuse because no one
can scan about the someone’s mind to get his real intention. Therefore, ‘voluntary intoxication’
is criticized and this do not consider as a strength defense.

However, when consider about admissibility and application of voluntary intoxication as a

defense for murder with its different limbs. According to the section 294 of penal code,

294: ‘…culpable homicide is murder,7

Firstly: if the act by which the death is caused is done with the intention of causing death;
according to this limb, there should be a special intention to do a murder and voluntary
intoxication can be used to this as a defense, because using voluntary intoxication it can be prove
that because of the drunkenness defendant was incapable of forming a murderous intention. For
an instance, A was using alcohol and he was intoxicated, while B was coming to see A and A did
not recognize B and killed B. A is liable to the murder, but A can use voluntary intoxication as a
defense and A can prove that he was intoxicated that time and he had not murderous intention
toward B, then A can reduce liability of murder to culpable homicide and A will punish
according to the section 297 of penal code. Jayathilaka v AG is case that used voluntary
intoxication as a defense for murder. In this case, first and second accused were indicated for
having committed the murder of one Rankoth Pedige Wijerathne an offence punishable under
section 296 of the penal code. in this, accused used voluntary intoxication as a defense for
murder, when briefly consider about facts of the case first and second accused drank ‘kasippu’
and at that time first accused had suggested that they should rob the deceased’s boutique. Then
they went to the deceased’s boutique and first accused knocked against the barbed wire and
deceased opened the door and came out aiming the torch and at time first accused had ordered
wijemudalali not to come forward but he came forward and at that time first accused shot

6
Ibid, s 297
7
Ibid, s 294

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wijemudalali on the chest, at accused liable to the murder but after the appeal court consider
about the circumstances about intoxication of accused at that time and court reversed conviction
for murder against the accused and substitute therefor a conviction for culpable homicide8,
because it proved that accused had not murderous intention toward deceased because of the
drunkenness. As well as, it can’t be use voluntary intoxication as a defense for murder, when it
clearly seen the murderous intention. This intention can be seen in accused’s statements or
behavior, In King v Rengasamy the accused in a state of self – induced intoxication and attack
deceased an repeatedly with a club and when he had felled him to the ground and declared, ‘I
have killed one, I will kill another’9, in this it can be clearly seen that accused’s murderous
intention, therefore when it can be seen the murderous intention clearly it can’t be use the
voluntary intoxication as a defense for murder under the first limb. This is how voluntary
intoxication can be used as a murder under the first limb of section 294.

Secondly: If it is done with the intention of causing such bodily injury as the offender
knows to be likely to cause the death of the person to whom the harm is caused;

In this, according to the second limb it considers as a murder when the accused has both of
intention and knowledge about that bodily injury caused to the death. According to the
explanation of the second limb, where the victim suffers from some disease, infirmity or other
abnormality, but in murder accused fully aware of the condition of the victim and intentionally
cause injury it consider as a murder and Inculpable homicide accused intentionally causes injury
but he does not aware of the exceptional circumstances and weakness of the victim10. In Kolonda
v State case, accused caused a kick on the left side of the deceased. It was directly over the
ruptured spleen of the deceased. Moncrieff J. said, "In order to make out a charge of murder
the accused must have known that the spleen was diseased.11’’

When consider applicability of voluntary intoxication as defense under this limb, for an instance
A and B are best friends and A knows that B has a disease and he already knows that little hit
sufficient to B’’s death, however when A was drunken and had an argument with B and A hitted
8
[2003] 1 Sri L.R
9
[1924] NLR 234
10
Hasini Dissanayake, ‘Murder v. Culpable homicide: an analysis of the s.293 / s.294 of the penal code of SL’
11
[1901] 5 NLR 236

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B by the plastic chair on B’s thighs and that hit did not sufficient to causing death of normal
person, by the way B was death because of the A’s hit. In such instances voluntary intoxication
can’t use as a defense because A known that B had a disease and A had intention to causing
injury to B that why he use plastic chair for hit him, therefore A is liable to murder not to the
culpable homicide. But, when A was drunken and did not know about B has a disease and then
hit B and B was died, in such instances it can be use voluntary intoxication as defense, because A
did not has a knowledge of B’s disease and he only had intention of causing injury not a murder.

Therefore, Voluntary intoxication can be used as a defense for murder under the second limb of
section 294, but it can’t use voluntary intoxication as a defense every time under this limb.

Thirdly: If it is done with the intention of causing bodily injury to any person, and the
bodily injury intended to be inflicted is sufficient in the ordinary course of nature to cause
death;

In this, it required both of knowledge and intention to prove that culpable homicide is a murder,
as well as this both of 2nd and 3rd limbs required knowledge and intention and both emphases
cause injuries and cause death but it has difference. So second limb apply where the victim’s
condition is extraordinary and accused fully aware of the victim’s weakness and intentionally
cause harm, but 3rd limb envisages where the deceased condition is not extraordinary12. In this 3rd
limb it can be use voluntary intoxication as a defense, because it can be proving that there was no
intention to cause injury or murder because of the intoxicated mind. For an instance, A was
drunk with his friends in night and A Remembered an old controversy with B and because of that
A stabbed to the B , but after few hours A did not remember what happened during he was
intoxicated, and he was liable to the murder, but in this A’s prosecution can use voluntary
intoxication as a defense for murder and he should prove that A had not intention to do bodily
injury to B and at that time he was in unconsciously mind because of the alcohol and that’s why
he stabbed to B. so in this, court consider A’s knowledge as sober person but absent of the
intention it can’t be consider as a murder and it can be reduce to the culpable homicide. In the
Queen v Ekanayake, accused was found guilty of the murder and sentenced to death and he also
found that guilty of causing simple hurt and sentenced to 2 years’ rigorous imprisonment.
12
Hasini Dissanayake, ‘Murder v. Culpable homicide: an analysis of the s.293 / s.294 of the penal code of SL’

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Accused was appeal on the conviction on the 1st count using defense as a voluntary intoxication.
When briefly consider about the facts of this case, accused had come in to the house of the
deceased armed with and electric torch and knife, then the latter and one Herman were about to
take their dinner and stabbed the deceased first and then stabbed to the Herman who tried to
interfere. So it was evidence that the accused and others taken liquor, so it is proved that accused
was self-intoxicated and found that he was incapable of forming the murderous intention,
therefore court decided that he was liable for the culpable homicide not amount to the murder
and sentenced 10 years’ imprisonment13. So accordingly, court consider intoxicated person has a
knowledge as sober person but proving absence of intention to bodily injury or murder it can be
reduced murder to culpable homicide under the 3rd limb of section 294 of penal code.

Fourthly: - If the person committing the act knows that it is so imminently dangerous that
it must in all probability cause death, or such bodily injury as is likely to cause death, and
commits such act without any excuse for incurring the risk of causing death or such injury
as aforesaid.

According to this, this limb considers as a murder when person definitely know his activity cause
to the death or such bodily injury as is likely to cause death, in this it does not consider about the
intention. Therefore, it can’t be use voluntary intoxication as a defense under this limb, because
court consider defendant had knowledge that his activity causing the death while he was
intoxicated. For an instance, C was intoxicated and he stabbed the people who worship in the
church and in this C had not specific intention to kill a specific person but C is liable to the
murder and by using voluntary intoxication it can’t reduce to culpable homicide. In King v
Rengasamy case Bertram C.J analyze about the what is meant by knowledge, ‘“knowledge"
meant, is the knowledge which is the subject of discussion in the connected sections, namely,
"knowledge of the nature and consequence of the act, The law does not allow the drunken man to
say that owing to his intoxication he did not know that a particular blow or a particular stab with
a particular instrument would be likely to cause the death of a human being…it means that a man
setting up a plea of intoxication by Way of defense to a charge of murder, will not be permitted
to say that he did not know he was using a knife or a gun and did not realize that those

13
[1968] 71 NLR

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instruments were likely to cause death’’14, this statement clearly emphasize about what is meant
by knowledge, and according to my opinion this is really strong limb because it has no excuse to
self- intoxicated people. So when this limb give defense to voluntary intoxication it can be use
arbitrary and it can be affect to the security of the society because people committed mass
murders and then use voluntary intoxication as a defense.

Weakness of voluntary intoxication as defense for murder and Recommendations

As above mentioned, there are some criticisms against voluntary intoxication as defense to
murder, because there is an association of alcohol or drugs and crimes that means most of the
time individual drinks alcohol to provide courage himself to do a crime and when a person drinks
too much, he becomes aggressive and loses his sense of self-control. It robs him of his ability to
reason to the point where he may not even realize what he is doing is illegal. Before he starts
drinking, he may plan or decide what he needs to do15, For an instance, when B has intention in
his mind to killed his friend D for get his property, because of that with a murderous intention
and purpose in mind, B has been drinking with D since a month and then B with the murderous
intention kill D and then B can use voluntary intoxication as a defense for murder and if court
failed to find B’s murderous intention, B can reduce his guilty of murder to culpable homicide.
So in 19th century there was a rule called Dutch courage rule, this ‘Dutch courage’ is British rule
and it used in Northern Ireland v Gallagher, in this case The defendant had a grudge against his
wife. The husband made the decision to kill his wife, and after making his decision, he went out
and bought a knife and a bottle of whiskey to gain the courage to carry out the deed or to put his
conscience to rest after the deed was carried out. In this, court decided that the accused was
liable to the murder because he has intention to kill his wife before getting intoxicated and he
used alcohol to get courage16. By the way, this Dutch courage use do not use in nowadays but I
think it should be establishing again because it can stop arbitrary use of voluntary intoxication as
defense against murder and law can punish the accused and can give justice for the victim.

14
[1924] NLR 234
15
Prashant Abhilekh, ‘Voluntary Intoxication’ (Legal service India) <
https://www.legalserviceindia.com/articles/v_t.htm > accessed 10 February 2022

16
[1963]AC 349

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Conclusion,

As stated in the introduction, there are differ criticisms against the voluntary intoxication as a
defence because It's difficult to quantify the amount of intoxicants that impair a person's ability
to reason and anticipate. It is highly subjective, meaning it can easily differ from one person to
the next and it can’t get someone’s real intention because it can’t scan someone’s mind.
However, according to the above analyze it can be concluded that, voluntary intoxication uses as
a defense for murder under the 1st, 2nd and 3rd limbs of the section 294 of Sri Lankan penal code
and it can be reducing liable to murder to culpable homicide, but voluntary intoxication can’t be
used for the get defense under the 4th limb of section 294. However, there are some loopholes in
interpretation of voluntary intoxication in section 79 of penal code and it should reform
according to the present as well as, it should be established the Dutch courage rule because
without clear restrictions, it will be easy for anyone to commit a murder and reduce it to culpable
homicide with by proving that he did not have the specific intent to commit the murder as a
result of being intoxicated.

(words – 3201)

Bibliography

Statutes

Penal Code of Sri Lanka 1883

Cases

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Foreign Jurisdictions

DPP v. Bread [1920] AC 479

Northern Ireland v Gallagher [1963]AC 349

Sri Lankan Case Laws

Jayathilaka v Attorney General [2003] Sri L.R

King v Kolanda [1901] 5 NLR 236

King v Rengasamy [1924] NLR 438

Queen v Ekanayake [1968] 71 NLR

Journal Articles

Ariyarathna, ‘Criminal Acts Committed with a Common Intention and Under Intoxication: A
case scenario highlighting their legal implications (2021)

Dissanayake H, ‘Murder v culpable homicide: An analysis of the s.293 / s.294 of the penal code
of Sri Lanka

Mulgund S, ‘Critical analysis of intoxication as a defence in IPC,1860’ (2020)

Sahan D and Kannappan M, ‘Voluntary intoxication as an exception under IPC,’ (2018)

Websites

Prashant Abhilekh, ‘Voluntary Intoxication’ (Legal service India) <

https://www.legalserviceindia.com/articles/v_t.htm > accessed 10 February 2022

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