S.C.R. SUPREME COURT REPORTS 363

24th August 1954 pa§sed in Civil Miscellaneous Writ

No. 45 of 1954, after their application for leave to ap­

peal to this Court had been dismissed by that Court's

order dated the 5th August 1955. '!'his petition was

not filed within the time limited by the rules of this

Court and on their own showing there was a delay of

44 days in filing the petition for special leave. The

only ground urged in support of the application for

condonation of delay (being Civil Miscellaneous Peti­

tion No. 1402 of 1955) is that they had to collect

money from

amongst a large number of petitioners

who were interested in the case. In our opinion, that

is not a sufficient ground for condoning the delay.

In the result, both the petition under article 32 of

the Constitution and the petition for special leave to

appeal are dismissed. There will be no order as to

costs.

BAS DEV

v.

THE STATE OF PEPSU

[BH<lGWATI and CHANDRASEKHARA AIYAR JJ.]

Indian Penal Gode, (XLV of 1860), ss. 802-80"·86-Murder or

culpable homicide not amounting to murder-Accztsed ttnder the influ­

ence of drink but his mind not so obscured by the drink as to cause

incapacity in him to form the requisite intention-Knowledge and

intention.

So far as knowledge is concerned the court must attribute to

the intoxicated man the same knowledge as if he was quite sober

but

so

far as intent or intention is concerned, the court must gather

it from the attending general circumstances of the case paying due

regard to the degree

of intoxication. If the

man was beside his mind

altogether for the time being,

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 the court will apply the rule that a man is presumed to

intend the natural consequences of his act or acts.

That rule of law is well settled:

1.

That

insanity, whether produced by drunkenness or other­

wise, is a defence to the crime charged;

1956

Banarsi Das

and others

v.

The

State of

Utta1· Pradesh

and others

Sinha J.

19.56

April 17

364 SUPREME COURT REPORTS [1956]

1956 2. The evidence of drunkenness which renders the accused in-

capable of forming the specific intent essential to constitute the crime

Basdev · should be taken into consideration with the other facts proved in

v · order to determine whether or not he had this intent;

The State of PePs11 . .

3. That evidence of drunkenness fallmg short of a proved in-

capacity in the accused to form the intent necessary to constitute

the crime, and merely establishing that his mind was affected by

drink so that he more readily ga.ve wa.y to some violent passion,

does not rebut the presumption that a man intends the natural con­

sequences of his acts.

Directoi· of Pnblic Prosecntions v. Beard, ((1920] A.C. 479),

referred to.

On the finding in the present case that although the accused

was under the influence of drink, he was not so much under its in­

fluence that his mind was obscured to such an extent that there was

incapacity in him to form the required intention the offence was

not reduced from murder to culpable homicide not amounting to

murder under tho second part of s. 304 of the Indian Penal Code.

CRIMINAL ·APPELLATE JURISDICTION: Criminal

Appeal No. 147 of 1955.

Appeal

by special leave from the Judgment and

Order dated the

10th May 1955 of the Pepsu High

Court at Patiala in Criminal Appeal No. 93 of 1954

arising

out of the Judgment and Order dated the 21st

June, 1954 of the

Court of Sessions Judge at Barnala

-in Sessions Case No .. 18 of 1954.

J. N. Kaushal and Naunit Lal, for the appellant.

Porus A. Mehta and P. G. Gokhale, for the respon­

dent.

1956. April 17. The Judgment of the Court

was delivered by

CHANDRASEKHARA AIYAR J.-The appellant Bas­

dev of the village of Harigarh is a retired military

J amadar. He is charged with the murder of a young

boy named Maghar Singh, aged about 15 or 16. Both

of them and others of the same village went to attend

a wedding in another village. All of them went to

the house of the bride to take the midday meal on

the 12th March, 1954. Some had settled down in their

seats and some had not. The appellant asked Maghar

Singh, the young boy to step aside a little so that he

S.C.R. SUPREME COURT REPORTS 365

may occupy a convenient seat. But Maghar Singh 1956

did not move. The appellant whipped out a pistol

and shot the boy in the abdomen. The injury proved Basdev

f

~

~. ~~ef~~

The party that had assembled for the marriage at

the bride's house seems to have made itself very Chandrasekhara

merry and much drinking was indulged in. The ap-;liyar J.

pellant Jamadar boozed quite a lot and he became

very drunk and intoxicated. The learned Sessions

Judge says "he was excessively drunk" and that "ac-

cording to the evidence of one witness Wazir Singh

Lambardar he was almost in an unconscious condi-

tion". This circumstance and the total absence of

any motive or premeditation to kill were taken by

the Sessions Judge into account and the appellant

was awarded the lesser penalty of transportation for

life. .

An

appeal to the

PEPSU High Court at Patiala

proved unsuccessful. Special leave was granted by

this Court limited to the question whether the offence

committed by the petitioner fell under section 302

of the Indian Penal Code or section 304 of the Indian

Penal Code having regard to the provisions of section

86

of the Indian Penal

Code. Section 86 which was

elaborately considered by the High Court runs in

these terms:

"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 bad not been

intoxicated, unless the thing which intoxicated him

was administered to him without his knowledge or

against his

will".

It is no doubt true that while the first part of the

section speaks of intent or knowledge, the latter part

deals only with knowledge and a certain element of

doubt in interpretation may possibly be felt by reason

of this omission. If in voluntary drunkenness know­

ledge 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 in-

48

1956

Basdeo

v.

Th• Stat• oJ Pepsu

Chandra&ekhara

AiyarJ.

366 SUPREME COURT REPORTS [1956)

tent on the same footing, and if so, why has the

section omitted intent in its latter part? This is

not the first time that the question comes up for

consideration. It has been discussed at length in

many decisions and the result may be briefly sum­

marised as follows:-

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 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.

\>Vas 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

drink­

ing, 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.

Of course, we have to distinguish between motive,

intention and knowledge. Motive is something which

prompts a man to form an intention and knowledge

is

an awareness of the consequences of the act. In

many cases intention and knowledge merge into each

other and mean the same thing more or less and

in­

tention can be presumed from knowledge. The

demarcating line between knowledge and intention is

no doubt thin but it is not difficult to perceive that

they connote different things. Even in some English

decisions, the three ideas are used interchangeably

and this has led to a certain amount of confusion.

In the old English case, Rex v. Meakin(') Baron

Alderson referred to the nature of the instrument as

an element to be taken in presuming the intention in

these words:

"However, with regard to the intention, drunk­

enness may perhaps be adverted to according to the

nature of the instrument used. If a man uses a stick,

you would

not infer a malicious intent so strongly against him, if drunk, when he made an intemperate

use of it, as he would if he had used a different kind

(1) [1836] 173 E.R. 131; 7 Car. & P. 295.

S.C.R. SUPREME COURT REPORTS 367

of weapon; but where a dangerous instrument is used,

which,

if used, must produce grievous bodily harm,

drunkenness can have no effect on the consideration

1956

Basdev

v.

of the malicious intent of the party.'' The state of Pepsu

In a charge of murdering a child levelled against a

husband and wife who we.r~ both drunk at the time, Cliandrasekhara

Aiyar J.

Patteson J., observed in Regina v. Gruse and Mary his

wife(1)

"It appears that both these persons were drunk,

and although drunkenness is no excuse for any crime

wlfatever,

yet it is often of very great importance in

cases where it is a question of intention. A person

may be so drunk as to be utterly unable to form any

intention at all, and yet he may be guilty of very

great

violence."

Slightly different words but somewhat more illu­

minating were used by Coleridge J.

1 in Reg. v. Monk­

house(2)

"The inquiry as to intent is far less simple than

that as to whether an act has been committed, be­

cause you

cannot look into a man's mind to see what

was passing there at any given time. What he

in­

tends can only be judged of by what he does or says,

and if he says nothing, then his act alone must guide

you to your decision. It is a general rule in criminal

law,

and one founded on common sense, that juries

are to presume a man to do what is the natural

con·

sequence of his act. The consequence is sometimes

so

apparent as to leave no doubt of the intention.

A man could not put

a pistol which he knew to be

loaded

to another's head, and fire it off, without in­

tending to kill him; but even there the state of mind

of the party is most material to be considered. For

instance, if such an act were done by a born idiot,

the intent to kill could not be inferred from the act. So, if the defendant is proved to have been intoxi­

cated, the question becomes a more subtle one; but

it is of the same kind, namely, was he rendered by

intoxication entirely incapable of forming the intent

charged?"

(1) [1838] 173 E.R. 610; 8 Car. & P. 541.

(2) [1849] 4 Cox. C.C. 55.

1956

Basde-v

v.

The State of Pepsu

Chandt'asekhara

Aiyar J.

368 SUPREME COURT REPORTS [1956]

"Drunkenness is ordinarily neither a defence nor

excuse for crime, and where it is available as a partial

answer to a charge, it rests on the prisoner to prove

it, and it is not enough that he was excited or ren­

dered more

irritable, unless the intoxication was

such as to prevent his

re&training himself from com­

mitting the act in question, or to take away from him

the power of forming any specific intention. Such a

state of drunkenness may no doubt exist".

A great authority on criminal law Stephen J.,

postulated the proposition in this manner in Reg. v.

Doherty(')-

" ........ although 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

its 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".

We may next notice Rex v. Meade(

0

) where the

question was whether there was any misdirection in

his summing

up by Lord Coleridge, J. The summing

up was in these words: "In the first place, every one is presumed to know

the consequences of his acts. If he be insane, that

knowledge is not presumed. Insanity is not pleaded

here,

but where it is part of the essence of a crime

that a motive, a particular motive, shall exist in the

mind of the man who does the act, the law declares

this-that if the mind at that time is so obscured by

drink, if the reason is dethroned and the man is in­

capable therefore

of forming that intent, it justifies

the reduction of the charge from murder to man­

slaughter".

Darling, J., delivering the judgment of the Court

of Criminal Appeal affirmed the correctness of the

summing up but stated the rule in his own word~ as

follows: ·

"A man is taken to intend the natural conse­

quences

of his acts. This presumption

may, be re­

butted (1) in the case of a sober man, in many ways:

(1) [1887] 16 Cox C.C. 806. (2) [1902] 1 K.B. 895,

S.C.R. SUPREME COURT REPORTS 369

(2) it may also be rebutted in the case of a man who

is drunk, by shewing his mind to have been so affected

by the drink 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,

t}le

presumption that he intended to do grievous bodily

harm is rebutted".

Finally, we have to notice the House of Lord's

decision in

Director of Public Prosecutions v. Beard(1).

In this case a prisoner ravished a girl of 13 years of

age, and in aid of the act of rape he placed his hand

upon her mouth to stop her from screaming, at the

same time pressing his

thumb upon her throat with

the result that she died of suffocation. Drunkenness

was pleaded as a defence. Bailhache

J., directed the

jury that the defence of drunkenness could only

pre­

vail if the accused by reason of it did not know what

he was doing or did not know that he was doing

wrong. The jury brought

in a verdict of murder

and the man was sentenced to death.

The Court of

Criminal Appeal (Earl of Reading C.J., Lord Cole­

ridge J., and Sankey, J.) quashed this conviction on

the ground of misdirection following Rex v. Meade(')

which established that the presumption that a man

intended the natural consequences of his acts might

be rebutted in the case of drunkenness by showing

that his mind was so affected by the drink that he

had taken that he was incapable of knowing that

what he was doing was dangerous. The conviction

was, therefore, reduced

to manslaughter. The

Crown

preferred the appeal to the House of Lords and it was

heard by a strong Bench consisting

of Lord

Chancel­

lor, Lord Birkenhead, Earl of Reading, C.J., Viscount

Haldane, Lord Denedin, Lord Atkinson, Lord Sum­

ner, Lord Buckmaster, and Lord Phillimore. The

Lord Chancellor delivered the judgment of the court.

He examined

the earlier authorities in a lengthy

judg­

ment and reached the conclusion that Rex v. Meade(

9

)

stated the Jaw rather too broadly, ·though on the

facts there proved the decision was right. The posi­

tion "that a person charged with a crime of violence

(1) [1920j A.C. ~79. (2) [1909] 1 K.B. 896.

1956

Basdev

v.

The State of Peps.,

Chandrasekhara

Aiyar J.

1956

Basdtv

v.

The State of Pepsu

Chandrasekhara

Aiyar J,

370 SUPREME COURT REPORTS [1956]

may show, in order to rebut the presumption that he

intended the natural consequences of his acts, that

he was so drunk that he was incapable of knowing

what he was doing was dangerous ................................ "

which is what is said in Meade's case, was not correct

as a general proposition of law and their Lordships

laid down three rules:

(1) That insanity, whether produced by drunken­

ness or otherwise, is a defence to the crime charged;

(2) That evidence of drunkenness which renders

the accused incapable of forming the specific intent

essential to constitute ·the crime should be taken into

' consideration with the other facts proved in order to

determine whether or not he had this intent;

(3) That evidence of drunkenness falling short of

a proved incapacity in the accused to form the intent

necessary to constitute the crime, and merely esta­

blishing that his mind was affected 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 bis acts.

The result of the authorities is summarised neatly

and compendiously at page 63 of Russel on Crime,

tenth edition, in the following words: "The.re is a distinction, however, between the

defence of insanity in the true sense caused by exces­

sive drunkenness and the defence of drunkenness

which produces a condition such that the drunken

man's mind becomes incapable of forming a specific

intention. If actual insanity in fact supervenes as

the result of alcoholic excess it furnishes as complete

an answer to a criminal charge as insanity induced

by any other cause. But in cases falling short of

insanity evidence of drunkenness which renders the

accused incapable of forming the specific intent

essential to constitute the crime should be taken into

consideration with the other facts proved in order to

determine whether or not he had this intent, but evi­

dence 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

S.C.R. SUPREME COURT REPORTS 371

rebut the presumption that a man intends the natu-

7

9

5

6

ral consequences of his

act". Basdev

In the present case the learned Judges have found v.

that although the accused was under the influence of Tile state of Pepsu

drink, he was not so much under its influence that -

his mind was

s.o obscured by the drink that there was

Chandrasekharn

incapacity in him to form the required intention as Aiyar .r.

stated. They go on to observe:-

"All that the evidence shows at the most is that

at times he staggered and was incoherent in his talk,

but the same evidence shows that he was also capable

of moving himself independently and talking cohe-

,- rently as well. At the same time it is proved that he

came to the darwaza of Natha Singh P. W. 12 by him­

self,

that he made a choice for his own seat and that

is why he asked the deceased to move away from his

place,

that after shooting at the deceased he did

attempt to get away and was secured at some short

distance

from the darwaza, and that when secured he

realised

what he had done and thus requested the

witnesses to be forgiven saying that it had happened

from him. There is

no evidence that when taken to the

police station Barnala, he did not talk or go there

just as the witnesses and had to be specially supported.

All these facts, in my opinion, go

to prove that there

was

not proved incapacity in the accused to form the

intention to cause bodily injury sufficient in the

ordinary course of nature to cause death. The accused

had, therefore, failed to prove such incapacity as

would have been available

to him as a defence, and

so the law presumes that he intended the natural and

probable consequences of his act, in other words, that

he intended to inflict bodily injury to the deceased

and the bodily injury intended to be inflicted was

sufficient in

the ordinary course of nature to cause

death".

On this finding the offence is not reduced from

murder

to culpable homicide not amounting to murder

under the second part of section 304 of the Indian

Penal

Code. The conviction and sentence are right

and the appeal is dismissed.