49

CHAPTER –2

MENTAL ELEMENTS IN CRIMINAL ATTEMPT

2.1 General

The history of criminal law is a fundamental necessity for modern society

where rule of law prevails. In every society certain acts of commission or omission are

forbidden on pain of punishment which may even extend to the extinction or

termination of life itself. There is no crime, large or small, without an evil mind.1 So,

every crime requires a mental element. The nature of mental element will depend upon

the definition of the particular crime in question. Mental element varies depending on

the offence. When criminal policy of a country regards some act as sufficiently harmful,

it prohibits it and seeks to prevent its occurrence by providing a penalty or punishment

for its commission.

It is not proper to punish a person for criminality unless he had knowledge that

he was doing wrong. The true test of criminal liability has been gradually developed.

In olden time only the most serious crimes were recognized and were singled out for

punishment. But in the process of development some fundamental principles were

adapted to reform and refine the system of administration of criminal justice.

The first and foremost principle speaks that nobody should be held liable

unless he had the evil intent to commit it, and the second principle provides the law that

the accused should be presumed to be innocent unless he was proved to be guilty. The

1
Bishop, Criminal Law, 9th edition, 1923, p. 287.
 50

former principle was taken from a Latin maxim i.e. actus non facit reum nisi mens sit

rea, and it was first cited as a principle by Lord Kenyon C.J in Flower v. Pedget2. Thus

“it is a principle of natural justice and of our law that actus non facit reum nisi mens sit

rea” prevails.

The main source of this maxim is St. Augustine‟s Sermones where he had

said: “ream linguam non facit nisi mens rea”.3 It was modified by Coke the famous

jurist as “ Et actus non facit reum nisi mens sit rea” which means “an act does not make

a person legally guilty unless the mind is legally blameworthy”. The word “reum” is an

objective which does not qualify the noun “actus” but does qualify the implied noun

hominem. It is therefore a subjective epithet and signifies legally guilty, punishable as a

criminal. On the other hand the word “rea” does qualify the noun “mens” but not in the

same subjective sense. The noun “actus” is of full generic import in the maxim which

could be slightly enlarged and paraphrased as “Whatever the deed a man may have

done, it cannot make him criminally punishable unless his doing of it was actuated by a

legally blameworthy attitude of mind”4.

In recent time this doctrine has been accepted as a leading doctrine of criminal

law. The gist of the maxim says that there are two necessary elements in a crime,

namely, physical element and secondly a mental element. Physical element is

technically known as actus reus and mental element is known as mens rea.

2
(1978) 7 T. R. 509
3
Sermones, no. 180, c.2; cited in Pollock and Maitland, II, 476 n. 5
4
Ibid
 51

Another maxim is also very significant in this context, namely, “actus me

invito factus non est mans actus”, which means an act done by me against my will is

not my act. This principle has given subsequent development to the notion of mens rea

as it brings in several other states of mind, namely, will, intention, motive, and so on. It

also provides that there is no liability where an act is done in absence of mens rea, for

example, compulsion, mistake, infancy, insanity, intoxication, necessity and so on.5 No

act is per se criminal, the act becomes criminal when the actor does it with a guilty

mind. In Brend v. Wood, Lord Goddard, CJ Said:6

It is of utmost importance for the protection of liberty of the subject that a

court should always bear in mind that, unless a statute either clearly or by necessary

implication rules out mens rea as a constituent part of a crime, the court should not find

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

necessary element of the crime and it advocated that the criminal act must be voluntary

or purposeful. Mens rea is almost always a necessary component in order to prove that

an unlawful act has been committed.

Stallybrass 7 observed that mens rea did involve moral blame, and did mean a

guilty mind. Justice Devlin8 said that mens rea consists of two elements. First of all, the

intent to do an act and secondly, knowledge of the circumstances also that makes that

act a criminal offence. Lord Atkinson observed „a man is presumed to intend the natural

5
R. C. Nigam, Principles of Criminal Law, vol.I, 1965, p. 41
6
(1946) 62 TLR 462
7
Stallybrass, The Modern Aproach to Criminal Law, 293(1945)
8
Devlin, The Statutory Offences 401(1958)
 52

consequences of his own act‟.9 Sayre10 explained to mean the criminal intent to convict

normal adults acting without compulsion for crime other than public welfare offence

which is not based upon negligence and does not require any particular form of specific

intent.

Pollock and Maitland11 observed: “Law in its earliest days tries to make men

answer for all the ills of an obvious kind that their deeds bring upon their fellows.”

Until the 12th century the modern concept of mens rea was illusory but criminal intent

was not exclusively disregarded in some offences where it was taken into account in

awarding punishment. In the 13th century Roman law and its conceptions of Dolus and

Culpa influenced the English law. During 14th and 15th century the idea was that mens

rea is essential ingredient to constitute a crime was satisfactorily established. During the

16th century the law was developed that if there is criminal intention which is

unaccompanied by an act, it will not be punishable. This concept became more

prominent in England during the latter part of the Common Law era (about 1600 AD)

when judges began to hold that an act alone could not create criminal liability unless it

was accompanied by a guilty state of mind. Modes of culpability and the levels of guilty

mind vary as precedents and statutes vary.

Several of the common law crimes have always required a subjective mental

element of a specific kind either from their very nature or from their earliest recorded

definitions; such are incitement, conspiracy, rape, robbery, larceny, perjury, forgery and

9
P.P. v. Bernard, 1920 AC 497 (HL)
10
Sayre, The Present Significance of Mens rea in the Criminal Law, 411(1934)
11
Pollock and Maitland, History of English Law II, 470
 53

breaking house.12 Many of the major crimes carry the requirement that the prosecution

should prove beyond all reasonable doubt that the accused intended the consequences

prescribed by law. Intention shows the nature of the act which the man believes he is

doing.

In R v. Tolson 13 Stephen, J said that „the full definition of every crime

contains expressly or by implication a proposition as to a state of mind‟. Although the

mental elements are basically simple, the courts have enveloped them in considerable

confusion, partly because they feel a continual need to expand criminal liability on

social or moral grounds.14 The easiest way to do this is to stretch the meaning of the

words used to define the liability.15 As a result of this, doubts still remain about the

legal meaning of the mens rea words. It is lamentable that, after more than a thousand

years of continuous legal development, English law should still lack clear and

consistent definitions of words expressing its basic concepts.16 Lord Simon in DPP v.

Majewski17 observed that, „mens rea’ is…the state of mind stigmatized as wrongful by

the criminal law which, when compounded with the relevant prohibited conduct,

constitutes a particular offence. Mens rea refers only to the mental state which is

required by the definition of the offence to accompany the act which produces or

threatened the harm.

12
Kenny‟s Outlines of Criminal Law, edited by J. W. Cecil Turner, 19th edition, 2006
13
(1889) 23 QBD 168 ATP. 187
14
Glanville Williams, Textbook of Criminal Law (second edition.1983) p. 73,75.
15
Ibid
16
Ibid
17
[1977] AC 443
 54

In Ravule Hariprasad Rao v. State18 the Supreme Court ruled that unless a

statute either clearly or by necessary implication rules out mens rea as a constituent

element of a crime, a person should not be held guilty of an offence unless he had guilty

mind at the time of commission of the act.

The principle of mens rea may also be claimed to enhance the constitutional

values of legality and rule of law, by comforting citizens that they will be liable to

conviction, and to the exercise of state coercion against them, only if they knowingly

cause acuts reus of a particular offence. In a case19 the court laid down that it is a well

settled principle of common law that mens rea is an essential ingredient of criminal

offence. Doubtless a statute can exclude that element, but it is a sound rule of

construction adopted in English law and also accepted in India to construe a statutory

provision creating an offence in conformity with the common law rather than against it

unless the statute expressly or by necessary implication excluded mens rea.

In R v. Williams20 while discussing the offence of assault it was said that

mental element necessary to constitute guilt is the intent to apply unlawful force to

victim. The mental element can be substantiated by simply showing intent to apply

force and no more.

Since mens rea is one of the essential ingredients of criminal liability,

attention was thus more strongly directed to the mental element in crime, and the moral

notion gradually crystallized into a rule of law. The essence of the principle of mens
18
[1951] SCR 322
19
State of Maharashtra v. M.H. George, AIR 1965 SC 722
20
[1987] 3 All ER 411
 55

rea is that criminal liability should be imposed only on persons who are

sufficiently aware of what they are doing, and of the consequences it may have,

that they can fairly be said to have chosen the behavior and its consequences.

This approach is grounded in the principle of autonomy: individuals are regarded

as autonomous persons with a general capacity to choose among alternative

courses of behavior, and respect for their autonomy means holding them liable

only on the basis of their choices. 21

Motive is not to be confused with mens rea. Both are different things. In

Ramreddy Rajesh Khanna Reddy v State of A. P.22, the court held that intention is where

an essential element of a crime, motive is not in itself so effective that on the basis of it

guilt can be proved. Where direct evidence is available, there it is not material, but in

case of circumstantial evidence, it is material.23 Motive, though not a sine qua non for

the offence it is relevant on the question of intention. Intention is the purpose or devise

with which an act is done. Austin24 observed that the intention is the aim of the act, of

which the motive is the spring.

The law of criminal attempt is itself a difficult task. The factors that contribute

to the unusual state of the law at present are: first, a lack of a precise legislative

definition of the inchoate offences; second subjective and objective element (i.e mens

21
Cf. A. Brudner, “Agency and Welfare in Criminal Law,” in S. Shute, J. Gardner, and,
J.Horder (eds) Action and Value in Criminal Law (1993).
22
(2006) 10 SCC 172: (2006) 3 SCC (Cri) 512: AIR 2006 SC 1656
23
Major Singh v. State of Punjab, (2006) 10 SCC 499: (2007) 1 SCC (Cri) 118
24
Austin, Lectures on Jurisprudence (4th edition. 1879) 165
 56

rea and actus reus respectively) varying considerably with the nature of the substantive

offence attempted; and third of possibility of a „broad‟ or „narrow‟ interpretation of the

offence by the courts in view of prevailing penal policy.25

2.2 Nature and Classification of Mental Element

Mental element is a component of an offence. In the entire field of Criminal

law there is no more significant doctrine than that of mens rea. In developing the idea of

moral blame as the basis of responsibility for harm done the churchmen were doubtless

influence not only by religious doctrines of sin but also by the principle of Roman law

in which they were trained. That law had early achieved a separation of civil and

criminal wrongs, and had recognized a mental element in liability, expressed in the

distinction between dolus, culpa lata, and culpa levis. It was through the work of

ecclesiastics that English law had begun to learn from the more cultured and refined

Roman system. Again, in the records of the terms upon which the royal pardon was

granted there can be found traces of variation to accord with the degree of blame which

was found in particular case. So, attention was directed to the mental process of the

wrongdoer, and it is in this period when so many legal principles were germinating that

can be found not only the origins of the rule in tort but also enunciated the great

principle of common law that a guilty mind is an essential element in criminal

responsibility26.

25
B.B. Panday, „An Attempt on Attempt‟ (1984) 2 SCC (Jour) 42.
26
J. W.Cecil Turner, Russell on Crime, 12th edition, vol.1 p. 22
 57

Mens rea is a technical term. It is translated as „guilty mind‟. Only voluntary

conduct warrants criminal liability and voluntary conduct includes at least knowledge of

the risk of harm. For example, D sets fire to a house and P who is in the house is burned

to death. The question is: did D intend to kill P? D may have set fire to a house- i) with

the purpose to kill P. Alternatively, D may have set fire to the house not for the purpose

of killing P but for the purpose of collecting the insurance money. If when he applies

the match he knows that P is in the house, he may believe that it is certain that P will die

or it is highly probable that P will die or believed that it is probable that P will die; or

believed that it is possible but improbable that P will die.27 In order to support a charge

of attempting to commit a crime, it must be shown that the defendant intended to

commit the completed crime to which the charge relates. A crime (or offence) is a legal

wrong that can be followed by criminal proceedings which may result in punishment.28

Mens rea is the state of mind indicating culpability, which is required by

statute as an element of a crime.29 The term mens rea has been given to volition, which

is the motive force behind the criminal act.30 It is also one of the essential ingredients of

criminal liability. 31 The intent and the act must both concur to constitute the
32
crime. The principle of mens rea may also be claimed to enhance the

constitutional values of legality and rule of Law, by reassuring citizens that they

27
J. C. Smith and Brian Hogan, Smith and Hogan Criminal Law 5th edition, 1983, p. 48
28
Supra note 14, p. 14
29
Staples v. United States, 511US 600(1994)
30
State v. B D Meattle, AIR 1957 Punj. 74, 1957 Cr. L. J.
31
State of Maharashtra v. Mayer Hans George, AIR 1965 SC 722
32
Fowler v. Padget (1798) 7 T. R. 509
 58

will be liable to conviction, and to the exercise of state coercion against them,

only if they knowingly cause or risk causing a prohibited harm.

Many of the major crimes carry the requirement that the prosecution should

prove beyond all reasonable doubt that the accused intended the consequence prescribed

by law. In Hyam v. DPP33 Viscount Dilhorne observed that a man may do an act with a

number of intentions. If he does it deliberately and intentionally, knowing when he does

it that it is highly probable that grievous bodily harm will result, and most people would

say and be justified in saying that whatever other intentions he may have had as well, he

at least intended grievous bodily harm.

Lord Diplock took the “uncomplicated view” that :

“No distinction is drawn between the state of mind of one who does an act

because he desires it to produce a particular evil consequence and the state of mind of

one who does the act knowing well that it is likely to produce that consequence

although it may not be the object he was seeking to achieve by doing the act.”

Where mens rea of any kind is required for conviction it is a defense to show

that the accused was incapable of forming or holding the requisite mens rea, as by

reason of infancy, unsoundness of mind or diminished responsibility.34 Nature of the

mental element depends upon the definition of particular crime. In R Balakrishna Pillai

v. State of Kerala35 the court held that “the general principle of criminal jurisprudence is

33
[1975] AC 55, [1974] 2 All ER 41.
34
Walker: Oxford Companion to Law (1980), p. 832.
35
(2003) 9 SCC 700
 59

that the element of mens rea and intention must accompany the culpable act or conduct

of the accused…. Criminal offence vary in that some may require intention as the mens

rea, some require only recklessness or some other state of mind and some are even

satisfied by negligence. The verity in fact goes considerably further than this in that

only do different offences make use of different types of mental element, but also they

utilize those elements in different ways.”

2.2.1 Intention

Intention is used to denote the state of mind of a man who not only foresees

but also desires the possible consequences of his conduct. There is only one state of

mind acknowledged in the definition of crime and that is intention. The accused must

act with the intent to commit the offence. 36 Stephen observed 37 that intention is the

direction of conduct towards the object chosen upon considering the motive which

suggests the choice. “Criminal intention” can be explained as the purpose or design of

doing an act prohibited by the criminal law without just cause or excuse. The intention

of the accused to create a particular consequence shows his intention to do that act. An

act is deliberate if it exists in idea before it exists in fact, the idea realizing itself in the

fact because of the desire by which it is accompanied.

The Compact Oxford English Dictionary defines intention in this way: “that

which is intended or purposed; a purpose or design, ultimate purpose; the aim of an

action….” Expressions connoting the requirement of a mental element include: “with

36
Duncan Bloy, Criminal Law, 1st edition (1993) p. 101
37
Stephen, A History of the Criminal Law of England, vol. 2.
 60

intent”, “recklessly”, “unlawfully”, “maliciously”, “willfully”, “knowingly”, “knowing

and believing”, “fraudulently”, “dishonestly”, “corruptly”, “allowing” and “permitting”.

Australian and English common law generally attribute a threefold meaning to

intention. A person will be held to intend something if:

i) it was their direct aim or purpose;

ii) they knew that it was absolutely certain to occur as a result of pursuing that

direct aim or purpose; or

iii) They knew that the consequence was “virtually certain” to occur.38

There is no statutory or judicial definition of the term „intention‟. Jurist

nevertheless may be given “guidelines” in the very few cases which they are unable to

make a decision on the testimony before them. In an Australian case it was held that if a

person does something that is virtually certain to result in another event occurring and

know that event is certain or virtually certain to occur, for legal purposes at least he or

she intends to occur.39Intention is the most culpable form of mens rea.

The fundamental principle of Criminal Law is that a crime consists of both

mental and physical element. Mens rea, a person‟s awareness of the fact that his or her

conduct is criminal, is the mental element, and, actus reus, the wrongful act itself is the

physical element The mental element required to constitute many serious crimes is

38
Mark Findlay and Ralph Henham, International and Comparative Criminal Justice, Codification of
Macaulay and the Indian Penal Code, Edited by Wing-Cheong Chan, Barry Wright, and Stanley Yeo,
p. 74
39
R v. Peters (1998) 192 CLR 493
 61

intention to bring about the elements of the crime in question; such crimes can be

committed only by intention.40

In Director of Public Prosecutions v. Smith41 the court held that there is an

irrebuttable presumption of law that a person foresees and intends the natural

consequence of his acts. Proof that he did an act the natural consequence of which was

death, was conclusive proof that he intended to kill, in the absence of evidence of

insanity or incapacity to form intent. The direct evidence has a very important part to

infer the intention of the accused42.

On a charge of manslaughter, for example, it remains unnecessary to prove

that D intended to foresee that death was likely to result from his act. 43Some crimes,

such as murder, are defined in terms of acts causing a particular result associated with

mental element which need not to be intent to bring about the result. If A, B and C have

each taken the life of another, A acting with intent to kill, B with an intent to do serious

bodily injury, and C with a reckless disregard of human life, all three are guilty of

murder because the crime is defined in such a way that any one of these mental states

will suffice. However, if the victims do not die from their injuries, then only A is guilty

of attempted murder; on a charge of attempted murder it is not sufficient to show that

the defendant intended to do that he acted in reckless disregard for human life.

40
Hulsbury‟s Laws of England, Vol – II, 4th edition, p. 10.
41
[1961] AC 290 [1960] 3 All ER 161;
42
Jayawant Dattatray Suryaro v. State of Maharashtra, (2001) 10SCC 109
43
Director of Public Prosecutions v. Newbury, [1976] 2 All ER 365.
 62

Intention is very important ingredient for criminal attempt, so that attempted

murder requires intent to bring about that result described by the crime of murder. To

obtain a conviction on the charge of murder, the indictment must charge a specific

intent to commit the specific offences.44

In People v. Frysig,45 the court analyzed the history and language of criminal

attempt Statute and concluded that the General Assembly intended to incorporate the

traditional rule that an actor may be found guilty of criminal attempt only if he intends

to commit the underlying crime, i.e., if he intends to perform the acts and bring about

the results proscribed by Statute, in reaching this conclusion, it is distinguished between

the intent necessary to establish a criminal attempt and the culpable mental state of

underlying crime. In order to be guilty of criminal attempt, the actor must act with the

kind of culpability otherwise required for commission of the underlying offence, and

must engage in conduct which constitute the substantial step with further intent to

perform acts which, if completed would constitute the underlying offence.

The manifestation of dangerousness is as great or very nearly as great as in the

case of purposive conduct. In both instances a deliberate choice is made to bring about

the consequences forbidden by the criminal law, and the actor has done all within his

power to cause this result to occur. The absence in one instance of any desire for the

forbidden result is not, under these circumstances, a sufficient basis for differentiating

between the two types of conduct. An attempt to commit an offence is an act, or series

44
People v. Viser (1975) 62 Ill, 2d 568, 581, 343 N. E. 2d 903, 910
45
628 p.2d 1004 (Colo. 1981)
 63

of acts, which led inevitably to the commission of the offence, unless something, which

the doer of the act or acts neither foresaw nor intended happened to prevents this. An

act done towards the commission of an offence which does not lead inevitably to the

commission of the offence unless it is followed and perhaps, preceded by other acts is

merely an act of preparation. 46 Intention is the most noteworthy element of every

offence including criminal attempt.

Common intention

47
In Nanda Kishore v. State of M.P. it was held that under criminal

jurisprudence “mens rea” and “common intention” are distinct and different. The court

has observed:

…referring to the common intention, it needs to be clarified that the courts must keep in

mind the fine distinction between „common intention‟ on the one hand and „mens rea’

as understood in criminal jurisprudence on the other. Common intention is not alike or

identical to mens rea. The latter may be coincidental with or collateral to the former but

they are distinct and different.

Section 34 of the Indian Penal Code, 1860 says that when a criminal act done by

several persons, in furtherance of the common intention of all, each of them is liable for

that act in the same manner as if it were done by him alone. “Common intention”

implies a prearrange plan and acting in concert pursuant to the plan. It shall be prove

46
State v. Narayan Singh, AIR 1989 SC1789
47
(2011) 12 SCC 120: AIR 2011 SWC 2775
 64

that the criminal act done in concert pursuant to the pre-arranged plan. Like many other

statutory provisions,

In Sharif Ahmad Alias Achhan48 the court held that common Intention comes

into being prior to the commission of the act in point of time, which needs not to be a

long gap. Under this section a pre-concert in the sense of a distinct previous plan is not

necessary to be proved.49

The essence of liability is to be found in the existence of a common intention

animating the accused leading to the doing a criminal act in furtherance of such

intention. It must be shown that the criminal act complained against was done by one of

the accused person in furtherance of the common intention of all; if this is shown, the

liability for the crime may be imposed on any one of the person in the same manner as

if the act were done by him alone.50

Common intention does not mean similar intention of several persons. To

constitute common intention it is necessary that the intention of each one of them be

known to the rest of them and shared by them. 51 Where common intention was

established the mere fact that one the culprits distanced himself from the scene could

not absolve him from liability.52In this case, the evidence established that the accused

persons encircled the informant and the other witnesses and inflicted injuries with

48
(1965) 2 All 188
49
Ratanlal & Dhirajlal, The Indian Penal Code, 30th edition, 2004, Reprint 2007,p.36
50
Nandu Rastogi v State of Bihar, AIR 2002 SC 3443
51
Jillu Ahir, (1949) All 127
52
Lallan Rai v State of Bihar, AIR 2003 SC 562
 65

deadly weapons. They were convicted under Section 34/302 of IPC though no charge

was framed under Section 34 of IPC. Where one of the co-accused exhorted the accused

person to kill the victim, only the other co-accused shot at the victim. Thus the

witnesses attributed no role to the accused. In the second shooting also in which some

of the witness were injured no overt act was attributed to the accused. The second

shooting could not be a part of the common intention to kill the victim. The court held

that Section 34 of IPC was not attracted to hold the appellant accused responsible for

murder.53

Common intention presupposes prior concert. It requires a pre-arranged plan

because before a man can be vicariously convicted for the criminal act of another the act

must have done in furtherance of the common intention of them all. Accordingly there

must have been prior meeting of minds. Several persons can simultaneously attack a

man and each can have the intention, namely intention to kill and each can individually

inflict a separate fatal blow and yet now would have the common intention required by

the Section because there was no prior meeting of minds to form a pre-arrange plane.54

2.2.1.1 Direct or Specific intention

Direct or specific intent is where the consequence is desired and the accused

decides to bring it about, or to do his best to do so. This is where the person who has

causing death as his aim, purpose or goal has direct intention to kill. The term “specific

intent” was acknowledged at the highest level in Director of Public Prosecution v.

53
Md. Rustam v. State of Bihar, AIR 2003 SC 562: 2003 Cri. LJ 834
54
Supra note 49, p. 37
 66

Beard 55 where Lord Birkenhead dealt with the relevance of a plea of intoxication in

respect of a brutal killing. Specific intent simply means the intent required to constitute

the particular crime. The actor has a clear foresight of the consequences of his actions,

and desires those consequences to occur. In practice specific intent crimes need to be

distinguished from basic intent crimes. In Director of Public Prosecutions v. Morgan56

Lord Simon givens a clear exposition of the meaning of “basic intent” being those

crimes where the mens rea “go beyond the actus reus.” Some crimes require a specific

intent. Where specific intent is an element of a crime, it must be proved by the

prosecution as an independent fact. For example, robbery is the taking of property from

another's presence by force or threat of force. The intent element is fulfilled only by

evidence showing that the defendant specifically intended to steal the property. Unlike

general intent, specific intent may not be inferred from the commission of the unlawful

act. Examples of specific-intent crimes are solicitation, attempt, conspiracy, first-degree

premeditated murder, assault, larceny and robbery, burglary, forgery, false pretense, and

embezzlement.

Most criminal laws require that the specified crime be committed with

knowledge of the act's criminality and with criminal intent. However, some statutes

make an act criminal regardless of intent. When a statute is silent as to intent,

knowledge of criminality and criminal intent need not be proved. Such statutes are

55
(1920) AC 479
56
(1975) 2 All ER 347
 67

called strict liability laws. Examples are laws forbidding the sale of alcohol

and statutory rape laws.

In R v. Mohan57 the Court of Appeal held that attempt is a crime of specific

intent. It can be defined as a “decision by the accused to bring about, so far as it lay

within his power, the commission of the offence which it was alleged that he had

attempted to commit, no matter whether the accused desired that consequence of his act

or not. Therefore a reckless state of mind was not sufficient to established that the

accused knew or foresaw that the consequences of his act would “be likely” to lead to

the commission of the completed crime. But gradually this view has been changed. In

Pearman58 the court held that foresight of the probable consequences should be equated

with intention was deemed to amount to misdirection and the conviction for attempting

to cause grievous bodily harm with intent was quashed. In Ajay Mitra v. State of M. P.59

the court reiterated that the guilty intention is an essential ingredient of the offence of

cheating and, therefore, to secure conviction “mens rea” on the part of the accused must

be established. Every breach of trust may not result in a penal offence of criminal

breach of trust unless there is evidence of a mental act of fraudulent misappropriation.

In R v. O’ Toole60 the court observed that the accused must have the intention

to commit an offence and for that he must be doing everything in his power. Whatever

57
(1975) 2 All ER 193
58
1984 Crime L R 675
59
(2003) 3 SCC 11
60
1987 Crim L R 759
 68

the mens rea for the completed offence only intention will be enough for a charge of

attempt.

In R v. Anderson 61 the House of Lords held that it is sufficient for the

prosecution to establish, by way of mens rea, that the defendant had agreed on a course

of conduct which he knew would involve the commission of an offence and that it was

not necessary to prove that he intended that it be committed.

2.2.1.2 Indirect or oblique intention

Oblique intention is opposite to specific intention. It can be said to exist or be

capable of existing when the accused sees the consequences as certain or virtually

certain as a result of his actions and, although he does not positively desire it he goes

ahead with his actions anyway. It can be termed as ulterior intention. This principle, by

itself would amount to a definition of the mens rea of many crimes, but it does not meet

all cases. This is broader than direct or specific intention and includes the foreseeable

and inescapable consequences of achieving a desired result, even if the consequence

itself is not desired. Oblique intention is a problem area as it is a broader concept and it

differs from the ordinary meaning of intention. It may help to think about the reason

that the court expanded the definition of intention to widen the net to catch more

defendants, particularly in relation to murder. As murder has no alternative mens rea of

recklessness, defendants cannot be liable unless they fall within the scope of intention.

If this is limited to direct intention, a defendant would only be liable if his purpose was

61
(1986) AC 27
 69

to cause death; a defendant who caused death in chase of some other end would not be

liable for murder even if achieving his primary purpose rendered death foreseeable.

A crime is frequently so defined that the mens rea includes an intention to

produce some further consequence beyond the actus reus of the crime in question.

Burglary will serve as an example. It is not enough that D intended to enter a building

as a trespasser, that is, to achieve the actus reus of burglary. It is necessary to go further

and to show that D had the intention of commission one of a number of specified

offences in the building. The actual commission of one of those offences is no part of

the actus reus of burglary which is complete as soon as D enters. A bomber kills a

particular person whom he wants to kill by exploding a bomb in a plane although some

other passengers are also killed because of the explosion. In this case, the bomber

neither desired nor wanted to kill the other passengers although he knows the

consequences of the explosion.

2. 2.1.3 Transferred intention

In Halsbury‟s Laws of England62 it is stated:

“Where a person intends to commit a particular crime and brings about the

elements which constitute that crime, he may be convicted notwithstanding that the

crime takes effect in a manner which was unintended or unforeseen.

All the elements of crime must be proved beyond reasonable doubt. It is not

therefore sufficient to prove that the defendant caused the actus reus of crime X with

62
Supra note 40, p. 24, para. 13
 70

mens rea of crime Y.63 Where a person intends to commit a particular crime and brings

about the element which constitutes that crime, he may be convicted in spite of that the

crime takes effect in a manner which was unintentional or unexpected. The rule will

apply where the defendant acts recklessly but not intentionally. The doctrine of

transferred intent is another nuance of criminal intent. Transferred intent occurs where

one intends the harm that is actually caused but the injury occurs to a different victim or

object. To illustrate, the law allows prosecution where the defendant intends to burn one

house but actually burns another.

The concept of transferred intent applies to homicide, battery, and arson.

Felony murder statutes evince a special brand of transferred intent. Under a felony

murder statute, any death caused in the commission of, or in an attempt to commit, a

felony is murder. It is not necessary to prove that the defendant intended to kill the

victim. For example, a death resulting from arson will give rise to a murder charge even

though the defendant intentionally set the structure on fire without intending to kill a

human being. Furthermore, the underlying crime need not have been the direct cause of

the death. In the arson example, the victim need not die of burns; a fatal heart attack

will trigger a felony murder charge. In most jurisdictions, a death resulting from the

perpetration of certain felonies will constitute first-degree murder. Such felonies usually

include arson, robbery, burglary, rape, and kidnapping. Malice is a state of mind that

compels a person to deliberately cause unjustifiable injury to another person.

63
Ibid, p. 34
 71

Section 301, Indian Penal Code embodies what the English authors describe as

the doctrine of transfer malice or the transmigration of motive. Section 301 of IPC

provided that if a person, by doing anything which he intends or knows to be likely to

cause death, commits culpable homicide by causing the death of any person, whose

death he neither intends nor knows himself to be likely to cause, the culpable homicide

committed by the offender is of the description of which it would have been, if he had

caused the death of the person whose death he intended or knew himself to be likely to

cause. This provision clearly shows that if the killing took place in the course of doing

an act which a person intends or knows to be likely to cause death, it ought to be treated

as if real intention of the killer had been actually carried out.64The principle enunciated

in this Section has been explained by Lord Coleridge C.J. in R v. Latimer, thus:65

“It is common knowledge that a man who has unlawful and malicious intent

against another and, in attempting to carry it out, injuries a third person is guilty of

what the law deems malice against the person injured, because the offender is doing an

unlawful act, and has that which the Judges call general malice, and that is enough.”

At common law, murder was the unlawful killing of one human being by

another with malice aforethought, or a predetermination to kill without legal

justification or excuse. Most jurisdictions have omitted malice from statutes, in favor of

less nebulous terms to describe intent, such as purpose and knowing. Generally the

mens rea of an offence of necessity must relate to the actus reus in order for liability to

64
Raj Bir Singh (2006) 4 SCC 51
65
(1886) 17QBD 359 p. 361.
 72

follow. However, in some circumstances the legal requirements of the offence may be

present but the result of carrying out the actus reus is not what the defendant (D)

intended. He may have shot at A intending to kill him, misses and hurt B. B may in fact

be D‟s best friend against whom he had no animosity whatsoever. Nevertheless a

human being has suffered it must be determined if D, the defendant is legally to be held

responsible. Law will presume that D was trying to kill B. So, he will be held

responsible for attempt to kill B.

The application of the principal to this type of cases is known the doctrine of

“transferred malice”. If a person, with the mens rea of a particular crime, does an act

which causes the actus reus of the same crime, he is guilty, even though the result, in

some respect, is an unintentional one, e.g D intends to murder Q and, in the sunset, has

given a blow at a man whom he believes to be Q. He hits and seriously injures the men

at whom he aims, who infect P. In one sense it is obviously an unintended result; but D

did intend to cause the actus reus which he has cause and he is guilty of attempt to

commit murder. If Again, D intends to enter a house No.6 King Street, and steal therein.

In the dark he mistakenly enters No.7. He is guilty of burglary.66

In R v. Gross67 the court held that where the accused intends to assault A, a

private person, and by accident strikes B, a constable acting in the execution of his duty,

the accused may be convicted of the aggravated assault which does not require

66
Supra note 27, p.63.
67
(1913) 23 Cox CC 455
 73

knowledge that the person assaulted is a constable acting in execution of his duty. The

intent and the act must coincide.

In Attorney-General’s Reference (No 3 of 1994)68 where the accused stabbed

his girlfriend whom he knew to be pregnant. She recovered, but there was evidence that

the child was born prematurely as a result of the wound an as a result of the premature

birth, dies after 121 days. The accused was charged of murder but the judge directed an

acquittal on the ground that no conviction of murder or manslaughter was possible in

law. A fetus is not a person in law and cannot be the victim of murder or manslaughter.

On the reference to the Court of Appeal held that there was evidence that the accused

murdered the child, his intention to cause grievous bodily harm i.e. mens rea of murder

to his girlfriend being transferred to the child. They also held that the fetus before birth

was to be regarded as an integral part of the mother, like her arm or leg. So, an intention

to kill or cause grievous bodily harm to the fetus was an intention to cause grievous

bodily harm to a person in being, the mother.

Lord Mustill held that the fetus is not a part of the mother. The mother and the

fetus are two distinct organisms, living symbolically, not a single organism with two

aspects. So, an intention to kill or injure the fetus is not an intention to cause gab to a

person. It is not mens rea of murder. The court accepted that the doctrine of transferred

malice was sound law.

68
[1997] 3 All ER 936
 74

In Public Prosecutor v Suryanarayanamoorty 69 the accused, S, with the

intention of killing A, on whose life the accused had effected large insurances, without

his knowledge and in order to obtain the sums for which he was insured, gave him some

sweetmeat (halva) in which a poison had been mixed. A ate a poison of sweetmeat and

threw the rest away. One R picked up the sweetmeat without the knowledge of the

accused and ate it and gave some to another little child who also ate it. The two little

children died but A survived. The accused was sentence to transportation for life by the

Sessions Judge for having attempted to murder A, but was acquitted on the count of

murdering the two children. On appeal against the acquittal Benson and Abdur Rahim,

JJ, held that the accused was guilty of murder, but Sundara Aiyar, J, held that he was

not.

Bension, J, observed: “The section does not enacts any rule not deducible from

the two preceding sections, but it declares in plain language an important rule

deducible, as we have seen, from those sections, just as an explanation to a section does.

The rule could not well be stated as an explanation to either section 299 or section 300

as it relates to both. It was, therefore, most convenient to state the rule by means of a

fresh section. The rule makes it clear that culpable homicide may be committed by

causing the death of a person whom the offender neither intended, nor knew himself to

be likely, to kill, a rule which though it does not lie on the surface of section 299 yet is,

as we seen, deducible from the generality of the words „causing death‟ and from the

illustration to the section; and the rule then goes on to state that the quality of the

69
(1912) MNW 136, 139, 143, 149
 75

homicide, that is whether it amounts to murder or not, will depend on the intention or

knowledge which the offender had in regard to the person intended or known to be

likely to be killed or injured, and not reference to his intention or knowledge with

reference to the person actually killed, a rule deducible from the language of the

sections 299 and 300, though not, perhaps, lying on their very surface.”

Sundara Aiyar, J, said: “The section apparently applies to a case where the

death of the person, whose death was intended or known to be likely to occur by the

person doing the act, does not, as a fact, occur but the death of someone else occurs as

the result of the act done by him. It evidently does not apply where the death both of the

persons whose death was in contemplation of the accused and also of another person or

persons, has occurred. Can it be said that, in such a case, the doer of the act is guilty of

homicide with reference to those whose death was not intended by him and could not

have been foreseen by him as likely to occur? Are we to hold that a man who knows

that his act is likely to cause the death of one person id guilty of the death of all the

others who happen to die, but whose death was far beyond his imagination? Such a

proposition it is impossible to maintain in criminal law. Section 301… has reference to

a case where a person intending to cause the death of A, say by striking or shooting

him, kills B because B in the place where he imagined A to be, or B rushes in to save A

and receives the injury intended for A.

The reason for not exculpating the wrong-doer in such cases is that he must

take the risk of some other person being in the place where he expected to find A, or, of

someone else intervening between him and A. The section is a qualification of the rule
 76

laid down in section 299 and is evidently confined to cases where the death of the

person intended or known to be likely to be killed does not result… If a person is

intended by section 299 to be held to be guilty for deaths which are not known to be

likely to occur, then that section might itself have been worded differently so as to show

that the particular death caused need not have been intended or foreseen and, what is

more important, section 301… would not be limited to cause where the death of the

particular individual intended or foreseen does not occur.

The general theory of the criminal law is that the doer of an act is responsible

only for the consequences intended or known to be likely to ensure; or otherwise he

could not be said to have caused the effect „voluntarily‟, and a person is not responsible

for the involuntary effects of his act. Illustrations (a) and (b) in my opinion support this

view. Sections 323 and 324 show that a person is responsible in the case of hurt or

grievous hurt only for which he causes voluntarily; and section 321 shows that hurt to

the particular person in question must have been intended or foreseen. In the eye of the

law, no doubt, a man will be taken to have foreseen what an ordinary individual ought

to foresee, and it will not be open to him to plead that he himself was so foolish as, in

fact, not to foresees the consequence of his act. A person might in some cases be

responsible for effects of which his act is not the proximate cause where the effect is

likely to arise in the ordinary course of events to result from the act. This rule will

certainly hold good where a person‟s act sets in motion only physical causes which lead

to the effects actually occurring; when the effect is not due merely to physical causes set

in operation by an act, but other person‟s wills intervening are equally necessary causes
 77

with the original act to lead the result, it is more difficult to decide whether the act in

question can be said to be the cause of the effect finally produced.

The Code throws very little light on the question. Ordinarily, a man is not

criminally responsible for the acts of another person, and ordinarily his act should not

be held to be the cause of a consequence which would not result without the

intervention of another human agency.”

Abdur Rahim, J, observed: “Obviously it is not possible to lay down any

general test as to what should be regarded in criminal law as the responsible cause of a

certain result when that result as it often happens is due to series of causes. We have to

consider in each case the relative value and efficiency of different causes in producing

the effect and then to say whether responsibility should be assigned to a particular act or

not as the proximate and efficient cause. But it may be observed that it cannot be a

sufficient criterion in this connection whether the effect could have been produced in

the case in question without a particular cause, for it is involved in the very idea of a

cause that the result could not have been produced without it. Nor would it be correct to

lay down generally that the intervention of the act of voluntary agent must necessarily

absolve the person between whose act and the result it intervenes. For instance, if A

mixes poison in the food of B with the intention of killing B and B eats the food and is

killed thereby, A would be guilty of murder even though the eating of the poisoned food

which was the voluntary act of B intervened between the act of A and B‟s death. So,

here the throwing aside of the sweetmeat by Appala Narasimhulu and the picking and

the eating of it by Rajalakshmi cannot absolve the accused from responsibility for his
 78

act. No doubt the intervening acts or events may sometimes be such as to deprive the

earlier act of the character of an efficient cause.”

The majority view of this Madras case70 was supported by the Allahabad High

Court in Jeoli71 where a woman was carrying on an intrigue with a man who gave her

some poison to administer to her husband. She prepared sweetmeats mixed with the

poison which were eaten by one M who died as the result thereof. The husband and

three others also partook of the sweetmeat and suffered considerably but did not die.

She, however, intended to kill her husband and not M. it was held that she was guilty of

murder. For applicability of this section 301 of IPC the act must amount to culpable

homicide. If the act is not culpable, this section will have no operation even if it results

into homicide of an innocent person.72

There are some limitations to apply this doctrine of “transferred malice.” It

operates only when the actus reus and the mens rea of the same crime coincide. If D,

with the mens rea of one crime, does an act which causes the actus reus of a different

crime, he cannot be, as a general rule, be convicted of either offences. D has given

some poisonous substance to his wife‟s food with intent to kill her. But she has given

the same to her mother thinking it to be very healthy for her. After taking few of them

she becomes unconscious and she was taken to doctor. She recovered after few days. In

this case the husband will be held responsible as if he was attempting to kill his mother-

in-law.

70
Supra note 69
71
AIR 1917 All 455
72
Wassan Singh 1996 Cri LJ 878(SC)
 79

2.2.1.4 Conditional intention

Where a person intends to bring about the elements of a crime conditionally

upon the occurrence of some event, the fact that his intention is conditional in this sense

does not prevent his action from being intentional for the purpose of criminal liability.

For example, A enters in to a building to have intercourse against will of the girl who is

staying there if she did not consent 73or possession of firearms with intent to endanger

life when occasion arose.74 In Husseyn75 the defendants open the door of a van in which

there was a hold all containing valuable sub-aqua equipment for which they were

charged with attempted theft of that equipment. The judge directed the jury that they

could convict if the defendants were about to look into the holdall and, if its contents

were valuable, to steal them. The Court of Appeal held in A-G’s References case76 held

that it was a misdirection: “it cannot be said that one who has it in mind to steal only if

what he finds is worth stealing has a present intention to steal.” This caused particular

difficulties in the law of burglary because most persons charged with that crime intend

to steal, not some specific thing, but anything they find which they think is worth

stealing. The court of Appeal got over this controversy by holding that Husseyn applied

only where, as in that case, the indictment named the specific thing which the defendant

was alleged to have attempted to steal.77 The major obstacle in this regard was tried to

73
R v. Collins (1973) Q.B. 100
74
R v. Bentham (1973) Q.B. 457.
75
(1977) 67 Cr Ap Rep 131,
76
(1980) QB 180, (1979) 3All ER 143
77
Supra note 27, p. 258
 80

be removed by Haughton v Smith 78 . From the law laid down in this case it can be

deduced that the defendant could only be convicted of attempting to steal something

that was in the holdall, car, room or other place, because there could be no attempt to

steal something that was not there.

The conditional intention has no direct relation with criminal attempt. But if

an accused with a condition tried to do an unlawful act he will definitely be punished.

For example A went to a shop with a dragger with the intent that if the shopkeeper does

not handover the valuable dress in credit then he will cut his hand. Until and unless

there is a conflict between the two nothing can be inferred. So, it becomes difficult to

link criminal attempt with conditional intention.

2.2.2 Recklessness

“Reckless” is a word of condemnation. It normally involves conscious and

unreasonable risk taking, either as to the possibility that a particular undesirable

circumstance exists or as to the possibility that some evil will come to pass. The

reckless person deliberately “takes a chance.” The legal meaning of recklessness

is that the term has been given several different shades of meaning by the courts

over the years. In the law of manslaughter, “reckless has often been regarded as

the most appropriate adjective to express the degree of negligence (“gross”)

needed for a conviction: in this sense, it means a high degree of carelessness.

Some crimes can be committed only intentionally. But nearly all crimes requiring

mens rea now recognize recklessness as an alternative to intention. This

78
[1975] AC 476
 81

proposition holds for most common law crimes; and of late years parliamentary

draft men have begun to include it in their formulations of offences, as by

making it an offence to do something “knowingly and recklessly.”

The courts were slow to develop the concept of recklessness. In relation to

the consequences of conduct, they tended to think only in terms of intention,

negligence and strict liability departure from the standard of conduct o f the

prudent man. Often the defendant will have adverted to the risk, but he may not

have, and he can be accounted grossly negligent whether he adverted or not

according to this objective view.

The tribunal affect (judge or magistrates) does not attempt to look into

his mind, but simply measures the degree of his departure from the proper

standard. His precise mental attitude will be of two kinds

(a) he would prefer that the harmful result should not occur, or

(b) he is indifferent as to whether it does or does not occur.79

Professor Glanville Williams in his Textbook of Criminal Law (2nd ed. 1983)

puts forward the view that recklessness “normally involves conscious and unreasonable

risk taking”. But what of the person who gives no thought to the consequence of his

actions or the person who through blinders fails to willful make any enquiry into the

positively of risk ? Yet again what of the person who gives some thought to the likely

result of his actions but proceeds on the basis that there is unlikely to be any harm or

79
Supra note 26, p. 42
 82

damage ensuring from his conduct. A reckless man is one who while aiming at an end

which he desire to attain, consciously takes the risk of bringing about some other result

also. In Cunningham 80 the courts adopted a different meaning of recklessness in

the content of recklessness in the content of mens rea, referring to D‟s actual

awareness of the risk of the prohibited consequence occurring which is called

“advertent recklessness”. Controversy was introduced into this area in the early

1980 s, when the House of Lords purported to broaden the meaning of

recklessness so as to include those who failed to give thought to an obvious risk

that the consequence would occur.

The idea of recklessness as gross negligence proposes that recklessness

is an idea. The subjective-objective controversy again rears its head. The courts

have hovered between the idea of recklessness as gross negligence (the

“objective” definition) and the idea of recklessness as advertent negligence (the

“subjective” definition). The subjective definition, on the other hand, attempts to

look into the defendant‟s mind. It asks whether he realized that there was a risk

but carried on regardless.

In Moore v. State 81 the court held that if one from a house top recklessly

throws a bullet of wood upon the side walk where persons are constantly passing,

and it falls upon a person passing by and kills him; this would be by the common

80
(1957)2QB396
81
(1935) 164 Va 653, 180 S.E. 395
 83

law murder. But if instead of killing, it inflicts only a slight injury, the party

could not be convicted of an assault with intent to commit murder.

Etymologically, “recklessness‟ and “carelessness” mean the same; they

refer to the state of mind. In the two cases of Caldwell 82 and Stephen Lawrence 83,

Lord Diplock assumed that this meaning still holds. According to him, the

popular or dictionary meaning is: careless, regardless or heedless, of the possible

harmful consequence of one‟s act and he assumed that this is also the legal

meaning. Lord Diplock‟s words were unexceptionable if he was using “carless”

as well as “reckless” in its literal or etymological sense. It has been assumed prior

to the decision in Caldwell84 that the approach to the assessment of recklessness should

be a subjective one.

The decision of Criminal Appeal in Cunningham 85is the major authority for

this assertion. To establish recklessness it is necessary in all cases to show that D took

an unjustifiable risk. But the prosecution has to in some cases at least must go further

verities because it is now established that there are two varieties of recklessness

recognized by English Criminal law. In that case the defendant had ripped a gas meter

from its connecting pipe as his meter. Gas escaped and percolated through the wall into

the adjoining house partially asphyxiating the elderly occupant. The court was

concerned with the meaning of malicious. The court adopted the principle contained in

82
(1982) AC 341
83
(1982) AC 510
84
Supra note 82
85
[1957] 2 QB 396,[1957] 2 All ER 412
 84

professor Kenny‟s outlines of criminal Law first published in 1902 that milieu was not

synonymous with wickedness but required either intention or recklessness as to whether

such harm should occur or not.

Thus the foundation was laid down for the proposition that recklessness should

be assessed subjectively. This was confirmed by the court of Appeal in Stephenson86 the

facts of which invite one to examine one‟s own views on whether a person who is

schizophrenic should be facing criminal charges. The appellant had crept into a hollow

in the side of a large haystack to sleep but feeling cold he had lit a fire of twigs and

straw inside the hollow. Needless to say the stack caught alight and damage amounting

to £ 3,000 was caused. It would be obvious that the ordinary person would be likely to

foresee the immediate consequence of such an action and presumably if he or she did

not desist them one would have no difficulty establishing culpability.

The court of Appeal, in allowing the appeal against conviction, confirmed that

the correct test of recklessness was subjective in the sense that the accused must have

possessed knowledge or foresight of the risk of damage from his act. Lord Diplock

considered the position in law of the person who failed to give thought to an obvious

risk. To put it another way, why shouldn‟t a person be considered reckless when he fails

to foresee what every reasonable person would have done. Thus fault is established by

reference to object and not subjective criteria. Recklessness should be used not as a

term of legal art but in the popular dictionary sense of meaning “careless”, “regardless”

or “heedless” of the possible harmful consequences of one‟s acts.

86
1979 2 All ER 1198
 85

The whole issue of recklessness in rape has developed since Pigg 87 on the

basis that Caldwell88 recklessness is inappropriate to the offence despite, of course, it

being found in a modern criminal statute to which according to Lord Diplock, the new

definition ought to apply. The law on rape was stated in the case of DPP v. Morgan89

and the Act was deemed to be declaratory of the existing law. The case confirmed that

if an accused in fact honestly believed that the woman consented, irrespective of

whether or not that belief was based upon reasonable grounds, then the essential

elements of then the essential elements of mens rea would be absent and he could not be

convicted of the offence. Thus in order to sustain a defense to a charge of rape a man

must seek to prove that he gave some thought to the matter of consent otherwise he

could not be said to have an honest belief that the woman was consenting.

In W (a minor) v Dolbey90 the defendant who was 15 years old possessed an

air gun and pointed it at a friend telling him “there is nothing in the gun, “I have got no

bullets”. He fired and his friend is wounded. It was found infact that he believed the gun

to have been unloaded because he thought he had used his last pellet while shooting at

bottles earlier in the day, that he had not opened the gun and thirdly that he ignored the

risk that the gun might be loaded. It was concluded by the justices that he had been

reckless and they convicted. His appeal was allowed on the basis that Cunningham91was

still the authority to be applied and therefore in order to obtain a conviction it would

87
[1982] 2 All ER 591, [1982]1 WLR 782
88
Supra note 82
89
Supra note 56
90
1983] 88 Cr Ap R 1
91
Supra note 85
 86

have to be shown that on the facts known to him at the time, he actually foresaw that a

particular kind of harm might be done to his victim. If someone honest believes that a

gun is not loaded then the consequences could not have been foreseen and the defendant

could not be found to have acted maliciously.

Intention cannot exist without foresight but foresight can exist without

intention. A man may foresee the possible or even probable consequences of his

conduct and yet not desire them to occur; nonetheless if he persists on his course he

knowingly runs the risk of bringing about the unwished result. A man who is reckless

may prefer that the contemplated events shall not happen, or he may not care whether it

happens or not; but in either case he does not desire it to happen and therefore does not

act with the purpose that it shall not happen. Kenny observed that there are only two

states of mind which constitute mens rea, and they are intention and recklessness.92

Recklessness normally involves conscious and unreasonable risk

taking. 93 Where A after taking bath keeps the bathroom in a dirty condition. B her

roommate while taking bath slept there and get head injury. Can it be termed as attempt

to do an offence? Yes A was acting recklessly. But she did not want that B will get

injury. If a person started shooting in a public path for which few persons get injured for

his act. Then he will surely be convicted for his reckless act. Likewise P with a barrel of

a gun threatens Q that he will kill his child if he does not do what he wants. Then also P

will be held liable for his act. Recklessness will sometimes suffice for 'circumstances' of

92
J W Ceil Turner, Kenny‟s Outlines of Criminal Law, 19 th edition, p. 37.
93
Supra note 14
 87

the crime. To be liable for attempted rape a defendant need not actually intend to have

non-consensual intercourse; mere recklessness towards the lack of consent is enough94.

Recklessness as to bodily harm will not support a charge of attempting to injure

by wanton driving.95In order to sustain a charge of attempting to commit a crime, it

must be shown that the defendant anticipated committing the completed crime to which

the charge relates.

2.2.3 Knowledge

Knowledge means a state of mind entertained by a person with regard to the

existing facts which he has himself observed or existence of which has been

communicated to him by persons whose veracity he has no reason to doubt. 96

Knowledge of the circumstances is of three degrees. The first is the actual knowledge

which may be inferred from the conduct of the accused. Knowledge of the second

degree exists where a person deliberately refrains from making inquiries, the results of

which he might not care to have. The knowledge of the third degree exists, where

someone unintentionally fails to make enquiries which reasonable and prudent person

would make.97

Knowledge is an absolute term that should be used only in relation to facts. To

know a thing means somebody is sufficiently aware of something. To believe a thing is

94
R v. Khan and others (1990) 2All ER 783
95
R v. Mohan (1975) 2 All ER 193

96
Emperor v. Zamir, 1932
97
Supra note 5, p. 79.
 88

to assert to a proposition or assertion or to consider a fact as real or certain without

immediate personal knowledge. Section 26 of the Indian Penal Code, 1860 provides

that “a person is said to have reason to believe a thing if he has sufficient cause to

believe that thing, but not otherwise”. A statute may define knowledge in terms of

intention, but sometime it may require knowledge by using, that word, or one of its

grammatical variants. An example of an express requirement of knowledge is the

offence of knowingly possessing explosives under Section 4 of the Explosive

Substances Act.

Knowledge of certain dangers is relevant to liability for injury caused by the

thing containing the menace. Knowledge may include not only actual knowledge i.e.

actual awareness of the facts relevant, but constructive knowledge, i.e. knowledge

attributed by law to the party in the circumstances whether he had the knowledge or not,

and knowledge may be attributed to a person who has sought to avoid finding out, or

has shut his eyes to the obvious means of knowledge, e.g. “The man who is offered

valuables cheaply in circumstances which suggest that they may well have been stolen,

but who refrains from enquiry”. The knowledge of the second type or degree is a

species of recklessness with reference to the surrounding conditions and it is often

called “connivance”.

Locke said that “knowledge is the highest degree of the speculative faculties

and consists in the perception of the truth of the affirmation or negative propositions”.

The meaning of knowledge is a matter of common sense. The prosecution should bear
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the persuasive burden to prove a case beyond reasonable doubt. 98 In the first place if

any ordinary person would have known a fact, the jury may infer that the defendant

knew it, simply because they cannot believe that he did not, in circumstances, know

it. 99 Knowledge is a type of mental condition. Any reasonable man have definite

knowledge what is good and what is bad, what to do or not to do. If he is doing

something unlawful he knew the fact that if he will be caught then definitely he will be

punished. If A with intent to kill B administering poison, prepares a glass for him and

fills it with poison, but while A‟s back turned, C who has noticed A‟s act pours away

the poison and fills the glass with water, which A in ignorance of what C has done,

administers to B, A is guilty and can be convicted of an attempt to cause hurt by

administering poison. Because he does not know the real fact that C has poured away

the poison and filled the glass with water.100

Indian Penal Code, 1860, has always used “knowledge that something is

likely” as the doorsill for more severe crimes. In C.T. Prim v. The State101 where the

accused was prosecuted for an offence under Section 292 of Indian Penal Code, relating

to possession of obscene matter the court observed that without guilty knowledge

liability would not arise.

Intention and knowledge both are denoting mental element. Intention and

knowledge are used as alternate ingredients to constitute the offence of culpable

98
Curgerwen (1865) L R I CCR 1, Cugullere (1961) 1WLR 858, 2 All ER 343
99
Cp. Wilson v. Bird (1963) Crim. LR 57
100
Surendra Nath Das v. Emperor, AIR 1933 Cal 833: 147 IC 999
101
AIR 1961 Cal. 177
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homicide. However, both are different. The former is the desire to achieve a certain

purpose while the latter is awareness on the part of the person concerned, representative

his mind. The demarcating line between knowledge and intention is no doubt thin, but it

is not difficult to perceive that they connote different things.102 Knowledge, as contrast

to intention, signifies a state of mental realization in which the mind is a passive

recipient of certain ideas or impressions arising in it, while intention connotes a

conscious state of mind in which mental faculties are summoned into action for the

deliberate, prior conceived and perceived consequences.103

2.2.4 Negligence

The word negligence has brought great complexity and confusion into English

law because it has been employed in different senses. As per “Wharton‟s Law

Laxicon”, there are three degrees of negligence: (1) Lata culpa, gross neglect; (2) Levis

culpa, ordinary neglect; (3) Levissima culpa, slight neglect.104 Various meanings have

been attributed to negligence. First, negligence connotes careless state of mind which

may amount to recklessness or indifference. Secondly, negligence refers to a breach of

legal duty to take care. Thirdly, negligence is a careless conduct without reference to

any duty to take care. In Lochgelly Iron and Coal Co. v. M. Mullan,105 Lord Wright

observed that negligence is a heedless or careless conduct, whether in omission or

102
Basudev v. State of Pepsu, AIR 1965 SC 488
103
K I Vibhute, PSA Pillai‟s Criminal Law, 10th edition, 2008, 5th reprint, 2011, p.64
104
Wharton‟s Law Laxicon, 14th edition, p. 685.
105
(1934) AC 1:77 Sol Jo 539
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commission; it properly connotes the complex concept of duty, breach and damage

there by suffered by the person to whom the duty owed.

The word “negligence” denotes, and should be used only to denote, such

blameworthy inadvertence; and the man who through his negligence has brought harm

upon another is under a legal obligation. It is the omission to do something which a

reasonable man, guided upon those considerations which a prudent and reasonable man

would not do. Negligence is a mode in which many kinds of harms may be caused, by

not taking such adequate precautions as should have been taken in the circumstances to

avoid or to prevent that harm, as contrasted with causing such harm intentionally or

deliberately.106

Negligence is different from neglect. Before the decision in Caldwell107

and Lawrence108 it was possible to draw a clear distinction between recklessness and

negligence. Recklessness was the conscious taking of an unjustifiable risk, negligence

the inadvertent taking of an unjustifiable risk. If D was aware of the risk and decided to

take it, he was reckless, if he was unaware of the risk, but ought to have been aware of

it, he was negligent. This distinction still holds well in a crime where Cunningham

recklessness is required; the inadvertent taking of the risk, mere negligence, does not

entail liability. Where, however, one is concerned with Caldwell recklessness, the

inadvertent risk-taker may be held liable for his failure to direct his mind to the

possibility of a risk, which would have been obvious to him had he done so, is reckless.

106
Supra note 34, p. 873.
107
Supra note 82
108
Supra note 83
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There are, however, still crimes where D may be held liable even if he did consider

whether or not there was a risk and concluded, wrongly and unreasonably that there was

no risk, or so small a risk that would have been justifiable to take it. This is now the hall

mark of crime of negligence.109

Negligence is a conduct which departs from the standard to be expected

of a reasonable man. In criminal negligence the actor did not actually foresee that the

particular consequences would flow from his actions, but a reasonable person, in the

same circumstances, would have foreseen those consequences. Under the Indian Penal

Code negligent acts have been made penal, when they affect the safety of the public,

such as rash or driving riding110 on a public road, rash navigation111 of vessel etc. These

are criminal negligence.

The mens rea in criminal negligence was precisely defined by Lord Diplok in

R v. Lawrence.112 He observed:

“Without having given any thought to the possibility of there being of there

being such risk or having recognized that there was some risk involved, had

nevertheless gone on take it”

Intention is clearly a mental state, and a type of legal fault. But negligence is

different from intention as it does not necessarily involve the mental state. Some

accidents are so unexpected that when they happened we can say that they were

109
Supra note 27, p. 57
110
Section 279 of Indian Penal Code, 1860
111
Section 280 of Indian Penal Code, 1860
112
Supra note 83
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unavoidable. In legal term it is called “inevitable”. Other accident happens because of

the neglect of some precaution that a reasonable man would have used. Such accidents

are the product of negligence or carelessness. Negligence, then, is failure to conform to

the standard of care to which it is the defendant‟s duty to conform. It is failure to behave

like a reasonable or prudent man, in circumstances where the law requires such

reasonable behavior. An employer may for example be negligent as to whether safety

precautions are being used by his workpeople.113 The test of negligence in terms of the

prudent man is called an “objective” standard, because it does not depend upon a

finding of what passed in the defendant‟s mind. The “prudent man” or “reasonable

man” of the lawyer‟s imagining is the exemplary man: the cautious, circumspect,

anxiously calculating paragon who is held up by the judges, as a model of behavior.114

In an instance case a child fell from stairs of school and sustained injuries on

his forehead. The child was taken to school dispensary where treatment was given. The

pharmacist of the dispensary applied ice and ointment and advice that nothing will

happen and instructed to take the child to home. It was held by the Orissa High Court

that it was duty of said pharmacist to either diagnose injury correctly or advice for

immediate check up by expert doctor. The child died subsequently. In said

circumstances Head Master or class teacher of school cannot be held responsible for

causing death by negligence. 115 Again, when the alleged victim of accident alighted

113
Supra note 14, p. 88
114
Ibid
115
Ramesh Chandra Mohapatra v. State of Orissa, 2002 Cri LJ 3453 (Ori.)
 94

from bus before its complete stop then accused driver should be given benefit of

doubt.116

Negligence has no direct relation with criminal attempt.

The general doctrine of “mens rea” is not of very great importance in our

country where law is codified and the offences are carefully defined so as to include

mens rea in the definition itself. The term “offence” has been defined in the Indian

Penal Code. The definition given in Section 40 of the Indian Penal Code on analysis are

found to comprise four elements namely -

(a) A human being.

(b) An intention on the part of such human being which has been called evil intent or mens

rea.

(c) The act willed ,and

(d) The resulted consequence.

The word mens rea is nowhere been used in the Indian Penal Code but they

have been applied in two different ways:

1. In the first place the chapter on “General Exceptions” which control all the offences not

only defined in the Indian Penal Code but also those described and punished under

special and local laws.

2. In the second place, while defining offences words used indicate actual criminal intent

required for the offence. The expressions “intentionally”, “voluntarily”, “fraudulently”,

116
Aliyar Kunju Shabakhan v. State of Kerala, 2002 Cri LJ 1981(Kerala)
 95

“dishonestly”, “wantonly”, etc. used in the definitions indicate criminal intent. No such

words have, however, been used in case of offences which cannot be committed by

innocent persons. So, every offence in the Indian Penal Code is carefully defined so as

to include the precise evil intent which in the essence of such words as “intentionally”,

“voluntarily”, “fraudulently”, “dishonestly”, “wantonly and so on. By the use of these

words the Indian Penal Code gives to the doctrine of mens rea positivity.117

According to Section 25 of the Indian Penal Code 1860, „A person is said to be

do a thing fraudulently if he does that thing with intent to defraud but not otherwise.”

The expression “defraud” involves two elements viz deceit and injury to the person

deceive. In Haycraft v. Creasy118 the court held that the term fraud is meant an intention

to deceive; whether it be from any expectation of advantage to the party himself or from

the ill-will towards the other is immaterial.

According to Section 24 of the Indian Penal Code, dishonestly means

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

or wrongful los to another, is said to do that thing dishonestly.‟‟ Section 39 of the Indian

Penal Code defines A person is said to cause an effect “voluntarily” when he cause it by

means whereby he intended to cause it, or by means which, at the time of employing

those means, he knew or had reason to believe to be likely, to cause it.

There must be a human being with evil intent who is going to commit a

wrongful act. The element human being is generally indicated by the word “whoever”

117
Supra note 5, p. 95.
118
(1801) 2 East 92
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which is used in the Code in the beginning of the definition of every offence. If no such

element is incorporated in the definition of crime, it is presumed that the legislature has

done it intentionally and hence the doctrine of mens rea does not apply. Unless the

statute either clearly or by necessary implication rules out mens rea as a constituent part

of a crime, an accused should not be found guilty of an offence under the criminal law

unless he has got a guilty mind.

But referring to actus non facit reum nisi mens sit rea, Mayyne observed:

Under the Penal Code such a maxim is wholly out of place. Every offence is defined

and the definition states not only what the accused must have done, but the state of his

mind with regard to the act when was doing it. It must have been done „knowingly‟,

„voluntarily‟, „fraudulently‟, „dishonestly‟, or the like… 119 The prominent authors

Ratanlal and Dhirjlal also observed: The maxim actus non facit reum nisi mens sit rea

has no application to the offences under the Indian Penal Code, because the definition

of various offences contain expressly a proposition as to the state of mind of the

accused.120

Indian Penal Code precisely classified inchoate offences into two different heads, viz.

attempt and abetment. Abetment takes three forms, namely –

(i) Abetment by instigation or incitement.

(ii) Abetment by aiding

(iii) Abetment by conspiracy.

119
John D Mayne, The Criminal Law of India, fourth edition, p. 9
120
Supra note 49, p.16
 97

Inchoate offences are some special offences, where presence of mental

element is a must. A person is guilty of the inchoate offence of attempt if he takes more

than merely preparatory actions towards committing an offence. There can be various

causes of failing the commission of the underlying crime. For example, arrest prior to

committing the crime, accident which prevent the crime or even impossibility. For

example, a takes a gun that he believes is loaded, points it at B, and with the intent to

kill B pulls the trigger. B runs away. In this case A has been considered to be guilty of

the inchoate crime of attempted murder even though it was actually impossible for A to

commit the underlying crime, i.e. murder. Since he was acting with a specific intention,

he will be prosecuted for attempt to commit murder. However, it requires certain

elaboration as it is a difficult case of subjectivity-objectivity debate surrounding the

element of impossibility. This will be taken up in the appropriate place.121

However Section 511 of the Indian Penal Code does not express any specific

mental element. In common with the other preliminary offences of abetment and

criminal conspiracy, it is observed by the judiciary time to time that the offender should

have the intention to commit the offence.122

Intent is the spirit of attempt. Only a direct and specific intent will support a

conviction. Mental element is a very important component of criminal attempt. Every

stage of a complete crime namely intention to commit the crime, preparation to commit

it, attempt to commit and the actual commission of crime have their significance.

121
Infra, chapter 7,
122
Abhayanand Mishra v. State of Bihar, AIR, 1961,SC 1698
 98

Criminal policy of every civilized society has given due importance to each of them by

justifying them. The first stage is also can be termed as mental which has great

importance in criminal attempt as it is inseparable. All the varieties of mens rea is

significantly associated with every step of completed crime. Criminal attempt is a step

of complete crime, presence of mens rea is inevitable.

Generally recklessness is not considered as a sufficient mens rea for criminal

attempt. This means that the defendant must have decided to bring about, so far as lay

within their powers, the commission of the full offence. However, transferred intent

applies so that if “A” intends to murder “B” with a gun but the shot accidentally misses

and kill “Q” then “A” is guilty of the murder of “Q”, and the attempted murder of “B”.

Alternatively, if “A” intends to merely frighten “B”, and same shot intentionally misses

“B” but accidentally kills “Q”, “A” may be guilty of assaulting “B”, but not attempted

murder, unless “A” intended that such fright would kill “B”. Whether “A” would be

guilty of murdering “Q” would depend on the specific circumstances and what „A”

foresaw. Intention is the determining factor for conviction of attempt. Since the

potential wrongdoer could change his mind at any point of time before the crime is

committed, the state should wait until the test is possible in minute to ensure that the

intention is going to be realized.

Mental element plays a pivotal role in criminal attempt. The gravity of every

attempt to commit offence takes a brutal shape when it coupled with mental element.

Penal policy of every jurisdiction based on this particular aspect. The main objective of

the penal law is to punish a person with mind. It does not desire to put behind bars an
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innocent person who may have had the hard luck of being involved in an accident and

event, which he did not have the intent of participating in. So, the element of mens rea

as an indispensable ingredient of an offence is also approved by growing modern

philosophy and penology. Every jurisdiction had accepted it as an essential element of

an offence.

Now it is endeavored to make a comparative study of few major countries of

the world to analyze the law of criminal attempt to from different prospective in the

next chapter.