S. L. TALATI, J. ( 1 ) RAMSING Prahladsing Chauhan the appellant. who was P. S. I. at Godhra. came to he convicted by the learned Additional Sessions Judge. Panchmahals at Godhra for offence under sec. 302 I. P. C. and sentenced to suffer R. I for life on 7-9-81 in Sessions Case No. 37/81. He challenges by this appeal. the said conviction and sentence. The facts which are not in dispute. may be briefly stated as under: The appellant at the relevant time was serving as Mounted Police Sub-Inspector at Godhra. According to prosecution case the accused had entrusted one fowl to one police constable Nanabhai Ranmal who happened to be the person residing in the adjoining quarter of the deceased Janmahmad who was serving as Mounted Police Jamadar at Godhra. . The said fowl was lost and the police constable Nanabhai Ranmal informed the accused that the fowl was lost and was not traceable. The accused thereupon stated that the fowl must not have been lost but must have eaten away by Janmahmad who was residing next door to the said police constable Nanabhai Ranmal. The prosecution case is that on the day of the incident i. e. 30/11/1980 the appellant went to the stable where the horses were kept and after taking roll call of the persons who were present on duty. he went back to his house and again came to the stable at about 10. 00 P. M. He sat in one chair and he called the deceased. He had a revolver with him and after calling Janmahmad he asked him as to why he had taken away his hen which was giving eggs and ate away the hen. He told him that he would eat his children away. thereafter there was some altercation and ultimately the accused who had a revolver with him fired at Janmahmad. Four to six shots were fired. By that time Vitthalbhai Dhulabhai hearing the shots came up. In fact Vitthalbhai saw the whole incident and he gave jerk to the head of the accused as a result of which the pistol fell down and he caught him from behind. At that stage. the wife of the accused came there. His nephew also came there and he told his wife to take away the revolver. In fact Vitthalbhai saw the whole incident and he gave jerk to the head of the accused as a result of which the pistol fell down and he caught him from behind. At that stage. the wife of the accused came there. His nephew also came there and he told his wife to take away the revolver. She was not allowed to take away the revolver by Vitthalbhai and others who were present there. Police authorities were immediately informed and the investigation started. Ultimately the accused was charge-sheeted for an offence under sec. 302 I. P. C. and also for an offence under sec. 66 (b) and 85 (1) (3) of the Bombay Prohibition Act. ( 2 ) AT the trial of the case in the Sessions Court the prosecution examined 13 witnesses. ( 3 ) THE accused denied the guilt and he did not lead any defence. ( 4 ) THE learned Additional Sessions Judge acquitted the accused for the offences under the Bombay Prohibition Act. However he came to be convicted for an offence under sec. 302 I. P. C. That conviction is challenged by filing this appeal. ( 5 ) THE learned advocate Shri D. C. Trivedi who appeared on behalf of he defence only submitted on the basis of sec. 85 and 86 I. P. C. that the offence would be not under sec. 302 I. P. C. but it would be the case which would be governed by sec. 304 part II I. P. C. We therefore go to that part of the evidence. In may be stated that the evidence to establish the fact that it was the appellant who fired shots at Janmahmad and as a result Janmahmad expired was so complete that it was not possible to challenge that evidence. ( 6 ) THE next question which was required to be established was as to whether the accused fired and what was the reason for firing. It was established by evidence on record that the accused had hot temperament. He had entrusted his fowl to a constable and the fowl was not traced. He ultimately suspected that it was Janmahmad who must have eaten away because he was the neighhour of the constable. He was therefore angry against Janmahmad. Further evidence disclosed that Janmahmad was called and after a small quarrel he shot him dead. The evidence of Vitthalbhai ex. He ultimately suspected that it was Janmahmad who must have eaten away because he was the neighhour of the constable. He was therefore angry against Janmahmad. Further evidence disclosed that Janmahmad was called and after a small quarrel he shot him dead. The evidence of Vitthalbhai ex. 23 established that aspect of the case. Now the learned advocate Shri D. C. Trivedi submitted that the accused was in the state of intoxication at that time and therefore the case was covered by sec. 86 I. P. C. and therefore the accused was required to be convicted for the offence punishable under sec. 304 part II I. P. C. We have therefore to consider as to whether the case would fall under sec. 302 I. P. C. . or under sec. 304 part II I. P. C. ( 7 ) SEC. 86 I. P. C. reads as under:"86 Offence requiring a particular intent or knowledge committed by one who is intoxicated :- In case 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 3 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". Now this was not the case where the P. S. I. was intoxicated by some else without his knowledge or against his will. The case which was argued was that when an offence requires a particular knowledge or intent and if the man is found to be intoxicated. he should be held liable and he should be dealt with as if he had the same knowledge as required by law. At that point in the section the word intent is not used. Therefore the argument was advanced that if the P. S. I was intoxicated what was required to be imputed to him was only knowledge and not the intention. The situation of such a nature is discussed in the rulings which we refer hereafter and the law is fairly well settled. ( 8 ) THE first case on the point is the case of Macharla Balaswamy of Guntur v. State (1952) Madras Law Journal 772 The Madras High Court interpreted sec. The situation of such a nature is discussed in the rulings which we refer hereafter and the law is fairly well settled. ( 8 ) THE first case on the point is the case of Macharla Balaswamy of Guntur v. State (1952) Madras Law Journal 772 The Madras High Court interpreted sec. 86 I. P. C. and observed as under:"the words state of intoxication in sec. 86 Penal Code can only mean intoxication which renders a person incapable of knowing the nature of the act in question or that he is doing what is either wrong or contrary to law when he commits it. It would be extremely dangerous to extend the protection under sec. 86 Indian Penal Code to persons who commit serious offences under the influence of liquor in varying stages and differentiate culpability in their favour as opposed to similar offences by perfectly sober persons. The law places insanity and involuntary drunkenness on the same footing by using the same criteria viz. incapable of knowing the nature of the act or that he is doing what is either wrong or contrary to law. Ordinary drunkenness makes no difference to the knowledge with which a man is credited and if an accused knows that the natural consequences of his act were he must be presumed to have intended to cause them. Intention in many cases is lan inference from knowledge but there may be cases in which a person by reason of intoxication may under certain circumstances be incapable of knowing the nature of a particular act he commits or that it is either wrong or contrary to law although his state of intoxication may not be such as to render him incapable of know ing the nature of his acts. In such cases. In determining the quality of the offence evidence may be necessary of a specific state of mind which must be found as a fact and not assumed. fit is to these exception cases that sec. 86 of the Code applies". The second case to which reference is required to be made is the case In re. Suruttayyan alias Vayyapuri Goundan 1954 Criminal Law Journal 672 (Madras ). The Madras High Court in that case observed as under:"the state of intoxication envisaged in sec. 86 is not in any way different from that contemplated in he preceding section. Both as sec. 85 and 86. Suruttayyan alias Vayyapuri Goundan 1954 Criminal Law Journal 672 (Madras ). The Madras High Court in that case observed as under:"the state of intoxication envisaged in sec. 86 is not in any way different from that contemplated in he preceding section. Both as sec. 85 and 86. I. P. C. lay down the law relating to drunkenness as bearing on the wrongful acts committed by persons the difference between the two sections being with regard to consequences depending upon whether the drunknness is involuntary or voluntary. The absence of qualifying words in sec. 86 cannot bead to the inference that even if the insobriety is not such as to impair the reason of the offender the requisite intent cannot be presumed". The High Court further observed as under:"it is an ordinary rule that every man is presumed to intend the consequences of his acts but this presumption can be rebutted by showing that the person concerned could not have formed the intent by reason of his drunkenness. It is only in cases where it is proved that the prisoner was in such a condition of drunkenness that his reason was dethroned and was incapable of forming any intention that the defence of drunkenness would be available". On the facts of that case it was held that the offence committed by the appellant was one of murder and his voluntary drunkenness did not avail him to reduce the offence to one of culpable homicide of amounting to murder. ( 9 ) THE last case to which reference may be made is the case of Basudev v. The State of Pepsu 1956 SCR 363 . ( 9 ) THE last case to which reference may be made is the case of Basudev v. The State of Pepsu 1956 SCR 363 . The Supreme Court found that the rule of law was well settled and the following principles were stated:"1 That insanity whether produced by drunkenness or otherwise is a defence to the crime charged;2 The 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 or not he had this intent3 That evidence of drunkenness falling short of a proved incapacity in the accused to form the intent necessary to constitute the crime and merely establishing that his mind was affected by drink so that he more readily gave way to some violent passions does not rebut the presumption that a man intends the natural consequences of his acts". In that case a young boy was murdered. There was a marriage in the village and persons had gone to take mid-day meal and at that place the appellant asked Maghar the young boy to step aside a little so that he may occupy a convenient seat. But Maghar Singh did not move. The appellant whipped out a pistol and shot the boy in the abdomen. The injury proved fatal. On facts it was discovered that the party that had assembled for the marriage at the brides house seems to have made itself very merry and much drinking was indulged in. The appellant Jamadar boozed quite a lot and he became very drunk and intoxicated. The learned Sessions Judge says he was excessively drunk and that according to the evidence of one witness Wazir Singh Lambardar he was almost in an unconscious condition. The circumstance and the total absence of any motive or premeditation to kill were taken by the Sessions Judge into almost and the appellant was awarded the lesser penalty of transportation for life. Appeal to the PEPSU High Court at Patiala proved unsuccessful. Special leave was granted by Supreme Court and the question which was limited was whether the offence committed by the petitioner fell under sec. 302 I. P. C. or sec. 304 of the I. P. C. having regard to the provisions of sec. Appeal to the PEPSU High Court at Patiala proved unsuccessful. Special leave was granted by Supreme Court and the question which was limited was whether the offence committed by the petitioner fell under sec. 302 I. P. C. or sec. 304 of the I. P. C. having regard to the provisions of sec. 86 of the I. P. C. After reviewing several English authorities the Supreme Court carne to the conclusion that the offence was that of murder and it was not reduced from murder to culpable homicide not amounting to murder under the second part of sec. 304 I. P. C. The conviction and sentence were maintained and the appeal was dismissed. ( 10 ) WITH this law when we examine the facts of this particular case the learned advocate Shri D. C. Trivedi for the appellant drew our attention to arrest-panchnama of the accused which was produced at ex. 50. The panchnama shows that the eyes of the accused were red; from his mouth smell of alcohol was coming. his speech was incoherent; his gait was unsteady; that panchnama was prepared at 0. 15 hours. The other evidence to which our attention was drawn was ex. 22 - the certificate given by the Medical Officer who examined P. S. I. at 1. 10 A. M. He found that the mouth of the appellant was smelling alcohol. His speech was normal; gaits were steady eyes were dilated. Opinion given was that the person had consumed alcohol but he was not under the influence of alcohol. That was at 1. 10 A. M. At that time his blood was also collected and was sent for examination and report. The percentage of alcohol was found to be 0. 1720. Complaint was filed at ex. 57 in which it was stated by Senior Police Inspector on the basis of the panchnama that the mouth of the appellant was smelling of alcohol and that he was required to be prosecuted for an offence under secs. 66 (1) (b) and 85 (1) (3) of the Bombay Prohibition Act. With this evidence one has to go to the evidence of Vitthalbhai ex. 23. Vitthalbhai is the Police head-constable and according to him he had reached the place of the incident at the earliest point of time. In fact. he was an eye-witness to the occurrence. 66 (1) (b) and 85 (1) (3) of the Bombay Prohibition Act. With this evidence one has to go to the evidence of Vitthalbhai ex. 23. Vitthalbhai is the Police head-constable and according to him he had reached the place of the incident at the earliest point of time. In fact. he was an eye-witness to the occurrence. At first the appellant asked one Makrani as to whether he had brought the horse and Makrani told him that he had brought two horses from Chakliya. Thereafter he asked Makrani as to whether he had brought the hen and take it home. That is what he Thereafter he told him to clean the hen and take it home. That is what he did. Now that therefore when the appellant went to the place of his work he was perfectly sober and he knew as to what he was doing. he went to his place of work set on a chair called makrani discussed regarding the officer work in regard to horses. Thereafter discussed with him regarding his personal work of bringing he asked him to clan the hen and send it home. This was between 9. 00 and 10 P. M. At about 10. 30 P. M. inquiry the accused learnt that his hen was half cleaned and Ganpat was asked to clean the hen fully and send it home. At that point of time the deceased Janmahmad came at that place. He was preparing for going to bed. Accused called Janmahmad saying come here. Janmahmad went to the appellant. Thereafter the appellant told Janmahmad as under:"without baking". "you ate away my hen which was giving eggs; I will eat your children"janmahmad told him not to say so and he stated that he had not eaten away the hen. Janmahmad also told him to accompany him to Home Inspector. That enraged the accused. He stood up from the chair and he caught Janmahmad. Thereafter Janmahmad tried to run away and at that time accused shot Janmahmad with his revolver and Valabhai and others ran to that place. Janmahmad fell down dead. Witness Vitthalbhai ex. 23 gave a push to the appellant and the revolver fell down. Vitthalbhai caught hold of the accused and he tried to separate himself but he could not. At that point of time the wife of the accused came there. Janmahmad fell down dead. Witness Vitthalbhai ex. 23 gave a push to the appellant and the revolver fell down. Vitthalbhai caught hold of the accused and he tried to separate himself but he could not. At that point of time the wife of the accused came there. Accused told her that she should take away the revolver and go away. It was Vitthalbhai who prevented her from taking away the revolver saying that this is murder case and that she should not take away the revolver and therefore she could not take away the revolver. Now that therefore this is more that clear that the accused had a talk with Janmahmad; he became angry; he got up; he caught him and thereafter shot him; even thereafter he was sober he knew that it was the revolver which would come in his way so far as his conviction or acquittal is concerned. Therefore he asked his wife to remove the revolver meaning thereby that he was conscious and he was trying to destroy the evidence which was against him. With this evidence on record it can never be suggested for a moment that the act was done in a stale of intoxication. We are conscious that the examination of the accused by the medical officer and his arrest panchnama was made two or three hours after the incident. Therefore even if he was sober at that particular point of time it could be that he might not be sober at 10. 3 P. M. but the evidence of Vitthalbhai ex. 23 established the real fact and that fact is that the appellant was sober and conscious till that moment. ( 11 ) WE may here also state that the learned author N. J. Modi in his Medical Jurisprudence and Toxicology 18 Edition at page 643 in regard to percentage of alcohol in the blood observed as under:"it is generally believed that person with a concentration of 0. 1 per cent alcohol in the blood appear to be gay and vivacious and those; with a concentration of 0. 15 per cent alcohol in the blood are regarded as fit to drive a motor vehicle. This concentration of alcohol in the bloods Is regarded as a presumptive limit of safety and may result from the rapid consumption of 8 ounces of whiskey or 4 to 5 pints of beer. 15 per cent alcohol in the blood are regarded as fit to drive a motor vehicle. This concentration of alcohol in the bloods Is regarded as a presumptive limit of safety and may result from the rapid consumption of 8 ounces of whiskey or 4 to 5 pints of beer. Persons with a concentration of 0. 2 per cent alcohol in the blood show symptoms of moderate Intoxication those with from 0. 2 to 0. 4 per cent are probably drunk and those with more than 0. 5 per cent are dead drunk or deeply comatose. "here was a case of a person who was found after three hours to have concentration in blood as 0. 1752 percent. Therefore he was fit person at that point of time. In could be said that at that particular point of lime he could drive the vehicle safely. But that was three hours after the incident. But at the time of the incident But was perhaps more sober. He was at that time conscious as to what he was doing. He was further conscious that he should get himself relieved from the clutches of Vitthalbhai. He was thereafter conscious of the fact that his wife should take away the revolver which would go against him if he was to be prosecuted. He was therefore a real sober person and he knew what he was doing and he knew as P. S. I. that what he was doing or committing was contrary to law. If a Police Sub Inspector has such a hot temperament that for a mere belief that his head constable has eaten away his hen is prepared to use the revolver which is given to him for protecting the lives of citizens uses it against his own head constable and not one but goes on bring till his head constable lies dead on the ground it is the ease where perhaps the life imprisonment which is given to him is mercy shown to him. ( 12 ) IN the result the appeal fails and is dismissed. Appeal dismissed. .