Mens Rea

Content Prepared by

Prabhat Kumar,

Assistant Professor (Part Time)

Patna Law College, Patna University

Discuss

• What is Mens Rea.

• Rule/ Importance of Mens Rea.

• Strict Liability [Rationale]

• How to prove Mens Rea

• How to prove Intention

• How to prove knowledge

• How to prove reason to believe

• Actus non facit reum nisi mens sit rea (the act has to becoupled with guilty mind to create a criminal liability)

Mens Rea• Mens- State of mind at the time of doing of the act.

• Rea- Forbidden by law.

• That state of mind which in particular section is forbiddenby law is called mens rea.

• As a matter of policy, society has declared if in so and soacts there are tendency of shaken the policy of society orsocietal consequence then such act shall be offence.

• Importance- Fault based liability- in which mens rea isrequired. Then prove of such mens rea is necessary forliabilty of accused.

• Depends upon the requirement of mens rea in particularoffence.

• Mens rea include intention, knowledge, ill-will, etc.

• Mens rea is a general term which incorporates several specific states of mind atthe time of commission of the offence. The various offences declared in IPC willnot involve all those states of mind rather a particular offence would involveparticular kind or kinds of state of mind declared by a particular section.

• It is a matter of societal policy that every consequence of human conduct is notconsidered to be capable of shaking societal consequence rather the societycollectively through legislature declares as to what kind of mental involvement atthe time of doing the offence would shake the societal conscience. Accordingly inthe various sections the specific kinds of mens rea are provided.

• The requirement of proving mens rea is also an incorporation of the principles ofnatural justice. A person cannot be punished for something which he didunknowingly i.e. Without any mental involvement and therefore for most of theoffences mens rea is required to be proved. These are called fault based liabilityand in these offences the importance of mens rea lies on the fact that the accusedcannot be made liable unless mens rea is proved.

• Like actus reus, mens rea is also a subjective concept. It has to be examined in aparticular section as to with respect to that offence what is the mens rea required.

• Thus, if a section requires mens rea to be proved it is called fault based liabilityand if a section does not require mens rea to be proved it is called strict liability.

Strict Liability

• As a matter of societal policy there may becertain offences which have the capacity todirectly affects the society so as to shake thesocietal consequence and also these offenceshave a great impact upon the socio economicconditions of the society and therefore they aredeemed to be offences of strict liability and nomens rea would be required to be proved.

• E.g. Strict Liability: Kidnapping from lawfulguardianship- No need to prove mental element.You have to prove just “takes away” and“entices”.

Rule of presumption under India and England

• In England the rule of presumption regarding mens rea is for everyoffence mens rea is required to be proved unless such requirementis either expressly or is excluded by necessary implication.

• On the other hand in India, the presumption is that mens rea is notrequired to be proved unless it is required by expressly or bynecessary implication.

• E.g. In Murder, mens rea is not expressly need to be proved but stillmens rea shall be proved and this presumption will not apply.

• E.g. Theft (dishonest intention)- have to be proved. So thispresumption will not apply.

• E.g. Kidnapping- Under Section 361 not expressly provided mensrea to be proved. So it is to be checked whether it is required bynecessary implication. If yes then it shall be proved .

Necessary Implication

• Every person has some purpose.

• First to find out what is such purpose.

• Whether it is served better or defeating it.

• Whether requirement of mens rea serving better or

defeating the larger purpose.

• R v. Prince

• State of Maharashtra v. M.H. George

How to prove Mens Rea• By giving circumstantial evidence.

• What is going in one’s mind can be determinedthrough his conduct and compared with a reasonableperson as in the same circumstances what he woulddo. This is objective Test. [Body language, behaviour,conduct and way of speaking].

• The mind can be seen through conduct only. Onecannot read another’s mind.

• Who is a reasonable person here? Judge himself. Hewill put himself as normal prudence and impute thesame mind as accused.

• The mens rea cannot be directly known by keeping into themind of the person rather only through external conduct ofthe person and the surrounding circumstances.

• The external conduct is the manifestation of the mind ofthe person.

• An objective test is conducted and it is seem that if areasonable person i.e. a person of ordinary prudence wouldhave been in the place of the accused in the samecircumstances and would have behaved in the samemanner, then what would have been his state of mind, thesame state of mind will be imputed upon the accused.

• The means employed by you shows intention/ knowledge/ reason tobelieve.

• Effect means consequence.

• Means- the conduct which he used. The conduct shows intention,knowledge and reason to believe.

• You cannot determine anyone’s intention/ knowledge/ Reason to believesimply from mind rather it shall be suggested through conduct only.

• The emphasis upon the “means” in section 39 clearly suggests that theintention, knowledge and reason to believe be understand only byexamining the means which were employed by the accused i.e. examiningthe conduct of the accused and the surrounding circumstances.

Voluntarily [Section 39]

Intention KnowledgeReason to

believe

Intention (Desire to produce the consequence) • Example, if teacher has desire to teach good. His conduct, his way

of teaching, his involvement in question and answer. If he hasdesire to teach properly he will put all his efforts to make it good.

• Then the same thing shall be ascertained while examining theintention of the accused. As he will not do work casually rather hewill do something extra to make it sure to be done.

• Example, if some one wants to kill someone and go towards himwith knife and in the mean time someone interrupted his way so hetried to attack him also, so that he may make him go away. Here hehad no intention to kill the interrupted person. Rather he was justtrying to put him away from his path so that he may proceed withhis intention i.e. to kill that person.

• What you have done in reasonable circumstances imply yourjudicial mind and will show your intention?

• Intention cannot be manifest by casual act. There is no hard and fast ruleto determine the intention rather it shall be showed by his conduct/ extraefforts to do that act.

• Intention means the desire of the person to produce a particularconsequence. A person who have the intention to produce theconsequence will not do the act casually rather he will do the act in such amanner and to such an extent that the consequence be produced withcertainty under any circumstances. Thus his conduct will be moreparticular, pin pointed and he will make some extra efforts to produce theconsequence.

• E.g. A wants to kill B by Pistol.

1. He does not aim and shoot- may be no intention.

2. If shoot in his direction (all 6 shoots)- Intention

3. If shoot below waist part- No intention to kill.

4. If shoot on vital part of body- Intention to kill.

• Thus, if the accused done the same thing what a reasonable personwould do for killing a person with extra efforts- shows his intention.

• Intention means to be more particular towards something.

• Knowledge means may be casual act.

• Intention is the highest degree of mind so it includes

knowledge also and reason to belief also. E.g. If a person

giving small portion of poison daily (may be intention to

kill)- but due to fear of not being alleged in murder case.

To examine the exact conduct and the surrounding circumstances

• If A wants to kill B with lathi then he will not blow single lathi rather he

will hit more than one blow.

• If A’s some part of mind is vital area and B is unaware bout it and hit on his

that part and A died. Whether B has intention to kill him or not? The test

for intention is an objective test wherein the examination is as to what all

conduct was committed by the accused in those circumstances i.e. How

did the accused do the act. The examination will be as to if a reasonable

person desired to produce the consequence then in order to ensure

himself about the consequence would have done the same conduct,

which the accused actually did, if yes, then intention would be imputed on

accused also.

Motive • Reason behind doing something.

• E.g. I want to be IPS officer. Why? It is my father’s dream-Motive.

• A wants to kill B. Motive may be revenge, property, fightand may be A is psychopath.

• Motive is relevant fact under section 8 of Indian EvidenceAct. It is just a piece of evidence but it will not suggest theirintention. Intention shall be proved objectively.

• Motive may suggest the circumstances but alone is notsufficient to prove the intention. Motive alone is notevidence.

• Motive- Why and Intention- What.

• In Arushi Talwar’s case even without motive also, intentionmay be established.

• Motive is the reason behind the commission of an act i.e. the largerpurpose behind the doing of the act.

• Motive is not in itself an ingredients of an offence rather motive is just arelevant fact under section 8 of Indian Evidence Act.

• Motive is to be examined by asking the question as to why did the accuseddo that act.

• The proof of motive in itself is not a proof of intention.• Intention rather has to be proved objectively by proving the conduct of

the accused.• It is not necessary for intention that motive also shall be proved rather

even without proving motive intention can be proved and criminal liabilitymay arise but if motive is also proved then it becomes easier to proveintention.

• Motive may be relevant to prove intention as well as to determine thequantum of punishment.

• Without Motive- may be sentence reduced.• Ill motive- may be sentence extended.• Is motive relevant under IPC- NO (but may be relevant for quantum of

punishment).• Is motive relevant under IEA- YES (Under Section 8).• Motive is not mens rea in itself rather intention is mens rea.• E.g. Good motive- steal bread to feed the poor.• Ill motive- dig up the road to kill someone.

Knowledge- Aware of the consequences

• E.g. A shot at mob without aiming B

1. There is no intention

2. There is only knowledge likely to cause death.

3. There is only knowledge that B may be killed.

• But if A shot 7-8 time to B with A-K47. Here A’sintention is manifest because several shots may kill B.

• Intention- knowledge is implicit in it. But in everyknowledge, intention is not implicit because intentionis higher degree.

• Every person will have knowledge of naturalconsequence, so it may be presumed but intentionshall not be presumed rather special conduct have tobe showed (proved) which manifests the intention.

Difference between knowledge and Intention

• Knowledge is a lesser degree of mental involvement andgenerally a person is presumed to be knowing the naturalconsequence of his act. Whereas intention is the highestdegree of mental involvement and intention cannot bepresumed rather it has to be proved on the basis of thespecial conduct of the accused.

• Knowledge is a simple awareness of the accused regardingthe likely consequence of his act. Whereas intention is adesire which is much in higher in degree than awareness.

• In every intention, knowledge is implicit but in everyknowledge intention is not implicit.

• Generally in the cases of intention, the punishment will behigher and in the case of offences done with knowledge thepunishment will be lesser.

Reason to Believe

• Section 26: Sufficient cause to believe.

• Under Section 39: ‘Means’ word is emphasised.

• Knowledge- you are more sure about the consequence

• Reason to believe: You are not sure about the consequence.

• E.g. If A shoots at the bush knowing the fact that someone is behind bush

(one person was sleeping, his sound of snoring, pair of shoes was there). It

is knowledge of likelihood of death.

• But if A does not aware of the fact that someone is there (or only one

should of snoring was heard by the A and pair of shoes was there). It is

reason to believe that there is sufficient ground to believe.

• No exact knowledge- but sufficient cause that there may be some person.

Difference between knowledge and Reason to believe:

• Knowledge: Subject matter is there and you did the act casually, it isknowledge.

• Reason to believe: not sure about subject matter and did the actbut and there is sufficient ground which suggests there may beperson.

• Intention: if you are sure that subject matter is there and you didthe act by aiming in particular manner, it is intention.

• Reason to believe is a degree lesser than knowledge. In reason tobelieve the accused does not know directly that the victims is in theline of his actions but some surrounding circumstances whichsuggests that the subject matter may be in the line of his action. Onthe other hand in case of knowledge, the accused directly knowsthat the subject matter is there in the line of his action andtherefore the extents of liability will be greater in case ofknowledge.

• Reason to believe is a degree less than knowledge anda degree more than mere suspicion. It should not bejust a suspicion that the subject matter is there ratherthe accused should have sufficient cause (which ismore than suspicion) to believe that the subject mattermay be there.

• No offence- Mere suspicion that there may be someone.

• Reason to believe- suspicion with sufficient cause.

• Knowledge: direct sound and clearly seen that person.

Actus non facit reum nisi mens sit rea

• For an act to be a guilty, it shall be accompanied by a guilty mind orAn act will be guilty only if accompanied by a guilty mind.

• Fault based liability: Actus Reus+ Mens Rea.

• E.g. A gone for morning walk with dumble. B his rival neighbour wasrun coming from back with high speed (no sound of his shoes). Bgot injured by hitting of dumble. A start dancing after the injury. Awill not be liable because there was no mens rea at the time of act.Mens rea after the act has been committed. Guilty lies only whenthere is concurrence of the two.

• E.g. A is thinking of killing B. But after some time that person dieddue to accident (by mistake of A, while he was cleaning his pistol). Athen start distributing sweets and celebrate his death. A will not beliable for murder because while he was acting there was no mensrea as it was an accident.