[2010] 3 MLRA Balamurali Muthusamy v. PP 679 [11] Alluding to the above s. 85(ii) of the Penal Code the learned judge stated that the appellant had failed to explain how he got drunk, or had established whether his intoxication was due to his own folly, or caused by a third party. We were equally satisfied that the appellant had failed to establish the very basis of his intoxicated state particularly as there was no alcohol in his blood or urine. That being so, by his failure to establish his intoxicated state at the time of the incident, we were satisfied that the appellant had failed to establish his legal burden as required by s. 105 of the Evidence Act 1950 (see Jayasena v. R [1970] 1 All ER 219). For easy reference we reproduce s. 105 of the Evidence Act 1950 , which reads: Burden of proving that case of accused comes within exceptions 105. When a person is accused of any offence, the burden of proving the existence of circumstances bringing the case within any of the general exceptions in the Penal Code, or within any special exception or provision contained in any other part of the same Code, or in any law defining the offence, is upon him, and the court shall presume the absence of those circumstances. ILLUSTRATIONS (a) A accused of murder alleges that by reason of unsoundness of mind he did not know the nature of the act. The burden of proof is on A. (b) A accused or murder alleges that by grave and sudden provocation he was deprived of the power of self control. The burden of proof is on A. [12] Even though the defence of being intoxicated is not under any of the legislated illustrations, it obviously falls under one of the exceptions, whereby the burden is on the appellant to establish. It is not the legal or evidential burden of the prosecution to establish that he was not drunk. [13] So, did his act fall within the ambit of murder? Section 299 of the Penal Code defines the offence of culpable homicide, with it being murder, if it falls under s. 300(a), (b), (c) or (d) of the Penal Code , which demands a certain special degree of requirements. The learned judge here had adverted to s. 300(d) of the Penal Code when convicting the appellant for murder, being convinced that the appellant had knowledge that his act was so imminently dangerous, and that it must in all probability cause death, or such bodily injury as is likely to cause death. The relevant limb of s. 300 reads: Murder