Liability and Mens Rea

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: 6
th

LIABILITY AND MENS REA
2

ACKNOWLEDGEMENT
Apart 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

3
CONTENTS
ACKNOWLEDGEMENT ......................................................................................................... 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 OF MENS 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

4

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 rea in. the early law.
2. Beginnings of the mens rea concept.
3. Subsequent development of a general mens rea as 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 or
penal. 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
5 CHAPTER 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 THEORI ES OF LIABI LI TY
The Theory of remedial liability may 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 be
compelled 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, 12
th
edition, Delhi, Universal Law Publishing Co, 2012, p.349.
2
Ibid, p.350.
3
Ibid.
6 CHAPTER 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 rea or 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 rea
5
.

4
th
edition, Delhi, Universal Law Publishing Co, 2012, p 351.
5
Ibid.
7 CHAPTER 3: MENS REA

CHAPTER 3: MENS REA
Mens Rea
6
derived 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 rea on 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 rea can be connotes as a guilty mind. This mental element had
been stated by Lord Goddard in the case of Brend v Wood
7
, 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 rea as
it varies in other crimes. However, like any other crime, there are other degree depends on the
state of mind of perpetrator. In Commissioner of Sales Tax v. Rama and Sons, General
Merchant, Ballia, the court observed mens rea as "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 rea need be proved. In fact there are many acts which are
offences and do not require proof any mens rea or 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

6
The concept : a blameworthy frame of mind
7
(1946) 175 LT 306
8 CHAPTER 3: MENS REA
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 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 rea
assumes 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
th
edition, Delhi, Universal Law Publishing Co, 2012, p 366.
9
Ibid, p.367.

9 CHAPTER 4: DIFFERENCE KINDS OF MENS REA
CHAPTER 4: DIFFERENCE KINDS OF MENS REA
4.1 I NTENTI ON
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 in Mens 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.
In Jurisprudence (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
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 Mohan
10

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 of Mohan
11
, 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
On case Hyam v Director of Public Prosecutions
12
, 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 rea for murder.
In the case of R v Nedrick
13
, 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 the
defendant 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 55
13
(1986) 83 Cr App 267
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 us
to firstly understan what is meant by knowledge.
Knowledge in Mens Rea
Knowledge can 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.
14
Even when no appropriate word appears in the
definition,a requirement of guilty knowledge is frequently implied by the courts. In Sleep
15
,
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

14
Roper 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
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 indicated
17
, 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
connivance
18
.
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.
17
Roper Taylors Central Garages (Exeter) Ltd [1951] 2 TLR 284 per Devlin J.
18
Edwards Mens Rea in Statutory Offences p. 203; see also Ross v Moss [1965] 2 QB 396,
[1965] 3 All ER 145

4.3 NEGLI GENTLY
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 in Mens 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 hoping
to 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 reus of a crime may deprive
the accused of a statutory defence which would otherwise have been available to him.
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 BELIEVE
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 in Mens 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:-
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 in Mens 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 Administration
19
, 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 indicating
thereby 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:-

19
A.I.R 1963 S.C 1572
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 in Mens 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)
20
and (i)
21
. Another example is that there is no dishonesty when A pick up his
friends book 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 retention
22
. If a person took lost property, there may be criminal
misappropriation but there is no dishonesty intention
23
.
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

20
A had committed theft with intention to take the ring and to sell it by hiding from Zs view
so that when it loss is forgotten
21
A 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 was not done
dishonest although A committed criminal trespass and assault.
22
Illustration (f) and (j) of section 378 of Penal Code
23
Illustration (g) of section 378 of Penal Code
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 rea for dishonest appear in 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 MALI GNANTLY
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 in Mens 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.
24
In 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

24
Subba Rao S V (1953) Hyd 95.
19
In our Penal Code, Section 153 has the word wantonly appearing.
Watonly in Mens 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.

20 CHAPTER 5: CONCLUSION
CHAPTER 5: CONCLUSION
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.
To prove penal liability, presence of two things are important, that is actus reus and 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 maxim Actus 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 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 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
21 CHAPTER 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 of strict liability.

25
Sir 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 the
fact 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.
22 BIBLIOGRAPHY
BIBLIOGRAPHY
BOOKS:-
1. Fitzgerald P.J, Salmond on Jurisprudence, 12
th
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, 5
th
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, 6
th
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

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