Mens Rea

Why the Sanhita never says "mens rea"

This is the paragraph that separates a good answer from a repeated one.

The Penal Code, and the Sanhita after it, were drafted on a deliberate policy of not stating a general doctrine. Macaulay's plan was that each offence should carry its own mental element on its face, in ordinary words, so that a court need never ask an abstract question about the guilty mind and could ask instead whether the words of the section were satisfied.

The result is three things, and all three are examinable.

There is no general mens rea section. There is nothing in the Sanhita corresponding to the maxim.

The mental element is in the definition. Read the section and the mental element is in it, usually in a single adverb.

And the General Exceptions supply the rest. Section 3(1) provides that every definition of an offence, every penal provision and every illustration is to be understood subject to the exceptions in the Chapter entitled General Exceptions, though those exceptions are not repeated. Sections 14 to 33 are, in substance, the situations in which the mind is not guilty even though the act was done.

So the Sanhita's method is: state the mental element in each offence, then subtract the General Exceptions from all of them at once.

How mens rea is proved

No witness can testify to what was in another person's mind. The mental element is therefore always an inference.

From the act itself. A person is presumed to intend the natural and probable consequences of his act. That is a rule of evidence and it is rebuttable; it is not a rule that intention is the same as consequence.

From the surrounding circumstances. The weapon used, whether it was carried or picked up, the part of the body struck, the force used, whether the incident was sudden or premeditated, whether there was prior enmity, whether one blow was struck or many. That list is the Supreme Court's own, set out in Ankush Shivaji Gaikwad, and it is the practical answer to how intention is found.

From what the accused said and did afterwards. Concealment, flight and the fabrication of an explanation are all evidence, though none is conclusive.

The two rules that limit it

Contemporaneity. The mens rea must exist at the time of the actus reus. An intention formed after the act does not make the act criminal, and an intention abandoned before the act does not make an accident murder.

Correspondence. The mens rea must relate to the elements of the offence charged. A person who intends to damage property and accidentally kills has the mens rea of mischief, not of murder, and the law bridges the gap only where a specific provision does so.

Worked example

Sanjay, angry at a neighbour, throws a heavy stone over a wall into the neighbour's yard, where children sometimes play. It strikes a child, who dies.

What mens rea does murder require? Whichever of the states described in the homicide provisions the prosecution alleges. The relevant one here would be knowledge that the act is so imminently dangerous that it must in all probability cause death.

Did he intend to kill? On the facts as stated, no. He intended to throw a stone into the yard.

Did he know death was likely? That is the question, and it is answered by inference: did he know children played there; was the stone heavy enough that a strike would probably kill; did he look before throwing.

Suppose he knew children were there at that moment. Then knowledge of likelihood is much easier to infer, and the offence moves up the scale.

Suppose the yard was always empty and a child had climbed in for the first time that day. Then he neither intended nor knew, and the question becomes whether he was rash or negligent, which is a lesser offence.

What has the example shown? That the actus reus was identical in all three versions, and the offence changed entirely with the mental element. That is what it means to say mens rea is the state of mind the definition requires.

What it does NOT mean

It does not mean an evil motive. A mercy killing is done from a good motive and the mens rea of homicide is present.

It does not mean the accused knew his act was against the law. That is ignorance of law, which is no excuse and has its own chapter.

It does not mean one state of mind for all offences. Kenny's correction is the point of the whole chapter.

And it does not mean the prosecution must prove the mind directly. It proves it by inference, and the presumption that a person intends the natural consequences of his acts is a rule of evidence, not of substance.

Quick revision

• Mens rea is whichever state of mind the definition of the offence requires. There is no mens rea in the abstract.
• Forms: intention, knowledge, rashness, negligence, reason to believe, and the compound definitions.
• Section 2(7) dishonestly; 2(9) fraudulently; 2(11) good faith; 2(29) reason to believe; 2(33) voluntarily.
• The Sanhita never uses the phrase. It writes the mental element into each definition and subtracts the General Exceptions from all of them through section 3(1).
• Proof is by inference: from the act, from the circumstances the Supreme Court listed in Ankush Shivaji Gaikwad, and from later conduct.
• Two limits: contemporaneity and correspondence.

Test yourself

1. Why is it wrong to ask whether the accused "had mens rea"? Because there is no mens rea in the abstract. The question is what state of mind the particular offence requires, and whether the accused had that one.

2. Give three definitions in section 2 that carry a mental element, with their effect. Section 2(7), dishonestly, meaning with the intention of causing wrongful gain or wrongful loss; section 2(9), fraudulently, meaning with the intention to defraud but not otherwise; and section 2(33), voluntarily, meaning by means intended to cause the effect or known or believed on sufficient cause to be likely to cause it.

3. How does the Sanhita carry the doctrine without stating it? By putting the mental element into the words of every offence, and by section 3(1), which applies the General Exceptions to every definition in the statute even though they are not repeated in it.

4. State the two rules that limit mens rea. Contemporaneity, that the guilty mind must exist at the time of the act; and correspondence, that it must relate to the elements of the offence charged.