A PROJECT SUBMITTED IN FULFILLMENT OF COURSE

‘JURISPRUDENCE-II’, 6th SEMESTER DURING THE

ACADEMIC YEAR 2018-19
TOPIC:- INTENTION AS A FORM OF MENS REA
SUBMITTED BY:-

MD AATIF IQBAL

BBA LLB

ROLL NO:- 1630

SUBMITTED TO:-

DR. MANORANJAN KUMAR

FACULTY OF JURISPRUDENCE-II

CHANAKYA NATIONAL LAW UNIVERSITY

,MITHAPUR , PATNA
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 DECLARATION

The researcher hereby declares that this research paper is prepared by the
researcher with the help of only those sources which are mentioned in the
bibliography part of this paper, foot notes on the last of each page. This research
paper is not a copy of any one‟s research paper as per the knowledge of the
researcher.

This research paper is firstly presented to Dr. Manoranjan Prasad, the faculty of
Constitutional Law in The Chanakya National Law University, Patna. Before this,
this paper has never been submitted to any other teacher/professor or any other
school/college/university.

MD AATIF IQBAL

ROLL NO.- 1630

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 ACKNOWLEDGEMENT
I owe a great many thanks to many great people who helped and supported me
during the completion of the project.

My deepest thanks to lecturer Dr. Manoranjan Kumar , the guide of the project for
guiding and correcting various documents of mine with attention and care . He has
taken pain to go through the project and make necessary correction as and when
needed. I would also thank my Institution and my faculty members without whom
this project would have been a distant reality. I also extend my heartfelt thanks to
my family and well-wishers.

MD AATIF IQBAL

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 TABLE OF CONTENTS
RESEARCH METHODOLOGY: ........................................................................5

INTRODUCTION: ...............................................................................................6

MENTAL ELEMENTS IN CRIME………….……………………….…….…..6

BASIS OF THE CONCEPT OF MENS REA………………….........................7

ANALYSIS OF DEFINATIONS OF OFFENCES…………………...……….10

MENS REA –MEANING…………………………..…………………………..11

INTENTION……………………………………………………….…………….15

CONCLUSION:.....................................................................................................17

BIBLIOGRAPHY:................................................................................................18

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RESEARCH METHODOLOGY:
Objective: The aim of this write up has been to see the definition and history of
expansion of intention.

Scope and Limitations:

Through this write up, the author has tried to study Mens Rea. It has also tried to
get an overview of history of Mens Rea and law in the society.

Sources:
The author has used only secondary sources for the research. The secondary
sources include mainly books by prominent authors, research papers and journals
on criminal law. The research is purely doctrinal in nature.

Mode of Citation:
The author has followed a uniform mode of citation.

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 INTRODUCTION

No problem of criminal law is of more fundamental importance or has proved

more baffling through the centuries than the determination of precise mental
element or Mens Rea necessary for crime1 . 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 can not exist”2. That is to say, in order to make a person criminally
accountable for an act, it must be proved that a certain event, or state of affairs,
which is forbidden by law, has been caused by his conduct, and that the conduct
was accompanied be a legally blameworthy attitude of mind.3

MENTAL ELEMENT IN CRIME

The state of mind of the accused is relevant in several areas criminallaw.

(a) Plea of Infancy4: The mental capacity of the accused may be investigated. For
example, a child under 7 is never criminally liable5; one aged 7-12 is so liable only
if he has mischievous discretion6.

(b) Plea of Insanity : The mentally disordered state of mind may be looked at, e.g.
in the defences of insanity and diminished responsibility.

1
Sayre, Mens Rea, 45 Harv. L. Rev. 974 (1932).
2
Bishop, Criminal Law, 287 (9th ed. 1930).
3
R. Balakrishna Pillai v. State of Kerala, AIR 2004 SC1012=2003 AIR SCW 6646 = (2003)9 SCC 700; K.D. Gaur,
Criminal Law - Cases and Material, 3rd ed., p. 23; Smith & Hogan, Criminal Law, 6th ed., p. 31 ; Salmond,
Juriprudence (3rd ed. 1910) 127.
4
Pratap Singh v. State of Jharkhand, AIR 2005 SC 2731, “mind at that age could not be said to be mature for
imputing mens rea as in the case of an adult” ; Also see Umesh Chandra v. State of Rajasthan, AIR 1982 SC 1057.
5
Section 82 of IPC 1860
6
Section 83 of IPC 1860

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(c) At times the state of mind is relevant to the question of voluntariness. Is the
accused acting of his own free will?

(d) The fourth meaning concerns the particular state of mind required in relation to
the other ingredients of the offence. This is mens rea in crime.

THE BASIS OF THE CONCEPT OF MENS REA

The foundation for mens rea is that the accused can control his conduct. He can
decide whether to engage in conduct which breaks the criminal law. Biggs, Chief
Judge7 states :

“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. This assumption, though not unquestioned by

theologians, philosophers, and scientists, is necessary to

maintain and administration of social controls. It is only

through this assumption that society has found it possible

to impose duties and create liabilities designed to

safeguard persons and property... Essentially these duties

are intended to operate upon the human capacity for

7
United States v. Currans 290, F. 2 d 751 (3 rd Cir. 1961), (United'States Court of Appeals).

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choice and control of conduct so as to inhibit and deter

socially harmful conduct. When person possessing

capacity for choice and control, nevertheless breaches a

duty of this type he is subjected to the sanctions of

criminal law.”

On one approach the law is to prevent harmful behavior. A person acting when he
is in control of his movements and adverts to the possible harmful consequences of
his behavior is more culpable than someone who act carelessly, and he is deserving
of more punishment than a person who has so acted. It is usually said that
penalizing conduct without mens rea is inefficacious and unjust . It is thought to be
unjust because it is wrong to impose the stigma of criminal conviction on someone
who was not morally blame worthy.Nicola Lacey8 Observes :

“This concept of responsibility [from H. L.A. hart‟s

Punishment and Responsibility (1968)] consists in both a

cognitive and a volitional element: a person must both

understand the nature of her actions, knowing the relevant

circumstances and being aware of possible consequences,

and have a genuine opportunity to do otherwise than she

does -to exercise control over her actions, by means of

choice. If she has not a real opportunity to do otherwise, if

8
Nicola Lacey, State Punishment: Political Principles and Community Value (1988) p.63

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she has not genuinely chosen to act as she does, she

cannot be said to be truly responsible, and it would be

unfair to blame, yet alone to punish her for her actions.”

While dealing with mens rea, it would be convenient9 to group the various crimes
(basing on different meaning of mens rea) into four classes :

(1) Crimes in which mens rea10 is found in an intention to commit an illegal act
(General intention).

(2) Crime in which a particular intention11 is required (e. g., in English law
burglary is house/breaking by night with the intention to commit a felony).

(3) Crime in which negligence will suffice (e.g. management of vehicles in public
streets).

(4) Crime in which the requirement of mens rea is reduced to a minimum (i. e.
abducting a girl under 16 from her parents, though the girl is believed to be above
16).12

9
See twenty-ninth report of the Law Commission of India, February, 1966, pp.27-28
10
Stephen’s criticism of the expression “mens red’ will be found in his judgement in R. v. Tolson, (1989) 23QBD.
168,185,189
11
Knowledge can be added, vide R. v. Hudson, (1965) 2, W.L.R. 604, 609.
12
R. v. Prince, (1875) L.R. 2 C.C.R. 154

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 ANALYSIS OF DEFINITIONS OF OFFENCES

In Indian Penal Laws, as well as in every others, every offence is carefully defined
so as to include in the definition the precise evil intent which is the essence of a
particular offence , as well as the other necessary element to it. If these definition
are analysed they generally comprise the following principle elements: -

(a) A human being

(b) An intention on the part of such a human being to cause a certain consequence
considered injurious to individuals or to society, and which fore the sake of brevity
we call an intent.

(c) The act willed.

(d) The resultant evil consequence.

In case where the intended consequence is not injurious by itself, but is injurious in
conjunction with certain other facts, a further element is added, viz:

(e) A knowledge of the existence of such facts.

(i) A human being under a legal obligation to act in a particular way and a fit
subject for the infliction of appropriate punishment – is indicated by the use of
word „whoever‟ with which the definition of every offence begins.

(ii) An evil intent or mens rea on the part of such a human being is indicated
generally by the use of such words as intentionally - voluntarily -fraudulently -
dishonestly- wantonly- maliciously, etc.

(iii) An act willed -committed or omitted in furtherance of such intent. The

resultant consequence - an injury to another human being or to society at large by
such an act. The above two elements, namely, the human being that is, the wrong
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doer and mens rea on his part do not go to constitute a crime . Criminal law does
not punish a mere intent. The reason was that the courts were not possessed of
facilities, for investigating the working of a man‟s mind and were uncertain as to
the possibility of ascertaining it accurately. This difficulty is illustrated by a much
quoted observation of Brain C. J. “For it is common knowledge that the intention
of a man will not be probed for the devil does not know the man‟s intention .”13

MENS REA -MEANING

Mens rea or the mental element in crime is one of the most important concepts of
substantive criminal law. Lord Halsbury has once said, 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 .

What is quite clear about the traditional meaning of “mens re a' from its origin in
St. Augustine‟s adaptation of Seneca to current discussion is its moral connotations
expressed in terms of “evil mind” or “evil will” by the early writers, and in terms
of “guilt” or moral “culpability” by the modern one.

13
Y. B. 17Ed. IV f. 0.2. The oft - quoted observation is that “the thought of a man is not triable, for the devil himself
knowth not the thought of a man”. The learned editor of Kennny’s out line of Criminal Law observes (p. 12) that
the case arose out of a civil action on an agreement for sale of growing crops, the point in argument being the
purchasers’ uncommunicated approval of the property sold. The word “trie” in Y.B. Text has times been
mistranslated as tribleinstead of probed or investigated which gives a wrong meaning to the Chief Justice’s
declaration.

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Stephen in his writing could not accept the view that crime implied immorality.
Thus, he started his inquiry on the premise: “actus non facit reum, nisi mens sit rea
.... is frequently though ignorantly supposed to mean that there can not be such a
thing a legal guilt where there is no moral guilt, which is obviously untrue, as there
is always a possibility of a conflict between law and morals.

Stephen maintained that actus non facit reum,nisi mens sit rea implies wrongly that
“no act is crime which is done from laudable motives, in other words that
immorality is essential to crime.” It is also misleading because, “It naturally
suggests that, apart from all particular definitions of crime, such thing exists as a -
mens rea\ or „guilty mind‟, which is always expressly or by implication involved in
every crime. This is obviously not the case, for the mental elements of different
crimes differ widely.” In his Tolson opinion he also said: “Of course, it would be
incompetent to the legislature to define a crime in such a way as to make the
existence of any state of mind immaterial”.

Accordingly, he concluded: “It appears confusing to call so many dissimilar states

of mind by one name14”. “There is no one such state of mind ... The truth is that the
maxim about „ mens rea' means no more than that the definition of all or nearly all
crimes contains not only an outward and visible element, varying according to
different nature of different crimes.... and therefore the of expression itself is
unmeaning ”.

Professor Sayrej states, “It is quite futile to seek to discover the meaning of mens
rea by any common principle of universal application running alike through all the
cases. A mens rea does not mean a single precise state of mind which must be

14
Queen v. Tolson (1889), 23 Q. B. 168,185, 186, 189.

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proved as a prerequisite for all Criminality. Mens rea, chameleon- like, takes on
different colours in different-surroundings”.

He concluded almost in Stephen‟s words, “The truth is that there is no single

precise state of mind common to all crime.... The old conception of mens rea must
be discarded, and in its place must be substituted the new conception of mantes
read'.

According to professor Stallybrass , “It is not easy to arrive at the true meaning of
mens rea at present day”. He wrote: “In old cases, mens rea did involve moral
blame, and did mean a guilty mind....”. As regards modem penal law, however, he
approves justice Shesrman‟s15 statement in a 1925 case, that, “The true translation
to my mind of mens reals.... „The intention to do the act which is made penal by
the statute or by common law‟.”

Justice Devlin has stated the view very aptly: “Mens rea consists of two elements.
It consists first of all of the intent to do an act, and secondly of the knowledge of
the circumstances that makes that act a criminal offence16”.

Dr. Glanville Williams states, “Mens rea refers to the mental element required for
many crimes. It must not be read in its literal senses requiring moral wrong or
dishonest intent or conscious guilt. It means an intent to do the forbidden act
(whether you know it is forbidden or not), or (generally) recklessness as to it,
intention includes knowledge”.

A literal meaning of mens rea is „guilty mind‟. There in no need or the accused to
feel morally guilty. Smith and Hogan provide a working definition of mens rea.

15
9 Jarome Hall, General Principles of Criminal Law, p.71.
16
Devlin, Statutory Offences, 4J of Soc. Pub. Teachers of L. 213 (1958).

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“Intention, knowledge or recklessness with respect to all the elements of the
offence together with any ulterior intent which the definition of the crime
requires.”

There are other definitions also. According to the Lord Simon, “Mens rea is.... the
state of mind stigmatized as wrongful by the criminal law which, when
compounded with the relevant prohibited conduct, constitute a particular offence”.

S.H. Kadish17 stated: “Mens rea refers only to the mental state which is required by
the definition of the offence to accompany the act which produces or threatens the
harm”.

All three above stated definition may be criticized. If mens rea is defined in term of
intentionally, recklessly, and knowingly automatically negligence is excluded,
according to these definitions, from mens rea.

Whichever definition is used, it does not get us for towards knowing what the mens
rea required for each crime is, for it varies from crime to crime just as the actus
reus varies from crime to crime. Its Meaning in each crime must be determined by
looking at statutes and cases. Mens rea is at heart an analytical tool, not a
prescriptive norm in brief:

“Mens Rea is a technical term, generally to mean some blameworthy mental

condition, whether constituted by intention or knowledge or otherwise the absence
of which on any particular occasion negatives the contention of crime”.

However, there is no single state of mind that must be present as prerequisite for
all crime. Mens rea takes on different colors in different surroundings. What is an
evil intent for one kind of offence may not be so for another kind. For instance, in

17
(1968) CL J 273, 274.

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the case of murder, it is the intent to cause death; in the case of theft, an intention
to steal; in the case of rape, an intention to have forcible sexual intercourse with a
woman without her consent; in the case of receiving stolen goods, knowledge that
good were stolen; and in the case of homicide, by rash or negligent act,
recklessness or negligence.

Therefore, in order to appreciate the meaning of the term mens rea, it is necessary
to have a clear conception of words like intention, recklessness and negligence ,
which are often used to indicate the different possible mental attitudes constituting
the actus reus of a particular crime.

INTENTION

The word „intention‟ denotes the mental attitudes of a man who has resolved to
bring about a certain result if can possibly do so. He shapes his line of conduct so
as to achieve a particular end at which he aims. Intention also connotes a conscious
state of mind in which mental faculties are roused in activity and summoned into
action for the deliberate purpose of being directed towards a particular and
specified object and which the human mind conceives and perceives before itself18,
and represents that state of mind of a person in which he not only foresees but also
desires the possible consequences of his conduct.

Salmond Explains:

“Intention is the purpose or design with which an act is

done. It is the fore-knowledge of the act, coupled with

18
Faquirav. State MR 1955 All. 321

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desire of it, such fore-knowledge and desire being the

cause of the act, inasmuch as they fulfil them selves

through the operation of the will”.

An act is intentional if, and in so for as, it exists in fact, the idea realizing itself in
the fact because of the desire by which it is accompanied. Intention was defined by
the Court of Appeal of England in Mohan19 as: “A decision to bring about, in so far
as it lies with in the accused‟s power, [a particular consequence] no matter whether
the accused desired that consequence of his act or not. As the court recognized53,
this can be described more briefly as the „aim‟. Alternatively, it can be described as
the accused‟s „purpose”.

“Intention is the result of deliberation upon motive, and is the object aimed at by
the action caused or accompanied by the act of volition”. There is no agreement20
in English law as to the meaning of the word “intention”. There are four main
views.

(1) A consequence is intended when it is the aim or the objective of the actor. This
is often called “direct” intent.

(2) A consequence is intended when it is the aim or the objective of the actor or is
foreseen as certain to result.

(3) A consequence is in the aim or objective of the actor, or is foreseen as a virtual,

practical, or moral certainty, or as the Criminal Code Bill defines it, “being aware
that it will occur in the ordinary course of events”. (If this state of mind is classed
as intention, it is some times r-7 called" oblique intention”) .

19
2 (1976) Q B1, (1975) 2 All E R 193 at 200
20
C.M.V. Clarkson and H.M. Keating, Criminal Law Text and Materials, p. 153

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(4) A consequence is intended when it is the aim or objective of the actor, or is
foreseen as a probable or likely consequence of his actions. While the criminal law
takes into account mens rea, as a general rule it disregards motive. The problem is,
therefore, to distinguish motive from intention. It is often easy to state that the
accused‟s ultimate purpose was the motive.

CONCLUSION

This maxim was repeated in several English decisions long after Coke's time. In
1798 Lord Kenyon observed in Flowery. Padgei. "It is a principle of natural justice
and of our law that actus non facitreum, nisi mens sit rea .

Lord Abinger repeated a similar observation in R .v. Ailday." It is a maxim older

than the law of England that no man is guilty unless his mind is guilty." To sum
up, it can rightly be said that in order to obtain conviction for any crime, it is to be
proved that the actus reus of that offence was done with the requisite mens rea.

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 BIBLIOGRAPHY

WEBSITES:-

1) https://www.academia.edu/

2)http://www.legalservicesindia.com/article/article/the-elements-and-stages-of-a-crime-1228-1.html

BOOKS:-

1) P.S.A Pillai‟s CRIMINAL LAW, 11thEdn, K.I. Vibhute, Lexis Nexis, 2012

2) Textbook on THE INDIAN PENAL CODE, K.D. Gaur, 4th Edition, 2013

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