TITLE - MENS REA UNDER INDIAN PENAL

CODE

SUBMITTED BY:
ABDUL KARIM ANSARI
B.A.LL.B (HONS) ROLL NO. 03/REGULAR, CLASS 0F 2017-18
FACULTY OF LAW
JAMIA MILLIA ISLAMIA
IN
NOVEMBER 2018

UNDER THE GUIDANCE OF

DR. SAADIYA
Assistant Professor,
Faculty of Law, Jamia Millia Islamia, New Delhi, 110025
 CERTIFICATE

The project entitled “ MENS REA UNDER INDIAN PENAL CODE ” submitted to the
Faculty of Law, Jamia Millia Islamia for Law of Crimes I as part of Internal Assessment
is based on my original work carried out under the guidance of DR. SAADIYA.
The Research work has not been submitted elsewhere for award of any degree.
The material borrowed from other sources and incorporated in the research paper has been
duly acknowledged.
I understand that I myself would be held responsible and accountable for plagiarism, if any,
detected later on.

Signature of the Candidate

Date:
MENS REA

INTRODUCTION

What is Mens Rea ?

Mens rea is a cardinal principle of law. It means "Mental element or Evil intent or Guilty
mind". It may be defined as the mental element is necessary to constitute a criminal liability.
Mere commitment of offense is not enough but it has to be proved that the offense was
committed with "guilty mind".

Example - If a while playing cricket a person is hit by a ball and dies, a person hitting the ball
cannot be charged with murder as there was no mens rea.

In criminal offenses generally, Mens rea has to be proved by prosecution and quality of proof
required is heavy i.E. It should be proved beyond reasonable doubt. Thus in criminal offences
heavy burden is cast on government authorities regarding proof and hence many people are
released by the court as a proof of mens rea (culpable mental state) " is not enough.

In addition to meeting all of the actus reus elements of an offence, a defendant must be
shown to have a guilty mind at the same time that they commit the actus reus. This guilty
mind, or mental element, is known as mens rea.
For the vast majority of offences, mens rea will be satisfied if the defendant can be shown to
have intended their actions or can be considered to have been reckless as to whether a
consequence would occur or circumstances would exist following their conduct. However, in
certain circumstances a defendant will satisfy mens rea if they are considered to have acted
negligently and, for certain offences, known as offences of strict liability, no mens rea at all
is required.

There are therefore four broad areas of mens rea that will be considered:
● Intention
● Recklessness
● Negligence
● Strict Liability (although this must be considered inside mens rea, it arises, as
mentioned, where no mens rea is required.
INTENTION

Intention is a word that is often given its ordinary meaning. That is, a defendant will be found
to have intended a consequence if they desire the consequence to follow their actions. This is
the case irrespective of whether the consequence is very likely or extremely unlikely to occur.

Indirect/Oblique Intent

The definition of intention (often defined as direct intent) is not limited to this simple
definition. This is because a defendant can be considered to intend a consequence of their
actions if the consequence is one that the defendant does not want but which he knows is
virtually certain to occur as a result of their actions. This is known as indirect or oblique
intent.

Unfortunately, the definition of indirect or oblique intent is far from clear. It was, for a time
considered that intention could be found, if the consequences of the defendant’s actions were
probable or even possible Hyam v DPP1. However, in R v Moloney2 it was held that the jury
should ask two questions where the issue of intention arose.

Hyam v DPP [1975] AC 55

The defendant, in order to frighten Mrs Booth, her rival for the affections of Mr X, put
burning newspaper through the letterbox of Booth's house and caused the death of two of her
children. She claimed that she had not meant to kill but had foreseen death or grievous bodily
harm as a highly probable result of her actions. Ackner J directed the jury that the defendant
was guilty if she knew that it was highly probable that her act would cause at least serious
bodily harm.

Although Lord Hailsham LC stated that he did not think that foresight of a high degree of
probability is at all the same thing as intention, and it is not foresight but intention which
constitiutes the mental element in murder, the House of Lords (by a 3-2 majority), held that
foresight on the part of the defendant that his actions were likely, or highly likely, to cause
death or grievous bodily harm was sufficient mens rea for murder.

R v Moloney [1985] 1 AC 905

The defendant and his stepfather who had a friendly and loving relationship were engaged in
a drunken competition to see which of them could load a shotgun faster than the
other. Moloney won, and was then challenged by his stepfather to fire the gun. He did,
killing his stepfather instantly. Moloney was charged with murder and convicted. He
appealed and the Court of Appeal allowed appeal to the House of Lords.

The House of Lords allowed Moloney’s appeal. He had not intended to kill his stepfather.
Knowledge of foresight of the consequences of an action were to be considered at best

1 ([1975] AC 55)
2 [1985] 1 AC 905
material from which a crime of intent may be inferred. Where the defendant’s purpose was
other than to cause serious bodily harm or death to another then the jury may infer intent if
the consequence of the defendant’s act was a natural consequence, and the defendant foresaw
that this was a natural consequence of his act. The jury in such a circumstance should be
directed that they may infer intent, but were not bound to infer intent, if both these
circumstances are satisfied. Foresight of the natural consequences of an act is no more than
evidence of the existence of intent.

Overview of the current position

● In most cases, the facts of the case will be sufficiently clear. Therefore, where it is
clear that the defendant desired the consequences of their actions, it will not be
necessary to provide the jury with a detailed direction.
● Where the position is such that the defendant may not have desired the consequences
of their actions, the jury should be provided a detailed direction.
● The jury should be directed that it is able to find that the defendant intended the
consequences of their actions if the consequences were virtually certain and the
defendant knew that they were virtually certain. Even if the jury is satisfied that this is
the case, they are not required to find that the defendant intended their actions.

Ulterior Intent, Basic Intent and Specific intent

A consideration of indirect or oblique intent is only really necessary where the offence is one
that requires intention as the mens rea element. These types of offences are known as
offences of specific intent – only intention will suffice. Where the mens rea is satisfied by
intention or recklessness, the offences are defined as offences of basic intent.

Offences of ulterior intent are those that require proof of a second mens rea element.
Summary on Intention
● Intention usually occurs where a defendant desires the consequences of their actions.
● Indirect Intent may be found where the defendant does not desire the consequences of
their actions, but these consequences are virtually certain and the defendant knows
that they are virtually certain.
● Specific intent refers to offences where intention is necessary to satisfy mens rea.
● Basic intent refers to offences where either intention or recklessness will satisfy mens
rea.
● Ulterior intent refers to offences where an additional it is necessary to show that the
defendant intended to do something in addition to the basic mens rea of the offence.

RECKLESSNESS

The narrow definition of intention means that it is often difficult to show that a defendant
intended the consequences of their actions. This difficulty is addressed by recklessness.
The definition of recklessness differs in concept significantly from that of intention, in that
the word is never given its ordinary meaning. The ordinary meaning of this word could be
considered as ‘carelessness’ or ‘dangerous’ – the legal definition is far more specific than the
ordinary meaning.
Where the definition of recklessness is similar to intention is that it is also somewhat unclear
as to what the proper definition should be. In a general sense, it refers to a defendant’s
unjustified risk taking. It is the degree of this risk taking and the defendant’s awareness of the
risk that has caused the issues surrounding the definition.

Subjective Recklessness

This type of recklessness was initially set out in R v Cunningham3 and is therefore often
described as Cunningham recklessness. In order to satisfy this type of recklessness, a
defendant must be aware that a risk exists or will exist, or that result will occur or that there is
a risk that it will and, in the circumstances known to the defendant, they unreasonably go on
to take the risk.

This approach means that a defendant must foresee a risk or result and unreasonably go on to
take the risk. The position is therefore subjective, not only on the foresight of the risk, but
also on the reasonableness of the defendant’s actions.
Despite the test being described as subjective, it is clear that a defendant will ordinarily
attempt to assert that they were unaware of the risk that they were taking. In this context,
whilst the question is it one of whether the jury believes the defendant, in a practical sense,
the question is whether the members of the jury believe that they would have been aware of
the risk in the defendant’s circumstances. In other words, whether the defendant ought to
have been aware of the risk as a reasonable person might. This approach clearly makes the
test closer to an objective one.

R v Cunningham [1957] 2 QB 396.

The defendant had broken a gas meter to steal the money in it with the result that gas escaped
into the next-door house. The victim became ill and her life was endangered. The defendant
was charged under s23 of the Offences Against the Person Act 1861 with "maliciously
administering a noxious thing so as to endanger life". The Court of Appeal, allowing the
defendant's appeal held that for a defendant to have acted "maliciously" there had to be proof
that he intended to cause the harm in question, or had been reckless as to whether such harm
would be caused. In this context recklessness involved the defendant in being aware of the
risk that his actions might cause the prohibited consequence.

3 [1957] 2 QB 396
It is important to note that a defendant cannot avoid liability by deliberately closing their
mind to a risk (R v Parker)4. This is because, the view is taken that in order for a defendant to
close their mind to a risk, they must first be aware of the risk that they are avoiding.

The Reasonableness of the Risk

The test in this context is necessarily objective. Whilst the test is set out in terms of the
defendant’s perception of reasonableness, it is of course, the jury’s view of what is reasonable
that is determinative. Any other approach would allow all defendants to assert that they
believed that the risk they were taking was reasonable, however objectively unreasonable it
might be.
Case In Focus: Chief Constable of Avon and Somerset Constabulary v Shimmen5

Objective Recklessness

For a number of years, recklessness was considered purely objectively. In Metropolitan

Police Commissioner v Caldwell6 it was held that a defendant would be reckless if they
foresaw a risk and went on to take it, or where a risk existed and the defendant gave no
thought to the risk existing.
Although Caldwell was overruled in R v G and recklessness was returned to the previously
described subjective test, it was made clear in the judgment in R v G that an objective
approach could not be completely disregarded.
Summary on Recklessness
● A defendant will be reckless if they are aware that a risk exists and go on
unreasonably to take that risk.
● The defendant’s awareness of the risk is considered subjectively.
● The reasonableness of taking the risk is assessed objectively.
● Objective recklessness, whilst not being fully relevant, may be a consideration.

Transferred Malice

In certain circumstances, a defendant will have the required mens rea against one victim, but
will satisfy the actus reus of an offence against a person against whom the mens rea is not
satisfied. The majority of texts refer to transferred malice, but you should be aware that the
Supreme Court held in R v Gnango7 that the term transferred mens rea is more appropriate
and accurate.
Case In Focus: R v Latimer8

4 [1977] 1 WLR 600

5
(1986) 84 Cr App R 7

6 [1982] AC 341
7 [2012] 2 WLR 17
8 (1886) 17 QBD 359
Transferred malice is limited to offences of the same type (R v Pembliton(1874) LR 2 CCR
119).

Negligence

The definition of negligence in a criminal context is the same as that in tort. A defendant
must fail to reach the standard of care that a reasonable person would take and the failure to
reach this standard of care must cause harm to the victim.
Save for manslaughter by gross negligence, very few offences are defined as requiring the
defendant to be negligent. They are however stated in terms of the defendant failing to meet
the standard that a reasonable person would meet.
It is also no defence if a defendant unreasonably makes a mistake of fact (R v King).9
It can be seen that the absence of the word negligence does not mean that it is not an
important concept in criminal liability. In this sense, the mens rea element is closely linked to
the idea of blameworthiness. Whilst the defendant’s state of mind is not entirely relevant as
an individual requirement for negligence, it is relevant in terms of the standard of
consideration that a defendant must, or ought, to give to a particular set of circumstances.

Strict Liability

Strict liability offences are those types of offences where a defendant’s blameworthiness is
not a relevant consideration in relation to their liability. Under these types of offences, it will
not be necessary to show that a defendant possessed the relevant mens rea for at least one
part of the actus reus of the offence.
It could be suggested that making a defendant liable when they have no guilty state of mind
could have harsh results. This was a consideration that was made in Sweet v Parsley10.

In Sweet v Parsley it was held that where statute makes it clear that mens rea is required, no
issue arises and the wording of the statute should be followed. Where the statute is silent as to
the requirement of mens rea, a presumption arises that Parliament did not intend make a
person who lacked a guilty state of mind liable for the offence and the courts should read in
words that cause mens rea to be required. The presumption of mens rea can be rebutted if
some reason can be found to show that mens rea is not necessary. When attempting to read
mens rea into statute, the court must go outside the words of the statute itself and look to
Parliament’s intention in order to ascertain whether it was its true intention to create an
offence of strict liability.

The limitation on strict liability was taken slightly further in Gammon (Hong Kong) Ltd v
Attorney-General of Hong Kong11, where it was held that the presumption of mens rea could
only be overturned in circumstances where the statute is concerned with issues of social

9 [1964] 1 QB 285).
10 [1970] AC 132
11 [1985] AC 1
concern and, even if this is the case, can only be overturned if it is possible to show that the
imposition of strict liability causes greater vigilance, with the effect that the act prevented by
the statute is less likely to occur.

It is important to recognise the difference between strict liability and negligence. Although
both approaches suggest an absence of mental element, for strict liability it is not necessary
for any standard or threshold to be crossed before liability arises. If the defendant satisfies the
actus reus of the offence, they are liable, irrespective of whether it could be considered
reasonable for them to act in the manner that they acted.

CONCLUSION -

Mens rea is a technical term, generally taken to mean some blameworthy mental condition
whether constituted by intention or knowledge or otherwise the absence of which on any
particular occasion negatives and intentions of a crime. There are many exceptional cases
where mens rea is not required in criminal law some exceptions to the doctrine mens rea are
mentioned above,
 BIBLIOGRAPHY

WEBSITE REFERRED:

● https://www.srdlawnotes.com/2018/02/what-is-means-rea-and-what-are.html
● https://www.lawteacher.net/modules/criminal-law/committing-an-offence/mens-
rea/lecture.php

ARTICLES REFERRED:

 Robinson, Paul. (2003). Mens Rea. University of Pennsylvania Law School,

Scholarship at Penn Law.
 Robinson, Paul H., Mens Rea. Encyclopedia of Crime & Justice, pp. 995-1006, 2002.
Available at SSRN: https://ssrn.com/abstract=661161