MAHARASHTRA NATIONAL LAW UNIVERSITY, AURANGABAD

SUBJECT: JURISPRUDENCE

TITLE OF THE PROJECT:

INTENTION, MALICE, MENS REA AND ACTUS REUS AS CONCEPTS IN

LAW

SUBMITTED BY:

SPANDANA.KOONA - 11

PRANAV VANIKAR- 05

SHATANIK KALE- 19

AVANI JAJOT- 01

YEAR AND SEMESTER:

1ST (B.A.L.L.B(Hons.)), Semester-II

UNDER THE GUIDANCE OF:

DR. ASHOK WADJE, Asst. Professor (Law)

1
 Declaration

We, the undersigned solemnly declare that the project report on Intention, Malice,
Mens Rea and Actus Reus is based on our own work carried out during the course
of our study under Dr. Ashok P. Wadje. We assert that the statements made and
the conclusions drawn are an outcome of our research work.

(1) The work contained in the report is original and has been done by us under
the supervision of our supervisor.
(2) The work has not been submitted to any other institution for any other
degree/diploma/certificate in this university or any other University of
India or abroad.
(3) We have followed the guidelines provided by the university in writing the
report.
(4) Whenever we have used materials (data, theoretical analysis and text) from
other sources, we have given due credit to the, in the text of the report and
giving their details in references.

Avani Jajot -01

Pranav Vanikar -05

Spandana Koona -11

Shatanik Kale -19

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 Table of Contents

(1) Introduction

 Criminal Jurisprudence

(2) Intention

(3) Malice

(4) Mens Rea

(5) Actus Reus

(6) Conclusion

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 Research Methodology

A method of non-doctrinal research was followed for the purpose of the

research of this project.

Hypothesis

The pivotal questions dealt with in this research paper are:

 What elements constitute a Crime?

 What is Intention, Malice, Mens Rea and Actus Reus?
 How are these concepts of law related?

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 Introduction

Principles of Criminal Jurisprudence

Crime is an event in real life and is the product of interplay of different human emotions, as
has been observed in Kali Ram vs State Of Himachal Pradesh, 1973 AIR 2773.In a criminal
trial, accused is presumed to be innocent. This is a general rule of evidence. The sound Latin
maxim, Ei incumbit probatio qui dicit, non qui negat indicates that the burden of proof is on he
who asserts, not on he who denies. The Evidence Act does not contemplate that the accused
should prove his case with the same strictness and rigour as the prosecution is required to prove
a criminal charge. Articles 11 of the Universal Declaration of Human Rights says, “Everyone
charged with a penal offence has the right to be presumed innocent until proved guilty
according to law in a public trial at which he has had all the guarantees necessary for his
defence.”.

Basically, there are three cardinal principles of criminal jurisprudence. Those are: 1.
prosecution to prove its case beyond reasonable doubt; 2. the accused must be presumed to be
innocent; and 3. the onus of the prosecution never shifts. In a criminal trial it is not at all
obligatory on the accused to produce evidence in support of his defence and for the purpose of
proving his version he can rely on the admissions made by prosecution witnesses or on the
documents filed by the prosecution. As was held in Dahyabhai Chhaganbhai Thakker vs State
Of Gujarat: 1964 AIR 1563, 1964 SCR (7) 361, there is no conflict between the general burden
to prove the guilt beyond reasonable doubt, which is always on the prosecution and which
never shifts, and the special burden that rests on the accused to make out his defence of insanity.

As was observed in Rabindra Kumar Dey vs State Of Orissa : 1977 AIR 170, 1977 SCR (1)
439, (Also see: Jaikrishnadas Manohardas Desai and Anr. v. State of Bombay, [1960] 3 S.C.R.
319. 324 ), three principles of criminal jurisprudence which are well settled are as under:

(i) that the onus ties affirmatively on the prosecution to prove its case beyond reasonable doubt
and it cannot derive any benefit from weak- ness or falsity of the defence version while prov-
ing its case;

(ii) that in a criminal trial the accused must be presumed to be innocent until he is proved to be
guilty; and

(iii) that the onus of the prosecution never shifts.

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Similarly, the Hon’ble Delhi High Court in the case of Sunil Kumar Sharma vs State (Cbi):
139 (2007) DLT 407, I (2007) DMC 654, it was observed that three cardinal principles of
criminal jurisprudence are well settled and they are as follows: i) that the onus lies affirmatively
on the prosecution to prove its case beyond reasonable doubt and it cannot derive any benefit
from weakness or falsity of the defense version while proving its case; ii) that in a criminal trial
the accused must be presumed to be innocent unless he is proved to be guilty; and iii) that the
onus of the prosecution shifts.

THE PROSECUTION TO PROVE ITS CASE BEYOND REASONABLE DOUBT:-

In the case of Dharam Das Wadhwani vs State Of Uttar Pradesh, 1975 AIR 241, the Hon’ble
Supreme Court pointed out as follows:- ‘The rule of benefits of reasonable doubt does not
imply a frail willow bending to every whiff of hesitancy. Judges are made of sterner stuff and
must take a practical view of legitimate inferences flowing from evidence, circumstantial or
direct.’ As has been held in Kali Ram vs State Of Himachal Pradesh, 1973 AIR 2773, one of
the cardinal principles which has always to be kept in view in our system (1) Cr. App.Ho.26 of
1970 decided on August 27, 1973 of administration of justice for criminal cases is that a person
arraigned as an accused is presumed to be innocent unless that presumption is rebutted by the
prosecution by production of evidence as may show him to be guilty of the offence with which
he is charged. The burden of proving the guilt of the accused is upon the prosecution and unless
it relieves itself of that burden, the courts cannot record a finding of the guilt of the accused.’
There is needless to refer to all rulings in this article inasmuch as there are catena of rulings as
to this principle of law.

The Law Commission of India, forty-seventh report on the trial and punishment of social and
economic offences, It was observed that ‘As has been observed’—-“No rule of criminal law is
of more importance “than that which requires the prosecution to prove the accused’s guilt
beyond reasonable doubt. In the first place this means that it is for the prosecution to prove the
defendant’s guilt and not for the latter to establish his innocence; he is presumed innocent until
the contrary is proved. Secondly, they must satisfy the jury of his guilt beyond reasonable
doubt.’ In 2014, the Hon’ble Apex Court reiterated this general principle of proving case of
prosecution beyond reasonable doubt in the following cases,

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1. Puran Chand vs State Of H.P

2. Ashok Debbarma v Achak Debbarma vs State Of Tripura

3. Joshinder Yadav vs State Of Bihar

4. Nallabothu Ramulu v Setharamaiah … vs State Of A.P

5. State Of Gujarat vs Kishanbhai

6. Prakash vs State Of Karnataka

7. State Of Rajasthan vs Manoj Kumar

8. Basappa vs State Of Karnataka

9. Birju vs State Of M.P

10. Ramesh Vithal Patil vs State Of Karnataka & Ors

THE PRESUMPTION OF INNOCENCE:-

As was held by the Hon’ble High Court of Andhra Pradesh in the case of Katcherla Venkata
Sunil vs Dr. Vanguri Seshumamba And Ors: 2008 CriLJ 853, the presumption of innocence is
available to him under the fundamental principle of criminal jurisprudence that every person
shall be presumed to be innocent unless he is proved guilty by a competent court of law. It was
held in Maneka Sanjay Gandhi V. Rani Jethmalani that assurance of a fair trial is the first
imperative of the dispensation of justice and the central criterion for the Court to consider when
a motion for transfer is made is not the hypersensitivity or relative convenience of a party or
availability of legal services or any like grievance. In Abdul Nazar Madani V. State of T.N the
Apex Court stated that the purpose of the criminal trial is to dispense fair and impartial justice
uninfluenced by extraneous considerations. The apprehension of not getting a fair and impartial
inquiry or trial is required to be reasonable and not imaginary based upon conjectures and
surmises.

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Recently, in 2015, the Hon’ble Supreme Court of India applied this general rule of
‘presumption of innocence ‘in the following cases.

1. Vinod Kumar vs State Of Haryana;

2. Sher Singh & Partapa vs State Of Haryana;

3. Ajay Kumar Choudhary vs Union of India;

4. Inder Singh & Ors vs State Of Rajasthan;

5. Raja & Rajinder vs State Of Haryana;

6. Mohan Lal vs State Of Rajasthan;

7. Pawan Kumar & Monu Mittal vs State Of U.P. & Anr;

8. Bhim Singh & Anr vs State Of Uttarakhand

9. Rajinder Singh vs State Of Punjab;

10. Jivendra Kumar vs Jaidrath Singh & Ors.

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THE ONUS OF THE PROSECUTION NEVER SHIFTS.

As was held by the Hon’ble Apex Court in C.M.Girish Babu vs Cbi, Cochin, High Court Of
Kerala, the onus of proof lying upon the accused person is to prove his case by a preponderance
of probability. As soon as he succeeds in doing so, the burden shifts toprosecution which still
has to discharge its original onus that never shifts, i.e.; that of establishing on the whole case
the guilt of the accused beyond a reasonable doubt.” (See Jhangan Vs. State 1966 (3) SCR
736). It was observed in John Manjooran vs C.M. Stephen and Ors, 1973 CriLJ 1722, basically,
the original onus never shifts and the prosecution has. At all stages of the case, to prove the
guilt of the accused beyond a reasonable doubt. To know more please refer to the ruling
Rabindra Kumar Dey vs State Of Orissa : 1977 AIR 170, 1977 SCR (1) 439, and Jaikrishnadas
Manohardas Desai and Anr. v. State of Bombay, [1960] 3 S.C.R. 319. 324 ).

THE DOCTRINE OF BURDEN OF PROOF:-

As was observed in Dahyabhai Chhaganbhai Thakker vs State Of Gujarat: 1964 AIR 1563,
1964 SCR (7) 361, the doctrine of burden of proof in the context of the plea of insanity may be
stated in the following propositions:

(1).The prosecution must prove beyond reasonable doubt that the accused had committed the
offence with the requisite, mensrea; and the burden of proving that always rests on the
prosecution from the beginning to the end of the trial.

(2) There is a rebuttable presumption that the accused was not insane, when he committed the
crime, in the sense laid down by s. 84 of the Indian Penal Code: the accused may rebut it by
placing before the court all the relevant evidence-oral, documentary or circumstantial, but the
burden of proof upon him is no higher than that which rests upon a party to civil proceedings.

(3) Even if the accused was not able to establish conclusively that he was insane at the time he
committed the offence, the evidence placed before the court by the accused or by the
prosecution may raise a reasonable doubt in the mind of the court as regards one or more of the
ingredients of the offence, including mens rea of the accused and in that case the court would
be entitled to acquit the accused on the ground that the general burden of proof resting on the
prosecution was not discharged.

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In the case of Rabindra Kumar Dey vs State Of Orissa, Equivalent citations: 1977 AIR 170,
1977 SCR (1) 439, it was observed that under section 105 of the Evidence Act the onus of
proving exceptions mentioned in the Indian Penal Code lieson the accused but the said section
does not at all indicate the nature and the standard of proof required. It is suffi-cient if the,
accused is able to prove his case by thestandard of preponderance of probabilities as envisaged
by section 5 of the Evidence Act. It was observed in Rabindra Kumar Dey vs State Of Orissa:
1977 AIR 170, 1977 SCR (1) 439 (see also: Harbhajan Singh v. State of Punjab, [1965] 3 SCR
235, 241 and State of U.P. v. Ram Swarup & Anr. [1975] 1 S.C.R. 409, 416-17)

The accused succeeds if the probability of his version throws doubt on the presecution case.
He need not prove his case to the hilt. It is sufficient for the defence to give a version which
competes in probability with the prosecution version for that would be sufficient to throw
suspicion on the prosecution case entailing its rejection by the court.

EXCEPTION TO GENERAL PRINCIPLES:-

In Harbha- jan Singh v. State of Punjab ([1965] 3 S.C.R. 235, 241) the Hon’ble Apex Court
observed as follows:

“But the question which often arises and has been frequently considered by judicial decisions
is whether the nature and extent of the onus of proof placed on an accused person who claims
the benefit of an Exception is exactly the same as the nature and extent of the onus placed on
the prosecution in a criminal case; and there is consensus of judicial opinion in favour of the
view that where the burden of an issue lies upon the accused, he is not re- quired to discharge
that burden by leading evidence to prove his case beyond a reasonable doubt. That, no doubt,
is the test prescribed while deciding whether the prosecution has discharged its onus to prove
the guilt of the accused; but that is not a test which can be applied to an accused person who
seeks to prove substantially his claim that his case falls under an Exception. Where an accused
person is called upon to prove that his case fails under an Exception, law treats the onus as dis-
charged if the accused person succeeds “in proving a preponderance of probability.” As soon
as the preponderance of probability is proved, the burden shifts to. the prosecution which has
still to discharge its original onus. It must be remembered that basically, the original onus never
shifts and the prosecution has, at all stages of the case, to prove the guilt of the accused beyond
a reasonable doubt.”

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 Intention
It is a common saying that every crime may be looked at as composed of two elements: (i) an
act and (ii) the intention, or state of mind with which the act is done. In connection with the
latter the question most commonly asked is, "Did or did not the one who did the act intend to
bring about the results which actually took place? Was that his intention?" However simple
and clear such statements and questions may appear to be at first sight, a moment's reflection
reveals that the two terms, act and intention, are by no means free from ambiguity. One writer
or judge will use them in one sense, another in a different sense; indeed, the same writer will
not always be consistent in his usage. We must, therefore, begin by noting the various possible
meanings which each of these terms may have-meanings more or less sanctioned by current
modes of expression in the legal world. When this has been done, we may perhaps be in a
position to give to each of these words some one particular meaning which will be the most
useful for the purposes of the present discussion.

First then of the term act: no word is more commonly used by judges and writers upon law, as
a rule apparently without much thought of any possible ambiguity. Legal literature is full of
phrases such as "the criminal act," "an act of homicide,” "an act of trespass," etc., etc. Let us
analyse one of these phrases. Take, for example, "an act of homicide." Suppose A murders B
by shooting him with a pistol. What is "the act?" The usual answer would probably be, "the act
of killing B." Even a brief consideration shows us that we have here a complex rather than a
simple thing; that if we are to use words in an accurate, scientific manner we must recognize
that the term act is here used so as to include more than one thing.

Apparently it covers (i) what may be called the act (or series of acts) in a narrow sense of the
word, i. e., a muscular movement (or movements) willed by the actor; (2) some reference to
the surrounding circumstances; (3) the consequences or results of the movement (or
movements). It seems obvious that if we are to make any careful analysis, we must distinguish
between these three things; to do so, we need to have separate names for them. Perhaps we
cannot do better than to restrict the word act to the narrower sense above suggested, i.e., so that
it means simply a muscular movement that is willed. If we do this, we can say that in
considering criminal liability we have to consider (i) the act (or acts); (2) the concomitant
circumstances; (3) the consequences; (4) the actor's state of mind at the time he acts with
reference to these circumstances and consequences. In the concrete case which we are
considering, in this narrower sense of the word the acts of A consist of a series of muscular

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movements willed by A. The concomitant circumstances include, for example, the fact that B
was within range of the pistol; that the pistol was loaded, etc., etc. The consequences of A's
acts are of course very numerous; some are, for example, the pistol is raised and turned in B's
direction; the trigger is pulled back; the hammer falls; the powder is ignited and explodes; the
bullet is expelled from the pistol, goes through the air toward B, strikes the surface of B's body
and penetrates the same; as a result B's body undergoes physical changes which result in death.
Strictly and scientifically, all these things and many others are not parts of A's act but merely
the consequences of the same. This use of the term act in this narrow sense is sanctioned by
many of the most eminent writers on jurisprudence. For example, Austin says:

"Most of the names which seem to be names of acts, are names of acts, coupled with certain of
their consequences. For example, if I kill you with a gun or pistol, I shoot you: And the long
train of incidents which are denoted by that brief expression, are considered (or spoken of) as
if they constituted an act, perpetrated by me. In truth, the only parts of the train which are my
act or acts, are the muscular motions by which I raise the weapon; point it at your head or body,
and pull the trigger. These I will. The contact of the flint and steel; the ignition of the powder,
the flight of the ball towards your body, the wound and subsequent death, with the numberless
incidents included in these, are consequences of the act which I will. I will not those
consequences, although I may intend them."

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 Definition of Intention

In criminal law, the intention is defined as the deliberate objective that leads a person to commit
a crime, forbidden by the law, or that may result in an unlawful outcome. The use of specific
means that resulted in the commission of a crime expresses the intention of the suspect.

In finer terms, intention describes the will or plan of an individual. So, when an action is
performed intentionally, it implies the willingness or aim of a person to do so and not an
accident or mistake, where he/she is completely known about the consequences, of the act.
That is why intention is the primary element to affix the culpability.

No matter whether the act is committed with a good intent or a bad one. If a person does
something purposefully and consciously, which is prohibited by the law, it will amount to
criminal liability.

Definition of Motive

Motive can be described as the underlying objective behind the commission of an act, that
drives a person’s intent. In short, it is the inducement, i.e. the reason, which impels the accused
to engage in criminal activity.

The motive behind a criminal offence is regarded as irrelevant, in ascertaining an individual’s

guilt, because it only clarifies the accused reasons, for acting or refrained from acting in a
specific manner. However, it is required for police investigation and other stages of the case.

Key Differences between Intention and Motive

The intention is the basic element for making a person liable for the crime, which is commonly
contrasted with motive. Though we often use the two terms interchangeably, these are different
in the eyes of law. While intention means the purpose of doing something, motive determines
the reason for committing an act.

The primary difference between intention and motive is that intention specifically indicates the
mental state of the accused, i.e. what’s going on in his mind, at the time of the commission of
a crime, whereas motive implies the motivation, i.e. what drives a person to do or refrain from
doing something.

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The points given below are substantial so far as the difference between intention and motive
is concerned:

1. In criminal law, the term intention is explained as the deliberate cause and known effort,
to act in a particular manner which is not permitted by law. As against, the motive is
defined as the implicit cause, which instigates a person to do or not to do something.

2. The intention of a person can be determined by the use of particular means and the
circumstances, that resulted in the criminal offence. Conversely, the motive is the
reason, that drives a person to do an act or refrain from acting in a specific manner.

3. While the intention is the expressly defined purpose of the crime, the motive is hidden
or implied purpose.

4. When the intention of a person, is the element for affixing criminal liability, it must be
proven beyond reasonable doubt. On the contrary, the motive is not the primary element
for affixing culpability, so it need not be proven.

While intention determines whether the accused committed the crime purposely or
accidentally, motive answers the question, why the accused committed the crime. Simply put,
motive impels intention, so, the latter arises out 0of the former.

In every criminal case, the intention of the defendant is foremost, because, the guilt or
innocence can only be proved with it. On the other hand, motive does not play a significant
role in determining the guilt or innocence.

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 Malice

What is Malice?
I. The intent, without justification or excuse, to commit a wrongful act.
II. Reckless disregard of the laws of a person's legal rights.
III. Ill will: wickedness of heart. This sense is most typical in non-legal contexts.

"Malice as a concept of law means wrongful intention. It includes any intent which
the law deems wrongful, and which therefore serves as a ground of liability. Any act done with
such an intent is, in the language of the law, malicious, and this legal usage has etymology in
its favour. The Latin malitia means badness, physical or moral - wickedness in disposition or
in conduct - not specifically or exclusively ill-will or malevolence; hence the malice of
English law, including all forms of evil purpose. Design, intent, or motive. But intent is of two
kinds, being either immediate or ulterior, the ulterior intent being commonly distinguished as
the motive. The term malice is applied in law to both these forms of intent, and the result is a
somewhat puzzling ambiguity which requires careful notice. When we say that an act is
done maliciously, we mean one of the two distinct things. We mean either that it is done
intentionally, or that it is done with some wrongful motive."

Malice in Fact or Actual Malice

Malice in fact. "Malice in fact" means express malice. Malice in fact relates to the actual state
or condition of the mind of the person who did the act. Malice in fact is where the malice is not
established by legal presumption or proof of certain facts, but is to be found from the evidence
in the case. Malice in fact implies a desire or intention to injure, while malice in law is not
necessarily inconsistent with an honest purpose.

Malice in Law
'Malice in law" means implied malice. The word "malice" in common acceptation means and
implies "spite" or "ill will". One redeeming feature in the matter of attributing bias or malice is
now well settled that mere general statements will not be sufficient for the purposes of
indication of ill will. There must be cogent evidence available on record. In the case of Jones

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Bros. (Hunstanton) Ltd. v. Stevens (1955)1, the Court of Appeal has reliance on the decision
of Lumley v. Gye (1853) 2as below: "For this purpose maliciously means no more than
knowingly. This was distinctly laid down in Lumley v. Gye (1853)3where Crompton, J. said
that it was clear law that a person who wrongfully and maliciously, or, which is the same thing,
with notice, interrupts the relation of master and servant by harbouring and keeping the servant
after he has quitted his master during his period of service, commits a wrongful act for which
he is responsible in law. Malice in law means the doing of a wrongful act intentionally without
just cause or excuse: Bromage v. Prosser (1825) 4
'Intentionally' refers to the doing of the act; it does not mean that the defendant meant
be spiteful, though sometimes, as for instance to rebut a plea of privilage in
defamation, malice in fact has to be proved". (See State of Punjab v. U.K. Khann and others
(2001)
"Malice in law" is however, quite different. Viscount Haldane described it in Shearer
Shields, (1914) AC 808 as: "A person who inflicts an injury upon another person in
contravention of the law is not allowed to say that he did so with the innocent mind: he is taken
to know the law, and he must act within the law. He may, therefore, be guilty of malice in law,
although, so far the state of mind is concerned, he acts ignorantly, and in that sense
innocently". Malice in its legal sense means malice such as may be assumed from the doing of
a wrongful act intentionally but without just cause or excuse, or fro want of reasonable or
probable cause. (See S.R. Venkatarcunan v. Union of India(1979)5 Malice-per common law.
"Malice" in common law or acceptance means ill will against a person, but in legal sense means
a wrongful act done intentionally without just cause or excuse. (See Chairman and M.D., B.P.L.
Ltd v. S.P. Gururaja and others JT 2003 (Suppl. 2) SC 515 and Chairman and MD, BPL Ltd.
v. S.F. Gururaja and others (2003) 8 SCC 567).

Malice as Related to Torts

Malice is not essential to the maintenance of an action for tort. It is of two kinds, 'express
malice' (or malice in fact or actual malice) and 'malice in law' (or implied malice). The first is
what is called malice in common acceptance and means ill will against a person; the second

1
1 QB 275: (1954) 3 All ER 677 (CA)
2
2 E&B; 216: 22 L.JQB 463
3
2 E&B; 216: 22 LJQB 463
4
C&P; 673: 4 B&C;
5
2 SCC 491

16
means a wrongful act done intentionally without just cause or excuse. Where a man has a right
to do an act, it is not possible to make his exercise of such right actionable by alleging or
proving that his motive in the exercise was spite or malice in the popular sense. An act, not
otherwise unlawful, cannot generally be made actionable by an averment that it was done with
evil motive. A malicious motive per se does not amount to injuria or legal wrong.

Malice in Law
An order is mala fide when there is malice in law although there is no malice in fact. The malice
in law is to be inferred when an order is made contrary to the objects and purposes of the Act.
Whether in any particular case this is so or not must depend upon the facts and circumstances
of the case.
The lexical meaning of the legal phrase LEGAL MALICE has been defined by Hon Supreme
Court in case of Kalabharati Advertising v. Hemant Vimalnath Narichania, (2010) 6 it has held
that -
The State is under the obligation to act fairly without ill will or malice— in fact or in law.
“Legal malice” or “malice in law” means something done without lawful excuse. It is an act
done wrongfully and wilfully without reasonable or probable cause, and not necessarily an act
done from ill feeling and spite. It is a deliberate act in disregard to the rights of others. Where
malice is attributed to the State, it can never be a case of personal ill will or spite on the part of
the State. It is an act which is taken with an oblique or indirect object. It means exercise of
statutory power for “purposes foreign to those for which it is in law intended”. It means
conscious violation of the law to the prejudice of another, a depraved inclination on the part of
the authority to disregard the rights of others, which intent is manifested by its injurious
acts.7, S.R. Venkataraman v. Union of India
In Ravi Yashwant Bhoir v. Collector, (2012) 4 SCC 407 it was held that
This Court has consistently held that the State is under an obligation to act fairly without ill
will or malice in fact or in law. Where malice is attributed to the State, it can never be a case
of personal ill will or spite on the part of the State. “Legal malice” or “malice in law” means
something done without lawful excuse. It is a deliberate act in disregard to the rights of others.
It is an act which is taken with an oblique or indirect object. It is an act done wrongfully and
wilfully without reasonable or probable cause, and not necessarily an act done from ill feeling
and spite.

6
9 SCC 437 : (2010) 3 SCC (Civ)
7
(Vide ADM, Jabalpur v. Shivakant Shukla [(1976) 2 SCC 521 : AIR 1976 SC 1207]

17
 Malice-in-fact Malice-in-law

1. When an act is done with But when an act is done

ill- will motive towards an wrongfully and without
individual then it is called reasonable and probable
Malice –in –fact or express cause , it is called Malice-
malice . in-law or implied malice. In
malice-in-law, the act done
must be wrongful or legal
right must be violated.
2. In Malice-in-fact there must While in Malice-in-law
be ill-will or any vindictive there must
motive of the defendant be
Concurrence of mind
against the plaintiff. with a wrongful act done by
the defendant without just
cause or excuse.

3. Motive is the main On the other hand ,

ingredient upon which Knowledge is the main
Malice-in-fact is based . ingredient upon which
Malice-in – law is based .

Mala fide exercise of power does not imply any moral turpitude. It means exercise of statutory
power for “purposes foreign to those for which it is in law intended”. It means conscious
violation of the law to the prejudice of another, a depraved inclination on the part of the
authority to disregard the rights of others, where intent is manifested by its injurious acts.
Passing an order for unauthorised purpose constitutes malice in law. (

http://www.infipark.com/articles/malice-in-fact-and-malice-in-law/
http://www.legalserviceindia.com/article/l175-Torts-in-India.html
https://indiankanoon.org/search/?formInput=malice%20in%20law

18
 Mens Rea

Mens Rea meaning in law

The concept of mens rea, which is Latin for “guilty mind,” allows the criminal justice system
to distinguish someone who set out with the intention of committing a crime from someone
who did not mean to commit a crime. Mens rea refers to what the accused individual was
thinking, and what his intent was at the time the crime was committed. Intent may be anything
from a general intention to do something illegal, to a premeditated objective to commit a
particular crime. To explore this concept, consider the following mens rea definition.

Definition of Mens Rea

1. A person’s knowledge that his conduct is criminal.

2. A criminal intent.

3. Wrongful purpose or guilty knowledge.

Mens Rea and the Law

The concept of mens rea was brought up in the writings of the English jurist Edward Coke,
who promoted the idea that an act itself does not make a person guilty of a crime, unless their
mind is also guilty. This is a vital differentiation between an individual who accidentally does
something that turns out to be a crime, and someone who set out in their mind to do something
to harm another person or their property. In modern law, a person cannot generally be convicted
of a crime unless it can be shown that he knowingly engaged in the illegal act.

This concept is commonly seen in incidents resulting in severe injury or death. For example, a
pedestrian steps off the curb in front of driver William, who slams on his breaks in an attempt
to stop, but ends up hitting and killing the pedestrian. Although William technically killed the
pedestrian, he had no intent to cause harm, and therefore no “guilty mind.” This is considered
an accident, not a criminal act.

If, on the other hand, William had been driving around looking for a man he was angry with,
with the intent of getting revenge. The man steps off the curb in front of William, who speeds

19
up, hitting and killing the man. In this case, William obviously had the intent to find and harm
the man, making this a criminal act for which William may be charged for murder.

Carelessness vs. Criminal Intent

Acting with carelessness is referred to in the eyes of the law as “negligence.” A careless or
negligent act that results in injury or damage to another results in civil liability, and is rarely
charged as a criminal offense. For example, leaving a rake out on the sidewalk where someone
steps on it and is injured may result in the property owner being sued for medical bills
associated with the injury.

There is a point at which, however, careless acts rise to the level of criminal negligence. For
example, Steve leaves his lawnmower running on the front lawn while he runs into the garage
to get his rake. The neighbour’s child tries to push the lawnmower and is seriously injured.
Although Steve had no criminal intent, it is easy to assume that an unattended running
lawnmower could pose a danger to neighbourhood children, so Steve may be charged with
criminal negligence. This would expose him to criminal conviction as well as civil liability.

Intentional and Unintentional Behaviour

Mens rea is all about intent and the individual’s frame of mind when a crime is committed.
Unintentional criminal acts fall into two basic categories, “mistake in fact,” and “mistake in
law.” A mistake in fact applies to a person whose act technically fits the definition of a crime,
but the person is unaware of a critical factor necessary for intent. For example, if Helen gives
her neighbour a zip lock bag full of white powder in exchange for money, fully believing she
was selling baking soda, she is mistaken about a critical factor of the crime. Helen did not have
the intent to sell a drug, but intended to sell baking soda.

A mistake in law refers to a person who acts not knowing that the act was a crime. For example,
Grandma Joanne sees one of her outdoor cats behaving strangely. Because the area has a
problem with rabies, Grandma goes into the house, comes back with her handgun, and puts the
cat out of its misery. A neighbour who hears the single gunshot calls the police who come to
investigate, and Grandma tells them what happened. Grandma is surprised to receive a citation,
and a criminal charge of discharging a firearm within the city limits. She had no idea that her

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act of putting down a rabid animal was technically illegal. In this case, Joanne was not mistaken
about what she was actually doing, but only about the fact that it was against the law.
Unfortunately, the legal system embraces the idea that ignorance of the law is no excuse.

Motive vs. Intent

Motive may be used by the prosecution to prove that the accused intended to commit the crime,
and intended to produce a particular outcome. Motive may not, however, be used as a defense
to an illegal act. For example, Nick and Cindy break into a cosmetic testing laboratory,
damaging equipment and setting animals loose. The pair are arrested and charged with a variety
of criminal offenses. Even though their actions were politically motivated in ending cruelty in
animal testing, they could not use this as a defense. Guilt will be determined based on the pair’s
actions and intent. In this case, Nick and Cindy intended to break into the facility without
permission, and intended to cause damage, both of which are illegal acts. The fact that they did
it “for a good reason” cannot be considered in a court of law.

Strict Liability

Certain laws, referred to as “strict liability” laws, do not take into account mens rea at all.
Essentially these laws consider that, regardless of the intent of the individual committing the
act, the act itself is deserving of criminal penalties. Many of these laws apply situations
involving minors, such as statutory rape, and selling alcohol to minors. Strict liability also
applies to defectively manufactured products.

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 Cases

INTENTION

Hyam v DPP 8

The defendant, in order to frighten Mrs. Booth, her rival for the affections of Mr. X, put burning
newspaper through the letterbox of Booth’s house and caused the death of two of her children.
She claimed that she had not meant to kill but had foreseen death or grievous bodily harm as a
highly probable result of her actions. Ackner J directed the jury that the defendant was guilty
if she knew that it was highly probable that her act would cause at least serious bodily harm.
Although Lord Hailsham LC stated that he did not think that foresight of a high degree of
probability is at all the same thing as intention, and it is not foresight but intention which
constitutes the mental element in murder, the House of Lords (by a 3-2 majority), held that
foresight on the part of the defendant that his actions were likely, or highly likely, to cause
death or grievous bodily harm was sufficient mens rea for murder.

R v Hancock and Shankland 9

The defendants were striking miners who threw a concrete block from a bridge onto the
motorway below. It struck a taxi that was carrying a working miner and killed the driver. The
defendants argued that they only intended to block the road but not to kill or cause grievous
bodily harm. The trial judge directed the jury on the basis of Lord Bridge’s statements
in Moloney (i.e., was death or grievous bodily harm a natural consequence of what was done,
and did the defendants foresee that consequence as a natural consequence?) and the defendants
were convicted of murder. On appeal a verdict of manslaughter was substituted by the House
of Lords who reaffirmed that the prosecution has to establish an intention to kill or do grievous
bodily harm on the part of the defendant. Lord Scarman felt that the Moloney guidelines on the
relationship between foresight and intention were unsatisfactory as they were likely to mislead
a jury. Lord Scarman expressed the view that intention was not to be equated with foresight of
consequences, but that intention could be established if there was evidence of foresight. The
jury

8
[1975] AC 55
9
[1986] 2 WLR 257

22
should therefore consider whether the defendant foresaw a consequence. It should be explained
to the jury that the greater the probability of a consequence occurring, the more likely that it
was foreseen, and the more likely that it was foreseen, the more likely it is that it was intended.
In short, foresight was to be regarded as evidence of intention, not as an alternative form of it.

R v Nedrick 10

A child had burned to death in a house where the defendant had, without warning, put a petrol
bomb through the letter box. He admitted to starting the fire but stated that he only wanted to
frighten the owner of the house. The Court of Appeal overturned the murder conviction and
substituted a verdict of manslaughter as the judge had misdirected the jury. Lord Lane CJ
provided a model direction for a jury about intent in a murder case where the defendant did a
manifestly dangerous act and someone died as a result. Lord Lane CJ suggested that when
determining whether the defendant had the necessary intent, it might be helpful for a jury to
ask themselves two questions: (1) How probable was the consequence which resulted from the
defendant’s voluntary act? (2) Did he foresee that consequence?

* If he did not appreciate that death or serious bodily harm was likely to result from his act, he
cannot have intended to bring it about.

* If he did, but thought that the risk to which he was exposing the person killed was only slight,
then it might be easy for the jury to conclude that he did not intend to bring about the result.

* On the other hand, if the jury were satisfied that at the material time the defendant recognized
that death or serious bodily harm would be virtually certain (barring some unforeseen
intervention) to result from his voluntary act, then that is a fact from which they may find it
easy to infer that he intended to kill or do serious bodily harm, even though he may not have
had any desire to achieve that result.

R v Walker and Hayles 11

The defendants threw their victim from a third-floor balcony. At their trial for attempted murder
the trial judge directed the jury that they could infer intention if there was a high degree of

10
(1986) 83 Cr App 267
11
(1990) 90 Cr App R 226

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probability that the victim would be killed and if the defendants knew “quite well that in doing
that there was a high degree of probability” that the victim would be killed. The defendants
appealed on the ground that the trial judge was confusing foresight of death with an intention
to kill and should have directed the jury in the Nedrick terms of “virtual certainty”. The Court
of Appeal did not accept that the reference to “very high degree of probability” was a
misdirection. However, Lloyd LJ stated that in the rare cases where an expanded direction is
required in terms of foresight, courts should continue to use virtual certainty as the test, rather
than high probability.

R v Scalley 12

The defendant was alleged to have murdered a 5-year-old boy by setting fire to a house in
which the defendant had once lived. The defendant was convicted of murder following the trial
judge’s direction to the jury to the effect they could convict if they were sure that the defendant
intended death or grievous bodily harm in the sense that he foresaw either consequence as
virtually certain to result from his actions. The Court of Appeal quashed the conviction and
substituted a conviction for manslaughter. The direction did not make it clear that foresight of
the virtual certainty of death or serious injury is not intention but merely evidence from which
the jury are entitled to infer intention. The jury should have been told that if they were satisfied
that the defendant did see either death or serious injury as virtually certain, then they could go
on to infer intention but were not obliged to do so.

12
[1995] Crim LR 504

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 Actus Reus
Actus reus is the Latin term used to describe a criminal act. Every crime must be considered in
two parts-the physical act of the crime (actus reus) and the mental intent to do the crime (mens
rea). To establish actus reus, a lawyer must prove that the accused party was responsible for a
deed prohibited by criminal law.

Actus reus is commonly defined as a criminal act that was the result of voluntary bodily
movement. This describes a physical activity that harms another person or damages property.
Anything from a physical assault or murder to the destruction of public property would qualify
as an actus reus.

Omission, as an act of criminal negligence, is another form of actus reus. It lies on the opposite
side of the spectrum from assault or murder and involves not taking an action that would have
prevented injury to another person. An omission could be failing to warn others that you’ve
created a dangerous situation, not feeding an infant who has been left in your care, or not
completing a work related task properly which resulted in an accident. In all of these cases, the
perpetrator’s failure to complete a necessary activity caused harm to others.

The exception to actus reus is when the criminal actions are involuntary. This includes acts that
occur as a result of a spasm or convulsion, any movement made while a person is asleep or
unconscious, or activities participated in while an individual is under a hypnotic trance. In these
scenarios a criminal deed may be done, but it is not intentional and the responsible person will
not even know about it until after the fact.

Generally, for the purposes of criminal liability, an individual may be under a duty to act if:

• A statute requires a person to act in a certain way.

• A contract requires a person to act in a certain way.

• Some special status relationship exists that creates a duty to act in a certain way (i.e.
parental responsibilities). ,m

• A voluntary assumption of care creates a duty to act in a certain way.

• The individual created the risk.

For conduct to constitute an actus reus, it must be engaged in voluntarily. Few sources
enumerate the entirety of what constitutes voluntary and involuntary conduct. Oliver Wendell

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Holmes, in his 1881 book The Common Law, disputed whether such a thing as an involuntary
act exists: "[a] spasm is not an act. The contraction of the muscles must be willed." A few
sources, such as the Model Penal Code, provide a more thorough treatment of involuntary
conduct:

1. a reflex or convulsion;

2. a bodily movement during unconsciousness or sleep;

3. conduct during hypnosis or resulting from hypnotic suggestion;

4. a bodily movement that otherwise is not a product of the effort or the determination of the
actor, either conscious or habitual.

Reflex or convulsion

Generally, if, during an uncontrollable flailing caused by a sudden paroxysmal episode, such
as that produced by an epileptic seizure, a person strikes another, that person will not be
criminally liable for the injuries sustained by the other person. However, if prior to the assault
on another, the seized individual was engaging in conduct that he knew to be dangerous given
a previous history of seizures, then he is culpable for any injuries resulting from the seizure.
For example, in People v. Decina, 2 N.Y.2d 133 (1956), the defendant, Emil Decina, appealed
a conviction under 1053-a of the New York Penal Law. On March 14, 1955, Decina suffered a
serious seizure while operating a motor vehicle. He swerved wildly through the streets and
struck a group of school girls, killing four of them. On direct examination, Decina's physician
testified that Decina informed him that prior to the accident "he noticed a jerking of his right
hand" and recounted his extensive history of seizures, a consequence of brain damage from an
automobile accident at age seven. Decina argued, inter alia, that he had not engaged in criminal
conduct because he did not voluntarily strike the school girls. The New York Court of Appeals
disagreed and held that since the defendant knew he was susceptible to a seizure at any time
without warning and decided to operate a motor vehicle on a public highway anyway, he was
guilty of the offense. "To hold otherwise," wrote Froessel, J, "would be to say that a man may
freely indulge himself in liquor in the same hope that it will not affect his driving, and if it later
develops that ensuing intoxication causes dangerous and reckless driving resulting in death, his
unconsciousness or involuntariness at that time would relieve him from prosecution."

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 Unconsciousness or sleep
In Hill v Baxter, Kilmuir, LC, articulated the necessity of eliminating automatism, defined as
"the existence in any person of behaviour of which he is unaware and over which he has no
conscious control," in proving the voluntariness of the actus reus:

Normally the presumption of mental capacity is sufficient to prove that he acted consciously
and voluntarily and the prosecution need go no further. But, if after considering evidence
properly left them by the judge, the jury are left in real doubt whether or not the accused acted
in a state of automatism...they should acquit because the necessary mens rea—if indeed the
actus reus—has not been proved beyond a reasonable doubt.

Thus, a person suffering from somnambulism, a fugue, a metabolic disorder, epilepsy, or other
convulsive or reflexive disorder,who kills another, steals another's property, or engages in other
facially criminal conduct, may not have committed an actus reus, for such conduct may have
been elicited unconsciously, and "one who engages in what would otherwise be criminal
conduct is not guilty of a crime if he does so in a state of unconsciousness."Depending on
jurisdiction, automatism may be a defense distinct from insanity or a species of it.

While the general scientific consensus is that hypnosis cannot induce individuals to engage in
conduct in which they would not otherwise engage,the Model Penal Code, as well as the
criminal codes of Montana, New York, and Kentucky do provide hypnosis and hypnotic
suggestion as negating volition, and consequently, actus reus.

Perhaps the earliest case of hypnotism as negating voluntary conduct is California v. Ebanks,
49 P 1049 (Cal. 1897). In Ebanks, the court categorically rejected Ebanks' argument that the
trial court committed reversible err in denying him leave to present expert testimony
concerning the effects of hypnotism on the will. The lower court bluntly remarked that "The
law of the United States does not recognize hypnotism. It would be an illegal defense, and I
cannot admit it." Nearly sixty years later, however, the California Court of Appeals ruled that
the trial court did not err in allowing expert testimony on hypnosis, though it did not rule on
whether hypnotism negates volition. The Supreme Court of Canada ruled confessions made
under hypnosis inadmissible because they are involuntarily given; Germany and Denmark
provide a hypnotist defense.

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 Omission

Voluntariness includes omission, for implicit in omission is that the actor voluntarily chose to
not perform a bodily movement and, consequently, caused an injury. The purposeful, reckless,
or negligent absence of an action is considered a voluntary action and fulfills the voluntary
requirement of actus reus.

Cases on Actus Reus

The Actus Reus Must be Voluntary

• R v Quick [1973]

The defendant, a diabetic was charged with assaulting his victim. The assault occurred whilst
the defendant was in a state of hypoglycaemia (low blood sugar level due to an excess of
insulin). The court held that the defendant should have been acquitted on the ground of
automatism. His unconscious state had been the result of external factors, ie the taking of
insulin.

• Leicester v Pearson (1952)

A car driver was prosecuted for failing to give precedence to a pedestrian on a zebra crossing,
but was acquitted when it was established that his car had been pushed onto the crossing by
another car hitting it from behind.

“State of Affairs” Cases (Actus Reus)

• R v Larsonneur (1933)

The defendant was a French national who had entered the UK lawfully, but was given only
limited permission to remain in the country. At the end of that period the defendant left
England, not to return to France, but to travel to the Irish Free State. The Irish authorities made
a deportation order against her, and she was forcibly removed from Ireland and returned to the
UK. On arrival in England the defendant was charged under the Aliens Order 1920, with “being
found” in the UK whilst not having permission to enter the country. The defendant was
convicted, and appealed on the basis that her return to the UK had not been of her own free
will, in that she had been forcibly taken to England by the immigration authorities. The Court

28
of Appeal dismissed her appeal on the simple basis that the prosecution had proved the facts
necessary for a conviction.

• Winzar (1983)

The defendant had been admitted to hospital on a stretcher. Upon examination he was found to
be drunk and was told to leave. Later he was found in a corridor of the hospital and the police
were called to remove him. The police officers took the defendant outside onto the roadway,
then placed him in a police car and drove him to the police station where he was charged with
“being found drunk in a public highway”.

The defendant was convicted, and appealed on the ground that he had not been on the public
road of his own volition. The Divisional Court upheld the conviction holding that all that was
required for liability was that the defendant should be perceived to be drunk whilst on a public
highway. There was no need for the court to have any regard as to how he came to be there.

Omissions (Actus Reus)

• Greener v DPP (1996)

The defendant was the owner of a young, powerful Staffordshire Bull Terrier. He had left the
dog chained in an enclosure in his back garden. The dog had strained and bent the clip releasing
its chain. It had escaped from the enclosure and entered a nearby garden where it bit the face
of a young child. Section 3(3) of the Dangerous Dogs Act 1991 provides that if the owner of a
dog allows it to enter a place which is not a public place but where it is not permitted to be and
while it is there it injures any person, he is guilty of an offence. It was held by the Divisional
Court that an offence under s3(3) could be committed by omission. The word “allows” included
taking and omitting to take a positive step. In the present case the defendant had failed to take
adequate precautions. Similar precautions had been taken in the past but they were obviously
inadequate as the fastening was not good enough and the enclosure not secure.

• R v Pittwood (1902)

The defendant was employed as a gatekeeper at a railway crossing. One day he went for lunch
leaving the gate open so that road traffic could cross the railway line. A hay cart crossing the
line was hit by a train. One man was killed, another was seriously injured. Pittwood was
convicted of manslaughter based on his failure to carry out his contractual duty to close the
gate when a train approached.

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• R v Dytham (1979)

A uniformed police officer saw a man who was being kicked to death. He took no steps to
intervene and drove away when it was over. He was convicted of the common law offence of
misconduct in a public office as he had neglected to act to protect the victim or apprehend the
victim..

• R v Stone and Dobinson [1977]

The defendants (common law husband and wife) were of low intelligence. One day they were
visited by S’s sister Fanny and took her in providing her with a bed but over the following
weeks she became ill. She did not eat properly, developed bed sores, and eventually died of
blood poisoning as a result of infection. The defendants had not obtained any medical
assistance for Fanny although they had known that she was unwell.

The defendants were convicted of manslaughter.

The Court of Appeal held that the defendants had been under a common law duty to care for
Fanny. This duty had arisen from their voluntarily assuming the responsibility for looking after
her, knowing that she was relying on them. The defendants’ failure to discharge this duty was
the cause of the victim’s death.

• R v Miller (1983)

The defendant had been squatting in a house and fell asleep on a mattress smoking a cigarette.
The defendant was awoken by the flames, but instead of putting the fire out, he simply got up
and went into another room where he found another mattress, and went back to sleep. As a
result, the house was substantially damaged by fire, and the defendant was convicted of
criminal damage.

The House of Lords held that once the defendant awoke and realised what had happened, he
came under a responsibility to limit the harmful effects of the fire. The defendant’s failure to
discharge this responsibility provided the basis for the imposition of liability.

Causation (Actus Reus)

• R v White [1910]

The defendant put potassium cyanide into a drink for his mother with intent to murder her. She
was found dead shortly afterwards with the glass, three-quarters full, beside her. The medical

30
evidence showed that she had died, not of poison, but of heart failure. The defendant was
acquitted of murder and convicted of an attempt to murder. Although the consequence which
the defendant intended occurred, he did not cause it to occur and there was no actus reus of
murder.

• R v Smith [1959]

The defendant was involved in a fight with a fellow soldier during which he stabbed the victim,
resulting in the victim being taken to the medical station where he died about one hour later.
On being charged with murder the defendant argued that the chain of causation between the
stabbing and the death had been broken by the way in which the victim had been treated, in
particular the fact that: (a) the victim had been dropped twice whilst being carried to the medical
station; (b) the medical officer, who was dealing with a series of emergencies, did not realise
the serious extent of the wounds; and (c) the treatment he gave him was “thoroughly bad and
might well have affected his chances of recovery”. The defendant was convicted of murder and
appealed unsuccessfully. The court held that the defendant’s stabbing was the “operating and
substantial cause” of the victim’s death. In this case the victim clearly died from loss of blood
caused by the stab wounds inflicted by the defendant.

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 Conclusion
It was observed through the progress of our research that in order to prove that the elements
namely –Motive and Actus Reus existed it is impertinent that the concept of intention has to
be present. It can therefore be inferred that, it is vital for the element of intention to be present
and proved so. The concept of Actus reus is also related as both the concepts of mens rea and
actus reus have to be proved during the progress of the criminal trial. We can therefore conclude
that all the concepts namely- intention, malice, mens rea and actus reus are related to each other
in the proceedings of a criminal trial.

To convict an accused, it is the duty of the prosecution to establish his guilt beyond all
reasonable doubt. Such reasonable doubt is logically connected to the evidence or absence of
evidence on the face of record. Only reasonable doubt favours accused but not all doubts. The
burden of prosecution never shifts in a criminal case. Whenever a reasonable doubt appears on
the face of record, it goes to accused. ‘Benefit of doubt’ is a right of accused.

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