Liability and Mens Rea

8/11/2019 Liability and Mens Rea

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CHANAKYA NATIONAL LAW UNIVERSITY

JURISPRUDENCE II

2011- 2016

A PROJECT WORK ON- LIABILITY AND MENS REA

SUBMITTED TO: MR. MANORANJAN KUMAR

SUBMITTED BY:

ANJALI

ROLL NO.: 523

SEMESTER: 6th


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LIABILITY ANDMENS REA2

ACKNOWLEDGEMENTApart from the efforts of the researcher, the success of any project depends largely on the

encouragement and guidelines of many others. I take this opportunity to express my gratitude

to the people who have been instrumental in the successful completion of this project.

I would like to show my greatest appreciation to Mr. Manoranjan Kumar. I cant say thank

you enough for his tremendous support and help. I feel motivated and encouraged every time

I attend his lectures. Without his encouragement and guidance this project would not have

materialized.

The guidance and support received from all the members who contributed and who are

contributing to this project, was vital for the success of the project. I am grateful for their

constant support and help.

I am thankful to my librarians, who provided me the books and materials required for the

completion.

I am grateful to all my friends, from whom I got the meticulous comments and suggestions

which proved very beneficiary in the completion of this project.

Finally, I am thankful to all those individuals and institutions that directly and indirectly

provided me the materials which helped me to complete this project.

NAME: ANJALI

ROLL: 523

SEMESTER: SIXTH


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CONTENTSACKNOWLEDGEMENT ......................................................................................................... 2

CHAPTER 1: LIABILITY AND MENS REA: AN INTRODUCTION .................................. 4

CHAPTER 2: LIABILITY ........................................................................................................ 5

2.1 THEORIES OF LIABILITY ........................................................................................... 5

CHAPTER 3:MENS REA ......................................................................................................... 7

CHAPTER 4: DIFFERENCE KINDS OFMENS REA............................................................. 9

4.1 INTENTION .................................................................................................................... 9

4.2 KNOWLEDGE .............................................................................................................. 12

4.3 NEGLIGENTLY............................................................................................................ 14

4.4 REASON TO BELIEVE................................................................................................ 15

4.5 FRAUDULENTLY........................................................................................................ 15

4.6 DISHONESTLY ............................................................................................................ 16

4.7 MALIGNANTLY .......................................................................................................... 18

4.8 RASHNESS ................................................................................................................... 18

4.9 WATONLY ................................................................................................................... 18

CHAPTER 5: CONCLUSION ................................................................................................ 20

BIBLIOGRAPHY .................................................................................................................... 22


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CHAPTER 1: LIABILITY AND MENS REA: AN

INTRODUCTION

The essence of criminal law has been said to lie in the maxim"actus non facit reum nisi

mens sit res." There can be no crime large or small, without an evil mind. It is therefore a

principle of our legal system, as probably it is of every other, that the essence of an offense is

the wrongful intent, without which it cannot exist. This examination of the mental element or

mens rea requisite for crime, will be restricted with reference to the use of the term itself in

so far as it signifies the mental element necessary to convict for any crime, and only

regarding crimes not based upon negligence. A possible division for such consideration is the

following:

1. Requisite mens reain. the early law.

2. Beginnings of the mens reaconcept.

3. Subsequent development of a general mens reaas necessary for crime.

4. Application of the general concept to some individual crimes,

5. Application of the genera/ concept regarding some specific defenses.

6. Some general present day applications of the term.

Liability as has been said by Salmond is the bond of necessity between the wrongdoer and the

remedy for the wrongful act. If it is of civil nature then the person will provide for the redress

given under the law and if it is criminal in nature then the offender will pay for the penalty

under the law.

Liability in the first place is either civil or criminal, and in second place either remedial orpenal. In case of penal liability the purpose of the law, direct or ulterior, is or includes the

punishment of a wrong-doer. In case of remedial liability, the law has no such purpose at all,

its sole intent being the enforcement of the plaintiffs right, and the idea of punishment being

wholly irrelevant. The liability of a borrower to repay the money borrowed by him is

remedial, that of the publisher of a libel to be imprisoned, or to pay damages to the person


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LIABILITY ANDMENS REA5CHAPTER 2: LIABILITY

injured by him, is penal. All criminal liability is penal; civil liability, on the other hand, is

sometimes penal and sometimes remedial.1

CHAPTER 2: LIABILITY

2.1 THEORIES OF L IABIL ITY

The Theory of remedial liabilitymay seem to show that whenever the law creates a duty, it

should enforce the specific fulfilment of it. There are, however, several cases where, for

various reasons, duties are not specifically enforced.

In the first place, there are duties of imperfect obligation duties the breach of which gives no

cause of action, and creates no liability at all, either civil or criminal, penal or remedial. A

debt barred by the statute of limitations is a legal debt, but the payment of it cannot becompelled by any legal proceeding. Secondly, there are many duties which from their nature

cannot be specifically enforced after having once been broken. When a libel has already been

published, or an assault has already been committed, it is too late to compel the wrongdoer to

perform his duty of refraining from such acts. Wrongs of this description may be termed

transitory; once committed they belong to the irrevocable past. Others, however, are

continuing; for example, the non-payment of a debt, the commission of a nuisance, or the

detention of anothers property. In such cases the duty violated is in its nature capable of

specific enforcement, notwithstanding the violation of it. Thirdly, even when the specific

enforcement of a duty is possible, it may be, or be deemed to be, more expedient to deal with

it solely through the criminal law, or through the creation and enforcement of a substitutive

sanctioning duty of pecuniary compensation. It is only in special cases, for example, that the

law will compel the specific performance of a contract, instead of the payment of damages

for the breach of it.2

Theory of Penal Liability. The aim of protecting society is sought to be achieved by

deterrence, prevention and reformation. Of the three methods the first, deterrence, is usually

regarded as the primary function of punishment, the others being merely secondary. Inquiry,

therefore, shall be confined to punishment as deterrent.3

The general conditions of penal liability are indicated with sufficient accuracy in the legal

maxim, Actus non facit reum, nisi mens sit rea- The act alone does not amount to guilt; it

1

P.J Fitzgerald, Salmond on Jurisprudence, 12th

edition, Delhi, Universal Law Publishing Co, 2012, p.349.2Ibid, p.350.

3Ibid.


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LIABILITY ANDMENS REA6CHAPTER 2: LIABILITY

must be accompanied by a guilty mind. That is to say, there are two conditions to be fulfilled

before penal responsibility can rightly be imposed. The one is the doing of some act by the

person to be held liable. A man is to be accounted responsible only for what he himself does,

not for what other persons do, or for events independent of human activity altogether. The

other is the mens reaor guilty mind with which the act is done. It is not enough that a man

has done some acts which on account of its mischievous results the law prohibits; before the

law can justly punish the act, an inquiry must be made into the mental attitude of the doer.

For although the act may have been objectively wrongful, the mind and will of the doer may

have been innocent.4

Generally speaking a man is penally responsible only for those wrongful acts which he does

either wilfully or recklessly. Then and only then is the actus accompanied by the mens rea5

.

4P.J Fitzgerald, Salmond on Jurisprudence, 12

thedition, Delhi, Universal Law Publishing Co, 2012, p 351.

5Ibid.


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LIABILITY ANDMENS REA7CHAPTER 3: MENS REA

CHAPTER 3: MENS REAMens Rea6derived from a maxim quoted by Coke in his Institute; actus non facit reum, nisi

mens sit rea, i.e an act does not make a person guilty unless the mind is guilty. The meaning

of mens reaon this maxim explains the mental element of varying standards that is held by

the perpetrator. Here, in criminal law to purport a person has a guilty mind varies from the

precedent cases and the mens reacan be connotes as a guilty mind. This mental element had

been stated by Lord Goddard in the case of Brend v Wood7, the court should not find a

man guilty of an offence against the criminal law unless he has a guilty mind.

These definitions in fact can be criticised and not all crimes held the same mens reaas

it varies in other crimes. However, like any other crime, there are other degree depends on the

state of mind of perpetrator. InCommissioner of Sales Tax v. Rama and Sons, General

Merchant, Ballia, the court observed mens reaas "The principle of mens rea comes from

English Criminal Law from times when the law was not codified. It was said that actus non

facit reum nisi mens sit rea(the intent and act must both concur to constitute the crime). But

this principle has lost much of its significance owing to greater precision of modern statutes.

The nature of intent or the ingredients of offences are now clearly stated in the statutes and

nothing further is required to establish as offence then what the statute specified. We have

words like 'voluntarily', 'intentionally', 'negligently', 'knowingly', fraudulently', 'dishonestly',

'rashly', 'omits', 'without lawful authority' etc., 'omits', 'without lawful authority' etc., used in

various sections of the Indian Penal Code defining various offence. Proof of the State of mind

or of the conduct of the person as indicated by the aforesaid word establishes the offence and

no further guilty intent or mens reaneed be proved. In fact there are many acts which are

offences and do not require proof any mens reaor guilty intention, for example possession of

illicit fire arm."

A man is responsible, not for his acts in themselves, but for his acts coupled with the mens

rea or guilty mind with which he does them. Before imposing punishment, the law must be

satisfied of two things: first that an act has been done which by reason of its harmful

tendencies or results is fit to be represented by way of penal discipline; and secondly that the

mental attitude of the doer towards his deed was such as to render punishment effective as a

6The concept : a blameworthy frame of mind7(1946) 175 LT 306


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LIABILITY ANDMENS REA8CHAPTER 3: MENS REA

deterrent for the future, and therefore just. The form which mens reaassumes will depend on

the provisions of the particular legal system. Criminal liability may require the wrongful act

to be done intentionally or with some further wrongful purpose in mind, or it may suffice that

it was done recklessly; and in each case the mental attitude of the doer is such as to make

punishment effective. If he intentionally chose the wrong, penal discipline will furnish him

with a sufficient motive to choose the right instead for the future. If, on the other hand, he

committed the forbidden act without wrongful intent, but yet realizing the possibility of the

harmful result, punishment will be effective inducement to better conduct in the future. 8

Yet there are other cases in which, for sufficient or insufficient reasons, the law is content

with a lower form of mens rea. This is the case, as was already noticed, with crimes of

negligence. A person may be held responsible for some crimes if he did not do his best as a

reasonable man to avoid the consequence in question. Sometimes, however, the law goes

even beyond this; holding a man responsible for his acts, independently altogether of any

wrongful state of mind or culpable negligence. Wrongs which are thus independent of fault

may be distinguished as wrongs of strict liability. In respect of requirements of fault, wrongs

are of three kinds (1) Intentional or reckless wrongs, in which the mens rea amounts to

intention, purpose, design, or at least foresight. In such wrongs defences like mistake operate

to negative the existence of mens rea. (2) Wrongs of Negligence, in which the mens reaassumes the less serious form of mere carelessness, as opposed to wrongful intent or

foresight. With these wrongs defences such as mistake will only negative mens rea if the

mistake itself is not negligent. (3) Wrongs of Strict Liability, in which the mens rea is not

required, neither wrongful intent nor culpable negligence being recognized as a necessary

condition of responsibility; and here defences like mistake are of no avail.9

8

P.J Fitzgerald, Salmond on Jurisprudence, 12th

edition, Delhi, Universal Law Publishing Co, 2012, p 366.9Ibid, p.367.


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LIABILITY ANDMENS REA9CHAPTER 4: DIFFERENCE KINDS OF MENS REA

CHAPTER 4: DIFFERENCE KINDS OF MENS REA

4.1 INTENTION

From Statutory Offences

Under the Indian law, the offence of murder as defined in section 300 of Indian Penal

Code requires intention. The mens rea required in this section specifically on intention on

limb (a), (b), (c) and (d). Likewise, in attempt of commit murder and culpable homicide not

amount to death also require mens rea where intention is required by definition include the

offence of using criminal force : s. 350, assault : s. 351, extortion : s. 383, cheating : s. 415,

criminal trespass : s. 441, criminal defamation : s. 499, criminal intimidation : s. 503, causing

a breach of peace : s 504, outraging a womans modesty : s. 509, generally offences against

the State under Chapter VI of Penal Code one offences of giving false evidence and offences

against public justice under Chapter XI of Penal Code)

Intention inMens Rea

Intention is the purpose or design with which an act is done. It is the fore-knowledge

of the act, coupled with the desire of it; such fore-knowledge and desire being the cause of

act, in as much as they fulfil themselves through the operation of the will.

InJurisprudence (1957), Salmond defined intention an act is intentional if, and in so

far as it exists in idea before it exist s in fact, the idea realising itself in the fact because the

desire by which is accompanied.

In KD Kaurs book of Criminal Law, he defines intention in the common parlance,

means purpose or desire to bring about a contemplated result or foresight that certain

consequences will be follow from the conduct of a person. A man is presumed to intend the

necessary or the natural and probable consequences of his act; and this presumption will

prevail, unless from the consideration of all the evidence, the Court entertains a reasonable

doubt whether such intention existed or not. In short, a man is said to have intended the

desired act.

Based on the authors approached, intention is a desire of a person before the action

will be taken and mans intention will result in consequence, either directly or indirect. There

are types or degree of intention wrote down by authors and applied from the cases. According

to Cross & Jones, there are two types of intention, direct intention and oblique intention. The


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distinction of intention was drawn by Jeremy Bentham which has two types of intention with

regards to prohibited consequences; direct intention and oblique intention.

A consequences, where it is intentional, may be either directly so, or only obliquely. It may

be so to be directly or lineally intentional, when the prospect of producing it constituted one

of the links in the chain of cause which the person was determined to do the act. It may be

said to be obliquely or collaterally intentional, when, although the consequence was in

contemplation, and appeared likely to ensue on case of the acts being performed, yet the

prospect of producing such consequences did not constitute a link in the aforesaid chain

In direct intention, the Court of Appeal had defined intention in the case of Mohan10

as a decision to bring about, insofar as it lies within the accused power, a particular

consequence, no matter whether the accused desired that consequence of his act or not. By

adopting the definition in the case ofMohan11, the accused acts intentionally with reference

to a particular consequence in the following cases:

a) If he aimed at achieving a particular consequence and believed he was likely to succeed, he

act intentionally with reference to it.

b) If he aimed at achieving a particular consequence although he did not expect that his act

would do so, he acts intentionally with reference to it.

c) If he aimed at achieving a particular consequence (although he did not desire it in itself) in

order to achieve an objective which he desired, he act intentionally with reference to the

particular consequence.

These examples showed that a man can be said to intend and decide a consequence

insofar as it lies within his power to achieve of his desired objective. For oblique intention,

there are two cases that a consequence is said to have been intended obliquely, first case is

when the act was not aimed at but the accused foreseen as certain to result. Second, where a

person foresees that a consequence will probably result from his act, although he does not

aim to produce it.

11[1976] QB 1


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On case Hyam v Director of Public Prosecutions12, 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 constitutes 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 reafor murder.

In the case of R v Nedrick13, on the fact of the case, a child had burned to death in a

house where the defendant had, without warning, put a petrol bomb through the letter box. He

admitted to starting the fire but stated that he only wanted to frighten the owner of the house.

The Court of Appeal overturned the murder conviction and substituted a verdict of

manslaughter as the judge had misdirected the jury. Lord Lane CJ provided a model direction

for a jury about intent in a murder case where the defendant did a manifestly dangerous act

and someone died as a result. Lord Lane CJ suggested that when determining whether thedefendant had the necessary intent, it might be helpful for a jury to ask themselves two

questions: (1) How probable was the consequence which resulted from the defendant's

voluntary act? (2) Did he foresee that consequence? If he did not appreciate that death or

serious bodily harm was likely to result from his act, he cannot have intended to bring it

about. If he did, but thought that the risk to which he was exposing the person killed was only

slight, then it might be easy for the jury to conclude that he did not intend to bring about the

result. On the other hand, if the jury were satisfied that at the material time the defendant

recognised that death or serious bodily harm would be virtually certain (barring some

unforeseen intervention) to result from his voluntary act, then that is a fact from which they

may find it easy to infer that he intended to kill or do serious bodily harm, even though he

may not have had any desire to achieve that result.

12[1975] AC 5513(1986) 83 Cr App 267


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4.2 KNOWLEDGE


In IPC, there are few Sections in which the word knowledge is used as mens rea.For

an example, Section 299 states : ...or with the intention of causing such bodily injury as is

likely to cause death, or with the knowledge that he is likely by such act to cause death,

commits the offence of culpable homicide. Besides this section, the word knowledge is also

used in Section 300(d) ....knows that it is...., Section 166 ...knowingly disobeys the

discretion of the law..... With such many Sections using the word knowledge, however, the

Penal Code does not provide the meaning of either knowledge or knowingly. To establish

that a person can be convicted of crime based on knowledge, we must first proof that the

accused had the knowledge at the time he committed the crime. It is an important thing for usto firstly understan what is meant by knowledge.

Knowledge inMens Rea

Knowledgecan be defined as to know a thing means to have mental cognition of it.

To believe a thing is to assent to a proposition or affirmation or to accept a fact as real or

certain without immediate personal knowledge. Thus knowledge and reason to believe are

to be clearly distinguishedThus belief is somewhat weaker than knowledge but a well -

grounded belief that certain consequences will follow a certain act is ordinarily as good as

knowledge.

Knowledge of the circumstances by virtue of which an act or omission is criminal is

expressly required in the case of many statutory offences. What is said here is of equal

application to those offences where a mere event is required.

Knowledge of the circumstances by virtue of which an act or omission is criminal is

expressly required in the case of many statutory offences on account of the inclusion of sme

such word as knowingly is not the only word which will have this effect, since it merely

says expressly what is normally implied. 14Even when no appropriate word appears in the

definition,a requirement of guilty knowledge is frequently implied by the courts. In Sleep15,

for example, the accused was charged with being in possesion of naval stores marked with

the broad arrow, an offence under a statute of William III which has since been repealed. It

14Roper Taylors Central Garages (Exeter) Ltd [1951] 2 TLR 284 per Devlin J.15(1861) Le &Ca 44; see also Cugullere[1961] 2 All ER 343


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was held that he must be acquitted as there was no proof that he knew that thestores in

question were marked with the broad arrow as was in fact the case. In the opinion of the

Court for Crown Cases Reserved, the fact that the accused ought, as reasonable man, to have

known of the marking was immaterial. Similarly in Sweet v Parsley 16, after a different

opinion had prevailed in the lower courts, the House Of Lords held that a person could not be

guilty of being concerned in the management of premises used for the purpose of smoking

canabis9 an offence which has subsequently been modified) in the absence of proof of

knowledge of such use.

As Lord Devlin has indicated17, there are three degrees of knowledge known to the

criminal law. The first is actual knowledge which maybe inferred from the conduct of the

accused. Where a person has actual knowledge of the circumstances in which he is acting he

is said to act intentionally in relation to them. Knowledge of the second degree consists of

wilful blindness, where a person realise the risk that a surrounding circumstance may exist

and deliberately refrains from making enquiries, the results of which he may not care to have;

this is actual knowledge in the eyes of the law. Wilful blindness is a species of subjective

recklessness with reference to the surrounding circumstances, and it is often called

connivance18.

For the avoidance of doubt, it should be mentioned that guilty knowledge extends

only to circumstances as prescribed in the definition of the offence in question. Thus, a

person is guilty of the offence of knowingly selling intoxicating liquor to such a person, it

being irrelevant, for instance, that he thinks the person is 16 when he is in fact 17 years old.

It sometimes happens that the accused has had the necessary knowledge of

circumstances but has forgotten them at the time of the conduct in question. In such a case he

is treated as having knowledge at the time if he then had the capacity to restore the

circumstances to his mind.

The standard test of knowledge as stated in Cross & Jones is that did the person

whose conduct is in issue either know of the relevant circumstances or have no substantial

doubt of their existence?

16[19790] AC 132,[1969] 1 All ER 347; C.& J. Cases.17Roper Taylors Central Garages (Exeter) Ltd [1951] 2 TLR 284 per Devlin J.18

EdwardsMens Reain Statutory Offences p. 203; see also Ross v Moss [1965] 2 QB 396,[1965] 3 All ER 145


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4.3 NEGLIGENTLY

From Statutory Offence

In India Penal Code, Section 304A state about causing death by negligence Whoever

causes the death of any person by doing any rash or negligent act not amounting to culpable

homicide shall be punished with imprisonment of either description for a term which may

extend to two years, or with fine, or with both. There are other sections that include the word

negligence which are Section 286 and 287.

Negligently inMens Rea

Negligence is inadvertence to the possibility of the consequence occurring. It should

be noted that the above definition of negligence requires that if the accused had stopped to

think about the consequences of his actions he would have had the consciousness.

Applying this to the fact of Elliot v C (A Minor)(1983), if the girl had stopped to consider the

consequence of her actions she would still not, because of her retardation , have had the

necessary

If anything is done without any advertence to the consequent event or result, the

mental state in such situation signifies negligence. The event may be harmless or harmful, if

harmful the question arises whether there is legal liability for it. In civil law (common law) it

is decided by considering whether or not a reasonable man in the same circumstances would

have realized the prospect of harm and would have stopped or changed his course so as to

avoid it. If a reasonable man would not, then there is no liability and the harm must lie where

it falls. The word negligence, therefore, is used to denote blameworthy inadvertence. It

should be recognized that at common law there is no criminal liability for harm thus caused

by inadvertence. Strictly speaking, negligence may not be a form of mens rea. It is more in

the nature of a legal fault. However, it is made punishable for a utilitarian purpose of hopingto improve peoples standards of behaviour.

Criminal liability for negligence is exceptional at common law; manslaughter appears

to be the only common law crime, which may result from negligence. Crimes of negligence

may be created by statute, and a statute may provide that it is a defence to charges brought

under its provisions for the accused to prove that he was not negligent. Conversely,

negligence with regard to some subsidiary element in the actus reusof a crime may deprive

the accused of a statutory defence which would otherwise have been available to him.


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Advertent negligence is commonly termed as wilful negligence or recklessness. In

other words, inadvertent negligence may be distinguished as simple. In the former the harm

done is foreseen as possible or probable but it is not willed. In the latter it is neither foreseen

nor willed. In each case carelessness, to say indifference as to the consequences, is present

but in the former this indifference does not, while in the latter it does prevent these

consequences from being foreseen. The physician who treats a patient improperly through

ignorance or forgetfulness is guilty of simple or inadvertent negligence; but if he does the

same in order to save himself trouble, or by way of a scientific experiment with full

recognition of the danger so incurred, his negligence is wilful. It may be important to state

here that the wilful wrong doer is liable because he desires to do the harm; the negligent

wrong doer is liable because he does not sufficiently desire to avoid it. He who will excuse

himself on the ground that he meant no evil is still open to the reply: - perhaps you did not,

but at all event you might have avoided it if you had sufficiently desire to do so and you are

held liable not because you desired the mischief, but because you were careless and

indifferent whether it ensured or not. It is on this ground that negligence is treated as a form

of mens rea, standing side by side with wrongful intention as a formal ground of

responsibility.

4.4 REASON TO BELI EVE


Section 26 of the Penal Code states, A person is said to have reason to believe a

thing, if he has sufficient cause to believe that thing, but not otherwise.

Reason to Believe inMens Rea

'Reason to believe' involves a lesser degree of conviction than certainty and a higher one than

speculation. The matters which contribute towards a person having reason to believe

something are not those which a court would require as proof of that thing, since 'reason to

believe' is not itself a standard proof, as opposed to that which must be discharged by the

prosecution in persuading the court of the existence of such reason.

4.5 FRAUDULENTLY


In Penal Code S.25 defines Fraudulently:-


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A person is said to do a thing fraudulently if he does that thing with intend to defraud but

not otherwise.

There are many terms of Fraudulently on the sections in Penal Code such as Section 206,

207, 208, 210, 242, 247, 253, 261, 262, 263, 264, 265, and 463. There are also sections that

juxtaposition the term of fraudulently and dishonestly in section 209, 246, 247, 464, 471,

474, 477, 496 of Penal Code.

Fraudulently inMens Rea

There are differences between fraudulently and dishonestly as what had been stated in

the statute and in the case of Vilma, Dr v Delhi Administration19, Dr Vilma purchased a car in

his minor daughters name and got the insurance policy transferred in her name. The car met

an accident the appellant filed two claims against the insurance company and his daughter

sign it and have the receipts acknowledging the payment and compensation. The appellant

was prosecuted under section 467 of Indian Penal Code on insurance companys complaint

that the appellant alleged in fraud. The court interprets within the definition of section 463

and 464 under false document and forgery; both descriptions had the same meaning of mens

rea i.e. fraudulently and intention to commit fraud. Secondly had been noticed two

adverbs dishonestly and fraudulently in section 464 are used alternatively indicatingthereby that one excludes the other. The Indian Penal Code defines them under section 24 and

25 respectively. The word defraud includes an element of deceit which is an important

ingredient of the definition of the word fraudulent but for the definition of dishonestly

illustrated as wrongful gain or wrongful loss. Only either one arises of the issue and not both.

If the expression fraudulently were to be held involved in this case, the element of injury to

the deceived party, it would be reasonable to assume the injury should be something more

than pecuniary or economic loss.

4.6 DI SHONESTLY


In Penal Code S.24 defines Dishonestly:-

19A.I.R 1963 S.C 1572


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Whoever does anything with the intention of causing wrongful gain to one person or

wrongful loss to another person is said to do that thing dishonestly.

There are many terms of Dishonestly on the sections in Penal Code such as Section 209,

415, 247, 378, 383, 403, 404, 405, 411, 420, 421,461, 464, 471, 474, 477 and 496.

Fraudulently inMens Rea

The crime may require the absence of a particular kind of intention, knowledge or

belief. In a crime of dishonesty such as theft and obtaining by deception require absence of

honest intent. A person who has intentionally taken money from another may defend himself

against charged of theft by saying that he took it in order to recoup a debt owed by him. His

intention to obtain payment of the debt can be regarded as an honest intention which removes

the criminality of his intentional taking of the money.

In theft, dishonesty requires the intention to cause wrongful gain or wrongful loss.

This intention to make dishonest exist at the time of moving the property in Sec. 378 in

illustration (h)20and (i)21. Another example is that there is no dishonesty when A pick up his

friendsbook which was carelessly left at the restaurant, intending to return it after he has

read it. On the other hand, if A form an dishonest intention not to return it he may liable for

criminal misappropriation of property. It is wrongful to take property by knowing the

property belongs to another person or, if the property belongs to him, he knows the other

person has a right to retention22. If a person took lost property, there may be criminal

misappropriation but there is no dishonesty intention23.

In criminal misappropriation, mens rea by means of dishonesty, there are three

general points must be taken, firstly, even if the exclusion of the rightful owner form his

property is sufficient to constitute misappropriation, and is regard as causing wrongful

loss to him under terms of section 23, such conduct only be criminal if it can be proved that

the accused had intended to cause wrongful gain or wrongful loss. Secondly, it will be more

20A had committed theft with intention to take the ring and to sell it by hiding from Zs view

so that when it loss is forgotten21A delivers his watch to Z, a jeweller, to be regulated. A not owing any debt from Z for

which the jeweler might lawfully detain the watch as security, enters the shop openly and

took the watch from Zs hand with force. What A did not commit to theft and wa s not done

dishonest although A committed criminal trespass and assault.22Illustration (f) and (j) of section 378 of Penal Code23Illustration (g) of section 378 of Penal Code


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difficult to draw an inference of dishonesty where there has been misappropriation in the

sense of retention. Thirdly, the last point about dishonestly in the context of criminal

misappropriation concerns temporary appropriations.

Mens reafor dishonest appearin the cases of misappropriation, conversion and use of

disposal in violation of law or contract by the entrusted person himself. In context of

Criminal breach of Trust, a series of cases has shown that negligence or a failure to account

for entrusted property does not, without more, constituted dishonestly.

4.7 MAL IGNANTLY


Section 270 of Penal Code state that whoever malignantly does any act which is, and

which he knows or has reason to believe to be, likely to spread the infection of any disease

dangerous to life, shall be punished with imprisonment for a term which may extend to two

years or with fine or with both.. In India Penal Code, Section 304A provide that Whoever

causes the death of any person by doing any rash or negligent act not amounting to culpable

homicide shall be punished with imprisonment of either description for a term which may

extend to two years, or with fine, or with both.

4.8 RASHNESS


This word can be seen in sections 279, 280, 284,, 285, 286, 287, 336 337, and 304.

Rashness inMens Rea

Rashness also not given its meaning by the Penal Code. The question of whether an

accused person has committed a rash act will be determined by looking to what precautions

to be taken by a reasonable person in that circumstance.24In determining whether an act is an

act done with intent or in haste, judgments are made on the consequences of the act. If the

result is likely to occur is low, then the act is usually said to be done with intent.

4.9 WATONLY


24Subba Rao S V (1953) Hyd 95.


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In our Penal Code, Section 153 has the word wantonly appearing.

Watonly inMens Rea

Wantonly, means the doing of a thing recklessly or thoughtlessly, without

regard for consequences. It implies a disposition not evil, but reckless or mischievous. A man

may do anything wantonly, when he has no reason to do it; but he does it because he takes

pleasure in doing it, though he knows that its consequences to others may be serious.


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LIABILITY ANDMENS REA20CHAPTER 5: CONCLUSION

CHAPTER 5: CONCLUSIONLiability as has been said by Salmond is the bond of necessity between the wrongdoer and the

remedy for the wrongful act. If it is of civil nature then the person will provide for the redress

given under the law and if it is criminal in nature then the offender will pay for the penalty

under the law.

To prove penal liability, presence of two things are important, that is actus reusand mens rea

that is a guilty act and a guilty mind. Both ingredients are essential to prove penal liability.

Mens Rea is of various forms, however its categorization on the basis of types of wrongs

gives three different requirements of mens rea. Firstly is the case of intentional wrong where

mens rea is in the form of intention or design. Secondly, is the case of wrong of negligence

where mens rea of a lesser form is taken into consideration such as carelessness as opposed to

wrongful intent or foresight. Thirdly is the case of wrong of strict liability where mens rea

isnt taken into consideration at all.

Intention is the purpose or design with which an act is done. The intention can be specific or

generic. It is found that in Common law generic intent is followed so that even if a person

does an act against someone he did not intend to instead of the person against whom he

intended to then the person does not go scott free but is liable for the offence in the same way

as he would have been otherwise. Same is the case with Indian criminal law which relies

heavily on Common law. Specific intent nowhere applies in the provisions of the Indian

Penal Code and generic intent is what is followed. The perfect example of this can be seen

under Section 301 of the Code.

From the above discussion we see that the conditions of penal liability are sufficiently

indicated by the maximActus non facit rea nisi mens sit rea.A man is responsible not for his

acts in themselves but for his acts coupled with the mens reaor guilty mind with which he

does them. Before imposing punishment, the law must be satisfied of two things: first, that an

act has been done which by reasons of its harmful tendencies or results is fit to be repressed

by way of penal discipline; and secondly, that the mental attitude of doer towards his deed

was such as to render punishment effective as a deterrent for the future, and therefore, just.

The form which mens rea assumes will depend on the provisions of the particular legal

system. Criminal liability may require the wrongful act to be done intentionally or with some

further wrongful purpose in mind, or it may suffice that it was done recklessly; and in each

case the mental attitude of the doer is such as to make punishment effective. If tit


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LIABILITY ANDMENS REA21CHAPTER 5: CONCLUSION

intentionally chose the wrong, penal discipline will furnish him with a sufficient motive to

choose the right instead of the future. If, on the other hand, he committed the forbidden act

without wrongful intention, but yet realizing the possibility of the harmful result, punishment

will be an effective inducement to better conduct in the future.

Yet there are other cases in which, for sufficient or insufficient reasons, the law is

content with a lower form of menss rea. This is the case, as was already noticed, with crimes

of negligence.25

A person may be held responsible for some crimes if he did not do his best as a reasonable

man to avoid the consequence in question. Sometimes, however the law goes even beyond

this; holding a man responsible for his acts, independently altogether of any wrongful state of

mind or culpable negligence. Wrongs which are thus independent of fault may be

distinguished as wrongs ofstrict liability.

25Sir John Salmond regarded inadvertent negligence as a form of mens rea, although inadvertent negligence

does not require any particular state of mind; and this is surely reasonable, since negligent offences defer

sharply from offences not requiring mens rea, i.e. offences of strict liability, which make no allowance for thefact that the accused may have had no fair chance of conforming to the laws requirements; offences of

negligence penalise those who ought to have and could have conformed and were therefore at fault.


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LIABILITY ANDMENS REA22BIBLIOGRAPHY

BIBLIOGRAPHYBOOKS:-

1. Fitzgerald P.J, Salmond on Jurisprudence, 12th edition, Delhi, Universal Law

Publishing Co, 2012.

2. Dr Veena Madhav Tomapi, Textbook on Jurisprudence, Universal Law

Publishing, 2010.

3.

Dr Mahajan V.D, Jurisprudence & Legal Theory, 5th edition, Delhi, Eastern

Book Company, 2008.

4. Pound Roscoe, Juriprudence, Vol 5, The Lawbook Exchange, Ltd., 1959.

5.

Dr Paranjape N.V, Studies in Jurisprudence and Legal Theory, 6th edition,

Allahabad, Central Law Agency, 2013.

WEBSITES:-

onlinelibrary.wiley.com/doi/10.1111/j.1468-2230.1938.tb00388.x/pdf

http://onlinelibrary.wiley.com/doi/10.1111/j.1468-2230.1938.tb00388.x/pdf

http://www.legalserviceindia.com/articles/torts_s.htm

http://www.austlii.edu.au/au/journals/ResJud/1938/76.pdf
http://onlinelibrary.wiley.com/doi/10.1111/j.1468-2230.1938.tb00388.x/pdfhttp://onlinelibrary.wiley.com/doi/10.1111/j.1468-2230.1938.tb00388.x/pdfhttp://www.legalserviceindia.com/articles/torts_s.htmhttp://www.legalserviceindia.com/articles/torts_s.htmhttp://www.legalserviceindia.com/articles/torts_s.htmhttp://onlinelibrary.wiley.com/doi/10.1111/j.1468-2230.1938.tb00388.x/pdf

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