This Project has been submitted by

DEBASMITA HALDAR

ID No: 212079

On IPC

During the Monsoon Semester 2013

Application of Mens Rea in Offences Relating to Human Body

INTRODUCTION
Mens rea or wrongful intention, is one of the essential constituent elements of criminal
liability. Mens rea followed by actus reus, the wrongful act, constitutes a crime. Mens rea is
the mental element that is required for the commitment of a crime. The Latin maxim actus
non facit reum nisi mens sit rea explains the principle underlying the doctrine of mens rea:
an act does not make one guilty unless the mind is also guilty or legally blameworthy.
1
An
act is per se not criminal, the commission of it by the actor with a guilty mind renders the
criminal liability and makes it punishable, except in offences of strict liability. In the Indian
Penal Code 1860, there is no express mention of mens rea in the definition of crimes or
their punishments, but terms such as wrongful gain or wrongful loss, dishonestly, reason
to believe, voluntarily, malignantly, intentional cooperation, fraudulently, criminal
knowledge or intention in respective provisions prove mens rea as the essence of the crimes.
Chapter XVI of the Code containing sections 299 to 377 discuss the offences affecting the
human body. The prime motive for these offences are revenge or commission of other crimes
which may or may not be a crime against the human body. Offences against life (culpable
homicide, murder) including life of unborn person, hurt (including grievous hurt), restraining
the liberty of individuals (wrongful confinement, kidnapping, abduction), assault or criminal
force and sexual offences are classified as offences against human body. This essay goes on
to research the element of mens rea in culpable homicide and murder how mens rea can be
used to differentiate between the two, and the mens rea of consent in rape.

LITERATURE REVIEW
CULPABLE HOMICIDE AND MURDER: DIFFERENCE
The provisions relating to culpable homicide and murder are sections 299 and 300 IPC,
respectively. The presumptions of law while attempting to separate the two from each other
are that every person of sane mind intends to the natural consequences of his acts and that

1
K I Vibhute, PSA Pillais Criminal Law (Lexis Nexis Butterworths, 10
th
edn, 2008)
knowledge is one of the media to determine intention. The main ingredients of culpable
homicide are:
a. Actus reus: there must be a death of a person
b. Mens rea: there should have been an intention of causing death or intention to cause
bodily injury, or, knowledge that such act is likely to cause death.
c. Conduct: could be done by an act or omission by another person.
To test whether an act qualifies as culpable homicide, the principle of causa causans is
applied. It is to verify whether the death caused is a direct result of the act committed by the
accused. In Moti Singh v State of Uttar Pradesh
2
, the accused took the plea that there was no
nexus between the conduct and the death. The court held that if the actus reus is death, the
cause of death must be disclosed or else a case for death cannot be made. In this case, there
was no evidence to establish the cause of death and the accused was acquitted. The
connection between the primary cause and the death should not be too remote. In Rewa Ram
v State of Madhya Pradesh
3
, eye witnesses saw wife in a pool of blood and the husband
holding a knife. She was admitted in a hospital, operated on and thereafter, developed
hyperpyrexia. The doctor said that she died of hyperpyrexia and not the injuries. The Court
relied on explanation 2 to s. 299 and observed that if the supervening causes are attributed to
the injuries caused, then the person inflicting the injuries is liable for causing death even if
death was not the direct result of the injuries. In this case, the husband stabbed her due to
which she had to be operated on and the post-operative starvation caused her death. Thus,
hyperpyrexia was not independent of the multiple injuries and as such the accused had
caused her death and was convicted for murder.
In culpable homicide, intention does not always mean preplanning or premeditation to kill a
person. The expectation that an act is likely to cause death is sufficient enough to constitute
intention. The presumption is that a sane man expects the natural consequences of his acts
and thus while performing an act if he, either (a) expects death as a consequence or (b)
expects a dangerous bodily injury as a consequence or (c) knows that the act is likely to cause
death, he is liable for culpable homicide not amounting to murder. However, intention is a
question of fact and the absence of intention on part of the accused to cause the injury that he
did, can be used as a mitigating factor. Many a times, intention and knowledge are used

2
AIR 1964 SC 900, (1964) CrLJ 727 (SC)
3
(1978) CrLJ 858 (MP)
interchangeably. However, they are different. Basdev v State of Pepsu
4
drew a difference
between intention and knowledge. Motive is something which prompts a man to form an
intention. Knowledge is an awareness of the consequences of the act. In many cases,
intention and knowledge merge into each other and mean the same thing more or less and
intention can be presumed from knowledge.
5
The usage of the word likely in s. 299 and of
know in s. 300 reflects culpable homicide being the genus and murder being its species.
Generally, direct proof of intention is not easy to obtain but it can be determined from the
action of the person and the surrounding circumstances such as motive of the accused, nature
of the attack, time and place of attack, nature of the weapon used, nature of the injuries
caused.
6

Section 300 IPC discusses culpable homicide amounting to murder. The ingredients are:
1. Intention to cause death
2. Intention to cause bodily injury knowing that the injury caused is likely to cause death
3. Intention of causing bodily injury sufficient in the ordinary course of nature to cause
death
a. Knowledge that the act is so imminently dangerous that in all probability it
will cause death or bodily injury likely to cause death
b. Such act should be without justification
The Supreme Court distinguished between culpable homicide and murder in the case Reg v
Govinda
7
. Section 300 contains 4 clauses. The first clause is the simplest about the action
of a person with a clear intention of killing another. The second clause to s. 300 generally
applies to situations where the accused has a particular knowledge about the victims health
condition so he intentionally inflicts bodily injuries on him knowing the likelihood of them to
cause death. Thus, the knowledge here is subjective knowledge. The words likely and
knowledge together in the section signify the certainty of death, not a mere probability.
Clause 3 to s. 300 has an objective requirement sufficiency of the injury in the ordinary
course of nature to die. The apex court, in Virsa Singh v State of Punjab
8
laid down four
steps to identify the above requirement:

4
AIR 1956 SC 488
5
Ibid
6
K I Vibhute, PSA Pillais Criminal Law (Lexis Nexis Butterworths, 10
th
edn, 2008) 788
7
(1876) ILR 1 Bom 342
8
AIR 1958 SC 465
1. Presence of bodily injury
2. Nature of injury (on a vital organ or a stab wound etc.) objective standard of
investigation
3. Presence of mens rea whether the accused inflicted injury with/without intention
4. Whether that particular injury is sufficient in the ordinary course of nature to cause
death objective and inferential, and is independent of intention.
Hence, the sum approach is that knowledge of consequence is not important if the act is
sufficient to kill a person. In clause 4 of this section, mens rea is directed towards general
people. The act is dangerous for any general person. Mens rea is not directed towards any
specific person. The ingredients are:
1. The act must be imminently dangerous
2. There must be knowledge that the act is imminently dangerous
3. The act will cause death or bodily injury as is likely to cause death
4. The act should be done without any reason or justification
In Sehaj Ram v State of Haryana
9
, the Supreme Court held that cl (4) of s. 300 would be
applicable where the knowledge of the offender as to the probability of death of a person
approximates to a practical certainty. Such knowledge on part of the offender must be of the
highest degree of probability.
10

All murders are culpable homicides but all culpable homicides are not murders. The
distinguishing factor between culpable homicide and murder is the degree of intention and
knowledge. Greater degree of intention and knowledge means the act qualifies as culpable
homicide amounting to murder while lesser degree of intention and knowledge qualifies the
act to be culpable homicide not amounting to murder. So, a sum approach of differentiating
between the two in steps is as follows:
1. Presence of actus reus death of a person due to an act by another
2. The act causing death should not be a result of accident or any exception under IPC
and the intention of the accused should not be to merely cause hurt or grievous hurt
but homicide

9
AIR 1983 SC 614
10
Ibid 6
3. Prove whether there was an intention to cause death or bodily injury likely to cause
death or knowledge that the act would cause death followed by determining which
clause of section 300 the act would fall under
4. If the act falls under any of the clauses of s. 300, it should be checked if it falls under
any of the exceptions mentioned in the same section. If it does not fall under the
exceptions, then it is murder.
If the act does fall under the exceptions, it is culpable homicide not amounting to
murder.

MENS REA OF CONSENT IN RAPE
The sexual offence of rape in IPC is discussed in s. 375. The essence of the offence is sexual
intercourse by a man with a woman against her will and without her consent under the
following circumstances:
i. Against her will
ii. Without her consent
iii. With consent, by putting her or any other person in whom she is interested, under fear
of death or of hurt
iv. With consent given under misconception that the man was her husband
v. Consent given by reason of unsoundness of mind or under intoxication
vi. Women under sixteen with or without consent
In Tukaram v State of Maharashtra
11
, popularly known as the Mathura rape case, the sessions
court acquitted the accused on the ground of tacit consent. On appeal, the High Court
convicted the accused and said that the sessions court made a mistake by failing to
differentiate between consent and passive submission. It held that mere submission
induced by threats or fear does not equal to desire or volition and that, even cases of passive
consent amount to rape. However, the Supreme Court reversed the judgment saying that the
High Court was wrong in equating passive submission to rape since there is no provision for
submission in IPC. The judgment was highly criticised on grounds of human rights. In Rao
Harnam Singh, Sheoji Singh v State
12
, court differentiated between consent and submission:

11
AIR 1979 SC 185
12
AIR 1958 Punj 123
1. Helpless resignation due to inevitable compulsion, quiescence, non-resistance, passive
submission when volitional faculty is influenced by fear or duress cannot be deemed
to be consent.
2. For the woman to avail consent as a defence, it has to be voluntary participation, not
only after the exercise of intelligence, based on the knowledge, of the significance and
moral quality of the act, but after having freely exercised a choice between resistance
and assent.
3. Submission of body under fear or terror is no consent. Every consent involves a
submission but the converse is not true.
4. Consent of the girl in order to relieve an act, of a criminal character like rape, must be
an act of reason, accompanied with deliberation, after the mind has weighed as in a
balance, the good and evil on each side, with the existing power and capacity to
withdraw the assent according to ones will or pleasure.
5. A woman is said to be in consent only when she freely agrees to submit herself, while
in free and unconstrained, possession of her physical and moral power to act in the
manner she wants.
13

Amendments made in Law of Rape vide Act 43 of 1983 included a provision 114A in the
Indian Evidence Act 1872 whereby if in the offence of rape, sexual intercourse is proved and
woman states that she did not give consent, there has to be a mandatory presumption of rape.
The Criminal Law (Amendment) Act, 2013 discusses consent regarding rape:
1. Consent must be contemporaneous with the act of sexual intercourse or else the act
qualifies as rape
2. If a woman gives consent at the time of rape, then also the act qualifies as rape
3. Every coitus is an act of rape if the woman does not consent to the first coitus and
then consents to the subsequent ones.
4. Any act of woman which may imply consent, will not qualify as consent
5. Immoral character of woman irrelevant for determining rape
6. Absence of injury on the body of victim is not per se a conclusive proof of submission
it can still qualify as rape.
Under English law, the mens rea in rape comprises two elements:
1. A does not reasonably believe B consents

13
K. D. Gaur, The Indian Penal Code (Universal, 4
th
edn, 2009) 653
2. Whether a belief is reasonable is to be determined having regard to all the
circumstances, including any steps A has taken to ascertain whether B consents.

CONCLUSION
Mens rea or guilty intention is the sine qua non of a criminal act and thus, an essential
element of crime. Modern philosophy of penology growingly approves mens rea as an
essential ingredient in a criminal offence since reformation and rehabilitation of criminals
have become the main object of criminal law, and not retribution. To determine mens rea is to
determine the mental faculties of the offender that drove him to commit a crime. It is a
conscious exercise and is used in relation to the consequences of an act, not the act itself.
















BIBLIOGRAPHY

1. Vibhute K. I., PSA Pillais Criminal Law (Lexis Nexis Butterworths 2008)
2. Ratanlal & Dhirajlal, The Indian Penal Code (Wadhwa 1999)
3. Gaur K. D., The Indian Penal Code (Universal 2009)
4. Sarvaria S.K., RA Nelsons Penal Code (Lexis Nexis Butterworths 2008)