Mens rea
Another Law point agitated by Mr. Razzak is on mens rea.
The following observation of Smith & Hogan negatives Mr. Razzak's complaint that the principle of mens rea was not applied by the Tribunal,
"Everyone agrees that a person intends to cause a result if he acts with the purpose of doing so. If D has resolved to kill P and fires a loaded gun at him with an object of doing so, he intends to kill. It is immaterial that he is aware that he is a poor shot, that P is nearly out of range, and that his chances of success are small. It is sufficient that killing is his object or purpose, that he wants to kill, that he acts in order to kill". (Page 70, Tenth Edition Criminal Law:
Smith & Hogan). In Moloney (1985, AC, 905) the House of Lords held that the mens rea of murder is intention to cause death or serious bodily harm. So, it was essential to determine the meaning of intention. Moloney must be read in the light of the explanation of it by the House in Hancock and Shankland 1986, AC, 455, the Court of Appeal in Nedrick and by the House in Woollin. When it is so read it appears that (1) a result is intended when it is the actor's purpose to cause it, (2) a court or jury may also find that a result is intended, though it is not the actor's purpose to cause it, when- (a) the result is virtually certain consequence of that act, and (b) the actor knows that it is a virtually certain consequence".
In order to establish that an accused possesses the requisite mens rea for instigating a crime, it must be shown that the accused directly or indirectly intended that the crime in question be committed and that the accused intended to provoke or induce the commission of the Crime, or was aware of the substantial likelihood that the Commission of the Crime would be a probable consequence of his acts (Prosecutor-vs-Muvunyi, Prosecutor -vs- linaj etal) Archbold Page-855.
Mind of a person cannot be read and hence mens rea is only to be assessed from the attending facts and circumstances and also from the nature of the actus reas. In this case there are ample evidence to substantiate the allegation that the Appellant had mens rea of aiding and abetting as well for committing the offences by himself.
On the Appellant's participation in the offences at the dwelling of Hazrat Ali, the Privy Council's decision in Barendra Kumar Ghosh -v- Emperor, the infamous Post Office Case, is relevant. In that case, a gang went to rob a post office and all except the appellant went inside the Post Office, killed the Post Master, but the appellant stayed out with a gun to look around. The Privy Council opined that he also would be liable of murder, though he was outside and did not shoot. Lord Sumner, in his part of the Councils opinion expressed, Even noting, as he stood outside the door, it is to be remembered that in crimes as in other things they also serve who only stand and wait." (AIR 1925 1PC) (A. H. M. Shamsuddin Choudhury, J) ...Government of Bangladesh =VS= Abdul Quader Molla, [8 LM (AD) 375]
