Doctrine of mens rea and actus reus

E-Content

Dr. Vikash Agrawal

Assistant Professor
School of Law
Dr. Harisingh Gour Vishwavidyalaya Sagar, M.P.

Module-I: Introduction

Module-II: Meaning of Mens Rea

Module-III: Application of Principle of Mens Rea to Statutory Offences

Module-IV: Mens Rea and Indian Penal Code

Module-V: Exceptions to the Principle of Mens Rea

Module-VI: Actus Reus

Module-VII: Conclusion

I. Introduction:
The essential elements necessary to constitute a crime are:

i. A human being

ii. A guilty intention (Mens rea)

iii. Act or Omission (Actus reus)

iv. Injury

The first element requires that the wrongful act must be committed by a human being.
In ancient times, the idea of retribution was prevailing, so the punishments were inflicted on
animals also for the injury caused by them. But now, if an animal causes an injury we hold not
the animal liable but its owner liable for such injury. The second important essential element of
a crime is mens rea or evil intent or guilty mind. The human being forms a guilty intention to
commit the crime and with that guilty intention he does that act which is the third element of
crime, i.e. actus reus. As the fundamental principle of criminal liability is that there must be a
wrongful act (actus reus), combined with a wrongful intention (mens rea). A person cannot be
punished only for his act in the absence of guilty intention on his part. The fourth element of
crime is injury. When by the intended act of a human being injury is caused then the crime is
complete. Injury is caused to another person or to the whole society. According to Sec. 44 of
the I.P.C. the word "injury" denotes any harm whatever illegally caused to any person, in body,
mind, reputation or property.

Here in this chapter we will discuss in detail the the mens rea and actus reus, which are
the two most important essentials crime.

II. Meaning of Mens Rea:

A fundamental principle of Criminal Law is that a crime consists of both a mental and a
physical element. Mens rea, i.e. a person’s awareness of the fact that his or her conduct is
criminal, is the mental element, and actus reus, i.e. the act itself, is the physical element.

Mens rea is a technical term, generally taken to mean some blameworthy mental
condition, the absence of which on any particular occasion negatives the condition of crime. It
is one of the essential ingredients of criminal liability. A criminal offence is committed only
when an act, which is forbidden by law, is done voluntarily.

It is the main characteristics of our legal system that the individual’s liability to
punishment for crimes depends, among other things, on certain mental conditions. The
absence of these conditions, where they are required, negatives the liability. Therefore an act in
order to be a crime must be committed with a guilty mind. This principle is based on the maxim
‘Actus non facit reum nisi mens sit rea’, it means the act alone does not make a man guilty
unless his intentions were so. No person can be held liable for his act unless it is proved that he
had a guilty mind.

It is the combination of act and intent which makes a crime. In the case of Sweat v.
Parsley, Lord Diplock said, “An act does not make a man guilty of a crime unless his mind be
also guilty”. Salmond said that the responsibility in crimes must depend on the doing of a
‘willed’ or ‘voluntary’ act and a particular intent behind that act.

For any criminal liability there must be a ‘voluntary act’. This proposition is derived from
the maxim ‘actus me invito factus non est mens actus’ which means ‘an act done by me against
my will is not my act’. This maxim supports the doctrine of mens rea for no person can be held
liable for an act done under fear or compulsion. For ex.- ‘A’ holds ‘B’ and compels him at gun
point to open the lock of C’s house. Here B’s act is not a willed or intentional act.

Origin and Development of Mens Rea:

 Notion of mens rea in early primitive societies was non-existent and liability was
absolute and offender was responsible whether he acted innocently or negligently.

In the earlier times the trials were held on fundamental presumption that a man must
almost in every case be deemed to have intended to do what he had done. In those days the
distinction between crime and tort was not clearly drawn and punishment in those days mainly
consisted of money compensation to the person wronged. Therefore, the mental attitude of a
person was an irrelevant consideration.

But later on bodily punishment came as a substitute of the payment of damages. It was
then that the importance of mens rea at the time of commission of crime was realized. With
the passage of time the requirement of mens rea as an essential of a crime has firmly taken its
root.

Before the 13th century, the doctrine of mens rea was almost non-existent. Even then it
was not completely disregarded and was kept in view in awarding the punishment. But by the
end of 17th century it was universally settled law that mens rea is an essential ingredient of
crime.

III. Application of Principle of Mens Rea to Statutory Offences:

The principle of mens rea has been applied to all common law offences in England
without any exception. But the answer to the question that whether it is applicable to statutory
offences was uncertain upto 1947. The question whether the common law requirement of
mens rea must be imported into every crime defined in the statute even where it is not
expressly mentioned as an essential element has been discussed in a number of cases. R. v.
Prince and Queesn v. Tolson are the two leading cases on this point.

In the case of R. v. Prince, Prince Henry was tried for having unlawfully taken away an
unmarried girl, below the age of 16 years, out of the lawful custody and against the will of her
father, under the belief that she was 18 years old. Jury found that before the accused took her
away, the girl had told him that she has attained the age of 18 years. It was held that the
accused’s belief about the age of girl was no defence. It was argued that the statute did not
insist on this knowledge of the accused , the doctrine of mens rea, should, nevertheless be
applied and conviction be set aside in the absence of criminal intention.

16 Judges tried the case and all but one unanimously held Prince liable. By a majority of
fifteen to one the court held that: “A mistaken belief, even though based on reasonable
grounds, that the girl was over sixteen years of age is no defence to a charge of kidnapping-a
statutory offence of taking a girl under sixteen years of age out of possession and against the
will of her parents or guardian”. A distinction was drawn between the acts that were in
themselves innocent but made punishable by statute (malum prohibitum) and acts that were
intrinsically wrong and immoral (malum in se). In the former, a belief, a reasonable belief in the
existence of the facts, if true, would take the case out of the mischief of the statute and would
be a good defence; but in the letter case such a belief was immaterial unless, of course, the law
made it otherwise. In these offences which are malus in se, mens rea is presumed and it need
not be proved specifically.

Brett J. who gave a dissenting opinion, was of the view that in order to constitute an
offence mens rea is essential and it was necessary to the prosecution to establish mens rea on
the part of the accused.

Three theories were propounded in this case:

(i) Brett J. propounds that in order to constitute a crime, mens rea is essential.

(ii) Denman J. held that the liability was based on the ground that the accused knowingly
committed a civil wrong by taking a minor girl from the lawful custody of her parents.

(iii) Bram well J. held that it was sufficient to establish that Prince had intended to commit an
immoral act. The real reason, as has been stated above, for the conviction was that the accused
had committed an act which was forbidden by the statute.

In the case of Queen v. Tolson, the Court held that "a reasonable belief in good faith in
the death of the first spouse negatives mens rea, and is a good defence to a charge of bigamy.”

The marriage of the accused (Mrs. Tolson) to Mr. Tolson took place in 1880 and Mr.
Tolson deserted her on December 13, 1881. She and her father made inquiries about him and
ultimately came to know that he had been lost in a vessel bound for America, which went down
with all hands on board. On January 10, 1887, the accused, supposing her to be a widow, went
through a ceremony of marriage with another man. The circumstances were well known to the
second husband and the ceremony was in no way concealed. In December 1887, Mr. Tolson
suddenly reappeared. Upon these facts Mrs. Tolson was charged of Bigamy under Section 57
the Offences against the Persons Act, 1861.

In the Trial Court she (the accused) was convicted, and then she filed the appeal before
the higher court. The question before the Court of Appeal was whether Mrs. Tolson had guilty
intention in committing the offence of bigamy. The Court by majority set aside the conviction
on the ground that a bona fide belief about the death of first husband at the time of second
marriage is a good defence. The Court also laid down that the doctrine of mens rea would be
applied in statutory offences also unless the same is ruled out by the statute.
 In this case the accused acted in good faith upon reasonable and probable cause of
belief without rashness or negligence, therefore, she is not to be considered guilty as she was
found to be mistaken. In the case of R. v. Wheat & Stock, Wheat a man of little education,
instructed his solicitors to obtain a divorce from his first wife, and received a telegram from
them that he would shortly receive the necessary papers for signatures. He there upon married
Stocks, and at his trial for bigamy, the Jury found that he believed on reasonable ground, and in
good faith, that he had been divorced from his first wife. He was, nevertheless, convicted and
his conviction was affirmed on appeal. The Court of Criminal Appeal held that there was not
sufficient evidence that Wheat has reasonable ground for believing that he had been divorced,
but the Judgment proceeds to declare in general terms that a reasonable belief that his first
marriage has been dissolved is no defence to the charge of bigamy.
It is submitted that the two cases are perfectly reconcilable. In Tolson’s case the
accused's mistake was one of fact and in Wheat's case the mistake was the mistake of law, and
therefore, he was guilty of an offence. Mrs. Tolson did not intend to do the act forbidden by the
statute, i.e., to marry another during the former husband's life where as Wheat did.

In the case of Brend v. Wood [(1946) 62 TLR 462] it was finally held that the principle of
mens rea is applicable not only to common law offences but to all the statutory offences also. It
was held by Lord Goddard C.J.:
“The general rule applicable to criminal cases is actus non facit reum nisi mens sit rea. It
is of utmost importance for the protection of liberty of the subject that a Court should always
bear in mind, that unless a statute, either expressly or by necessary implications, rules out
mens rea as a constituent part of the crime, the Court should not find a man guilty of an
offence against the criminal law unless he has guilty mind.”

IV. Mens Rea and Indian Penal Code:

J.D. Mayne, Ratan Lal Dheeraj Lal and various other authors have taken the view that
the common law docrine of mens rea has no general application in India. Mayne observed
“Under the Penal Code such a doctrine of mens rea is wholly out of place. Every offence is
defined and the definition states not only what the accused must have done, but the state of
his mind with regard to the act when he was doing it.”
The word mens rea has nowhere been used in the IPC but it has been applied in the
following two ways:

i. While defining offences, words used indicate actual criminal intent required for the offence.
The expressions fraudulently, dishonestly, voluntarily, knowingly and intentionally, etc. used in
the definitions indicate the criminal intent. No such words have, however, been used in case of
offences which can not be committed by innocent persons. In those offences criminal intent is
presumed. Such offences are Waging war against Government (Sec. 121), Sedition (Sec. 124-A)
and Counterfeiting of Coins (Sec. 232), etc.

ii. The IPC contains a separate chapter on General Exceptions (Sections. 76-106) which indicate
the circumstances where absence of criminal intent is presumed. This is negative method of
applying the principle of mens rea in IPC.
 Thus, though the word mens rea as such is nowhere found in the IPC, its essence is
reflected in almost all the provisions of the Penal Code. Every offence created under IPC
virtually imports the idea of criminal intent or mens rea in some form or other.

The doctrine of mens rea has been applied by the Courts in India and it is now firmly
settled law that mens rea is an essential ingredients of offences.
In the case of R. Hariprasada Rao v. State [(1951) SCR 322] the Supreme Court ruled that
unless a statute either clearly or by necessary implication rules out mens rea as a constituent
element of crime, a person should not be found guilty of an offence, unless he had a guilty mind
at the time of commission of the offence. The Apex Court reiterated the same principle in the
case of State of Maharashtra v. M.H. George (AIR 1965 SC 722).
This question was once again agitated before the Supreme Court in the case of Nathu
Lal v. State of M.P. (AIR 1966 SC 43). In this case the accused, a food grain dealer, applied for a
licence and deposited the requisite licence fee. He, without knowledge of rejection of his
application, purchased food grains and sent returns to the licensing authority who on checking
found that it was in excess of the quantity permitted by Sec. 7 of M.P. Food Grains Dealers
Licensing Order, 1958. The accused was prosecuted but acquitted on the ground that he had no
guilty mind. The Supreme Court observed:
“The accused was under a bona fide impression that the licence in regard to which he
had made an application was issued to him though not actually sent to him. The fact that the
licensing authority did not communicate to him the rejection of his application, confirmed the
accused’s belief. It was on that belief that he stored the food grains and was sending returns to
the concerned authorities. He could not, therefore, be said to have intentionally contravened
the statutory provisions.”

V. Exceptions to the Principle of Mens Rea:

There are certain exceptional cases in which mens rea is not required to be proved,
these exceptions are:

i. Offences which are made as such by the statute itself. For ex. the offence of waging war
against the State or the offence of kidnapping.

ii. All offences relating to public nuisance, private libel and contempt of court.

iii. Offences against the welfare of public (Social Welfare Offences). In these offences the
principle of strict liability is followed. For ex. offences under the Prevention of Food
Adulteration Act, 1954, or the Protection of Civil Rights Act, 1955.

iv. The cases in which although the proceeding is criminal in form, but it is only a summary
mode of enforcing a civil right.

VI. Actus Reus:

 It is the third essential element of crime. A human being and evil intent are not enough
to constitute a crime for you cannot know the intentions of a man. The thought of a man is not
triable. The criminal intent in order to be punishable must become manifest in some voluntary
act or omission. In other words, some overt act or illegal omission must take place in pursuance
of the guilty intention.
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.
Prof. Kenny defined the term acut reus as “Such result of human conduct as the law
seeks to prevent.” The act done or omitted must be an act forbidden or commanded by some
law. Russel calls actus reus as the ‘physical result of human conduct’. When criminal policy
regards such act as sufficiently harmful, the commission of the act is prohibited on pain of
punishment.
Omission, as an act of criminal negligence, is another form of actus reus. In other word,
an act includes illegal omission also. A man is held liable if some duty is cast upon him by law
and he omits to discharge that duty.

VII. Conclusion:
At the end we can say that physical element, i.e. actus reus and mental element, i.e.
mens rea, are the two tests of criminality known to our law which is based on English law. It is
the fundamental principle of criminal liability that there must be a wrongful act (actus reus),
combined with a wrongful intention (mens rea). A person cannot be punished only for his act in
the absence of guilty intention on his part. Now the principle of mens rea is settled law and is
applied in case of almost all the offences.

References
(i) Books:-

1. S.N. Mishra, Indian Penal Code, Central Law Publications, Allahabad, 20th Edition (2016)

2. O.P. Shrivastave, Principles of Criminal Law, Eatern Book Company, Lucknow, 6th Edition
(2016)

3. P.S.A. Pillai, Criminal Law, LexisNexis Butterworths, 12th Edition (2014)

4. Bare Act- Indian Penal Code, 1860

(ii) Links:-

(i) http://www.legalservicesindia.com/article/article/the-elements-and-stages-of-a-crime-1228-1.html
(ii) http://www.lawlessons.ca/lesson-plans/2.1.definition-and-principles

(iii) http://legal-dictionary.thefreedictionary.com/mens+rea

(iv) http://www.legalservicesindia.com/article/article/mens-rea-in-statutory-offences-831-1.html

(v) http://shodhganga.inflibnet.ac.in/bitstream/10603/132472/7/07_chapter%202.pdf

(vi) http://www.crimemuseum.org/crime-library/actus-reus/

Objective:
The objective of this module is to understand the importance of physical and mental
element in the constitution of crime. After reading this module the students will come to the
various essential elements of crime. They will understand that without guilty intention, no one
can be punished for his act, because it is the combination of act and intent which makes a
crime. Only act, in the absence of mens rea is not punishable. This module will clear origin and
development of the principle of mens rea. The students will be able to analyze how the
principle of mens rea is applicable to statutory offences and how it is made applicable to the
Indian criminal law along with the relevant case laws.

Summary:
This module emphasizes on the importance of mens rea and actus reus in the creation
of ana offence. It discusses the meaning and importance of mens rea and also the origin and
development of the principle of mens rea. Then it analyses how the principle of mens rea
applies to the statutory offences under the system of English Law with all the relevant
leading case laws, such as R. v. Prince and Queen v. Tolson. Then we discussed in this module
that how the principle of mens rea is applicable to the Indian Penal Code and what are the
exceptional circumstances in which guilty intention is not required to be proved. Then we
discussed that only guilty intention is not punishable unless it is manifested in the form of an
act or omission, i.e. actus reus.

Glossary:
I.P.C. : Indian Penal Code

SC : Supreme Court
HC : High Court

Sec. : Section

Ex. : Example

Cr.L.J. : Criminal Law Journal

AIR : All India Reporter

SCC : Supreme Court Cases

FAQs:
Q.1 What are the various essential elements of crime?

Ans.- The essential elements necessary to constitute a crime are:

i. A human being

ii. A guilty intention (Mens rea)

iii. Act or Omission (Actus reus)

iv. Injury

Q.2 What is mens rea?

Ans.- Mens rea means a guilty or evil intention. It is a technical term, generally taken to mean
some blameworthy mental condition, the absence of which on any particular occasion
negatives the condition of crime. It is one of the essential ingredients of criminal liability. A
criminal offence is committed only when an act, which is forbidden by law, is done with a guilty
mind.

Q.3 What is the meaning of the maxim ‘Actus non facit reum nisi mens sit rea’?

Ans.- It means the act alone does not make a man guity unless his intentions were so. No
person can be held liable for his act unless it is proved that he had a guilty mind.

Q.4 What is the meaning of the maxim actus me invito factus non est mens actus’?

Ans.- It means ‘an act done by me against my will is not my act’. This maxim supports the
doctrine of mens rea for no person can be held liable for an act done under fear or
 compulsion. For ex.- ‘A’ hold ‘B’ and compels him at gun point to open the lock of C’s house.
Here B’s act is not a willed or intentional act.

Q.5 What was held in the case of Brend v. Wood?

Ans.- In this case it was held:
“The general rule applicable to criminal cases is actus non facit reum nisi mens sit rea. It
is of utmost importance for the protection of liberty of the subject that a Court should always
bear in mind, that unless a statute, either expressly or by necessary implications, rules out
mens rea as a constituent part of the crime, the Court should not find a man guilty of an
offence against the criminal law unless he has guilty mind.”

Q.6 Whether the word ‘mens rea’ is used anywhere in the IPC? In what ways the principle of
mens rea is applicable in the IPC?
Ans.- The word mens rea has nowhere been used in the IPC but it has been applied in the
following two ways:

(i) While defining offences, words used indicate actual criminal intent required for the offence.
The expressions fraudulently, dishonestly, voluntarily, knowingly and intentionally, etc. used in
the definitions indicate the criminal intent. No such words have, however, been used in case of
offences which cannot be committed by innocent persons.
(ii) The IPC contains a separate chapter on General Exceptions (Sections. 76-106) which indicate
the circumstances where absence of criminal intent is presumed. This is negative method of
applying the principle of mens rea in IPC.

Q.7 What was held by the Supreme Court in the case of State of Maharashtra v. M.H. George?
Ans.- In the case of State of Maharashtra v. M.H. George the Supreme Court held that unless a
statute either clearly or by necessary implication rules out mens rea as a constituent element of
crime, a person should not be found guilty of an offence, unless he had a guilty mind at the
time of commission of the offence.

Q.8 State the facts and decision given in the case of Nathu Lal v. State of M.P.?
Ans.- In the case of Nathu Lal v. State of M.P.the accused, a food grain dealer, applied for a
licence and deposited the requisite licence fee. He, without knowledge of rejection of his
application, purchased food grains and sent returns to the licensing authority who on checking
found that it was in excess of the quantity permitted by Sec. 7 of M.P. Food Grains Dealers
Licensing Order, 1958. The accused was prosecuted but acquitted on the ground that he had no
guilty mind.

Q.9 What is ‘Actus Reus’?

Ans.- Actus reus is the third essential element of crime. The criminal intent in order to be
punishable must become manifest in some voluntary act or omission. 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. Prof. Kenny defined the term
acut reus as “Such result of human conduct as the law seeks to prevent.”

Quiz:

Q.1 There are how many essential elements of crime?

a. 2
b. 3
c. 4.
d. 5
Ans.- c.

Q.2 Mens rea mens:

a. Act of a man
b. Guilty intention
c. Good intention
d. None of the above
Ans.- b.

Q.3 Which of the following is not an essential element of crime?

a. A human being
b. Mens rea
c. Actus reus
d. Motive

Ans.- d.

Q.4 ‘Actus non facit reum nisi mens sit rea’ means:

a. the act alone does not make a man guity unless his intentions were so.

b. an act done by me against my will is not my act.

c. Both (a) and (b)

d. Neither (a) nor (b)

Ans.- a.

Q.5 In which case the difference between ‘malum prohibitum’ and ‘malum in se’ was made?
a. Queen v. Tolson
b. R. v. Prince
c. Nathu Lal v. State of M.P.
 d. Brend v. Wood
Ans.- b.

Q.6 What decision was given by the Court of Appeal in the case of Queen v. Tolson?
a. Accused was convicted
b. Accused was discharged
c. Accused was acquitted
d. Case is not yet decided
Ans.- c.

Q.7 Which Chapter of the IPC applies the principle of mens rea in a negative way?
a. Chapter I
b. Chapter II
c. Chapter III
d. Chapter IV
Ans.- d.

Q.8 Which of the following is a exception to the principle of mens rea?

a. Public nuisance
b. Private Nuisance
c. Contempt of Court
d. Both (a) and (c)
Ans.- d.

Q.9 The word ‘mens rea’ is defined under:

a. Sec. 10
b. Sec. 11
c. Sec. 12
d. Nowhere in the Code.
Ans.- d.

Q.10 ‘Actu reus’ means:

a. Act only
b. Omission only
c. Act or omission
d. Guilty intention
Ans.- c.

Assignments:
Q.1 What are the various essential elements of crime?
Q.2 What is Mens Rea? What is the difference between intention and motive?
Q.3 Is the principle of mens rea applicable to statutory offences? What is the position in this
regard in India?
Q.4 Elaborate the maxim ‘Actus non facit reum nisi mens sit rea’. What are the exceptions to
this rule?