Intoxication as a Defense

This paper deals with intoxication as a defense. Voluntary and involuntary intoxication are the major points of discussion. The history of intoxication as a defense has been discussed. A major emphasis has been given on intent. Roman and English laws about intoxication have been described. 

Indian laws that deal with intoxication, namely Section 85 and 86 of IPC as a defense has been discussed in detail. Landmark case laws and judgments of India have been made clear in this paper.

This paper will also focus on foreseeability and describe mens rea in detail about intoxication as a defense. It will also be made clear if this is a good defense in cases of criminal offenses. Lastly, the judiciary’s role in this is been explained with the help of cases.


Intoxication is a state of mind in which a person’s normal capacity to act or reason has been inhibited by alcohol or drugs. Normally, an intoxicated person is unable to act as an ordinary, reasonable, and prudent person in similar situations. In consideration of this fact, the law can provide for the use of intoxication as a defense against certain crimes. In many jurisdictions, intoxication is a defense against crimes of an express intent. The primary principle is that an intoxicated person cannot have the mental state required to establish to commit the offense.

The legal maxim, ‘actus non facit reum nisi mens sit rea’, means an act alone cannot make anyone guilty unless there is criminal intent or a guilty mind. To convict the defendant, it must be established that the criminal act has been carried out with criminal intent. Not only is the act of the accused significant, but the intention of the accused to perform a specific act is equally as important in proving the guilt of the accused. Therefore, the mere commission of a criminal act or infringement of the law is not sufficient to commit a crime.

It should be coupled with the presence of dishonest or malafide intent. Besides, the intent or mens rea is also important to measure or approximate the severity of the crime. A person without the necessary intent to commit an offense would be oblivious to the consequences of the act. That would negate the liability on the person committing the offense. However, the exception here being is strict liability. Under strict liability, it is not necessary to show that a defendant intended or had a malafide intention to commit an offense.

If a crime can be committed recklessly but not negligently then evidence of intoxication should be admissible to prove that the element of foreseeability or conscious creation of risk was never present. Chapter IV of the Indian penal code, 1860, which deals with General Exceptions, removes the criminal responsibility of a person who, in a state of inability to form rational thinking, has committed an act that constitutes a crime.

It is a defense open to criminal defendants on the ground that the defendant cannot understand the nature of the act they are committing as a result of intoxication. It is the situation in which the person loses the capacity for self-control and judgment. Section 85 deals specifically with the offences committed by the person who had been intoxicated without his or her knowledge.

The criminal defense of intoxication has been a matter of debate for a long time since the reason of intoxication provides the defendant to prove that they were not in the right state of mind and were not fully conscious of their actions and its consequences. But since it is not easy to prove the intent of the crimes and the extent, Indian law has divided intoxication into two parts namely, voluntary intoxication and involuntary intoxication.

Involuntary Intoxication

Involuntary intoxication is mainly used as a defense for specific intent crimes, which means those crimes which require not just intent but malicious intent, which in common knowledge will cause damage or harm to another party. For example, burglary, conspiracy, murder, forgery, requires intent and also in most cases preparation or premeditation for performing the crime. It must be proved that involuntary intoxication made the defendant legally insane for a limited amount of time which ceased the mental ability to think. It can be by a medication prescribed by a medical practitioner, or administered in the defendant’s food or drink without his or her knowledge.

Voluntary intoxication

Voluntary intoxication for a long time has been seen as intoxicating oneself even though it is in the knowledge of the defendant that they will not be able to make judgments and their thinking capabilities will be impaired. So voluntary intoxication is not a defense in general intent crimes, general intent crimes do not require the defendant’s proof of motivation as general intent is only based on the act and not the intention to act. As in the case of assault and battery which can be a result of recklessness. The court just requires proof that the defendant did the act even though the defendant may not even know that his actions constitute a crime. So general intent can lead to convictions without needing to prove the intent.

Intoxication as a defense in the History

To constitute a crime, there must be

  1. an act, and
  2. a criminal intent, or
  3. criminal negligence,
  4. which must concur in point of time.

Ancient Roman laws gave great allowances and admitted evidence of it as a defense against a criminal offense. In Greece, it was imposed by a Pittacus statute, “that he who committed a crime while drunk would receive a double sentence,” one for the crime itself, and another for the drunkenness that induced him to commit it.

According to Blackstone, the English law regarded intoxication as an aggravation of the offense rather than as a justification. Lord Coke says,—-“He who is willingly intoxicated has no privilege; but what hurts or ills he does, his drunkenness makes it worse.”

The case of Renigre vs. Zogossa, (Plowd.19) declares that “if a person who is drunk kills another, this shall be a felony, and he shall be hanged for it; and yet he did so through naivety since he was drunk he had no knowledge or consciousness; but since that ignorance was caused by his act and folly, and he might have prevented it, he shall not be advantaged by it.”

 The intoxication laws of the early nineteenth century were very strict. In fact, according to the statement made by Earl of Birkenhead, voluntary intoxication was considered to be aggravation rather than defense. If a person drinks alcohol, knowing fully well that it would impair his ability to think clearly, then in the judgment of his criminal conduct he will be in no better condition than a sober man.

In the landmark case of D.P.P Vs. Beard[1], which involved the rape and death of a girl by a night watchman under the influence of alcohol. He was convicted of murder. But the appellate court reduced the sentence. But House of Lords did not agree to the findings of the appellate Court and restored the murder conviction. The defendant pleaded that he lacked specific intent to commit the act and was incapable of forming the intent to commit the offense. But the House of lords proved that ‘intoxication’ is merely a legal excuse.

‘Here, the lack of intention on part of the accused, was used, in the same way as an Excuse to acquit the accused, concretizing the idea that the ‘inability to form intention as a result of intoxication’ has the legal status of an Excuse, as per the modern understanding of the term, derived from the writings of Prof. Fletcher and Duff.’[2]

Intoxication as a defense in Indian law

Intoxication as an offense is given under  Chapter IV under “General Exceptions” of The Indian Penal Code (IPC), 1860. Under general exceptions, a person is exempted from criminal liability due to insanity, intoxication, infancy, necessity, etc. In this case, the burden of proof of exception is on the accused charged of the wrongdoing.
Section 85 and section 86 deals with the general exception of intoxication.

Section 85, Indian Penal Code

“Act of a person incapable of judgment because of intoxication caused against his will: nothing is an offense which is done by a person, who at the time of doing it, is, because of intoxication, incapable of knowing the nature of the act, or that he is doing is either wrong or contrary to law; provided that the thing which intoxicated him was administered to him without the knowledge or against his will.”

This section describes involuntary intoxication. If a person commits an offense under the influence of any intoxicating substance which was administered to him by force or against his will, then the defense of intoxication can be used. However, it must be proved that the person committing the crime did not know the intoxicating substance administered to him, more so the person must be intoxicated during the time of committing the act and not before or after the commitment of the act.

It should be proved that he had no knowledge or consciousness of what he was doing, nor did he anticipate the consequences of the act and could not comprehend that what he is doing is legally right or wrong.

Section 86, Indian Penal Code

“86. Offence requiring a particular intent or knowledge committed by one who is intoxicated.—In cases where an act was done is not an offense unless done with 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.”

This section indirectly talks about voluntary intoxication. If a person has full knowledge of his actions and its consequences moreover he also has an intention to commit a particular act then he will be prosecuted as a normal person irrespective of the fact that he was under the influence of any intoxicating substance. 

Foreseeability Test

This test can prove if a person is capable of committing an offense. A simple cause and effect reasoning can be enough to prove if a person can commit a crime. If a person in ordinary circumstances loses control under the influence of an intoxicating substance and is not able to think clearly, it means a person will most definitely lose self-control over his mind under the influence of an intoxicating substance in the future too. And then to the person voluntarily chooses to get intoxicated and act negligently, then a person should not claim the defense of intoxication. This shows that the person had the intent to lose control and act negligently.

In short, a person should be able to foresee the consequence of his actions. For instance, if an intoxicated person commits the offense of murder and runs away from that place as soon as he committed the offense, then it means that the person was able to walk properly and also comprehend that he is guilty of the offense of murder and can be prosecuted for the same.

Qui peccat ebriusluat sobrius refers to He who does wrong when drunk must be punished when sober. The maxim has a Latin origin.

Mavari Surya Satyanarayana v. State of A.P.[3]

In this case, the husband suspected that the wife had an extramarital affair and he fought with his wife. That day he drank alcohol and excess and tried to douse kerosene on his wife and set her on fire. Somehow his wife escaped but the husband chased her down and poured kerosene on her and set her on fire again. She died on account of the injuries.

He took the defense of intoxication, but the supreme court rejected his defense saying that he was capable enough to run after his wife to continue his heinous act. He finally received life imprisonment according to section 302 of IPC.

Delirium tremens

Delirium tremens (DTs) is a rapid onset of confusion usually caused by withdrawal from alcohol. When it occurs, it is often three days into the withdrawal symptoms and lasts for two to three days. Physical effects may include shaking, shivering, irregular heart rate, and sweating. The disease is realized as an insanity proton, and the case is treated in the same manner as involuntary intoxication. Therefore the activity is exempted from criminal cases even if it was voluntary intoxication.

Role of Judiciary

Basudev v. State of Pepsu[4]

The deceased and a retired military officer of the same village attended a marriage party. All of them went to the house of the bride to attend the mid-day meal. Some had settled down in their seats and some had not. The military man who was very drunk and intoxicated asked the young boy to step aside a little so that he may occupy a convenient seat.

But, when he did not move, the military officer whipped out a pistol and shot him in the abdomen. The injury proved fatal. The evidence showed that the accused sometimes staggered and sometimes was incoherent in his talk. But it was shown that he was capable of moving himself independently and was capable of talking coherently as well. When he realized what he had done, asked for forgiveness.

The accused took the defense that he was highly intoxicated and did not understand the nature of his act. 

The evidence proved that he came on his own to the house of the bride and that he chose his seat after injuring the deceased, he attempted to getaway. All these facts, according to the SC, go to prove that there was no proven incapacity on the accused to form the intention to cause bodily harm sufficient in the ordinary course of the nature to cause death. Given his failure to prove such incapacity, the law presumed that he intended the natural and probable consequences of his act. In other words, he intended to inflict bodily injuries on the deceased and the bodily injuries so intended to be inflicted, was sufficient in the ordinary course of nature to cause death. The accused was found guilty of murder.

Bhagwan Tukaram Dange vs. State of Maharashtra, 2014, 4 SCC 270.

This case was decided on 15th March 2014, by Justice K.S. Radhakrishna and Vikramajitsen. In this case, the defendant burned his wife along his father for dowry under the influence of alcohol. He and his father were charges sheeted under section 302 and 498(A) of IPC. They both came to the house completely drunk and demanded rupees 200 from the victim to which the victim refused and was beat to death by both.


It can be safely concluded that intoxication as a defense succeeds rarely. It is because the foreseeability of an event is known by every sane and prudent person. Pleading voluntary intoxication needs to prove to a greater extent than consuming the intoxicating substance triggered a mental state in which even the accused was not aware of any such mental state of the defendant made him act in a way he did not know the consequence of his act. Involuntary intoxication is also very difficult to prove because a person might be conscious even though he is intoxicated might mean he has not lost his sense of judgment.

It needs to be proved beyond doubt that the person was intoxicated during the act and not before or after the commitment of the act. It must also be proved that he did not have the intent to commit the act and also did not know of its consequences.

It is therefore seen as more of a ‘legal excuse’ than an exception for criminal defense because unless a person is insane or having severe side effects from the consumption of the intoxicating substance, a person is more likely to be able to understand moral right and wrong in the least.


  1. Books:
  • The Indian Penal Code, 1860
  • D Gaur, The Indian Penal Code
  1. Databases:
  • SCC Online
  • Manupatra

[1] D.P.P. v. Beard, [1920] AC 479, (Court of Appeals).

[2] Austin writes that it is a justification when “we accept responsibility but deny that it was bad”, and it is an excuse when “we admit that it was bad but don’t accept full or even any responsibility” as cited by R. A. Duff,  Answering for Crime: Responsibility and Liability in the Criminal Law, 264, (2007). Also See G. P. Fletcher, Rethinking criminal law, 759, (1978).

[3] Mavari Surya Satyanarayana v. State of A.P (1995), 1CrLJ689.

[4] Basudev v. State of Pepsu, 1954, SC 722.

[5] Bhagwan Tukaram Dange vs. State of Maharashtra, 2014, 4 SCC 270.

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