MAY, 2017 | ISSN: 2394- 5044 THE WORLD JOURNAL ON JURISTIC POLITY

CASE COMMENTARY- BASDEV V. STATE OF PEPSU AIR 1954 SC 722

Mr. Vikash Meena
National Law School of India University, Bengaluru

Facts of the Case

The appellant of this case Mr Basdev (from the village Harigarh) was a retired military
Zamadar. He was charged for offence of murder of a boy named Maghar Singh, approx.
age is between 15- 16 years. Both of them went to the wedding on 12th March 1954 to the
nearby village they take meal in wedding came back to the bus, some of them settled down
to the seats. The appellant asked Maghar Singh to step aside so the appellant may occupy
the convenient seat in bus but the young boy not move form seat. The appellant whipped
out pistol and shot the boy in abdomen. The injury to the boy proves fatal and boy died on
the spot. The family of the brides have lot of alcohol for the guest. And according to the
witness, the appellant Zamadar was drink a lot and he became incapable of knowing the
nature of act1.

Issue

Whether accused takes the defence of intoxication under section 86 and accused is liable
for murder under section 302 of IPC or accused liable for culpable homicide under section
304 of IPC?

Rule of Law

1. Punishment for murder.whoever commits murder shall be punished with death, or

imprisonment for life, and shall also be liable to fine2.

2. Punishment for culpable homicide not amounting to murder.Whoever commits

culpable homicide not amounting to murder shall be punished with imprisonment for
life, or imprisonment of either description for a term which may extend to ten years,
and shall also be liable to fine, if the act by which the death is caused is done with the
intention of causing death, or of causing such bodily injury as is likely to cause death,
or with imprisonment of either description for a term which may extend to ten years,
or with fine, or with both, if the act is done with the knowledge that it is likely to cause
death, but without any intention to cause death, or to cause such bodily injury as is
likely to cause death3.

1
Basdev v. State of PEPSU AIR 1954 SC 722.
2
Section 302 of Indian Penal code 1860.
3
Section 302 of Indian Penal Code 1860.

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3. Offence requiring a particular intent or knowledge committed 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 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 will4.

Analysis

Case filed by the parents of the boy and matter firstly go to the session court in the session
court Judge said he was excessively drunk according to the evidence of the one eyewitness
of circumstance and he was almost unconscious. The session court held that the accused
was very drunk and he was total absence of any motive or premeditation to kill any one so
session court awarded the lesser penalty of transportation 5 of life. The decision of session
court was challenged in the high court but the appeal was unsuccessful. But the High Court
granted special leave petition on the question of law whether the offence committed are
come under section 302 of IPC or Under 304 of the IPC read with section 86 of Indian
Penal code6.

In this case Supreme Court interpreted section 86 of IPC different way in this court not
make any difference between knowledge of a person who is drunk or one who sober. Court
considers both have same kind of knowledge. On the issue of the intention court held that
the intention is different in the different case so it can be decide on the basis of fact and
circumstances of case, there is no objective test in this case the circumstance shows that
the accused was drunk but not gone deep drinking and he was aware of the act. Court make
distinction between the motive Knowledge and intention court said motive is something
which prompts to man to commit any act but the knowledge and the intention is the
awareness of the natural consequence of the act. In many case there are no difference
between the knowledge and the intention both are merged into each other. The distinction
line between intention and knowledge is very thin7.

Why judge rejected the appeal

1. An English case Rex v. Meakin8 in this case judge referred the nature of the instrument
which is used in the committing crime. If a man used stick you do not consider the
strong malicious intention of a man but if he had used a different kind of weapon, but
if he used a dangers instrument which can produce grievously bodily harm to the other
person the excuse of drunkenness have no effect on the determining the malicious

4
Section 304 of Indian Penal code 1860.
5
The word transportation of life later replaced by Imprisonment of life by amendment in the year
1959.
6
Basdev v. State of PEPSU AIR 1954 SC 722.
7
Basdev. State of PEPSU AIR 1954 SC 722.
8
Rex v. Meakin (1836) 173 E.R. 131.

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intention of the other party9. In case of Basdev. State of PEPSU appellant also used
pistol which is a dangerous instrument, so according to this case appellant is liable for
murder10.

2. In case of Regina v. Cruse and Mary11 both husband and wife were drunk and they
murder a child. In this case court held that it appears that both person who committed
offence were a drunk but drunkenness is no excuse for any crime but the main question
about intention of the parties. Held if a person too much drunk and he is not able to
make any intention but he may be guilty of the offence12.

3. In case of Reg. v. Monk-house13 court held you cannot determine the intention of the
person. So if the defendant proves he was intoxicated the main question arises here it
was totally incapable of forming the necessary intention. But drunkenness is generally
neither an excuse nor a defence for any crime; it is totally dependent on the on accused
to prove it. Court also held that is not enough that person said he was more irritable,
he cannot take defence until he prove that intoxication take away the power of forming
a specific intention which is required to the commit any crime14.

4. In a landmark English case Director of public prosecutions v. Beard15 in this case

prisoner raped a girl aged 13 years, and in aid of the act of rape he placed his hand on
the mouth of girl to stop his screaming and also same time he pressing his thumb on
his throat result that she died by suffocation . In this case prisoner takes the defence of
the drunkenness. But the court rejected the defence of the drunkenness by saying that
the defence of the drunkenness only be granted where person not know what he was
doing and the court give sentence to death to prisoner. The decision was challenged in
the court of appeal and court held drunkenness affected the mind of prisoner and he
was incapable of knowing that what he is doing is dangers. The court quashed the
decision of lower court on the basis of Rex v. Meade16 in this case held that the natural
consequence of the act might be affected by the influence of drunkenness and he was
in capable of making any rational decision, So the court reduce the conviction to the
manslaughter. Finally the decision was challenged to the House of Lords 11 judge
bench decide this case and reached the conclusion that the decision of Rex v. Meade
was right, and a man is not liable if he shows that he was very drunk so he was not able
to knowing what he was doing is wrong or not. In this case House of Lord laid down
three rules for claiming intoxication as a defence. First rule is insanity whether
produced by the drunkenness, it can be used a defence to the crime charged17. Second

9
Id.
10
Basdev v. State of PEPSU AIR 1954 SC 722.
11
Regina v. Cruse and Mary, (1838) 173 ER 610.
12
Id.
13
Reg. v. Monk-house 1849 4 cox. C.C. 55.
14
Id.
15
Director of public prosecutions v. Beard 1920 A.C. 479.
16
Rex v. Meade (1823) 1 Lew. C.C. 184.
17
Director of public prosecutions v. Beard 1920 A.C. 479.

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rule is the evidence must be proved that the accused was not capable in forming the
specific intention should be take into consideration with other factor which can prove
that he not have had this intent which is require for the crime 18. Third rule is the
evidence whether the person is drunkenness or not in capacity in the forming any intent
which is necessary to the crime and his mind was affected by the drink so that he was
in violent passion, does not rebut the natural consequence of his act19.

Conclusion

So in this case court found that accused was influence of alcohol, but he was not so much
under influence of drink which caused incapacity in forming the required intention to the
offence. Evidence shows that he was not totally insane; he was able to move himself. He
also made a choice of seat and asked boy to move to other seat. Also when he shot to the
boy he also make request to the witnesses to be forgiven about this incident. According to
court all these evidence it was not proved incapacity of accused, and also in court of law
accused fail to prove such incapacity which he was claimed for defence. So the law presume
that accuse was known the natural and probable consequence of the act and he was intend
to cause bodily injury to another person which is sufficient in the ordinary course of nature
to cause death. So the court not reduces offence murder to culpable homicide which is not
amounting murder under the section 304 of IPC. The conviction and sentence are right in
eyes of law and appeal was dismissed.

18
Director of public prosecutions v. Beard 1920 A.C. 479.
19
Basdev v. State of PEPSU AIR 1954 SC 722.

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