Economics and ipc notes, Study notes of Criminal Law

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INTOXICATION AND

CONSENT AS

DEFENCES

Introduction

The condition of having physical or mental control markedly diminished by the effects of alcohol or drugs. Alcohol intoxication also known as drunkenness for alcohol poisoning is the negative behaviour and the physical effects caused by a reason raised in consumption of alcohol where symptoms may include mild sedation and poor coordination. At higher doses of alcohol, the person may experience slurred speech, may have trouble walking, and even go through nausea. It is a state by which both the mental and physical condition of a person is disabled because of intake of alcohol or some narcotic substance, commonly known as a state of being toxic. Instead, the person is unable to understand what they have done is right or wrong and is unable to understand the consequences of one’s own actions. An intoxicated person is neither able to control his actions, nor he is able to react in a prerequisite manner.

Cont. Alcohol intoxication or drunkenness has never been recognised as an excuse for inappropriate or criminal misconduct. This view was based upon the common law 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. Here, debauches means an extreme indulgence of going beyond socially approved limits of behaviour.

IPC, 1860 (Sections 85 and 86)

IPC divides

intoxication

into

Voluntary

intoxication

Involuntary

intoxication

Essentials To claim exemption from criminal liability on the ground of involuntary intoxication must establish that he was:  (^) Incapable of knowing the nature of the act; or  (^) That he was doing what was either wrong or contrary to law;  (^) That the thing which intoxicated him was given to him without his knowledge or against his will. The justification for such a provision is based on the contention that the accused had not contributed himself towards his drunkenness and which is not likely to be repeated as in the case of a voluntary act, as established under the case of Mathai Mathew v. State ,

Section 86  (^) Section 86 of the Indian Penal Code provides that in cases where an act done is not an offence and is done with a piece of particular knowledge or intent, then 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 toxicated unless the thing which intoxicated him was administered to him was without his knowledge or against his will.  (^) Section 86 deals with that class of cases wherein a man enters into intoxication voluntarily. It attributes the same knowledge to such a man that he would have had, had he not been intoxicated, i.e., the knowledge of a sober man with regard to the consequence of his acts. For instance, if A, a man who has consumed too much liquor, takes a knife from his house and goes along the road shouting his intention to kill B, with whom he had quarreled earlier, and kills C who tried to pacify him, A would be imputed with the same knowledge as he would have had, had he been sober and his act would amount to culpable homicide not amounting to murder punishable under Section 304, IPC and not murder.

Cont.  (^) In the present case the court found that although the accused was under the influence of drink, he was not so much under its influence that there was incapacity in him to form the required intention as stated.  (^) This was proved from facts like the accused was capable of moving himself and talking coherently. He walked by himself to the darwaza and also decided for a chair to sit on. He after shooting the deceased tried to escape and after realizing what he had done also asked for an apology. He also did not require any support while he was at the police station.  (^) Although the accused was under the influence of drink, he was not so much under its influence that his mind was so obscured by the drink that there was incapacity in him to form the required intention as stated. So, the offence was 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 were held right.

Insanity arising out of excessive drinking is no defence for attempted rape and murders In the case of Lucus v. Queen (Australia), 1998, a conviction for attempted rape and attempted murder of a seven-year- old child was upheld. The appellant was convicted in the Supreme Court of the Northern Territory of Australia on 8th August 1968 for the offences of attempted murder and attempted rape of a seven-year-old child. He was sentenced to imprisonment with hard labour for eight years for the attempted murder and five years for the attempted rape, the sentences were to be served concurrently. In an application for leave to appeal from the Supreme Court of the Northern Territory to the High Court of Australia, the appellant relied upon, on establishing the defence of insanity. While dismissing the appeal the court held There was no medical evidence to prove insanity during the performance of the acts constituting the offences but it was due to alcoholic excesses.

Cont. His case was that at the material time he was acting under the influence of a combination of drugs (not medically prescribed) and alcohol, to such an extent that he did not know what he was doing. Majewski’s appeal to the House of Lords was dismissed. The decision in the Majewski case affirms the proposition that evidence of self-induced intoxication negating mens rea is a defence to a charge of an offence requiring proof of a specific intent; but where an accused is charged with an offence not requiring a ‘specific intent’ (of basic intent) he can be convicted even though he did not have the mens rea normally required for that offence; and even though he was then in a state of automatism. In Majewski, the House of Lords recognised as a substantive rule of law that where self-induced intoxication is relied on by a person charged with an offence not requiring specific intent, the prosecution need not prove any intention or other state of mind normally required for that offence. While the definition of specific intent is obscure, it is possible in the light of various judicial decisions to list offences which do, or do not, require specific intent

Forseeability

Test:

 (^) The presence or absence of liability may be said to rest on a foreseeability test. The fact that the consumption of alcohol or the ingestion of drugs may cause loss of control is universal knowledge. Thus, anyone who knowingly consumes such intoxicating substances is, at the very least, committing a rash and negligent act averse to the possibility of losing control. One therefore attracts the charge of deliberate intent by consuming substances known to lead to such 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 danger

Meaning of Consent  (^) In common parlance, consent is an act done deliberately and by free will. It involves a deliberate exercise of intelligence based on knowledge of the significance and moral effect of the act. It consists of three things- a physical power, mental power and free use of them.  (^) However, the word ‘consent’ is nowhere defined in IPC. But Section 90 of IPC talks about what does not amount to consent. It describes consent in a negative term. It states, a consent given by a person under the fear of injury, or under a misconception of facts, or by reason of unsoundness of mind, intoxication, or a child under the age of 12 years (unless the contrary appears from the context), who is incapable to understand the nature and consequences of the consented act, is no consent.

Sections 87 and 88  (^) 87. Act not intended and not known to be likely to cause death or grievous hurt, done by consent.—Nothing which is not intended to cause death, or grievous hurt, and which is not known by the doer to be likely to cause death or grievous hurt, is an offence by reason of any harm which it may cause, or be intended by the doer to cause, to any person, above eighteen years of age, who has given consent, whether express or implied, to suffer that harm; or by reason of any harm which it may be known by the doer to be likely to cause to any such person who has consented to take the risk of that harm.  (^) 88. Act not intended to cause death, done by consent in good faith for person's benefit.— Nothing, which is not intended to cause death, is an offence by reason of any harm which it may cause, or be intended by the doer to cause, or be known by the doer to be likely to cause, to any person for whose benefit it is done in good faith, and who has given a consent, whether express or implied, to suffer that harm, or to take the risk of that harm.

Section 90

90. Consent known to be given under fear or misconception.—A consent is not such a consent as is intended by any section of this Code, if the consent is given by a person under fear of injury, or under a misconception of fact, and if the person doing the act knows, or has reason to believe, that the consent was given in consequence of such fear or misconception; or  (^) Consent of insane person.—if the consent is given by a person who, from unsoundness of mind, or intoxication, is unable to understand the nature and consequence of that to which he gives his consent; or  (^) Consent of child.—unless the contrary appears from the context, if the consent is given by a person who is under twelve years of age.

Cont. Section 90 of the IPC, though does not define ‘consent’, yet lays down what is not consent. It regulates the operations of Sections 87, 88 and 89 of the I.P.C. There are four cases where a consent given by a person is no consent.  (^) First: Person giving consent under the fear of injury– Under criminal law, consent obtained by threat and violence would not be a defence. For example, Z threatened A with a knife to sign his property paper in favour of X, Z’s son. Here the consent was given under fear of injury.  (^) Second: Person giving consent under the misconception of facts– if consent is obtained under a misconception of facts, then it will have no value in the eyes of law. For example, a woman had consented for sexual intercourse with a doctor on the belief that he was making a medical examination of her. The doctor would be held guilty as he made her believe that he was doing a medical examination of her.