Economics and ipc notes, Study notes of Criminal Law

Download Economics and ipc notes and more Study notes Criminal Law in PDF only on Docsity! 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. IPC, 1860 (Sections 85 and 86) IPC divides intoxication into Voluntary intoxication Involuntary intoxication Section 85  Section 85 of the Indian Penal Code provides that nothing is an offence which is done by a person who at the time of doing it by reason of intoxication is incapable of knowing the nature of the act he is doing, and what is either or contrary to the law, provided that the thing which intoxicated him was administered to him without his knowledge or against his will.  Therefore, Section 85 lays down that the test to determine when a person is said to have caused an act as a result of involuntary intoxication so as to claim the benefit of exemption under this Section. Section 85 gives the same immunity to a person intoxicated involuntary as Section 84 gives to a person of unsound mind. 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, 1992. 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. Crime basic intent and crime specific intent: The rule laid down in Director of Public Prosecution v. Majewski  In Director of Public Prosecution v. Majewski, House of Lords held that it is a rule of substantive law that unless the offence charged required proof of a specific intent, it is no defence that, through self-induced intoxication, the accused lacked the mens rea normally required for that offence or was in a state of automatism at the material time.  In this case, a disturbance had occurred in a public house and Majewski was ordered to leave by the landlord. He refused and butted (hit) the landlord in the face and punched a customer. Majewski was ejected from the bar but re-entered. He punched the landlord and started swinging a piece of broken glass at the landlord and a customer, cutting the landlord’s arm.  The landlord managed to restrain Majewski until the police arrived, whereupon a fierce struggle took place to get him into a police car, during which Majewski kicked three police officers. Later he struck a police inspector who entered his police cell. Majewski was charged and convicted on four counts of assault occasioning actual bodily harm and on three counts of assaulting a police constable in the execution of his duty. CONSENT Sections 87 to 90 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. 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. Cont.  Third: Consent given by insane people– People who are of unsound mind, or in an intoxicated state of mind, incapable to understand the nature and consequences of their acts. For example, A, in a heavily drunken state, signed his property paper in favour of the liquor shop owner just to get one more liquor bottle. In the eyes of the law, his consent has no value.  Fourth: Consent given by child- The last para of section 90 says consent given by a child under the age of 12 years has no value in the eyes of law. In this case, the consent will be given by the child’s guardians or person in charge of him. Section 91 91. Exclusion of acts which are offences independently of harm cause.—The exceptions in sections 87, 88 and 89 do not extend to acts which are offences independently of any harm which they may cause, or be intended to cause, or be known to be likely to cause, to the person giving the consent, or on whose behalf the consent is given