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The National University of Advanced Legal Studies

Understanding Mens rea

In the light of Intention, Knowledge & Motive Gokul Nair C.C.

670 II Semester

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Understanding Mens rea


There is no term fraught with greater ambiguity than the venerable Latin phrase that haunts * Criminal Law: mens rea.1 Mens rea or the mental element in crime is one of the most important concepts of Criminal Law. A literal translation of the term is guilty mind, but it is said that there is no need for the accused to feel morally guilty or to know what he does is morally blameworthy as the Courts-Martial Appeal Court said that mens rea does not involve blameworthiness2. The term mens rea in criminal law is used to describe the various mental states that accompany an actus reus. The working definition of mens rea as provided by Smith and Hogan gives us a basic idea about the concept in its modern sense. Intention, knowledge or recklessness with respect to all elements of the offence together with any ulterior intent which the definition of the crime requires. The elements of the offence as mentioned here are used to indicate the consequences and the circumstances of the acts of the accused i.e., the actus reus, and the words intention, knowledge, recklessness, etc. are used to denote the subjective mental states of the accused. In order to constitute a crime there must be a mind at fault. It is said that no act in itself is criminal, as the act becomes criminal only when the actor does it with a guilty mind. For example, causing an injury to a person in exercising of your right of self-defence is not a crime, but the moment an injury is caused with an intent to take revenge, the act becomes criminal. Therefore, the underlying principle of the doctrine of mens rea is expressed in the familiar Latin maxim actus non facit reum nisi mens sit rea the act does not make one guilty unless the mind is also guilty.

George Fletcher, Rethinking Criminal Law, 1978, p. 398 * the word Anglo-American has been removed 2 Dodman [1998] 2 Cr App R 338


Understanding Mens rea

As far as the mental states are concerned, there is no single state of mind that must be present as a prerequisite for all crimes. Mens rea takes on different forms in different surroundings, as what is evil intent for one kind of an offence may not be so for another kind. The complexity has been increased by the use of words such as malice aforethought, intention, recklessness and negligence to indicate the elements of mens rea. Therefore, in order to appreciate the meaning of mens rea it is necessary to have a clear understanding of words like intention, motive, knowledge, etc.

Determining mens rea:

The principle of mens rea defines the mental states required for criminal responsibility. Generally speaking, commentators accept different mental states that qualify as mens rea: General, specific, and Transferred Intent. GENERAL INTENT General Intent refers to the actus reus, that is, the intent to commit the act required in the definition of the crime. For example, the required act in theft is the taking and carrying away of anothers property and in rape, sexual penetration. SPECIFIC INTENT It designates the requirement to do something in addition to the actus reus. For example, in house breaking, an intent to commit a crime after breaking and entering in and in theft, the intention to steal in addition to taking and carrying away. Rape and Homicide are general intent crimes as its mens rea requires no more than the intent to cause a particular result. TRANSFERRED MALICE Refers to cases wherein the offenders intend to harm one victim but instead harm another. In such cases the offenders are held responsible for their acts though their intended victims were not 3|Page

Understanding Mens rea

injured, by transferring the malice they had towards the intended victims to the actual victims who suffered harm. But this transfer is not made if the intent was not to accomplish similar harm. For example, an intent to assault does not transfer to the breaking of a window by throwing a rock intended to injure the victim. Kurien v. State of Kerala and r. v. Pembliton make this position clear.

Intention as mens rea:

Intention is a term which is very difficult to define. It is a common term known to everyone, but it can be variously used to mean the object, purpose, the ultimate aim or design behind doing an act. To intend is considered to have in mind a fixed purpose or desire to bring about a contemplated result or objective. The noun intention in its present form is used to denote the state of mind of a man who not only foresees but also wills the possible consequences of his conduct. Intention, therefore, is usually used in relation to the consequences of an act, and not in relation to the act itself. If one person throws another from a high tower or cuts off his head it would seem plain that he both foresees the victims death and also desires it: the desire and foresight will also be the same if a person knowingly leaves a helpless invalid or infant without nourishment and it results in death. It will be noted in all such cases that the man had intended the desired act. Everything which is the natural and probable consequence of the act must be taken to be the intention of the accused. Intention is that shade of guilty mind which generally results in most severe form of punishment to the wrongdoer, as compared to all the other types of mens rea. The main reason behind this notion is that the prisoner desired to do an act which he knew or was aware that it was contrary to law. The idea of intention in law is not always expressed by the words intention, intentionally or with intent to. It is expressed also by words such as voluntarily, willfully, deliberately or knowingly, etc.


Understanding Mens rea

Knowledge as mens rea:

Similar to that of intention, knowledge is also used to impose a requirement of mens rea. Knowledge is awareness on the part of the person concerned, indicating his mind. A person can be supposed to know when there is a direct appeal to his senses. In other words, knowledge is the awareness of the consequences of the act. It is the state of mind entertained by a person with regard to existing facts which he has himself observed or the existence of which has been communicated to him. In many cases, intention and knowledge merge into each other and mean the same thing, more or less, and intention can be presumed for knowledge. Knowledge is different from intention by the fact that it does not have the element of desire. This means that a person may be aware of the consequences of his act, though he may not intend to bring them about. Knowledge as contrast to intention, signifies a state of mental realization in which the mind is a passive recipient of ideas or impressions arising in it, while intention signifies a conscious state of mind in which mental faculties are summoned into action for the deliberate, prior conceived and perceived consequences. Even if the person didnt desire to bring about the consequences, but, had knowledge that those consequences might follow, he will also be held responsible and will be convicted; though not like the person who intended to do it. Thus, knowledge is on a slightly lower plane as compared to intention as far as awarding the punishment for an offence is concerned. For instance, A person is guilty of handling only if he knows or believes the goods to be stolen. The Criminal Courts recognize several degrees of knowledge Actual Knowledge: The principal authority is Roper v Taylors Central Garages(Exter) Ltd [1951] 2 TLR 284(DC). Devlin J said that this type of knowledge is when the accused knows for a fact that something exists or is true.


Understanding Mens rea

Willful Blindness: Lord Bridge in Westminster CC v Croyalgrange Ltd [1986] 1 WLR 674 said that knowledge could be based on evidence that the defendant had deliberately shut his eyes to the obvious or refrained from enquiring because he suspected the truth but did not want to have his suspicions confirmed. Although Lord Bridge spoke of inference, it is arguable that the rule is one of law. Constructive Knowledge: This degree of knowledge occurs when the accused ought as a reasonable person to have made inquiries. The first type is always covered by knowing or knowingly. The second type is usually covered, but not always. The third is rare in traditional criminal law but arises when parliament creates an offence where the accused had reasonable cause to believe.

Intention and Motive

Motive is the reason or ground for an action; whereas, intentions are the will or desire to do that act to satisfy the motive. In other words, intention is an operation of the will directing a wrongful act; motive is the feeling which prompts a person to intend a certain thing; i.e., motive is the ultimate object of the person. For example, if A kills B, the intention is a state of mind which directs the act which causes death, whereas the motive is the underlying and ultimate object which the person had in view, like, the satisfaction of some desire such as, revenge, hatred, vengeance, etc. Motive is not a basis for criminal liability. Criminal law takes into account only a mans intention and not his motive. A good motive will not render lawful what is in fact a crime. If a mother steals food in order to feed her starving child, the act amounts to theft, despite the fact that the motive for the act was good i.e., to save the life of the child. Similarly, an executioner may enjoy putting a convict to death because of spite against him, but, this would not render his lawful act a crime. Thus, motive is not a sine qua non (an indispensable requisite) for holding the accused liable.


Understanding Mens rea

A good example of this distinction lies in Om Prakashs case (2003). The apex court, in this case, held that the motive of crime is not a necessary requirement for conviction. The accused, a domestic servant, mercilessly, in a cruel manner murdered three out of the four members of a family and grievously injured the fourth. The court rightly observed that failure to prove motive is irrelevant in a case wherein the guilt of the accused is proved otherwise beyond comprehension. In Yunis vs. State of Madhya Pradesh (2003), the Supreme Court held that where the oral evidence is sufficient to prove the guilt of the accused, question of presence of motive is irrelevant. However, the evidence of motive is relevant as it throws light on the question of intention and gives a clue to the crime, and though the prosecution is not bound to prove motive for a crime, absence of motive may be a factor in consideration of the guilt of the accused. As stated by the Supreme Court in Basdev vs. State of Pepsu, motive is something which prompts a man to form an intention.

Knowledge and Motive

Knowledge is awareness on the part of the person concerned, indicating his mind. Motive is something which prompts a man to form an intention. Knowledge is an awareness of the consequence of the act whereas motive is the underlying reason behind formation of an intention which includes knowledge too. From the point of view of dissipating justice, only motive is differentiated from the intention, since, it is implied that intention in itself contains the knowledge of the consequences as well.

Mens rea as dealt within the Indian Penal Code

The doctrine of mens rea as such has no application to the offences in general under the code. The framers of IPC have not mentioned mens rea as such anywhere in the IPC. However, the doctrine has been incorporated in two ways: (a). The provisions as to the state of mind required for a particular offence have been added in the sections by using words like, intentionally, knowingly, voluntarily, fraudulently, dishonestly, etc., depending upon the gravity of the concerned offence. All these words describe the mental condition required at the time of commission of the offence, in order to constitute an offence. 7|Page

Understanding Mens rea

Thus, we can say that these sections point about the importance of mens rea virtually, if not explicitly. (b). The concept of mens rea has also been incorporated into the provisions relating to General Exceptions contained in chapter four of the code. This chapter deals with the acts which otherwise would constitute offences, but, cease to be so under certain circumstances set out in this chapter. For example, ss.80 and 81 deals with the acts of persons when done without intention or knowledge would not amount to an offence. The sections 87, 88, etc. again deal with the absence of intention and/or knowledge to excuse a person of criminal responsibility. Thus, we can say that this chapter is itself the recognition of the principle of mens rea. Another example is s.39, defining the term voluntarily. According to this section, A person is said to cause an effect when he causes it by means whereby he intended to cause it, or by means which, at the time of employing those means, he knew or had the reason to believe to be likely to cause it. This is followed by an illustration: A sets fire, by night, to an inhabited house in a large town, for the purpose of facilitating a robbery and thus, causes the death of a person. Here, A may not have intended to cause death; and may even be sorry that the death has been caused by his act; yet, if he knew that he was likely to cause death, he has caused death voluntarily. Thus, it is evident that the Code appreciates the importance of presence of a guilty mind for fixing criminal responsibility. But, it is essential here to note that the Code has made no differentiation between intention and knowledge and uses them as convertible terms. For example, the word voluntarily as used in s. 321 (causing hurt) denotes the specific mens rea for the specific offence. However, at other places, such as, ss. 299 and 300 I.P.C. (culpable homicide and murder), the two are not synonymously used. Section 298 makes the uttering of words or making gestures with deliberate intent to wound the religious feelings punishable under the Act. Yet another variation of the mental element of intention is knowingly and negligently omitting to do an act. Sections 285, 286, and 287 makes knowingly or negligently omitting to take sufficient care so as not to cause harm to human life in 8|Page

Understanding Mens rea

respect of possession of a poisonous substance , fire, combustible matter, and explosive substances an offence. The Code has nowhere defined the term intention although the word has been used at several places. The Code has used the word voluntarily to designate intentional acts. As stated by Morgan and Macpherson: The Code makes no distinction between the cases in which a man causes an effect designedly, and cases in which he causes it knowingly, or having reason to believe that he is likely to cause it. If the effect is a probable consequence of the means used by him, he causes it voluntarily, whether he really meant to cause it or not. He is not allowed to urge that he did not know, or was not sure that the consequence would follow; but he must answer for it just as if he had intended to cause it. The English law, by means of an artificial presumption, viz., that a man is presumed to intend the natural or probable consequences of his own act, gives to the words which denote intention the meaning here annexed to voluntary. However, this general or the traditional rule that mens rea is an essential element in IPC offences is not without its exceptions. The deciding factor on whether mens rea is required or not, depends on the language of the statute and the intention of the legislature as gathered from the statute. Where the legislature has omitted to lay down a particular state of mind as a requisite, the presumption is such that the omission is deliberate and in such a case, the doctrine of mens rea will not apply. For example, the offences like, sedition, kidnapping, counterfeiting government stamps, coins and the like, no guilty mind is required for the offence. Section 292, IPC makes the selling, hiring, distributing, publicly exhibiting, importing, exporting, etc. of obscene books, pamphlets, writings, drawings, etc. an offence. In the case of Ranjit D Udeshi vs. State of Maharashtra, a person was prosecuted for selling a book by the name Lady Chatterleys Lover, a popular book written by D.H. Lawrence. The accused pleaded that he had no knowledge of the contents of the book and hence, did not have the necessary mens rea. The court rejected his contention and held that in s. 292 of the code, unlike in several other sections, there was no inclusion of the words like, knowingly or negligently etc. So, knowledge of obscenity is not an ingredient of the offence under s. 292. It was held that the liability under this section was strict and hence, mens rea is not required.


Understanding Mens rea


General Principles of Criminal Law, K.N. Chandrasekharan Pillai, 2nd Edition - Determining mens rea

Criminal Law: Cases and Materials, K.D. Gaur, 6th Edition - Mens rea, Intention & Mens rea under IPC 1860

Criminal Law, Michael Jefferson, 7th Edition - Introduction to Mens rea, Motive & Knowingly

Kennys Outlines of Criminal Law, J.W. Cecil Turner, 19th Edition - Intention

Criminal Law, David C. Brody & James R. Acker, 2nd Edition O.P. Srivastavas Principles of Criminal Law, R. Prakash, 5th Edition

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