All the brain caused by alcoholic excess) caused

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.

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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”.”

Drunkenness is no excuse. However, delirium tremens (an affection of the brain caused by alcoholic excess) caused by drinking (not voluntarily) differs from drunkenness in the eye of the law.

Because it produces certain degree of madness, incapacity to know the nature of the act whether it is right or wrong. Hence under certain unavoidable circumstances, the act of heavily drunkard person is excused from criminal responsibility.”

Sec. 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 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 the thing which intoxicated him was administered to him without his knowledge or against his will.

Sec. 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 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.


The ingredients of Sections 85 and 86 are that a person will be exonerated from liability for an act done while in a state of intoxication, if he, at the time of doing it, by reason of intoxication, was,—

(a) Incapable of knowing the nature of the act; or

(b) That he was not in a state of mind to know that the act was either wrong or contrary to law; and

(c) That the thing which intoxicated him was administered to him without his knowledge or against his will;

(d) And that voluntary drunkenness is not excuse for the commission of a crime.

(e) Burden of proof lies upon the accused.

Basudev vs. State (1956 AIR SC 488)

Brief Facts:

The accused was a retired Jamedar, attended a marriage party, in which he drank liquor heavily. He wanted to sit in a chair, in which a boy already sat. The accused asked him to stand so that he would sit in it.

The boy refused. The accused became annoyed, and shot the boy with his pistol. The boy died on the spot. Thereafter, the accused walked to the police station and surrendered him.

The accused pleaded that he was heavily intoxicated. The prosecution contended that the defence of intoxication should not be available to the accused, because he took excess liquor voluntarily, and also at the time of doing the act, he stood independently.


The trial Court held that standing, arguing and shooting at the time of incidence, and walking to the police station himself without the help of any body, and surrendering himself to the police show that the accused did not loose his state of mind.

He was aware what he was doing. The trial Court convicted him for the offence of murder. The High Court and Supreme Court also confirmed the conviction.

R. vs. Tandy (1989) 1 All ER 267)

Brief Facts:

The accused was regularly drinking Yermouth or barley wine. On the incident day, she took one full bottle of Vodka. During the night, she strangled her 11-year old daughter. She was charged with murder under Sec. 2 (1) of the Homicide Act, 1957 (equal to Section 302 of Indian Penal Code). She pleaded the defence of intoxication.


The trial Court convicted her opining that she had chosen to drink Vodka instead of her daily drink Yermouth. In her case, the defence of involuntary drunkenness cannot be taken, because she herself was craving to take the alcohol. Court of Appeal acquitted the accused. On appeal, the House of Lords confirmed the trial Court’s decision.

R. vs. Kingston (1994) 3 All ER 353)

Brief Facts:

The accused-1 invited a fifteen-year boy to his flat, and gave him alcohol mixed cool drinks. After consuming alcohol, the boy felt unconscious. Then he invited Kingston-accused-2 to do unnatural sexual acts with the boy. While Kingston was doing unnatural sexual acts with the boy, accused screened in video.

Judgment: The trial Court punished both the accused. Kingston appealed. The Court of Appeal quashed the punishment. On appeal, the House of Lords confirmed the judgment of the trial Court holding that both the accused were in mens rea. The acts of both partners would consist wrongful acts, which were pre-planned by them, and both of them were guilty.

Mavari Surya Satyanarayana vs. State of A.P. (1995) 1 CrLJ 689)

Brief Fact: The accused suspected the character of his wife. One day he drank heavily. Some hot exchange of words took place between wife and husband. The accused poured the kerosene on his wife.

She tried to escape from the fires and rushed to outside of the house. The accused again caught the victim, and again poured the kerosene resulting her death. He pleaded the defence of intoxication.


The trial Court convicted him under Section 304 Part-ll. The Supreme Court held that it could not be said that the accused was in unsoundness of mind due to heavy drunkenness. He was aware that when for the first time he poured the kerosene it was not sufficient to complete his brutal act. To finish his heinous act, kerosene for second time.

This was sufficient to prove his rational thinking and mens rea to fulfill his intended act. The Supreme Court converted his punishment from 304 Part-II to Section 302.