INTENTION AS A FORM OF MENS REA

SUBMITTED BY KUMAR ABHISHEK (1333), [B.A.L.L.B. (HONS.)]

SUBMITTED TO Dr. MANORANJAN KUMAR, FACULTY OF

JURISPRUDENCE

The final draft for the fulfilment of project of Jurisprudence

On

“Intention as a form of Mens Rea”

APRIL 2018

SESSION 2015-2020

CHANAKYA NATIONAL LAW UNIVERSITY

PATNA
 TABLE OF CONTENTS

ACKNOWLEDGEMENT ........................................................................................... 3

DECLARATION .......................................................................................................... 4

AIMS AND OBJECTIVES .......................................................................................... 5

HYPOTHESIS .............................................................................................................. 5

RESEARCH METHODOLOGY ................................................................................ 5

SCOPE AND LIMITATION ....................................................................................... 5

CHAPTER 1: INTRODUCTION TO THE DOCTRINE OF MENS REA ................... 6

CHAPTER 2: WRONGFUL INTENTION: A FORM OF MENS REA ....................... 8

CHAPTER 3: APPLICABILITY OF MENS REA IN INDIAN LAWS ..................... 11

CHAPTER 4: CONCLUSION ..................................................................................... 15

BIBLIOGRAPHY ....................................................................................................... 17

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 ACKNOWLEDGEMENT

Writing a project is one of the most difficult academic challenges I have ever
faced. Though this project has been presented by me but there are many people
who remained in veil, who gave their support and helped me to complete this
project.

First of all, I am very grateful to my subject teacher Dr. Manoranjan Kumar

without the kind support of whom and help the completion of the project would
have been a herculean task for me. He took out time from his busy schedule to
help me to complete this project and suggested me from where and how to collect
data.

I acknowledge my friends who gave their valuable and meticulous advice which
was very useful and could not be ignored in writing the project. I want to convey
most sincere thanks to my faculties for helping me throughout the project.

Thereafter, I would also like to express my gratitude towards our seniors who
played a vital role in the compilation of this research work.

I would also like to express my gratitude towards the library staff of my college
which assisted me in acquiring the sources necessary for the compilation of my
project.

Last, but not the least, I would like to thank the almighty for obvious reasons.

KUMAR ABHISHEK

Roll No. -1333

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 DECLARATION

I hereby declare that the work reported in the BA LL. B (Hons.) project Report
entitled “Intention as a form of Mens Rea” submitted at Chanakya National
Law University, Patna is an authentic record of my work carried out under the
supervision of Dr. Manoranjan Kumar. I have not submitted this work elsewhere
for any other degree or diploma. I am fully responsible for the contents of my
Project Report.

KUMAR ABHISHEK Signature of the student

Roll No. -1333 ……………………….

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 AIMS AND OBJECTIVES

The researcher has done the research to understand intention as a form of Mens
Rea.

HYPOTHESIS

The researcher presumes that Mens Rea is an essential element of crime and
intention can be the only form of mens rea.

RESEARCH METHODOLOGY

The researcher shall conform to the use of doctrinal method of research only.

SCOPE AND LIMITATION

Though, there are many sources to the given topic. The researcher came across a
range of difficulties that have limited the research in many ways than one:

1. The period of research could only span for a limited time.

2. The researcher could only look through the available books in Chanakya

National Law University Library.

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CHAPTER 1: INTRODUCTION TO THE DOCTRINE OF
MENS REA

Mens Rea or the mental element in crime is one of the most important concepts of
substantive criminal law. Criminal guilt would attach to a man for violations of criminal
law. However, the rule is not absolute and is subject to the limitations indicated in the
Latin maxim, actus non facit reum, nisi mens sit rea. “There can be no crime, large or
small, without an evil mind,” says Bishop. “It is therefore a principle of our legal
system, as probably it is of every other, that the essence of an offence is the wrongful
intent, without which it cannot exist”.

The concept of Mens Rea, guilty mind, is based on the assumption that a person has the
capacity to control his behaviour and to choose between alternative courses of conduct.
The more elementary a proposition of law, the more difficult it is to find an authority
for it. “It can be equally said that the more fundamental a concept in law, the more
difficult it is to explain its exact scope and application. So also, in the words of Dr.
Glanville Williams, the concept of mens rea is “the kindergarten part of the criminal
law....”. To define mens rea, and the different forms that it may take is a complex task.

It may be reiterated that a man is held criminal liable not for his act alone but if it is also
accompanied with “mens rea” or guilty mind with which he does it. Thus, “mens rea’’
refers to the mental element necessary for the particular crime and the mental element
may either be intention to do the act or recklessness “or negligence” as to consequences
of that act. Generally, the knowledge of the consequences is considered as part of mens
rea because mental condition of a man can be judge by his conduct and it is rather
difficult to peep whether he did the act intentionally or recklessly with the knowledge
of the consequence.

Guilty mind "mens rea” may assume two forms, i.e.

1) Wrongful intention; or

2) Culpable negligence.

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A person shall be punished if he intentionally and wilfully does an act which is
prohibited by the criminal law of the land. He shall also be criminally liable if he does
a forbidden act negligently or carelessly without bothering about the consequences
following there from. There are, however, some exceptional cases when a person is held
liable irrespective of his wrongful intention or culpable negligence. Such cases are
covered under what is known as the “strict liability’’ cases.1 Thus, wrongs incurring
penal liability are of three kinds considered from the point of view of mens rea.

1) International or willful wrongs;

2) Wrongs of negligence;

3) Wrongs of strict liability which are independent of mens rea.

The doctrine of mens rea has been well explained in the famous English case of R. v.
TOLSON2. In this case a woman whose husband had deserted her married another man
before the expiry of seven years which was against English law relation to marriages.
The jury, however, found the woman "not guilty” of bigamy as the bonafide believed
that her husband had died. The court acquitted her of the charge of bigamy as mens rea
was not proved in this case. Thus, a mere act does not constitute an offence unless it is
coupled with mens rea.

In other words, mens rea is an essential ingredient for a crime. Sir J. STEPHENS,
however, thinks that the doctrine mens reea is misleading. In his view, the doctrine
originated when offences were not defined unless the criminal law. Some persons found
that the crime consisted not merely in doing a particular act such as killing, stealing,
etc. but doing it with a particular knowledge or purpose. The mental condition came to
be called as mens rea. But now at the present stage when every offence is well defined,
the doctrine of mens rea has become unnecessary if not obsolete.

1
http://e-lawresources.co.uk/Mens-rea-intention.php (accessed on April 23, 2018).
2
(1889) 15 Cox 629.
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 CHAPTER 2: WRONGFUL INTENTION: A FORM OF
MENS REA

Intention, according to Austin, is the expectation of the consequence an act. According

to Salmond, intention is the purpose or design with which an act is done. It is a
foreknowledge of the act, coupled with the desire of it. Pollock defines intention as,

“the wish or desire accompanying an act having regard not only to the act itself but to
the consequences to be produced.”

In spite of the loose and inaccurate use of the word “intent” in the phrase "criminal
intent," the courts have not lost sight of the fact that "intent" in its strict sense has the
same meaning as "intention." Hence, we find them reiterating that intent means purpose
or design. The effort to assign the true meaning has not been free from difficulty.
"Intention then," writes Markby, "is the attitude of mind in which the doer of an act
adverts to a consequence of the act and desires it to follow. But the doer of an act may
advert to a consequence and not desire it: and therefore, not intend it."3

At the other extreme, Austin says that a result is intended if it is contemplated as a

probable consequence, whether it is desired or not.4 Salmond requires the element of
desire but gives this word a somewhat forced construction. He says that a man desires
not only the end but also the means to the end and hence desires, although he may
"deeply regret" the necessity for, the means.5

Guilty mind "mens rea” may assume two forms, i.e.

1) Wrongful intention; or

2) Culpable negligence

According to AUSTIN, intention and negligence are the alternative forms in which
‘‘mens rea” can exhibit itself. It is a condition precedent for the existence of guilt. In

3
MARKBY, ELEMENTS OF LAW (4th ed. 1889).
4
AUSTIN, JURISPRUDENCE (5th ed. 1885).
5
SALMOND, JURISPRUDENCE (8th ed. 1930).
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other words, a person is liable to be punished if he does a wrongful act intentionally or
negligently.

According to Austin, want of advertence, which one’s duty would naturally suggest is
the fundamental or radical idea in the conception of negligence. Thus, negligence
results from inadvertence or failure to apply one’s mind to the nature and consequences
of one’s wrongful act. In this sense, the negligent act is the opposite of an intentional
act.

Austin’s view has been criticized that negligence may be inadvertent or wilful. One may
cause harm, not necessarily by intending it but because of thoughtlessness towards the
consequences of the dangerous act or because of a foolish assumption that the evil
consequences will not follow. This is inadvertent negligence. This is what Austin
meant and is the commonest form of negligence. But there is another form of negligence
where there is no thoughtlessness or inadvertence. If a person drives a car at a greater
speed in a crowded street, he may be fully conscious of the risk involved and the danger
to which others are exposed, but yet if harm results to somebody it cannot be said that
he intended it, he may not be guilty of murder but only negligent homicide. 6

INTENTION AND NEGLIGENCE DISTINGUISHED

Intention is the principal form of mens rea and it entails that X is at fault where he or
she intentionally commits the unlawful conduct knowing it to be unlawful. Criminal
intent and negligence do differ. Criminal intent differs because it is planned to commit
a crime and cause harm. Several individuals will look at something forbidden by law
and see it at as a challenge. Criminal intent can be caused by a person that knows the
consequences but still plans on committing the crime to obtain something from another.

Negligence is a type of behaviour that can fail to exercise care for themselves and others.
In a job setting negligence can occur when an individual chooses to neglect their
responsibilities. Negligence can be unintentional and not planned out. For example,

6
https://www.legalcrystal.com/blog/criminal-law/principles-criminal-law-intention-essential-element
crime#sdfootnote8sym (accessed on April 24, 2018).
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an individual may not be aware of the loss, injury, or damage attached to the negligence.
Rather than being planned with intent to harm another, it may just harm another without
knowing that this risk is involved.

In crimes of intention the accused is blameworthy because he knew or foresaw that his
conduct was forbidden and that is was unlawful but nevertheless proceeded to engage
in the conduct. In crimes of negligence, on the other hand, the accused is blameworthy
because he did not know or foresee something or did not do something, although
according to the standards of the law he should have known or foreseen something or
should have performed an act.7

Intention therefore always has a positive character: the accused willed or knew or
foresaw something. Negligence, on the other hand, always has a negative character: the
accused did not will or know or foresee something, although according to the standards
of the law he should have known or foreseen it.

7
https://criminal.findlaw.com/criminal-law.../mens-rea-a-defendant-s mental-state.html (accessed on
April 25, 2018).

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 CHAPTER 3: APPLICABILITY OF MENS REA IN
INDIAN LAWS

The view that the doctrine of mens rea is wholly out of place under the Indian Penal
Code also seems not to be logical. The Indian Penal Code do give full effect to the
doctrine of mens rea. It has been laid down in catena of judgment by the Apex Court
that Mens rea is an essential ingredient of a criminal offence.

As J.D. MAYNE, the learned author of criminal law in India, has pointed out, "every
offence is defined and the definition states not only what the accused must have done,
but the state of mind with regard to the act when he was doing it”. For example, theft
must involve dishonestly, cheating must be committed fraudulently, murder must be
committed either intentionally or knowingly. Thus, there is no need for the general
doctrine of mens rea in India since each definition of the offence is self-sufficient. All
that the prosecution has to do is to prove the various ingredients to a particular offence
which the accused is alleged to have committed.

To establish that the acts done are not offences under Section 84 it must be proved
clearly that at the time of the commission of the act the appellant by reason of
unsoundness of mind was incapable of either knowing that the acts were either morally
wrong or contrary to law. The question is whether the appellant was suffering from such
incapacity at the of the commission of the acts. On this question, the state of his mind
before and after the crucial time a relevant. If a person by reason of unsoundness of
mind is incapable of knowing the nature of the act or that he is doing what is either
wrong or contrary to law he cannot be guilty of any criminal intent. Such a person lacks
the requisite mens rea and is entitled to an acquittal8.

Prosecution against the company cannot be sustained being a juridical person is in a

sense doli incapax and it cannot commit an offence of cheating, which positively
involves criminal intention to deceive others. It can only be a natural person who is

8
Baijanti Bai v. State of M.R, 2000 Cri LJ 3253; Jai Lai v. Delhi Administration, AIR 1969 SC 15:
1969 Cri LJ 259: S. Sunil Sandeep v. State of Karnataka, 1993 Cri LJ 2554.
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capable of having mens rea to commit the offence. Consequently, the word "whoever"
occurring at the beginning cannot include in its sweep juridical person like a company9.

The provision of Section 3 of TADA Act embodied the principle expressed in the
maxim 'actus non facit reum, nisi mens sit rea,' both ‘mens rea’ and a criminal act are
the ingredients of the definition of 'Terrorist Act.' The mens rea required is the intention
(i) to overawe the Government as by law established; or (ii) to strike terror in the people
or any section of the people; or (iii) to alienate any section of the people; or (iv) to
adversely affect the harmony amongst different sections of the people10.

There are some crimes which are punished in criminal law although no legal fault has
been committed by the accused, the doctrine of strict liability came into being in the
latter half of 19th century according to which only actus reus is sufficient to cause
conviction irrespective of knowledge, intention or negligence. Various reasons have
been suggested for the recognition and justification of strict liability, which include
'necessity', 'public interest', 'social importance' and 'deterrence'. Dean Roscoe Pound
observed: "The good sense of the court has introduced a doctrine of acting at one's peril
with respect to statutory crimes which expresses the needs of society. Such statutes are
not meant to punish the vicious will but to put pressure on the thoughtless and inefficient
to do their whole duty in the interest of public health or safety or morals".11

It is true that it is now well established that for establishing an offence under the
Prevention of Food Adulteration Act it is not necessary to establish mens rea i.e.
criminal intention either on the part of the manufacturer or distributor or vendor. Even
knowledge on the part of all of them that the food was adulterated is not necessary.
Ignorance on the part of any one of them that the food was adulterated would not absolve
them of liability12. The Act is a Welfare legislation to prevent health hazards by
consuming adulterated food. The mens rea is not an essential ingredient. It is a social

9
Motorola Incorporated v. Union of India, 2004 Cr LJ, p. 1576.
10
State of T.N. through Superintendent of Police CBI/SIT v. Nalini and others, AIR 1999 SC 2640.
11
Pound, The Spirit of Common Law, p.52.
12
M/s. Bhagwan Das Jagdish Chander, v. Delhi Administration and another, AIR 1975 SC 1309:
Followed in Shah Ashu Jaiwant v. State of Maharashtra, AIR 1975 SC 2178.
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evil and the Act prohibits commission of the offences under Act 13. Nothing more than
'actus reus needed where regulation of private activity invulnerable areas like public
health is intended.14

Regarding offence relating to drugs15 and food adulteration16 to eliminate the danger to
human life from the sale of unwholesome articles, strict adherence should be insisted
and enforced. As a measure for social defence to combat evil of deadly impact on the
society as a whole, these socio-economic offences are absolute ones and entail
punishment without mens rea17. Prohibition of sale of adulterated food is evidently
imposed in the larger interest of maintenance of public health. If the owner of a shop in
which adulterated food is sold is without proof of mens rea liable to be punished for
sale of adulterated food, there is no reason why an agent or a servant of the owner is not
liable to be punished for contravention of the same provision unless he is shown to have
guilty knowledge18.

POSITION OF SUPREME COURT

The Supreme Court of India on more than one occasion has reiterated that unless a
statute either clearly or by necessary implication rules out mens rea as a constituent part
of crime, a person should not be found guilty of an offence if he has not a guilty mind19.

On the application of the doctrine of mens rea to Indian Penal laws, it is said that the
general doctrine of mens rea is not of very great importance because the law is codified
and the offences are carefully defined so as to include mens rea in the definition itself.
The definitions clearly states not only what the accused must have done, but the state
of mind with regard to the act when he was doing it, 'voluntarily', 'knowingly',

13
State of Orissa v. K. Rajeshwar Rad, AIR 1992 SC 240: Dineshchandra Jamnadas Gandhi v. State of
Gujarat and another, AIR 1989 SC 1011, Prohibited act constitutes offence- Mens reals irrelevant: Shah
Ashu Jaiwant v. State of Maharashtra, AIR 1975 SC 2178.
14
PyaraliK. Tejani v. Mahadeo Ramchandra Dange and others, AIR 1974 SC 228.
15
Rajasthan Pharmaceutical v. State of Karnataka, AIR 1981 SC 809.
16
Krishan Gopal Sharma v. Govt, of NCT of Delhi (1996) 2 Crimes 218 (SC): Pyare K. Tejani v.
Mahadeo
17
Durand Didies v. Chief Secy. U.T. Goa, AIR 1989 SC 1966.
18
Saijoo Prasad v. The State of U.P., AIR 1961 SC 631.
19
Ravula Hariprasad Rao v. The State of Madras, A.I.R. 1951 S.C. 204; State of Maharashtra v. M.H.
George, AIR 1965 SC 722; R, Balakrishna Pillai. v. State of Kerala,AYR 2004 SC 1012.
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'dishonestly', 'fraudulently', 'corruptly', 'malignly and maliciously', 'wantonly' or the
like.

All major crimes, especially those involving breaches of morality, require mens rea, e.g.
rape, murder and theft etc. But mens rea does not mean single precise state of mind, it
differs from crime to crime20. In case of murder it is intention to kill or to cause grievous
bodily injury or knowledge of the foresight of the consequences of death and in rape it
is intention to have a sexual connection with a woman without her consent. Under the
Indian Penal Code these states of mind pre-requisite for criminality has been expressly
involved in every definition.

20
Queen v. Tolson (1889) 23 QBD 168.
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 CHAPTER 4: CONCLUSION

It is a common saying that every crime may be looked at as composed of two elements:
(i) an act and (2) the intention, or state of mind with which the act is done.2 In
connection with the latter the question most commonly asked is, "Did or did not the one
who did the act intend to bring about the results which actually took place? Was that
his intention?" However simple and clear such statements and questions may appear to
be at first sight, a moment's reflection reveals that the two terms, act and intention, are
by no means free from ambiguity. One writer or judge will use them in one sense,
another in a different sense; indeed, the same writer will not always be consistent in his
usage. We must, therefore, begin by noting the various possible meanings which each
of these terms may have meanings more or less sanctioned by current modes of
expression in the legal world. When this has been done, we may perhaps be in a position
to give to each of these words some one particular meaning which will be the most
useful for the purposes of the present discussion.

Mr. Justice Markby says: "Intention, then, is the attitude of mind in which the doer of
an act adverts to a consequence of the act and desires it to follow. But the doer of an act
may advert to a consequence and yet not desire it: and therefore, not intend it.”21

Mens rea in criminal law is concerned with the state of mind of the defendant. Most
true crimes will require proof of mens rea. Where mens rea is not required the offence
is one of strict liability. There are three main levels of mens rea: intention, recklessness
and negligence. Intention requires the highest degree of fault of all the levels of mens
rea. A person who intends to commit a crime, can generally be said to be more culpable
than one who acts recklessly.

The general legal opinion is that “intention” cannot be satisfactorily defined and does
not need a definition, since everyone knows what it means. This is largely true. Trouble
has been caused in the past because when judges have provided the jury with definitions

21
Markby, Elements of Law (6th ed.)
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or tests of intention, they have used wide language going beyond the ordinary meaning
of the word.22

A range of words represents shades of intention in criminal laws around the world. The
mental element, or mens rea, of murder, for example, is traditionally expressed as
malice aforethought, and the interpretations of malice, “maliciously” and “willfully”
vary between pure intention and recklessness depending on the jurisdiction in which the
crime was committed and the seriousness of the offence.

The burden of proving a necessary mental element rests upon the prosecution. No
presumption shifts the burden to the defendant. A defence that the defendant did not
intend a consequence to follow from his act is frequently called a defence of accident,
but this is merely a denial of intention and recklessness. And the burden of proving
intention or recklessness rests on the crown. In the same way, the prosecution must
prove dishonesty and fraud, where these were required elements. It makes no difference
that the mental element is a matter lying peculiarly within the knowledge of the
defendant.

The courts do not generally impose an evidential burden on the defendant on the issue
of mens rea, but the facts put in would certainly be held sufficient to discharge the
prosecution’s evidential burden. The jury must be directed that the burden of proving
the intention to kill (where the charge is of murder) rests on the prosecution, and that
such intention must be proved beyond reasonable doubt. But they may also be told that
they are entitled to infer an intention from the evidence.

22
The text book of criminal law , Glanville Williams, universal law publishing co. Pg 74.
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 BIBLIOGRAPHY

REFERENCES-

 GLANVILLE WILLIAMS, THE TEXT BOOK OF CRIMINAL LAW (universal law

publishing co.)

 MARKBY, ELEMENTS OF LAW (6th ed.)

 AUSTIN, JURISPRUDENCE (5TH ED. 1885).

 SALMOND, JURISPRUDENCE (8th ed. 1930).

 MARKBY, ELEMENTS OF LAW (4TH ED. 1889).

 https://www.legalcrystal.com/blog/criminal-law/principles-criminal-law-

intention-essential-element crime#sdfootnote8sym

 http://e-lawresources.co.uk/Mens-rea-intention.php

 https://criminal.findlaw.com/criminal-law.../mens-rea-a-defendant-s-

mental-state.html

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