Cesare D’souza went to a pub on 02-02-2011 to celebrate his birthday. In course of the celebration, his friend urged him to have a couple of drinks which he declined. One of his friends Remo who was heavily drunk moved to the edge of the terrace where the party was taking place and took glass of vodka in his hands and gulped it down. Remo joined the party once again and passed out in ten minutes but Cesare drank throughout the night. By the midnight he was so drunk that he could barely drive. His friend dropped him at his residence which he shared with his judicially separated wife Maria. That night, Cesare forced himself on Maria and had intercourse with her. Has Cesare committed any offence?
The two main issues which are involved in the present case are:-
Whether Cesare D’souza is entitled to get benefit under section 85 of Indian Penal Code, 1860?
Whether Cesare D’souza is guilty under section 376B of Indian Penal Code, 1860?
Let us discuss the issue no. 1 firstly
One of the basic principles which is followed by Indian Justice System is that, “no one can be held liable for his act unless he has a guilty mind”. If a person commits an offence, the initial burden of proof is upon prosecution and he has to prove guilt of an accused beyond reasonable doubt and to prove his guilt the prosecution has to prove actus reus i.e., consequences of an act of an accused as well as mens rea i.e., guilty mind. If prosecution proves the actus reus but fails to prove mens rea then the court cannot hold an accused liable only on the basis of actus reus.
Under the Indian Penal Code, 1860, there is no definition of Mens Rea but it includes Intention, Knowledge, Reason to believe etc. and if a person commits any act without these elements, then his case falls under Chapter 4 of Indian Penal Code, 1860, which deals with the provisions of ‘General Exceptions’. If the case of an accused falls under any of the sections of Chapter 4 which deals with the provisions of general exception, then the law excuses the act of the accused and gives acquittal to him. Section 85 of Indian Penal Code, 1860, also deals with the provisions of general exceptions.
According to section 85 of Indian Penal Code, 1860, if a person commits any offence and because of intoxication at the time of committing the offence he does not know the nature of his act or he does not know that what he is doing is wrong and contrary to law, then such person will not be held liable for his act. But the condition is that the intoxicated substance must be administered to him without his knowledge or against his will. If the person at the time of taking intoxicated substance knew that the substance is intoxicated one then he cannot claim the benefit of this general exception and the court will presume under section 86 of Indian Penal Code, 1860, that he had knowledge at the time of commission of an offence which is required for committing an offence even he had been intoxicated.
In the leading case of Basdev v. State of Pepsu (SC 1956), the Hon’ble court held that drunkenness is neither a defense nor an excuse for crime. By law, an intoxicated person is presumed to have same knowledge as a sober man. However, an intention must be gathered from the circumstances of the case paying due regard to degree of intoxication.
But in the leading case of Director of Public Prosecution v. Beard (1920), the Hon’ble court held that if the intoxicated substance is administered to the accused without his knowledge or against his will then in such a case, the law will not presume that he had knowledge at the time of commission of an offence. The law will excuse his act and he will not be held liable for the commission of his act.
In the present case Cesare D’souza drank the first glass of vodka because of threat given by his friend Remo but after this he willingly drank the Vodka. So, in this case, it cannot be said that intoxicated substance was administered to him without his knowledge or against his will. Hence, he is not entitled to get the benefit given under section 85 of Indian Penal Code, 1860.
Let us discuss the issue no. 2
Since the time immemorial women are treated like chattel and they are used by men just like a material to fulfill their sexual pleasure. They do not bother whether woman is willing to have sexual intercourse or not. Such kind of behavior of men adversely affects the dignity of women which is the soul of a human body.
Just to protect the dignity of women the legislature has enacted the law regarding rape. Basically, rape means when a man commits sexual intercourse with woman without her consent or against her will. If a man commits sexual intercourse with a woman against her will or without her consent then such man will be held liable for committing the offence of rape.
In India, if a husband commits a sexual intercourse with his wife without her consent or against her will, that is not punishable because here marital rape is not an offence and it is matrimonial obligation of both parties to marriage to satisfy sexual desire of each other and if any party refuses to have a sexual intercourse with another spouse that is considered as a cruelty and aggrieved spouse can file petition for getting a decree of judicial separation or divorce.
But, if parties are already judicially separated then in such a case, it is not obligatory for the parties to fulfill their matrimonial obligations and the spouse has right to refuse for the sexual intercourse with another spouse. Then in such a case, if male spouse commits sexual intercourse with female spouse during judicial separation without latter’s consent or against her will, the husband will be held liable under section 376 B of Indian Penal Code, 1860.
In the present case Cesare D’souza when he was so drunk forced himself on Maria and had intercourse with her during the judicial separation. He is not entitled to claim benefit under section 85 of Indian Penal Code, 1860 because of voluntary intoxication. That is why, he is guilty for having sexual intercourse with his wife during judicial separation under section 376 B of Indian Penal Code, 1860.