Holding

Voluntary intoxication does not excuse murder, and the weapon, corroborated by eyewitness and forensic evidence, establishes the accused’s guilt beyond reasonable doubt, upholding the conviction under Section 302 IPC.

Summary

Shankar Jaiswara was convicted of murder under Section 302 IPC for stabbing his brother's younger sibling, Tarak Jaiswara, with a knife. The prosecution presented consistent eyewitness testimony, forensic medical reports describing multiple fatal injuries, and the recovery of the weapon from a friend’s house, which was linked to the accused through a Section 27 Evidence Act seizure. The accused argued that he was intoxicated and therefore lacked the intention required for murder, seeking conviction only under Section 304(II) IPC. The Court examined the scope of Section 86 IPC and held that voluntary drunkenness does not negate the mens rea for murder unless it renders the accused incapable of forming intent, which was not proven. It found that the accused was conscious, purposeful, and attempted to conceal the weapon after the attack, indicating clear intent. Consequently, the Court affirmed the conviction and life sentence, rejecting the intoxication defence. The appeal was dismissed.

Issues considered

The adequacy of the recovered weapon as evidence linking the accused to the murder.
Whether voluntary intoxication under Section 86 IPC can negate the intention required for murder.
Whether the accused possessed the requisite mens rea for Section 302 IPC despite alleged drunkenness.
Whether the prosecution proved the charge beyond reasonable doubt.
The appropriate charge: Section 302 IPC versus Section 304(II) IPC.

Legislation cited

Subjects

murderintoxication defenceSection 86 IPCSection 302 IPCweapon recoverymens reaeyewitness testimonyforensic evidencecriminal law

Judgment

A SHANKAR JAISWARA
v.
STA TE OF WEST BENGAL

MAY 14, 2007

B (S.H. KAPADIA AND B. SUDERSHAN REDDY, JJ.]

Penal Code, 1860; Ss. 86 and 302:

Murder-Accused attacked deceased with a sharp edged weapons
c causing his death-F.I.R.-Charge sheet-Trial Court found accused guilty
ofcommitting offence 1t!s 302 !PC, convicted and sentenced him accordingly-
Affirmed by High Court-On appeal, Held, no doubt recovery of weapon
seized itself would not be enough and sufficient to convict an accused with ..
the crime unless it is established that the weapon has been used by him for
D commission of the offence-But the weapon in the instant case was recovered
at the instance of the accused-Besides, ocular evidence of PW I and 3
consistently reveals that the accused was carrying a knife-Thus, sequence
of events and material available on record clearly establishes that the weapon
recovered was used for commission ofmurder of the deceased by the accusi!d-
Upon re-appreciation of the evidence it cannot be said that the accused was
E devoid of his actual senses and was unable to comprehend his action while
committing the crime-On the other hand the manner in which he inflicted
grievous injuries to the deceased suggests that he was quite conscious of the
consequences of his act-He had control over his senses as evident from the
evidence as he tried to make good his escape after the incident in a calculated
F manner-Intention to commit the crime is also evident from the attending
circumstances and material on record-Hence, the prosecution proved the
charges against the accused beyond any reasonable doubt-Evidence Act,
1872-s. 27.

Section 86: Drunkenness as defence in committing the crime ofmurder-
G Held: Not allowed in the facts and circumstances of the case.
According to the prosecution, on the fateful day, accused-appellant
shouting and hurling abuse and then started knocking the door of the house
of PW-3 in the presence of PWl. Apprehending trouble, PWl requested the
accused to leave the place. However, he became agitated and started abusing
H 480
SHANKARJAISWARA ''· STA TE OF WEST BENGAL 481

·~ the younger brother of PW I, the deceased in filthy language, who was taking A
his meal sitting in his rickshaw. When the deceased requested him to leave
him alone, he became furious and started stabbing him with a sharp edged
weapon. Deceased fell down, he was profusely bleeding. PW-I took him to a
Hospital in the same rickshaw. Hospital authorities having regard to the
grievous nature of injuries advised PW-I to take him to another Hospital. B
The victim was accordingly taken to the Hospital, so referred, where he was
pronounced dead. PW I informed the police about the incident. Accordingly,
an FIR was registered by the Police under Section 302 IPC against the
accused. The trial Court found the accused guilty of the offence punishable
under Section 302 IPC, convicted and sentenced him accordingly. The
conviction and sentence was affirmed by the High Court. Hence, the present C
appeal

Dismissing the appeal, the Court

HELD: 1.1. The medical evidence available on record and the ocular
evidence of PW-I and PW-3 were absolutely in conformity with each other D
which clearly establishes the prosecution case. [Para 16) (488-C)

1.2. There is no doubt whatsoever about the recovery of weapon seized
under seizure list but the recovery itself would not be enough and sufficient
to connect the accused with the crime unless it is established that the said
weapon has been used by the accused for commission of the offence. But it E
cannot be denied that the recovery of the said article is a fact discovered at
the instance of the accused. (Para 17) [488-D)

1.3. The ocular evidence of PW-1 and PW-3, which is consistent, reveals
that the appellant was carrying a knife. The sequence of events and the
material available on record clear!~ establishes that the weapon of offence F
has been used for the commission of the murder of the deceased by the
appellant. The recovery made under Section 27 of the Evidence Act by PW-
19, the investigating officer from the house of PW-9, a friend of the appellant
is required to be taken into consideration. The process of recovery is based
upon the statement of the appellant made to PW-19 is in accordance with G
Section 27 of the Evidence Act. [Para 17) (488-E-F)

Basdev v. The State of Pepsu, [1956) SCR 363 and Bablu @ Mubarik
Hussain v. State ofRajas than, (2006) 14 SCALE 15, relied on.

Director of Public Prosecutions v. Beard, (1920) AC 479, referred to. H
482 SUPREME COURT REPORTS (2007] 6 S.C.R.

A 2.1. In the present case a plea of drunkenness and that the mind of the
accused was so affected by the drink with the result he acted in a way in which
he would not have done had he been sober, is not set up by the accused-appellant
!Para 26] 1491-F]

2.2. Tllere is no evidence available on record as to the quantity of the
B alcohol consumed by the appellant except the observation of PW-1 and PW-3
that he was under the influence of liquor. No one stated that he was not in his
senses and lost self control. There is no evidence as regards the degree of
intoxication. There is no evidence of any attending general circumstances to ;
arrive at any conclusion that the appellant was beside his mind altogether
>-

c temporarily at the time of incident. He was apparently conscious and fully
capable of understanding the consequences of his act as it is evident that
immediately1after the incident he walked the distance to the house of PW-9,
and concealed the weapon of offence and wearing apparels.
!Para 27] 1492-B-C]

D 2.3. According to PW 5, Professor of Forensic and State Medicine,
injuries nos. 4 and 7 may have been caused while the victim was defending
himself. In the circumstances, it cannot be said that there was no intention ~
on the part of the appellant and he was out of his senses on account of .,
intoxication. The evidence of PW-1 and PW-3 who are eye witnesses to the
incident is c(msistent. Both of them have seen the appellant stabbing the
E helpless victim who was sitting in his own rickshaw and eating his evening
food. There was no provocation as such caused by the deceased leading to any
sudden attack. The appellant was carrying weapon and attacked the deceased,
caused grievqus injuries resulting in his death. [Para 28] [492-D-F]
2.4. The intention on the part of the appellant can easily be gathered
F from the evidence of PW-I and PW-3 which is supported by medical evidence.
There is absolutely no reason whatsoever to disbelieve their evidence. Th~re
is nothing on '.record suggesting that at the time the appellant attacked the
victim his mind was so affected by the drink he had voluntarily taken that he
was incapable in forming the intention requisite for making his act the offence
charged against him. The taking of drink cannot itself excuse the commission
G
of a crime; and it is not a defence to prove that a man's mind was so affected
by drink that he more readily gave way to passion, or that he would not have
acted as he did had he been sober nor will drunkenness be a defence in case
of strict liability, since, if an honest and reasonable mistake by a sober person ~
cannot afford a defence, a mistake while drunk cannot do so.
H [Para 28] [492-F-H]
SHANKARJAISWARA v. STATE OF WEST BENGAL [B. SUDERSHAN REDDY,J.] 483

~
Halsbury's Law of England, page 26, referred to. A
2.5. Upon appreciation of the evidence this Court is unable to persuade
itself and agree that the appellant was devoid of his actual senses and he was
unable to comprehend his action. On the other hand the manner in which he
attacked the deceased resulting in as many as seven grievous injuries
suggests that he was quite conscious of the consequences of his act. The B
appellant as is apparent from the evidence had control over his senses and
tried to make good his escape after the incident in a calculated manner. This
is clear from the evidence of PW-9 that he came immediately after the incident
~' to conceal his wearing apparels and the weapon of offence. It is not possible
to accept the theory propounded by the Amicus that due to drunkenness the
appellant lost his senses and self control. The intention on the part of the
c
appellant is clearly evident from the evidence and all attending circumstances.
(Para 29) (493-A-C)

3. The prosecution proved the charge against the accused beyond any
reasonable doubt. The Trial Court as well as the Appellate Court came to the D
right conclusion in convicting and sentencing him for the offence punishable
under Section 302 IPC. (Para 30) (493-D)
-...,.-
) CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 721 of
2007.
E
From the Final Judgment and Order dated 30.01.2006 of the High Court
of Calcutta in Cr!. Appeal No. 344of1998.

Vijay Panjwani, (A.C.) for the Appellant.

T.C. Sharma for the Respondent. F
The Judgment of the Court was delivered by

B. SUDERSHAN REDDY, J. I. Leave granted.

2. This appeal by special leave is directed against the judgment of the G
Calcutta High Court confirming the conviction of the appellant under Section
302 IPC and the sentence of imprisonment for life and a fine of Rs. 5,000/-,
in default of payment of fine to further undergo six months rigorous
imprisonment. The appellant was charged with the offence punishable under
Section 302 !PC of committing the murder of Tarak Jaiswara the younger
brother of the informant (PW- I). H
484 SUPREME COURT REPORTS (2007] 6 S.C.R.

A 3. The prosecution story, briefly stated, is t'1at on 14.1.1997 at about 11
or 11.30 p.m. Bhola Jaiswara (PW-I) heard a row from outside his bedroom.
He heard tpe appellant Shankar Jaiswara was shouting and hurling abuse and
in the process started knocking at the door of the house of Mohan Jaiswara
(PW-3 ). Apprehending trouble, Bhola Jaiswara (PW- I) came out and requested
the appellant to leave the place. The appellant became agitated and started
B moving towards the main road where he found Tarak Jaiswara (deceased) who
was taking his meal while sitting in his rickshaw. Bhola (PW-I) also followed
the appella'1t. The appellant Shankar Jaiswara started abusing Tarak Jaiswara
(deceased) in obscene and filthy language. When the deceased Tarak requested
the appellant to leave him alone the appellant became furious and started
C stabbing Tarak with a sharp edged weapon. Deceased Tarak fell in the rickshaw.
He was profusely bleeding. Bhola (PW-I) took the victim who is none other
than his own brother to North Suburban Hospital in the same rickshaw where
the hospital authorities having regard to the grievous nature of injuries
advised him to take the victim to the R.G. Kar Hospital. The victim was
accordingly taken to the R.G. Kar Hospital where he was pronounced dead.
D While on l\is way back from the hospital Bhola (PW-I) found some police
personnel in the vicinity of occurrence and he narrated the incident to the
police. Based on the statement of Bhola (PW-I) the Police Station Cossipore
issued first information report and registered a P.S. Case No. 11 of 1997 under
Section 302 IPC against the appellant.
E
4. After completion of the investigation, the police filed charge sheet
under Section 302 !PC against the accused appellant. The prosecution in all
examined 19 witnesses (PW-I to PW-19) and got marked 20 documents in
evidence. The prosecution also produced material exhibits which were marked
as mat. Ext. I to XIII. The statement of the accused appellant under Section
F 313 Cr.P.C. was recorded in which he took the stand that he was innocent of
the charge 'levelled against him.

5. The learned Sessions Judge upon appreciation of evidence available
on record found the appellant guilty of the offence punishable under Section
302 IPC and the same has received its affirmation at the hands of the High
G Court.

6. Hence this appeal by special leave.

7. In order to consider as to whether the prosecution established the
charge against the appellant for the offence punishable under Section 302 !PC
H beyond reasonable doubt it is just and necessary to appreciate the evidence
SHANKARJAISWARA v. STA TE OF WEST BENGAL (B. SUDERSHAN REDDY,J.] 485
~ available on record. A
Evidence:

8. Bhola Jaiswara (PW- I) who is none other than the elder brother of
the deceased Tarak is the eye witness. It is in his evidence that on 14.1.1997
at about 11 p.m. when he was about to go to sleep he heard a row from B
outside. He came out of his house and found the appellant Shankar Jaiswara
at the entrance gate abusing and threatening to kill whoever came in his way.
The appellant was found to be under the influence of liquor. The deceased
'
~
Tarak was taking his meal sitting in his rickshaw on the main road just about
40 feet away from the house of Bhola (PW- I). The appellant started proceedings
towards main road and Bhola (PW-I) followed him. PW-I heard his brother c
Tarak Jaiswara advising the appellant to go away from the place. The appellant
without heeding to the advice started abusing the deceased in filthy language
and struck the deceased with a knife like weapon. PW-I made an attempt to
apprehend but the appellant fled away from the scene of offence. He found
two stab injuries on the chest of the victim. He then removed the victim to D
North Subarban Hospital by the same rickshaw where he was advised to take
..,.. him to R.G. Kar Hospital by an ambulance. The attending doctor at the R:G .
~ Kar Hospital pronounced Tarak dead. PW-I while returning from the hospital
found the police van in the vicinity of the place of occurrence to whom he
made a statement Y.ho recorded the same. He signed the report ext. I. PW-
I specifically stated in his evidence that he found stab injuries on the throat, E
chest and abdomen of the deceased. PW- I has been subjected to intense
cross-examination. He denied the suggestion that at the time of occurrence
the deceased was also under the influence of liquor. He denied_the suggestion
that he did not witness the occurrence. He more or less confirmed what has
been stated by him into the police in his complaint (Ext. I). F
·-y 9. PW-3, Mohan Jaiswara is another eye witness. It is in his evidence
that on the frightful day deceased Tarak was taking his meal sitting in his own
rickshaw at Cossoipore road. He found the appellant coming from a nearby
lane abusing the people at random. He had seen the appellant stabbing the
deceased with a knife like weapon. The appellant stabbed the deceased for G
about 5 or 6 times. The deceased fell in his rickshaw. The deceased was then
taken to the hospital in the same rickshaw. In the cross-examination he
admitted that he is the Chachato brother of PW- I and the deceased. He
~
denied the suggestion that the deceased was the habitual drunkard.

10. PW-5 is the Professor of Department ot'Forensic and State Medicine, H
486 SUPREME COURT REPORTS (2007) 6 S.C.R.

A N.R.S. Medical College, Calcutta. He held the post mortem examination over
the dead body of the deceased. On examination of the body he found the
body of the deceased subject with rigor mortis present all over the body,
pupils-fix~d, dilated, equal and the cornea hazy. The following injuries were
found on .the body of the deceased:

B I. One incised wound 1 112" x 112" x trachea was found on the
midline on the front of the leg with inverted bruised margins. The
track was directed backwards and terminated on the posterior
~all of the trachea. I
~
2. Another incised wound I" x 1/2" x left carotid into the left side
c of the trachea was found on the left lateral side of the neck with
inverted bruised margins. The track was directed obliquely
downwards, backwards, medial wards from the left to right and
convergent in nature and those terminated into the lumen of the
trachea after cutting the corresponding left carotid vessels through
and through.
D
3. One incised penetrating wound with inverted bruised margins
with I 112" x 112" x left chest cavity left lung which was placed ~
over the left chest wall 2 inch left of midline. On dissectioP it was
seen to have passed in the intercostals space in between 4th and •
5th ribs on the left side to left chest cavity to basal part of the
E left apical lobe of the left Jung with pleurae to lower part of the
left lateral wall of the heart. The injury effected the lateral wall of
the heart with pericardium into the lumen of the left ventricle of
the heart 1/2" x .2" x wall of the heart and it terminated into left
ventricle. The track of the wound was directed obliquely
F downwards, backwards, inwards and medial wards from the left
to right and convergent in nature. The wound caused collection
of fluid and clotted blood about I Y, liter inside the chest cavity.
4: One incised wound 2" x I" x muscle deep was found over the
front of left shoulder.
G 5. Another incised wound 2" x Y," x muscle deep was found over
mid eternal region of the chest.
6. Another incised wound Y," x .2" x skin deep was found just
above the aforesaid injury.
7. Another incised wound I" x It," x muscle deep was also found
H
SHANKARJAISWARA v. STA TE OF WEST BENGAL [B. SUDERS HAN REDDY, J.] 487

..,,.. across the left deltoid region of the arm . A
11. He opined the cause of death was due to the injuries which were
ante-mortem and homicidal in nature.

12. PW-9, Mongala Prasad Lal (Sadhu) speaks about the recovery of the
knife (mat. ext. XI). He states that the appellant took out his wearing trousers B
and shirt said to have been kept by him in the room of PW-9. The appellant
took out one knife from the plastic bag. He put his thumb impression on the
panchnama prepared at the time of recovery of articles.
'
...,,
13. PW-18, sub-Inspector of police states that he arrested the appellant
at about 2.35 p.m. on 15.1.1997. He accompanied PW-19 the Investigating c
Officer to the house of Sadhu (PW-9). The appellant was also with them. He
states that on arrival at the house of Sadhu (PW-9) the appellant brought out
one knife hidden under the bag of coal. The appellant also brought out one
shirt and one trouser hidden under the pillow kept on the cot in the house
of PW-9. PW-19 prepared a seizure list in respect of the articles recovered in
the house of PW-9. He identified the knife seized by the Investigating Officer
D
(mat. Ext. XI) .
..,-
14. PW-19 is the Investigating Officer. He speaks about the recording
' of the information/statement of Bhola (PW-I). He came to the place of
occurrence on receiving a telephonic information to the effect that one E
unknown person ha5 been stabbed by another on Cossipore Road. It is in his
evidence that on 16.1.1997 he examined the appellant who stated before him
that he concealed the weapon in the house of his friend, Sadhu (PW-9) at
Jatin Nagar Colony. He made the statement that he would be able to lead the
police party to the place where he kept the knife concealed. The statement
so made by the appellant has been recorded in exhibit 18. He speaks about F
the recovery of the weapon and the seizure list (ext. 17) prepared by him.

15. The prosecution case is narrated by the two eye witnesses PW-I,
Bhola Jaiswara and PW-3, Mohan Jaiswara. This evidence has been elaborately
dealt with by the trial court as well as the High Court. Their evidence has been
properly appreciated by the courts below. Suffice it to note that both of them G
(PW-I & PW-3) stated clearly that the appellant stabbed the deceased
repeatedly. PW- I, Bhola Jaiswara found stab injuries on the throat, chest,
abdomen of the deceased. PW-3, Mohan Jaiswara spoke that the deceasted
......,__
Tarak was stabbed by the appellant repeatedly by 5 or 6 times. PW-12, Dr.
Sruti Kr. Bera before whom the deceased was brought dead on the day of H
488 SUPREME COURT REPORTS [2007) 6 S.C.R.

A occurrence found multiple stab injuries. He further deposed that PW- I gave
a statement that the deceased was severely stabbed by the appellant. PW-
5 Prof. B.C. Mazumdar, Head of the Department offorensic and State Medicine,
Calcutta who held the post-mortem examination on the body of the deceased
on 15.01.1997 found as many qaas 7 injuries which we have noticed herein
B above. The injuries were ante-mortem and homicidal in nature. He opined that
injury nos. 4 and 7 might have been caused while the victim was defending
himself. He was of the opinion that the injuries found by him could be caused
by the weapon of offence (mat. Ext. XI) which was shown to him.
!
16. We find the medical evidence available on record and the ocular .,..
C evidence of PW-I and PW-3 were absolutely in conformity with each other
which clearly establishes the prosecution case.

17. There has been some criticism about the evidence of recovery of the
weapon of offence (mat. Ext. XI). There is no doubt whatsoever the recovery
of weapon seized under seizure list (ext. 17) but the recovery itself would not
D be enough and sufficient to connect the appellant with the crime unless it is
established that the said weapon has been used by the appellant for
commission of the offence. But it cannot be denied that the recovery of the
said article is a fact discovered at the instance of the appellant. We have the
evidence of PW-5, Prof. B.C. Mazumdar who in categorical terms stated that
the injuries found on the deceased could be caused by such a type of knife
E (mat. Ext. XI). The Ocular evidence of PW-I and 3 which is consistent reveals
the appellant carrying a knife. The sequence of events and the material
available on record clearly establishes that the weapon of offence (mat. Ext.
XI) has been used for the commission of the murder of Tarak Jaiswara by the
appellant. The recovery, made under Section 27 of the Evidence Act by PW-
F 19 Supriya Kumar Pal from the house of PW-9, Mongala Prasad Lal (Sadhu)
is required to be taken into consideration. The process of recovery in our
considered opinion which is based upon the statement of the appellant made
to PW-19 is in accordance with Section 27 of the Evidence Act.

18. Upon appreciation of the evidence the Trial Court convicted the
G appellant for the offence punishable under Section 302 IPC and sentenced to
undergo life imprisonment.

19. The incident and the involvement of the appel;ant in the commission
of offence is not in dispute. --<
H Submission:
SHANKAR JAISWARA v. STA TE OF WESTBENGAL [B. SUDERSHAN REDDY,J.J 489

20. The stand taken by the appellant before the High Court and reiterated A
in this appeal was that the appellant was in a state of drunkenness and did
not know the consequences what he did and, therefore, cannot be convicted
for the offence punishable under Section 302 IPC. It was contended that at
the most the appellant could be convicted and sentenced under Section 304
Part II !PC. This was the only contention urged before us.
B
21. The nature, scope and applicability of Section 86 /PC

Section 86 IPC which was elaborately considered by the High Court
runs in these tenns:

"86. Offence requiring a particular intent or knowledge committed C
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 ifhe had the same knowledge as he would have had ifhe had
not been intoxicated, unless the thing which intoxicated him was D
administered to him without his knowledge or against his will."
..,.
22. This Court in Basdev v. The State of Pepsu, [1956] SCR 363 while
' construing Section 86 IPC observed:

"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 E
a certain element of doubt in interpretation may possibly be felt by
reason of this omission. If in voluntary drunkenness knowledge is to
be presumed in the same manner as ifthere was no drunkenness, what
about those cases where mens rea is required. Are we at liberty to
place intent on the same footing, and if so, why has the section F
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 summarized as follows:-

So far as knowledge is concerned, we must attribute to the
intoxicated man the same knowledge as ifhe was quite sober. But so G
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. Was 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 drinking, and from the H
490 SUPREME COURT REPORTS [2007] 6 S.C.R.

A 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
B intention and knowledge is an awareness of the consequences of the
Act. In many cases intention and knowledge merge into each other
and means the same thing more or less and intention can be presumed
from knowledge. 111e 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
c used interchangeably and this has led to a certain aniount of confusion."

23. The learned Amicus Curiae, however, relied upon the judgment in
Mandru Gadaba (1916) AIR Madras 489 in support of his submissions. It is
not necessary to consider the judgment to the effect of the observations
D inasmuch as the charge against the accused therein was under Section 304
and not under Section 302.

24. On consideration of various authorities including the decision
rendered by the House of Lord's in Director of Public Prosecutions v. Beard,
(1920) AC 479 the law is neatly summarized in Russel on Crinte in the following
E words:

"There is a distinction, however, between the defence of insanity in
the true sense caused by excessive 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
F insanity in fact supervenes as the result of alcoholic excess it furnishes
as complete 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
G or not he had this intent, but evidence 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 rebut the presumption that a
man intends the natural consequences of his act".
H
SHANKARJAISWARA v. STATEOFWESTBENGAL [B. SUDERSHAN REDDY, J.] 491

25. In Bablu @ Mubarik Hussain v. State of Rajasthan, (2006) 14 A
SCALE 15 this Court held:

"The defence of drunkenness can be availed of only when intoxication
produces such a condition as the accused loses the requisite intention
for the offence. The onus of !!roof about reason of intoxication due
to which the accused had become incapable of having particular B
knowledge in forming the particular intention is on the accused.
Basically, three propositions as regards the scope and ambit of Section
\ 85 IPC are as follows:
;1 ~
(i) The insanity whether produced by drunkenness or otherwise is a
defence to the crime charged; c
(ii) Evidence of drunkenness which renders the accused incapable of
forming the specific intent essential to constitute the crime should be
taken into account with the other facts proved in order to determine
whether or not he had this intent; and
D
(iii) The evidence of drunkenness falling short of a proved incapacity
in the accused to form the intent necessary to constitute the crime
"1'"
, and merely establishing that his mind is affected by drink so that he
more readily give to some violent passion, does not rebut the
presumption that a man intends the natural consequences of his
acts." E
This Court while construing the expression "without his knowledge" stated
that it simply means an ignorance of the fact that what is being administered
to him is or contains or is mixed with an intoxicant.

26. In the present case a plea of drunkenness and the mind of the F
accused was so affected by the drink with the result that he acted in a way
in which he would not have done had he been sober, is not set up by the
appellant accused. Reliance is sought to be placed upon the statement given
by Bhola Jaiswara (PW-1) to the police and as well as his evidence wherein
he stated that the appellant was shouting under the influence of liquor and G
_., abused the deceased and as well as the evidence of PW-9, Mongala Prasad
Lala (Sadhu) a friend of the appellant in whose house he had kept his wearing
apparels (mat. Ext. XII & XIII) and weapon of offence (mat. Ext. XI) to the
...._,,... effect that the appellant was under the influence of liquor when he came to
conceal the weapon after the commission of offence. Based on the sequence
of events it was urged that the appellant was under the influence of liquor H
492 SUPREME COURT REPORTS (2007] 6 S.C.R.

A and the injuries inflicted by him on the deceased was devoid of any intention. ~
"-•
27. We are unable to persuade ourselves to agree with the submissions.
There is no evidence available on record as to the quantity of the alcohol
consumed by the appellant except the observation of PW-I and PW-3 that
he was under the influence of liquor. No _one stated that h~ was not in his
B senses and lost self control. There is no evidence as regards the degree of
intoxication. There is no evidence of any attending general circumstances to
arrive at any conclusion that the appellant was beside his mind altogether
temporarily at the time of incident. He was apparently conscious and fully
capable of understanding the consequences of his act as it is evident that '
~

c immediately after the incident he walked the distance to the house of PW-9,
Mongala Prasad Lal (Sadhu) and concealed the weapon of offence and wearing
apparels.

28. Prof. Mazumdar (PW-5) found seven grievous injuries which
according to him were the cause of death being ante-mortem and homicidal
D in nature. We are required to notice the evidence of PW-5 with a particular
reference to injuries no. 4 and 7 which according to him may have been
caused while the victim was defending himself. In the circumstances, it cannot
~
be said that there was no intention on the part of the appellant and he was
out of his senses on account of intoxication. The evidence of PW- I and PW- •
3 who. are eye witnesses to the incident is consistent. Both of them have seen
E the appellant stabbing the helpless victim who was sitting in his own rickshaw
and e(\ting his evening food. There was no provocation as such caused by
the deceased leading to any sudden attack. The appellant was carrying
weapon and attacked the deceased, caused grievous injuries resulting in his
death. The intention on the part of the appellant can easily be gathered from
F the evidence of PW-I and PW-3 which is supported by medical evidence.
There is absolutely no reason whatsoever to disbelieve their evidence. There
is nothing on record suggesting that at the time the appellant attacked the
victim his mind was so affected by the drink he had voluntarily taken that he
was incapable in forming the intention requisite for making his act the offence
charged against him. The taking of drink cannot itself excuse the commission
G of a crime; and it is not a defence to prove that a man's mind was so affected
by drink that he more readily gave way to passion, or that he would not have
acted as he did had he been sober nor will drunkenness be a defence in case
of strict liability, since, if an honest and reasonable mistake by a sober person ..
cannot afford a defence, a mistake while drunk cannot do so. (see Vol. II, --<
H Fourth Edition, Halsbury's Law of England page 26)
•
SHAN KAR JAISWARA "· STA TEOF WEST BENGAL [B. SUDERS HAN REDDY,J.] 493
29. We have perused the relevant evidence for our own satisfaction A
though the Sessions Court as well as the High Court upon proper appreciation
of evidence found the appellant guilty of the charged offence punishable
under Section 302 IPC. Upon appreciation of the evidence we are unable to
persuade ourselves and agree that the appellant was devoid of his actual
senses and he was unable to comprehend his action. On the other hand the B
manner in which the appellant attacked the deceased resulting in as many as
7 grievous injuries suggests that the appellant was quite conscious of the
consequences of his act. The appellant as is apparent from the evidence had
control over his senses and tried to make good his escape after the incident
in a calculated manner. This is clear from the evidence of PW-9 that he came
immediately after the incident to conceal his wearing apparels and the weapon C
of offence. It is not possible to accept the theory propounded by the learned
Amicus that due to drunkenness the appellant lost his senses and self
control. The intention on the part of the appellant is clearly evident from the
evidence and all attending circumstances.

30. The pr.;secution proved the charge against the appellant beyond D
any reasonable doubt. The Trial Court as well as the Appellate Court came
to the right conclusion in convicting and sentencing the appellant for the
offence punishable under Section 302 !PC.

31. Before parting with the case, we must record our appreciation of the
assistance rendered by Shri Vijay Panjwani, advocate to the court as learned E
Amicus Curiae and we direct the payment of Rs. 1,500/- as fee to him.

32. The appeal is accordingly dismissed.

S.K.S. Appeal dismissed.