National Law University Odisha, Cuttack

A Project Work on General Principle of Criminal Law

B.A. LL. B Semester - IV

Batch of 2020-2025 (BA-2)

Topic: Presumption of Knowledge and Presumption of

Intention

SUBMITTED TO:

Ms. Rashmi Rekha Baug Word Count - 4564

(Research Associate Cum Teaching Assistant) Plagiarism - 10%

National Law University, Odisha

SUBMITTED BY:

Sayed Abdul Jamay (20BA086)

 TABLE OF CONTENT
1. Acknowledgement..........................................................................................................3

2. Research Methodology...................................................................................................4

3. Objectives.......................................................................................................................5

4. Research Questions........................................................................................................5

5. Introduction....................................................................................................................6

6. HISTORY OF PRESUMPTION OF KNOWLEDGE AND INTENT..........................7

7. Presumption....................................................................................................................8

8. Intent..............................................................................................................................9

9. Knowledge...................................................................................................................10

10. Difference between knowledge and intent...................................................................11

11. Absence of intention....................................................................................................11

12. How mens rea is proved in court..................................................................................13

13. Landmark cases which set precedence –......................................................................13

S.A. Qadir v. The Union of India and Ors...................................................................13

Director of enforcement v. m.c.t.m corporation pvt. ltd..............................................14

Nathulal v. state of madhya pradesh............................................................................14

Deepa and ors. v. s.i. of police, and anr 23..................................................................14

14. Conclusion....................................................................................................................15

15. Bibliography.................................................................................................................16
 ACKNOWLEDGEMENT

This project is a result of consistent guidance, support and motivation of some people who
deserve my greatest gratitude and acknowledgment. First of all, I would like the almighty for
his blessings without which this project could not be completed.

A special thanks to the subject teacher of General Principle of Criminal Law, Prof.Rashmi
Rekha Baug, who gave me the opportunity to work on the project topic “Presumption of
Knowledge and Presumption of Intention”. I want to express my gratitude to my professor
for helping and guiding me while I was working on this project in each step starting from
giving a good guideline for the project and giving numerous consultations throughout this
project.

I would also like to thank the administration, IT Department and Library Department of
National Law University, Odisha for providing us the Databases which lent a helping hand
for me to get the information for the purpose of research without which the accomplishment
of this project would not have been possible. I want to thank my friends and family members
for their help, suggesting and encouraging me which ultimately led to the successful
completion and accomplishment of the project without their help the completion of project
was unachievable.
 RESEARCH METHODOLOGY

The research will be done using secondary sources and will follow the doctrinal research
methodology. Data was gathered through online various databases. It will be descriptive in
nature and will take an empirical approach, i.e., it will use factual reasoning to draw a legal
inference. This study will look at the current format and see how it relates to the topic.
 OBJECTIVES

1. To understand what is presumption in criminal law.

2. To examine the necessity knowledge and intention in order to constitute a crime.
3. To understand how knowledge and intent of the crime is proved with the help of
landmark cases.

RESEARCH QUESTIONS

1. Why knowledge and intent are so closely related?

2. What is the difference between knowledge and intent?
3. What are the basic elements of knowledge and intent?
 INTRODUCTION

What will an individual do if he/she is been attacked by another individual who can most
probably cause grievous hurt to the individual who is under attack, natural human instinct
will respond to fight or flight, and if one instinctively goes towards fight mode and tries to
defend himself/herself and if any serious hurt is caused to the attacker, will the individual
trying to protect him/her will be held liable for causing hurt?

To come to a conclusion of the above-mentioned situation and to protect oneself from being
tried in court or getting penalized one must refer to Chapter IV of the Indian Penal Code,
1860 which protects an individual under similar scenarios and exempt such person from the
category of offender keeping in mind the situation under which he/she was forced to take
such steps. The above hypothetical situation will fall under the defense of protection of out of
necessity but Indian Penal Code provides other exemptions such as offence committed by a
minor, offence committed while an individual was under the influence of non-voluntary
intoxication, or an offence committed by an insane person etc. Section 76 to section 106 is
also known as, ‘Right of the People’ under these sections’ exemption from a offence like
situation is been provided to individual who have been forced to act in a certain manner
which resembles an offence like hurt caused to assailant while protecting oneself from being
inflicted by grievous hurt, hurt caused while protecting one’s property, etc.

Presumption, “is a process of determining a few facts on the basis of possibility, or it is the
result of some acts in general that strengthen the possibility, and when such a possibility has a
high substantiate value, facts can be ascertained. In law, a presumption refers to the
conclusions reached by the court on the presence of specific facts.” By employing a process
of best probable reasoning, inferences can be drawn that are either affirmative or negative.1

In the world and words of law it is very important to properly asses and comprehend each
cause and reason for each action and every behavior. If only there is a proper assessment of
the before mentioned then only one can expect for justice from the court and judicial system.
The most important aspect which has to be critically comprehended while considering an act
as crime is ‘mens rea’ and whether there was presumption of knowledge and presumption on

1
Rajni Negi, ‘Mens Rea Mental Element in Crime’ (Law Times Journal, 20 August 2019)
https://lawtimesjournal.in/mens-rea-mental-element-in-cri accessed on 24 March 2022
the part of the accused. The concept of ‘mens rea’ and ‘actus rea’ are there in the criminal
law system from the time immemorial, its definition was added into criminal law via the
inclusion of the terms like ‘intent’ and ‘knowing’.

HISTORY OF PRESUMPTION OF KNOWLEDGE AND INTENT

Presumption of knowledge and intent are two crucial elements of mens rea, which basically
translates to evil mind or criminal intent from which it could be presumed that the person
committing an offence had prior knowledge of the repercussions of the act which he was
going to commit and had an intent to cause harm or commit which is not permissible by the
law.2 Mens rea was never an important concept of crime prior to 17 th century. Person who
was found to have committed an offence were punished irrespective of taking the fact under
consideration of whether they have committed such offence deliberately or whether it was
unintentional or whether there was prior intention or knowledge of the act. Mens Rea term
was coined for the first time in 17 th century in a Latin where it was first mentioned as ‘actus
facit reum, nisi mens sat rea,’ which translates to “there can be no crime without a guilty
mind.” This term was a revolution in the criminal law system, hence the practice of
determining whether the accused has carried out the criminal activity with intent of
commencement of a criminal act was started. Later, during the British era in India, the notion
of Mens Rea was borrowed from English law and implemented into Indian criminal laws.
“Lord Macaulay made a draft of the Indian Penal Code in 1860, which was passed on
October 6, 1860. “Though Mens Rea was originally part of English law, it was introduced
after it was modified and carefully arranged to meet the circumstances of British India. Mr.
M.C Setalvad stated that most of the offences listed in the law are based on fundamental
English concepts, but that these concepts have been reduced and adapted to fit Indian
situations.”

The statutory Recognition of the common law doctrine of Mens rea, there can be no crime
without a criminal intention. Here the happening must be done to which human fault doesn’t
contribute, as this is an unintentional and unexpected thing that had happened and by which
another person has got injured. There should be absence of intention and knowledge with due
care and caution.

2
ibid
The word ‘defense’ itself is a broad concept so if we talk about defense of accident it filters to
some extent. Proper implication of this legal maxim started when in 1860 IPC was drafted or
else for every offense where the criminal intent was seen was never being punished properly
earlier as previously the punishment were given with the help of civil procedures, when the
time passed and there were different variety of offense done by people and not getting proper
punishment followed further the judicial body of British brought this law for all the
individual in the state that the punishment would also be given for accident and negligent act.

As the time passed by it was seen that it was successful to have justice but at the other hand
when it was misused by the people in defense, they were not having any legal maxims to
defend themselves like previously if someone does an act accidentally, he was being charged
the same as if he has pre planed it. So, taking into consideration this problem the defenses
were added in the IPC from section 76 to 106 which talks about various types of defenses
starting from mistake of fact, small child, unsound people, mistake by law, defense of
necessity, along with the necessary parts that need to be executed or else claiming is difficult.
Then after came all the land mark cases which clarified with more surety towards the
execution.

PRESUMPTION

Presumption under the Evidence Act, 1872 has been described as, “A fact assumed to be true
under the law is called a presumption. For example, a criminal defendant is presumed to be
innocent until the prosecuting attorney proves beyond a reasonable doubt that he/she is
guilty.” Presumptions are used to save a party from burden of proof or from having to prove
the reality of a fact they are assuming. When one party relies on an assumption, the opposing
party is usually entitled to present evidence to contradict (rebut) the premise. A rebuttable
assumption is one that can be refuted. In essence, a presumption places the burden of proof
on one side to show evidence about a certain fact. The Indian Evidence Act, 1872 makes no
attempt to define what constitutes a presumption. Presumption is described as a rule of law
which states that the courts and the judges have to make out certain conclusions from a
particular fact or particular set of fact or from a piece of evidence until and unless the reality
of such interference is disapproved. This term refers to, "obligatory presumption rather than
permissive presumption. This article examines the many sorts of presumptions that exist
under the Indian Evidence Act of 1872, as well as the conditions in which they may exist or
be used."3

INTENT

Criminal intent, often known as "mens rea" in the legal world, refers to, “a person's state of
mind at the moment of committing a crime. Criminals are well aware of what they are going
to do and the potential repercussions of their conduct.” Example, if Vansh devises a plan to
murder his wife and then fatally shoots her, Vansh is acting with criminal intent because he is
aware that murder is wrong, but he plans and eventually commits the act anyway.

Furthermore, criminal intent cab be divided into 4 subcategories-

1. Intentional
2. Knowingly
3. Reckless
4. Negligent conduct

Purposeful criminal acts are those committed by someone who is completely aware of
the potential repercussions of his conduct, such as the murder example given above. In
order to prosecute a crime, criminal intent is required. If there was no criminal intent, it
follows to reason that the crime committed could not possible be classified as of criminal
nature.

“When it comes to purpose, there is no refuting of the fact that someone set out to injure
someone or participate in illicit action. An intentional action of targeting another person
with the aim of inflicting damage to that person, or a deliberate act of taking someone's
property with the intent of depriving them of it or converting it to one's own use, are
examples of criminal intent.”

Example 1 -

Two men named Rahul and Mehul were out and roaming near a field beside a theatre hall
and they both noticed a nice bicycle parked in front of the theatre. Both of them decided
3
Himanshu Arora, ‘Presumption Under Indian Evidence Act,1872’ (SSRN, 10 October 2012)
https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3530459#:~:text=A%20fact%20assumed%20to%20be,that
%20he%2Fshe%20is%20guilty accessed on 30 March 2022
 to take the bicycle and keep it as their own bicycle. They sneaked towards the parking lot
and broke the lock of the bicycle and rode the bicycle towards their hostel.

Example 2 –

Two men named Rahul and Mehul were out roaming near a field beside an abandoned old
theatre, where they knew an old but good conditioned bicycle covered in dust was laying,
being sure that there was no owner of the bicycle they took out the bicycle from the
abandoned and closed theatre’s underground parking lot and repaired it for their use.

Taking the bicycle from the parking lot of the theatre is against the law. So, of what
severity of law’s extent will be these two young men be charged with?

These men will be charged by keeping in mind and scrutinizing their intent.

In example 1, they knew that the bicycle was owned by someone as it was parked in
parking lot in a locked conditioned, they knew they were going to commit a act which is
not permissible by law that’s why they sneaked in, they were aware that they are going to
deprive the rightful owner of the bicycle from its use. Yet they moved the property or the
bicycle from its position and broke the lock and took it towards their own hostel.

In example 2, both of them truly believed that the bicycle was no longer in use and there
was no owner of it to claim as it was laying there for years, while they were trespassing
on someone’s else property as the theatre was closed it implies that at such time theatre
was not opened and meant for public use, yet they believed that the bicycle had no owner
and the theatre was a abandoned property. Here they were not intending to deprive the
rightful owner of the bicycle from its use.

In example two they will be charged very minimally or won’t be charged at all as their
intention was not of depriving another individual from its use, but in example 1 they will
be charged for the crime of committing theft as they had clear intention and knowledge
that they are depriving the rightful owner of the bicycle from its use.

KNOWLEDGE

“Knowledge is different from intent, in that the criminal is aware of the consequences that
can result from his actions, but simply does not care.”
Example – Rohit came to know the fact that Anwesha is cheating on him and is engaged in a
affair with their driver Mohit. Outraged by the fact Rohit decides to plant a bomb in their car
knowing very well that after going to office tomorrow they will be going to a movie hall for
watching the new released movie as he had got hold of their movie tickets. Rohit don’t care
that along with Anwesha, Mohit could die too. He was fully aware of the consequences and
the most likely scenarios. Yet he planted the bomb which exploded killing Anwesha and
Mohit. Under this scenario Rohit will be charged with the intent of killing Anwesha, he will
be more likely be also charged with the knowledge that his actions will also kill Mohit and
will be charged for conspiring to kill and murder.

DIFFERENCE BETWEEN KNOWLEDGE AND INTENT

Knowledge, as opposed to intention, refers to a condition of mental realisation in which the

“mind is either a passive recipient of or a passive witness to specific concepts and perceptions
that arise in it. It would be a bare condition of conscious awareness of some facts in which
the human intellect is supine or inert. Intention, on the other hand, denotes a conscious
condition in which mental faculties are stirred into activity and summoned into action for the
purpose of being directed toward a specific and defined objective that the human mind
conceives and perceives before itself.”4 In the case of intention, mental abilities that may be
scattered in the case of knowledge are focused, converged on a certain point, and projected in
a specific direction. The difference in the shades of meaning between the two terms is subtle
but discernible, and the Legislature's usage of one over the other cannot be without reason.

ABSENCE OF INTENTION

Section 80 directly implies that: Nothing is an offense unless the act is:

i. By Accident or Misfortune: -

Under this it means the person was not having intension to do that act else the evil act, or the
thing which he was doing he didn’t expect that the outcome would go in the reverse direction
or he wouldn’t have been capable of stopping that act from being committed.

Example-
4
Gaurav Dhiman, ‘Difference between “Knowledge” and “Intention” under Indian Criminal Laws’ (Share your
essay, 19 October 2019) https://www.shareyouressays.com/knowledge/difference-between-knowledge-and-
intention-under-indian-criminal-laws/120030#:~:text=Knowledge%20as%20contrasted%20with%20intention,it
%20or%20passive%20before%20it. Accessed on 19 April 2020
When we cook food with LPG cylinders, it is assumed that LPG a highly flammable gas is
being ignited in a controlled manner and phase, if one a odd day the cylinder catches fire and
bursts out, then such mishappening will be called as an accident as it was not planned neither
anyone had the intention to do so but there was knowledge of what could go wrong if such
accident occurs.

ii. Without criminal intention or knowledge -

The act done must not have criminal intention or else defence can not be claimed.

Example-

A person surrounded his farm which was very far away from the city in a very secluded place
with electric barbed wires with installing clear cautions that the wire is being electrified, if on
a odd day a child comes in contact with the wires and dies then under such scenario he can
claim defence as he had no intention to kill the child and he had no knowledge that a child
can travel to such a secluded place located in such a difficult terrain to reach to.

Example-

Rohit planned to poison Mohit his arc nemesis but Purohit his good friend came and ate the
poisoned burger as Purohit’s death was accident, as the poison was meant to be eaten by
Mohit but here Rohit can not claim any defence as the act was done with criminal intent to
kill a person, therefore Mohit will be charged under the section of murder.

iii. Where a lawful act is done in lawful means and lawful manner -

Example-

If an auto rickshaw driver asks for fare money from an individual who has availed the service
of the auto rickshaw and who has agreed upon a fixed amount to be paid to the auto rickshaw
driver and refuses to pay at all any amount and the auto rickshaw driver pull out a gun and
sticks it to his head and threatens to shoot such individual at a point-blank range. Then such
act will be considered unlawful and of criminal nature, although he was well within the
boundaries of law to ask for his fare money as he had provided a service which is bound to be
paid by the individual using such service but the act of taking out gun was totally wrong and
unnecessary at that point of time and it was wrong for him to even carry a gun. He will be
charged under the section of causing the apprehension of inflicting harm and threatening to
cause grievous hurt irrespective of whether he had the intention to shoot him or not as his
actus reus was sufficient to get him charged under different provisions.

HOW MENS REA IS PROVED IN COURT

Acts done by several persons in furtherance of common intention – “When a criminal act is
done by several persons in furtherance of the common intention of all, each of such persons is
liable for that act in the same manner as if it were done by him alone."

On reading of the above provision makes it clear that to apply Section 34, apart from the fact
that there should be two or more accused, two factors must be established:

1. common intention,
2. participation of accused in the commission of an offence. It further makes clear that if
common intention is proved but no overt act is attributed to the individual accused,
“Section 34 will be attracted as essentially it involves vicarious liability but if
participation of the accused in the crime is proved and common intention is absent,
Section 34 cannot be invoked. In other words, it requires a pre- arranged plan and pre-
supposes prior concert, therefore, there must be prior meeting of minds."

The statutory Recognition of the common law doctrine of Mens rea, there can be no crime
without a criminal intension. Here the happening must be done to which human fault doesn’t
contribute, as this is an unintentional and unexpected thing that had happened and by which
another person has got injured. There should be absence of intension and knowledge with due
care and caution.

LANDMARK CASES WHICH SET PRECEDENCE –

S.A. QADIR V. THE UNION OF INDIA AND ORS.

It was held by the court that, “If the restriction is aimed against a specific item, no offence
will be committed unless it can be proven that the goal behind any conduct or omission was
to get the forbidden thing, necessitating the need of mens rea. If the prohibition is directed
against the results/consequences of an act or omission, no offence would be committed unless
it could be demonstrated that there was an intent to cause the prohibited result or
consequence to occur, or that he was culpably negligent in failing to take proper steps to
successfully avoid the prohibited result or consequence.” Furthermore, the court held that,
“there is an understandable distinction between penal provisions that prohibit the
performance of specific acts and omissions and penal provisions that do not prohibit any
specific act or omission but impose prohibitions against specific results or consequences of
the act or against specific objects, whereas the former category's laws may expressly or by
necessary implication exclude mens rea, and the question may arise whether such laws
exclude mens rea.”5

In other words, in the case of legislation of the second group, mens rea would be a necessary
component of the crime, even though mens rea may take the form of criminal intent,
knowledge, or carelessness.

DIRECTOR OF ENFORCEMENT V. M.C.T.M CORPORATION PVT. LTD.

The courts observed that, “Mens rea is a state of mind. Under the criminal law, mens rea is
considered as the ‘guilty intention’ and unless it is found that the accused had the guilty
intention to commit the crime, he cannot be held guilty of committing the crime.”6

NATHULAL V. STATE OF MADHYA PRADESH

In the judgement by the apex court if emphasis is made on para no. 4 of the judgement it can
be seen that the court found that, "The law on the subject is fairly well settled. It has come
under judicial scrutiny of this Court on many occasions. It does not call for a detailed
discussion. It is enough to restate the principles. Mens rea is an essential ingredient of a
criminal offence. Doubtless a statute may exclude the element of mens rea, but it is a sound
rule of construction adopted in England 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. The mere fact that the
object of the statute is to promote welfare activities or to eradicate a grave social evil is by
itself not decisive of the question whether the element of guilty mind is excluded from the
ingredients of an offence. Mens rea by necessary implication may be excluded from a statute
only where it is absolutely clear that the implementation of the objection of the statute would
otherwise be defeated."7
5
2000 (2) WLN 635
6
1996 IAD SC 646
7
AIR 1966 SC 43
 DEEPA AND ORS. V. S.I. OF POLICE, AND ANR 23
. It was held that, “Normally a charge must fail for want of mens rea but there may be
offences where mens rea may not be required. But actus reus must always exist. Without it
there cannot be any offence. Mens rea can exist without actus reus, but if there is no actus
reus there can be no crime. Even if mens rea is there, no conviction could be had without
actus reus without which there cannot be a crime.”8

Example- if a man wishing to marry and intending to do so while his wife is still alive and
does so by marrying another lady then he will be charged under the offence of bigamy.

But if he is unaware of the fact that her wife has died before he got married to another lady,
in spite of his malicious intent there will be no occurrence of the crime of bigamy as there
was no actual commencement of crime.

CONCLUSION

If a crime is committed it is very essential to look into the fact that why was such crime
committed and the story behind the commencement of such act the accused, for justice to be
served its is not enough that only law of provisions is placed and read with the facts of the
cases instead it is very crucial to read the laws and interpret them in accordance of the fact
and the same situation under which an accused was put in which forced him/her to do or not
to do such act. Intent cannot be proved as prima facie and evidently in court in order to know
whether the accused had a criminal intent and whether he had the knowledge of the act which
he was committing it is essential to look at the actus rea part of the case which again will not
clearly show the intent part but will lay down a path to identify the intent of the accused
whether he had a criminal intent and whether he was aware of the possible repercussion
which he could face in the future. Intent and knowledge are very closely related yet they are
two different concepts under the Indian Criminal Law. It is very difficult to prove whether
one had an intention to commit an offence or not, yet the previous judgments and precedents
helps to give a better insight of the topic and helps in understanding the concept with real life
application.

8
1986 CriLJ 1120
 BIBLIOGRAPHY

 Negi R, ‘Mens Rea Mental Element in Crime’ (Law Times Journal, 20 August 2019)
https://lawtimesjournal.in/mens-rea-mental-element-in-cri accessed on 24 March
2022

 Arora H, ‘Presumption Under Indian Evidence Act,1872’ (SSRN, 10 October 2012)

https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3530459#:~:text=A%20fact
%20assumed%20to%20be,that%20he%2Fshe%20is%20guilty accessed on 30 March
2022
 Dhiman G, ‘Difference between “Knowledge” and “Intention” under Indian Criminal
Laws’ (Share your essay, 19 October 2019)
https://www.shareyouressays.com/knowledge/difference-between-knowledge-and-
intention-under-indian-criminal-laws/120030#:~:text=Knowledge%20as
%20contrasted%20with%20intention,it%20or%20passive%20before%20it. Accessed
on 19 April 2020
 2000 (2) WLN 635
 1996 IAD SC 646
 AIR 1966 SC 43
 1986 CriLJ 1120