By Shristi Banerjee, WBNUJS
Editor’s Note: In any murder trial, determination of intention remains a challenge for the judiciary. This project intends to look beyond theoretical approach for determining intention and attempts at analytical justification. The word “intention” has been interpreted by the Courts differently. For determining the Intention, the court needs to spy the minds of the accused and by applying certain parameters determine whether the person intended to cause the death. This paper also provides certain recommendation on the interpretation of this term.
Murder accounts for 59.0% (64,949 out of 1,10,001) of the total convicts under IPC crimes.[i]Given the rate of conviction, it becomes imperative to look into the technicalities for determination of the offence. A number of researches have been carried out in this topic and humungous judgements exist in this field but determination of intention remains a challenge for the judiciary. To delve deeper in order to know the role of intention played in order to determine culpable homicide, this project has been taken up which moves beyond theoretical approach and attempts at analytical justification.
One important parameter to determine culpable homicide is “intention”. The word “culpable” has been derived from Latin culpabilis which means ‘to blame’. The phrase is attached with “guilty mind” or “criminal intention”. In order to analyse “intention to cause death”, the main issues that are dealt with in this project are to extract the ingredients of intention, to analyse methods to determine intention and to distinguish intention from other mental elements like “knowledge” and “reason to believe”.
In order to address these issues, the project revolves around the concept of intention laid down under the Indian Penal Code. S. 299 of IPC puts down “Whoever causes death by doing an act with the intention of causing death….commits the act of culpable homicide.” S. 300 again lays down that adhering to the exceptions, “if the act by which death is caused is done with the intention of causing death”, culpable homicide would amount to murder. So, intention is inseparable from both culpable homicide and murder.
The application of “intention to cause death” can be understood properly by assuming a few hypothetical situations. Assuming A keeps a bomb in a lunchbox in the middle of the road. The place where it is kept is surrounded by people. He manages to keep the box and runs away. The bomb explodes and causes the death of two people. Now, the question that arises is whether A would be said to possess “intention to cause death” in this case. Assuming another hypothetical situation where the A has some Life threatening disease and X medicine is vital to his survival. B, his sister, knows the importance of X but still, one day she hides the medicine in an undiscoverable place. A dies as a result of non intake of his medicine. Would B be said to have “intention to cause death”? Moreover what would be the situation in case A brutally rapes B where she develops Sepsis and dies thereof? Would A be said to have the “intention to cause death”?
INTERPRETATION OF THE WORD “INTENTION”
When knowledge of a particular consequence is backed by will to cause such consequence, intention is said to have been formed. It can also be called “malice aforethought”[ii]. Any voluntary act is given effect because of determination and will to cause that act. This determination coupled with the knowledge of the consequence is the main ingredient of intention.[iii] It can also be interpreted as the mental condition preceding a conscious act.[iv] The desire to commit a particular act can be called volition and this desire which when proceeded by a longing for the attainment of some object is constitutes “intention”. It[v] is the capability to choose to commit an act.[vi]Criminality of an act cannot be denied if a person thinks, plans and executes the plan at that level.[vii] Anything that be caused deliberately[viii] and with or without elaborate devices will involve causing that act by intention.[ix] The virtual certainty of the consequence of the act would amount to intention.[x] In Om Prakash v State of M.P[xi], the accused assaulted the victim on vital organ with deadly weapon. It was deduced that he had planned and then executed his act, so he possessed intention.[xii] The possibility of formation of intention at the spur of the moment cannot be ruled out in some cases. In case of Nishan Singh v State of Punjab [xiii], the accused was not carrying any weapon but he snatched a weapon from someone else and caused the death of the deceased. The court took into account the intention to cause death.
Intention is different from other mental elements like “knowledge” and “likely to cause death”. Knowledge is only awareness of the consequence of the act without any volition. An act that would be “likely to cause death” would be of further lesser degree where the degree of certainty of the consequence is far lesser.[xiv] In State of M.P. v Mst Gangabai,[xv] the accused attempted to dissuade his sister in law from leaving her husband’s home. In the course he hit her with a scythe. She died of injuries. The court held that the accused knew that his act is “likely to cause death” but did not possess the grave intention to kill her. Though knowledge can form a part of all the three mental elements but the determination of will and certainty of the consequence is present only in case of intention. Knowledge and “likely to cause death” would be called oblique intention.[xvi]
Intention should also be differentiated with motive. Sometimes, the act and the consequence might seem to be innocent, but in order to determine intention, the mental condition preceding the conscious act needs to be known.[xvii] Huda[xviii] has explained motive as that force that fuels intention. Intention may be the immediate purpose of committing an act whereas motive would be the ulterior motive behind any such act. So, it can be said that motive has a ‘dynamical’ while intention has a ‘telescopic’ aspect.[xix]
In DPP v Smith[xx], the accused drives a stolen car and when he is directed to stop by the police, he tries to accelerate and the policeman hangs on the car pursuing an erratic course that results in his death. The court decides that if the accused, on being judged from a reasonable man’s perspective is able to show intention, then only he will be convicted. So, the case suggested application of “prudent man test”. This principle was said to be appropriate since it judged the accused objectively considering all the relevant circumstances.[xxi]But the objective test has not been practised[xxii] as a rule in such cases since, intention is a mental concoction and cannot be determined merely by judging a person by the parameters of a reasonable man. It is different for each person. [xxiii]
DETERMINATION OF INTENTION WITH RESPECT TO CULPABLE HOMICIDE
Intention is locked in the heart of the assailant and inference has to be drawn from acts and attending circumstances.”[xxiv] Proving intention is a challenging task for the judiciary and hence the details of every circumstance at the time of commission should be taken into account. The facts of the case lay a helping hand in such determination. The subjective test shows its advantage while determining such intention. A host of such circumstances would include the nature of the act, the kind of weapon used by the accused, nature of injuries, part of the body on which injury was inflicted, [xxv] the demeanour of the accused before and after the commission of the act that would corroborate the establishment of the guilty intention. [xxvi] These collections of determinants can be applied to the maxim that “A reasonable person would intend the natural and probable consequence of his act.”
The rule of determination of intention has been elaborately laid down in the case of Pulicherla Nargaraju v State of Andhra Pradesh[xxvii]. It considered elements like nature of the weapon used, whether the weapon was carried by the accused or was picked up on the spot, whether the blow was aimed at a vital part of the body, the amount of force employed in causing injury, whether the act was in course of sudden quarrel or sudden fight or free for all. Whether the incident occurred by chance or whether there was any pre- meditation., whether there was any prior enmity or whether the deceased was a stranger, whether there was any grave and sudden provocation, and if so the cause of such provocation, whether it was in the heat of passion, whether the person inflicting the injury has taken due advantage or has acted in a cruel and unusual manner, whether the accused dealt a single blow or several blows. In the present case, the accused was carrying a Barisa, a dangerous weapon. There was previous enmity. There was an incident half an hour before the commission of the act and the deceased was not carrying any weapon. There was no provocation or sudden fight. The accused stabbed the deceased with great force that caused an injury on the vital part of his body that was sufficient in the ordinary course of nature to cause death. So, the intention was evident.
If there is evidence or suggesting facts that say that there was premeditation on part of the accused to inflict such injury then intention would be established. In Mahesh Balmiki v State of M.P.[xxviii] the accused had called the deceased at a particular place. He had brought a knife with him and after a heated exchange of words, he stabbed the deceased. The entire plot was premeditated and hence intention was evident. But this does not imply that if there is no premeditation, intention cannot be formed. Intention can be formed at the moment of crime also, given the circumstances of the case. In Dharma alias Dharam Singh,[xxix] it was held that mere absence of premeditation cannot lead to the conclusion of absence of intention. Sometimes, the gravity of the crime also leads the way to determine the intention but it cannot be taken as a concrete ground without and circumstantial evidence. In case of grave and sudden provocation, since the benefit is given to the accused, hence objective test is applied.[xxx] While applying the test it should be noted whether there was sufficient time interval for a reasonable man to cool down. Provocation may cause loss of self control whereby malice, which is imperative for the formation of an intention to kill would not exist.[xxxi] Since, in case of provocation, the accused has no time to think, reflect or plan, hence it brings a doubt in case of “presence of intention” to commit a crime. But the gravity and promptness of provocation has to be such that would deprive the accused of his self control and during the continuance of such deprivation, he should have caused the death of the person or any person by mistake or accident.[xxxii]
In case of Chote lal Shrivastava v State of NCT of Delhi[xxxiii], the accused and the victim were playing holy. Both were under the influence of liquor and started abusing each other. There was no previous animosity or such verbal exchanges before this time. There was no weapon also with them at this time. But, suddenly the deceased was seen with a lathi which provoked the accused to get a vegetable knife from his home. The accused gave a solitary blow to the deceased and he died. There was no previous animosity between them. Here, the court decided that the element of intention was missing. His intention to cause death could have been established if he would have inflicted either very grave injury or more than one injury. It would have strengthened the claim if he they would have shared a bitter relationship. These circumstances, if proved, could have been able to establish intention without reasonable doubt since his desire to commit such act coupled with certainty of the consequence would have been established. But in Jagrup Singh v.[xxxiv], the court said that the mere fact that a single blow is given cannot negative the intention always. To gather intention, the nature of weapon used, the part of the body hit, the amount of force employed and the circumstances attendant upon death needs to be considered.
In case of Goudappa and Ors v state of Karnataka[xxxv], the accused blamed the deceased that he was unable to keep his married daughter happy. He stabbed the deceased with a Jambia on his chest which led to profuse bleeding. Along with him, the other four accused were carrying axe and they started destroying the victim’s property with that. The court decided that the nature of the weapon and the severity of attack was the deciding factor in this case. In V.K. Verma v CBI,[xxxvi] the court said that the concern of the court is with the nature of the act viewed as a crime or breach of law. The determination of guilt depends upon the gravity of the act. Focusing on the nature and mode of commission of an offence, the mitigating or aggravating factors have to be decided. In Virsa Singh[xxxvii], Vivian Bose J. clarified the points on which the intention needs to be judged. Presence of bodily injury, nature of the injury, element of accident and sufficiency to cause death are the four essential elements that are needed to be established in case of bodily injury. It is not essential to determine whether the accused intended to inflict a serious injury or a trivial one but whether he intended to cause that injury which is proved to be present. Once the presence of such injury of extremely grave nature is proved to be present, the intention will be presumed unless the evidence or the circumstances warrant an opposite conclusion.
While considering death by a single blow, it need not be always the case that intention cannot be derived. If the blow is severe enough to kill a person at once, then the fact that multiple injuries were not inflicted will not act as a mitigating factor. This can be substantiated by Jai Prakash v State (DelhiAdministration)[xxxviii] and State of Karnataka v Vedanayagam[xxxix] where intention was derived even when the accused inflicted a single blow. Similarly, in Abdul Waheed v State of Maharashtra[xl], the accused inflicted a knife injury on the deceased which was 3 inches deep over some paltry matter. The SC held that the injury manifested the intention to cause death as it was sufficient to cause death in the ordinary course of nature. So, combining all the factors, if the circumstances reflect the intention and act as corroborative device in forming intention, then the accused will be said to have formed intention to cause death.
Now deriving from all the above principles, the answer to the questions posed in the very beginning of this paper can be given. In the very first situation, A places the bomb in a place that is crowded with people. The elements required to form intention needs to be judged in this case. The nature of the act is dangerous and the fact that he uses explosives is capable of accentuating the risk to lives. The nature of the act says that such an act cannot be done at the spur of the moment and there was no grave and sudden provocation. So, the entire act was premeditated. But what lacks in this case is the certainty that someone would die as a result of his act. Although the act is inherently dangerous, yet there exists a possibility that the bomb might not explode due to technical glitches or the bomb might explode when the area becomes sparse. So, A is not cent percent sure of the consequence of his act. He possesses the element of knowledge and determination of will but he doesn’t possess certainty. Hence, intention to cause death can’t be deduced here. The case can be compared to the case of Fateh Singh v State of Rajasthan[xli], the accused send a bomb in a parcel to the deceased person’s house. The bomb exploded and the accused died. But the court held that there was nothing conclusive to prove that the bomb would explode merely on handling the parcel. Moreover, the post was sent by registered post and the name of the receiver was not mentioned. If the accused would have intended to cause death only of the person who handled it, he would have taken care to specify his name in the parcel. So, the court concluded that the case would not come under “intention to cause death” but under S. 300 (4)[xlii]
Dealing with the second situation, the possibility of nature of weapon is ruled out. But the fact that B was A’s sister and she knew that A was surviving on the drug X and that she was certain of the nature of his ailment and that death would be inevitable if such medicine is not provided to him. So, there exists an element of premeditation and planning and there is no sudden provocation as such. So, B would be said to have formed the “intention to cause death” of A. Such cases find their base upon explanation I of S. 299[xliii]. In the case of State of A.P v R. Punnayya[xliv], it was said that if a person is suffering from enlarged spleen or any other kind of infirmity, the accused will be liable to cause death even if he administers a few kicks and blows, if he is aware of the special conditions. This section applies in case of bodily injury that accelerates death.[xlv]
The third hypothesis is similar to the case of Government of NCT of Delhi v Ram Singh and Ors. [xlvi] The person not only brutally rapes her, but in course, inflicts such injuries that have been described as dangerous, extremely bad for definite repair and sufficient in the ordinary course of nature to cause death. Since there was no question of accident and it is a clear case of certainty of death, “intention to cause death” is relevant. The present case is a replica of the mentioned case and hence intention would be relevant.
The rules of intention are very clearly laid down. The fixed ingredient of intention would include knowledge coupled with determination of will and certainty of the consequences and these distinguish intention from “knowledge” and “likely to cause death”. But, the problem arises while determining intention of a person to cause death. While doing so, the factors mentioned in the project are taken into account but at times they might not result in precise conclusions. This can happen in cases of “accident on purpose” disguised to be mere “accident”. In such cases, the intent of the accused is very difficult to deduce. If accident is plotted purposefully, then the parameters to determine intention cannot be very successful to test upon. In such cases, the courts should not rule out the probability of purposeful accident and should consider it as a possibility heeding to the past relationship between the accused and the victim.
After exploring the intricacies of “intention to cause death”, it can be concluded that intention is a purely subjective element. It doesn’t need any prescribed ground rules in order to infest a person’s mind. But, since “A person is what he thinks”, the court needs to spy the minds of the accused and by applying certain parameters determine whether the person intended to cause the death. The parameters laid down in the project are mere tools that help in determining intention and may not be always conclusive. So, correct determination has to be arrived at by extensive observation. After all, “Murder is unique in that it abolishes the party it injures, so that society must take the place of the victim and on his behalf demand atonement or grant forgiveness.”
Edited by Hariharan Kumar
[ii] D. Ormerod, Smith and Hogan’s Criminal law, (9th, Oxford 2009) 437
[iii] Shamsul Huda, Principles of Law of Crimes, (State Mutual Book & Periodical Services Ltd, 1982) 170
[v] C.S. Kenny, Kenny’s outlines of criminal law, (9th, CUP 2011) 148, Intention can be present in case where the offender’s mind is working objectively towards his goal without any fear and compulsion of force, madness. In coming times, the interpretations was further stretched to doing of the act voluntarily and also foreseeing the consequences of the act.
[vi] H.L.A. Hart, Punishment and Responsibility, Essays in the Philosophy of Law (1968), 152
[vii] State v Sikora 44 N.J. 453, 210 a. 2d. 193 (1965)
[viii] Morcha v state of Rajasthan,  AIR 80 (SC)Purposefully carrying a weapon would amount to determination of intention.
[ix] CMV Clarkson, HM Keating and SR Cunningham, Clarkson and Keating Criminal Law, (6th, sweet and Maxwell, 2007) 114
[x] R v Matthews and Alleyne  2 Cr. App. R. 30 (Court of appeal), “ The effect of critical direction is that a result foreseen as virtually certain is an intended result”
[xi] (1989) 3 Crimes 266
[xii] Also, in Thabo Meli v R.  1 All E.R. 373 (Privy Counci), the accused attacked a person in a hut and thought him to be dead. He was not dead at that time. He disposed his body by throwing it from a cliff. He died due to that. Though the act was accomplished when the intention might have subsided, yet the first act was the mere opening act. The entire wrongful act is continued till the purpose is achieved and mens rea is present.
[xiii]  AIR 1661 (SC)
[xiv] Also see Ashok Kumar Barik v State of Orissa,  CrLJ 1849 (Ori)
[xv]  MPLJ 829
[xvi] CMV Clarkson, HM Keating and SR Cunningham, Clarkson and Keating Criminal Law, (6th, sweet and Maxwell, 2007) 108
[xvii] Shamsul Huda, Principles of Law of Crimes, (State Mutual Book & Periodical Services Ltd, 1982)172
[xviii] Ibid, 73
[xx]  A.C. 290
[xxi] Kumarlingam Amirthalingam, “Caldwell Recklessness is dead, Long Live Mens rea’s fecklessness” (2004) 67 M.L.R. 491 and 492
[xxii] Monoley  AC 905 at 921 and 928 , Hancock  AC 455 at 473
[xxiii] CMV Clarkson, HM Keating and SR Cunningham, Clarkson and Keating Criminal Law, (6th, sweet and Maxwell, 2007) 118
[xxiv] State of Haryana v Pala and Ors,  AIR 2962 (SC)
[xxv] Amir and Anr v State of Madhya Pradesh,  CriLJ3686
[xxvi] Sher Muhammad v The state,  YLR 1096
[xxvii] AIR 3010 (SC)
[xxviii]  AIR 3338 (SC)
[xxix]  Ch Cr Cas (HC) 163 (Del)
[xxx] Rex v. Lesbini,  3 K.B. 1116 The test was laid down to prevent sensitive people from taking the defence.
[xxxi] Holmes v DPP,  A.C. 588 (L.R.)
[xxxii] K.M. Nanavati v State of Maharashtra, AIR 605 (SC)
[xxxiii] CRL.A165/2012 & Crl.M.(Bail)272/2012
[xxxiv]  CriLJ 1136
[xxxv]  AIR 1595 (SC)
[xxxvi]  CriLJ 1573
[xxxvii]  AIR 465 (SC)
[xxxix] 1SCC 326 .
[xl]  AIR 1828 (SC)
[xli]  2 crimes 249 (Raj)
[xlii] If the person committing the act knows that it is so imminently dangerous that it must, in all probability cause the death or such bodily injury as is likely to cause death , and commits such an act without any excuse incurring the risk of causing death or such injury as aforesaid.
[xliii] A person who causes bodily injury to another who is labouring under a disorder, disease or bodily infirmity, and thereby accelerates the death of that other, shall be deemed to have caused his death.
[xliv]  CrLJ 1 But see, Kabiraj Tudu v State of Assam  CrLJ 432 (Gau), Thomas v State of Kerala,  CrLJ 581 (Ker), Ram Lubhya v State of Punjab,  3 Crimes 295 (Pun)
[xlv] Ratanlal and Dhirajlal, Ratanlal and Dhirajlal’s The Indian Penal Code, (32, Lexis Nexis, 2013) 102
[xlvi] SC No. 114/2013.