Intention, Knowledge and Negligence as Mens Rea - The Red Carpet


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Wednesday, June 2, 2021

Intention, Knowledge and Negligence as Mens Rea


Meaning of Intention

Intention is a term, which is very difficult to define. It is not defined in the Penal Code. It is a common term known to everybody, but at the same time, it defies a precise definition. It can be variously said to mean the object, purpose, the ultimate aim or design behind doing an act. Intention is the conscious exercise of the mental faculties of a person to do an act, for the purpose of accomplishing or satisfying a purpose. Intention, therefore, is usually used in relation to the consequences of an act, and not in relation to the act itself. A person clearly intends a consequence if he wants that consequence to follow from his action.

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', 'deliberate intention', 'with the purpose of', or 'knowingly'. All these varied expressions find place in the various sections of the IPC.

Section 39 of the 1860 defines 'voluntarily' thus:

39."Voluntarily". -- A person is said to cause an effect "voluntarily" 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 reason to believe to be likely to cause it.


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 death has been caused by his act; yet, if he knew that he was likely to cause death, he has caused death voluntarily.

The definition itself is rather peculiar, as it defines the term in relation to the effect caused by the act rather than the act itself. The word 'voluntarily' is to be understood in relation to causation of effects and not to doing of acts from which those effects result. The illustration to the section is self-explanatory.

The provision and the illustration thereof have not defined the word 'voluntarily' in the commonly understood meaning of the term. It has really imported the concept of English law that 'a man is presumed to intend the natural or probable consequences of his own act.' For example, if a man drives in a rash and reckless manner resulting in an accident causing the death of a person, he cannot plead innocence by stating that he never intended to cause the death of the person. It may be true in the strict sense of the term. But a reckless driver should know that reckless driving is likely to result in harm and can even cause death of the persons on the road. So, by virtue of the definition of the word 'voluntarily' in the IPC, a reckless driver, who causes the death of a person, can be presumed or deemed to have intended to cause the death of the person.

However, the sweep of the word 'voluntarily' is bigger than that of the word 'intentionally'. The act voluntarily done in effect and substance means (a) act done intentionally, (b) act done with the knowledge of end result being a crime, (c) act done when the doer had reason to believe that the act us reus would be an offence.

Section 298 of the makes the uttering of words or making gestures or exhibitions with deliberate intent to wound the religious feelings punishable. The words 'deliberate intention' mean premeditated intention to wound the religious feelings. On a plain reading of the section, however, the words 'deliberate' and 'intent' seem synonymous. Explaining the term 'deliberate intent', drafters of the Penal Code observed:

“We do not conceive that any person can be justified in wounding with deliberate intention the religious feelings of his neighbors by words, gestures or exhibitions. A warm expression dropped in the heat of controversy, or an argument urged by a person, not for the purpose of insulting and annoying the professors of a different creed, but in good faith for the purpose of vindicating his own, will not fall under the definition contained in this clause. The speech or gestures etc, which is punishable as an offence by this clause must be advisedly and deliberately intended to wound the religious feelings of some person.”

So, while describing the scope of the words 'deliberate intent', authors of the IPC have clarified that there must not only be intent, but it should also be pre-planned, preconceived and not a momentarily caused intention. For instance if A, a Hindu, were to enter into a casual conversation with B, a Muslim and the conversation becomes heated and in the course of that heated debate, he is angered by some comments made by B, and passes a derogatory comment about Muslims in general. A has uttered a word with intent to wound the religious feelings of B, a Muslim. However, since his intention was not deliberate, or in other words, he did not start the conversation with B with the premeditated intention to hurt his feelings, it can be held that A did not commit an offence under this section, because though there was intent, it was not deliberate.

Yet another variation of the mental element of intention is knowingly and negligently doing or omitting to do an act. Sections 285, 286 and 287 make knowingly or negligently omitting to take sufficient care so as not to cause harm to human life in respect of possession of poisonous substance, fire, combustible matter and explosive substances an offence.

Intention and Motive

Intention and motive are often confused as being one and the same. The two, however, are distinct and have to be distinguished. The mental element of a crime ordinarily involves no reference to motive. A bad motive cannot be a reason for convicting a person. Similarly, a good motive cannot be an excuse for acquitting him. A person may act from a laudable motive, but if his intention causes wrongful loss, his crime is complete, irrespective of his motive. Intention has been defined as the fixed direction of the mind to a particular object, or determination to act in a particular manner and it is distinguishable from motive that incites or stimulates action.

Austin defined motive as the 'spring of action'. 'Intention', according to him, 'is the aim of the act, of which the motive is the spring.' A motive is something which prompts a person to form an opinion or intention to do certain illegal acts or even a legal act by illegal means with a view to achieve the intention. Motive is the reason for an action i.e. what impels a person to act, such as ambition, envy, fear, jealousy, etc. It is a psychological phenomenon which impels a person to do a particular act. It therefore is also called as 'ulterior intent'. Motive does not affect criminal liability. Motive by itself is either sufficient to prove guilt of accused or relevant for determining his guilt or innocence. However, it, being a compelling force to commit a crime, becomes a relevant factor in determination of guilt of an individual or of the quantum of punishment. It is of importance in aggravation or mitigation of sentence. If motive is clear, it becomes possible to infer the relevant intention. Evidence of motive, though it is often difficult for the prosecution to collect it, reveals the nature of the intention for committing a particular act.

In criminal law, motive may be defined as that which leads or tempts the mind to indulge in a criminal act or as the moving power which impels to act for a definite result. But the fact is that the motive for a crime lies locked in the heart of a person, and so, it becomes difficult to know the same. Failure to bring on record any evidence regarding motive does not, however, weaken a prosecution case, though existence of the same may strengthen the case. It is not prudent to suggest that no criminal act can be presumed unless motive is proved. Where positive evidence against the accused is clear, cogent and reliable, the question of motive becomes insignificant.

In Shamsher Singh v State of Haryana, wherein evidence of eyewitnesses and the medical evidence disclosed that the death of the deceased was due to the injury caused by the accused, the Supreme Court upheld the conviction of the accused under s 302, IPC, even though there was no direct motive for causing the homicide. In Om Prakash v State of Uttaranchal, rejecting the plea that the prosecution could not indicate the motive for killing of three members of a family, the Supreme Court ruled that failure to prove motive is irrelevant in a case wherein guilt of the accused is proved. Conversely, motive by itself cannot be proof of an offence. The Apex Court in State of Uttar Pradesh v Arun Kumar 51 emphasised that proof of motive in the absence of proof of guilt of an accused does not warrant his conviction.

Knowledge as 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. Knowledge is an 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 by persons whose veracity he has no reason to doubt. Knowledge is essentially subjective. However, in many cases, intention and knowledge merge into each other and mean the same thing, more or less, and intention can be presumed from knowledge.

The demarcating line between knowledge and intention is no doubt thin, but it is not difficult to perceive that they connote different things. Knowledge, as contrast to intention, signifies a state of mental realisation in which the mind is a passive recipient of certain ideas or impressions arising in it, while intention connotes a conscious state of mind in which mental faculties are summoned into action for the deliberate, prior conceived and perceived consequences. Knowledge, obviously, is premised on knowledge of the facts and circumstances and the effects of one's conduct.

Negligence as Mens Rea

Mens rea is not a unitary concept. Depending on the nature of the crime, mens rea may be presence or existence of intention in some cases, or requirement of knowledge in some, and negligence in some others. Thus, law has developed various levels of mens rea or intent such as negligence, recklessness, knowledge and purpose. Based on the nature of the offence, the requirements of particular statutory provisions and the object of the particular statute, the courts have to decide what is the extent or level of criminal intent that is required to convict a person of an offence.

Negligence is a case of inadvertence. Criminal negligence is the gross and culpable neglect or failure to exercise that reasonable and proper care and precaution to guard against any injury either to public generally or to an individual in particular. A person is negligent if he fails to exercise such care, skill or foresight as a reasonable man in his situation would exercise. It is the failure of a person to act with the standard of care expected of a reasonable or a prudent person. Who then is this reasonable or prudent person? There is no real yardstick by which one can arrive at the precise definition of the prudent person. But in law, it generally means the law abiding, cautious, careful person, who is the personification of all virtues. Of course, if a survey of the average person is taken, it may be very hard to come across any person who may fit the description of this reasonable person. But nonetheless, courts blindly go by this fictional and mythical reasonable person standard.

Let us go back to the analogy of the person stamping A's foot. Supposing B was running down the road instead of walking carefully at a moderate speed, which is what is expected of a reasonable person, then B who was running down the road was being negligent. B should have realised that by running down the crowded road, there is a likelihood of stumbling over or falling over somebody and injuring him or her. Taking this analogy further, if, it is presumed that B who was running down the crowded street was also carrying a sharp, long instrument which was getting in the way of people on the road and hurting them, and B was all the same running along unmindful of the consequences, then B is guilty of being reckless.

Strictly speaking, negligence may not be a form of mens rea. Negligence is not appropriate to inflict criminal liability as inadvertence, generally, cannot be equated with blameworthy mind. However, the IPC imposes criminal liability on the ground of negligence, particularly when a negligent act poses threat to life or personal safety of others. Negligence is more in the nature of a legal fault. It is made punishable strictly for an utilitarian purpose of hoping to improve people's standards of behaviour.

Intention and Knowledge as (alternative) Mens Rea

The IPC imposes liability on alternative bases of intention. A classic example is the liability for unlawful homicide. Both the terms 'intention' and 'knowledge' appear in ss 299 and 300 of the IPC, dealing respectively with culpable homicide and murder, and having different penal consequences. Intention and knowledge, though they connote different things, are used as alternate mens rea for the offences. Intention is the desire to achieve a certain purpose. It is the fore knowledge of the act coupled with the desire of it. Knowledge, on the other hand, is awareness of the consequences of the act. Questions of knowledge and intention are essentially questions of fact.

Intention is difficult to legally establish by direct evidence, as it essentially is a manifestation of a person's mind and inner feelings, which requires going into a person's mind to determine what intention the person had. It can be gathered from the attendant circumstances of the case, and more particularly from the actions of the accused.

Intention becomes very crucial in the offence of culpable homicide as it is the degree of intention of the accused determines the gravity of his crime. In other words, it is the mental element of the accused alone which is material to decide whether a particular homicide is culpable homicide amounting to murder or culpable homicide not amounting to murder.

As far as the offence of culpable homicide is concerned, there are three species or degrees of mens rea or intention present: (1) an intention to cause death; (2) an intention to cause injury as is likely to cause a death; and (3) knowledge that death is likely to happen. Illustrations (a) and (b) to s 299 give examples of culpable homicide accompanied by the first or third species and Illustration (c) discloses that unless one or other of the three species is present there can be no culpable homicide.

Intention, in the context of definition of culpable homicide, does not always necessarily mean premeditation or pre planning to kill a person. The expectation that the act of a person is likely to result in death is sufficient to constitute intention. A man expects the natural consequences of his acts and therefore he is presumed to intend the consequences of his acts. So, if a person in performing some act, either: (1) expects death to be the consequence thereof; or (2) expects a dangerous injury to be the consequence of his act ; or (3) knows that death is a likely consequence of his act, and in each case death ensues, his intention in the first two cases, and his knowledge in the third, render the act homicide.

A guilty intention or knowledge is thus essential to the offence under this section. Further, death must be a likely result of the intended bodily injury in the second case, and also a likely result of the act in the third case. An effect is 'likely' to take place when there is a likelihood, which is distinguishable from mere possibility. A thing is possible when it may happen; likely when the chances are in favor of its happening. The difference between an intention to cause death (in the first case) and an intention to cause such bodily injury as likely to cause death (in the second case) is a difference of degree only. The latter is a degree lower in the scale of criminality than the former. If death is a likely result it is culpable homicide; and if death is most probable result it is murder.

Intention and Consequence

The intention to commit an act must be differentiated from the consequences of an act. The distinction between intention and consequence had come up for consideration before the Supreme Court in cases arising under the Terrorist and Disruptive Activities (Prevention) Act 1987 (TADA). In Niranjan Singh v Jitendra Bhimraj, the accused wanted to eliminate two persons by name Raju and Keshav for gaining supremacy in the underworld. They were charged for committing a terrorist offence under TADA. In this context, the Supreme Court held that from the evidence, it was clear that the intention of the accused persons was to eliminate the rivals and gain supremacy in the underworld, so that they may be known as the bullies of the locality and would be dreaded as such. But it cannot be said that their intention was to strike terror in the people or a section of the people. The consequence of such killing is bound to cause panic and fear, but the intention of committing the crime cannot be said to strike terror in the people or any section of the people. Therefore, in the absence of an intention to strike terror, even if the consequence of their act resulted in creating terror, it acquitted the accused.

In Hitendra Vishnu Thakur v State of Maharashtra, the court once again emphasised that for an offence under TADA, an act must be committed with the intention and motive to create terror as contemplated under the Act . Where the causing of terror is only the consequence of the criminal act, but was not the intention, an accused cannot be convicted for an offence under TADA. To bring a charge under TADA, the terror or panic etc must be actually intended with a view to achieve the result as envisaged under the Act and not by merely an incidental fall out or a consequence of the criminal act . Every crime, being a revolt against the society, involves some violent activity, which results in some degree of panic or creates some fear or terror in the people or a section thereof, but unless the panic, fear or terror was intended and was sought to achieve the objectives as defined under the TADA, an act would not come within the ambit of TADA.

These cases were followed in State of Tamil Nadu v Nalini. This case was in respect of the assassination of Rajiv Gandhi, the former Prime Minister of India. The case of the prosecution was that killing of Rajiv Gandhi was a terrorist act. The Supreme Court held that the entire evidence on the record pointed towards the fact that the Liberation Tigers of Tamil Ealem (LTTE), a terrorist organisation active in Sri Lanka, had conspired to kill Rajiv Gandhi, because he had played a key role in the Indo-Sri Lankan Accord. So, the intention of the accused was only to kill Rajiv Gandhi and not to commit a terrorist act by overawing the Government of India. Though, it could be said that terror was struck by the assassination of Rajiv Gandhi, there was no evidence to establish that it was the intention of the accused to strike terror. The court ruled that in order to be an offence under TADA, overawing the government cannot be the consequence, but it has to be a primary object.

Burden of Proof

Every person accused of a crime is presumed to be innocent, unless and until proved guilty by the prosecution. This means that in every criminal proceeding, the law starts off with a presumption in favor of the accused person that the concerned person is innocent of the crime accused of. Starting from this presumption of innocence of the accused, it is always for the prosecution to establish beyond reasonable doubt all the essential ingredients of the crime including the mens rea to prove the guilt of the accused. Thus, the burden of proving the guilt of the accused rests solely and entirely on the prosecution. This is what is meant when it is said that the burden of proof is on the prosecution. This burden generally does not shift. An accused person cannot be asked to prove his innocence.

But when a clause for presumption of mens rea exists in the statute, then the job of the prosecution is made easier. The prosecution only has to prove that the accused committed certain acts. Once that is proved, the statutory presumption of mens rea or guilty mind steps in and the accused is presumed to be guilty. But this presumption is always a rebuttable presumption, i.e., the accused person will be given an opportunity to prove that though he had committed certain acts, it was done innocently and without any criminal intent. To this extent, the burden on the prosecution to prove the guilt of the accused beyond reasonable doubt is shifted to the accused. It is for the accused to establish his innocence, though, the standard of proof required is not the same.

It is no doubt, very difficult to prove the existence of mens rea by direct or positive evidence. Courts have realised this difficulty and it has been held that it is not necessary for the prosecution to prove the existence of mens rea by positive evidence. It is open to the prosecution to prove the guilty mind of the accused by the general conduct of the accused.

There is no standard yardstick by which the application of the principle of strict criminal liability or the non-requirement of mens rea as an element of an offence is applied. It may not be quite possible to evolve any straight jacket formula for the requirement of mens rea. The considerations are many and may also vary depending on the nature of the legislation. One has to keep in mind the nature of the statute, the object of the statute, what is the mischief it sought to remedy and so on and so forth. However, like any legislative power, it is not without its limitations. Ultimately, every law has to be tested on the corner stone of the Constitution of India. Article 21 of the Constitution guarantees that no person shall be deprived of his life and liberty without following the procedure established by law. In Maneka Gandhi v Union of India, it has been held that procedure established by law does not mean any procedure, but a fair and just procedure. It is on the touchstone of art 21 that the fairness of any statute has to be tested.

(The content of this post is taken from PSA Pillai’s Criminal Law. The reading of this post is just for research and educational purposes and it is not being used for any commercial purpose)

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