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This article is written by Sujitha S, from the School of Excellence in law, Chennai. This article discusses the most important element for the commission of an offence – ‘mens rea’, coupled with its legal implications and landmark judgments. 

This article has been published by Shoronya Banerjee.

Introduction

“Where there is no will to commit an offence, there can be no just reason to incur the penalty”. – Sir Mathew Hale.

Mens rea is a legal term that generally refers to the guilty mental state, the lack of which negates the crime situation on any given occasion. It’s one of the most important aspects of criminal liability. Only when an act is done intentionally that is prohibited by law is it considered a criminal offence. The intent, which is the driving force behind the illegal conduct, is referred to as mens rea. Only when an act is committed with a guilty conscience does it become criminal. In most cases, a crime is not committed if the individual committing the act has an innocent mind. Before a person can be held criminally accountable, they must be in a blameworthy state of mind. For example, inflicting injury on an aggressor in self-defence is not illegal, but inflicting injury with the aim of exact revenge is illegal.

The familiar Latin maxim ‘actus non facit reum nisi mens sit rea’—the act does not render one guilty unless the thought is also guilty—expresses the essential concept of the principle of mens rea. At least in the case of the more severe crimes, simply committing a criminal act (or causing the state of events that the law prohibits) is insufficient to constitute a crime. In most cases, there must also be some element of improper intent or other misconduct.

How did Mens Rea develop 

Mens Rea was not an ingredient of crime in the 12th century. Wrongdoers used to be punished regardless of whether their actions were deliberate or not. Mens Rea was first proposed in the 17th century, coupled with the Latin phrase ‘actus reus non facit reum nisi mens sit rea,’ which means ‘there can be no crime without a guilty mind.’ This maxim resolved the problem that a crime can only be defined as an activity carried out with the purpose to commit a crime. Later, during British rule, the element of Mens Rea was borrowed from English law and implemented into Indian criminal laws. Lord Macaulay created a proposal of the Indian Penal Code in 1860, which was passed on October 6, 1860. Though Mens Rea was originally part of English law, it was introduced after it was modified and carefully arranged to suit the circumstances of British India.

What is the concept of mens rea in Indian criminal law

Mens Rea has a very prominent usage in Indian criminal law. The reasons behind this are self-evident. One of the key reasons is that in India, the entire criminal law has been codified, and all of the offences have been properly specified. If mens rea is viewed as a precondition, it is then incorporated into the definition of the crime and treated as a component of it. Many definitions in the penal code demand that the crime is committed ‘voluntarily,’ ‘dishonestly,’ ‘knowingly,’ ‘fraudulently,’ and so on. A fraudulent, dishonest, or negligent mind is hence the guilty mind.

Furthermore, certain offences under the Indian penal code are defined without regard to mens rea or purpose, such as crimes against the state, counterfeiting coinage, and so on.

In India, mens rea as a condition of penal liability works to such an extent that it is codified in the General Exceptions (Sections 76 to 106) of the penal code, which stipulates all those conditions in which mens rea appears to have been subordinated, and therefore no culpability.

What are the four types of mens rea

Purpose/intent 

The term ‘intention’ is a difficult one to define. The Penal Code does not define it. It is a well-known term that, at the same time, resists clear definition. It can refer to the object, purpose, ultimate goal, or design of action in numerous ways. The intention is the deliberate use of a person’s mental powers to do an action to achieve or satisfy a goal. As a result, the intention is frequently employed in relation to the outcomes of an act rather than the act itself. If he wants a consequence to follow from his conduct, he must state it explicitly.

The words ‘intention,’ ‘intentionally,’ or ‘with intent to’ are not usually used in law to represent the concept of ‘intention.’ Words like ‘voluntarily’, ‘willfully’, ‘deliberately’, ‘deliberate intention’, ‘with the purpose of’, or ‘knowingly’ are also used to represent it. All of these numerous expressions can be found in the IPC’s various Sections.

  • ‘Voluntarily’ is defined under Section 39 of the 1860 Act as follows: 

Section 39 : Voluntarily — When a person causes an effect “voluntarily,” he does so by using methods that he meant to use, or by using means that he knew or had reason to believe were likely to cause it at the time he used them.

  • Section 298 of IPC

By Section 298, the terms “deliberate intention” and “premeditated intention” refer to premeditated intentions to damage religious feelings. However, on a first understanding of the text, the terms ‘deliberate’ and ‘intent’ appear to be interchangeable.

Sections 285, 286, and 287 state deliberately or negligently omitting to take reasonable care so as not to cause harm to human life in respect of possession of poisonous substance, fire, inflammable matter, and explosive substances, an offence.

The defendants in Niranjan Singh v Jitendra Bhimraj (1990), sought to eliminate two people named Raju and Keshav in order to acquire control of the underworld. They were accused of committing a terrorist offence in violation of TADA. In this case, the Supreme Court determined that the intention was evident based on the facts. However, it cannot be argued that their purpose was to terrorise the general public or a subset of the general public. As a result, it acquitted the accused in the lack of an intention to cause terror, even though the outcome of their act was to cause terror.

Knowledge

The term ‘knowledge’ refers to a person’s awareness of his or her own thinking. When there is a direct appeal to a person’s senses, he can be assumed to know.  The awareness of the act’s repercussions is known as knowledge. It is a person’s state of mind towards existent facts that he has personally observed or whose existence has been transmitted to him by others whose veracity he has no cause to dispute. The essence of knowledge is that it is subjective. In many circumstances, though, intention and knowledge blur together and imply the same thing, and intention can be inferred from knowledge. Although the border between knowledge and intention is blurry, it is clear that they mean distinct things. Knowledge, in contrast to intention, denotes a state of mental realisation in which the mind is a passive recipient of certain ideas or impressions that arise in it, whereas intention denotes a conscious state of mind in which mental faculties are summoned into action to achieve predetermined, predetermined outcomes. Obviously, knowledge is predicated on a thorough understanding of the facts and situations, as well as the consequences of one’s actions.

A person was prosecuted in Ranjit D Udeshi v State of Maharashtra (1964) for selling a popular novel by DH Lawrence called Lady Chatterley’s Lover. The accused claimed that he had no knowledge of the book’s contents and hence lacked the essential mens rea. The Court dismissed this argument, holding that because Section 292 of the Code, unlike numerous other provisions, does not include the words ‘knowingly,’ knowledge of obscenity is not an essential element of the crime under Section 292 of the Code.

Recklessness 

Recklessness is regarded as a person’s state of mind in which he foresees the prospective repercussions of his actions but does not intend or seek to bring them about. A guy is said to be reckless when it comes to the consequences of his actions if he foresees the possibility of them happening but neither desires nor expects them to happen. It’s possible that the perpetrator is unconcerned about the consequences, or that he doesn’t care. In all of these circumstances, the offender is considered to be unconcerned about the consequences of his or her actions. 

To put it another way, recklessness is a mental attitude of disregard to the apparent risk.   Driving at a high speed through a congested and small street is dangerous. The guy realises that his actions may damage someone in the crowd, but is indifferent to this. Similarly, if A throws a stone over a crowd without regard for whether it will damage anyone and the stone lands on the head of one of the people in the crowd, A is guilty of recklessly causing injury.

The respondent was driving a car with a customer in the front seat in R v Reid (1978). While remaining in the nearside lane, he tried to pass another vehicle. The rest stop for taxi drivers protruded six feet onto the nearside lane. The defendant was found guilty of causing death through reckless driving, in violation of Section 1 of the Road Traffic Act 1972. The risk must be clear to a reasonably sensible person; however, the defendant does not have to be aware of it.

Negligence 

Negligence is a legal term that refers to a lack of care and caution that a rational person would have done in the given circumstances. Negligence is defined as failing to do something that a prudent and reasonable person would do or doing something that a prudent and reasonable person would not do based on the considerations that normally govern the conduct of human affairs. It is a man’s state of mind when he pursues a path of action without considering the repercussions. 

A is liable for injuring a passer-by if, during a fight with his wife, A takes up a paperweight from the table and throws it out the window, shattering the passer-skull. by’s A had neither predicted nor contemplated injury to anyone when he threw the paperweight, yet he is liable since he failed to do so.

Despite the fact that the court acknowledged that the defendant was exercising all the skill and attention to be anticipated from a person with his limited experience, he was found guilty of driving without due care and attention in McCrone v Riding (1938) as he had failed to meet the necessary standard.

In contrast to torts, negligence is not the basis of liability in general in crimes. Only in a few instances does the IPC, 1860 establish criminal liability based on negligence. For example, a man is accountable for negligence if his actions endanger the lives of others, such as in the case of rash and negligent driving, rash vessel navigation, negligent conveyance of individuals by water for hire in an unsafe or overloaded vessel, and so on. It’s important to distinguish between negligence and neglect. Neglect, unlike negligence, does not imply a particular state of mind, but rather describes a fact that could be the outcome of either a deliberate or negligent act. A man who knows his scooter’s brake is broken fails to repair it and crashes into a youngster on the road. The injury to the child is caused by his intentional neglect or recklessness in failing to repair the brake, rather than his negligence.

Whether mens rea is essential to say that an act is a crime

Despite the fact that the term “mens rea” does not appear in the IPC, its essence is reflected in almost all of its provisions. In some form or another, every offence created under the IPC virtually imports the concept of criminal intent or mens rea. In the end, Chapter IV on General Exceptions enumerates the situations that appear irreconcilable with the existence of the needed guilty mentality or mens rea, therefore absolving the perpetrators of criminal liability. A crime committed by a person under the influence of alcohol or drugs, or by a child under the age of seven, or by a mentally ill person, for example, does not constitute an offence since the mental element, or mens rea, is lacking. Thus, the chapter on General Exceptions acknowledges the common law doctrine of mens rea, although indirectly. 

The Supreme Court declared in Ravule Hariprasada Rao v State (1951) that unless legislation expressly or by essential inference excludes mens rea as a component ingredient of a crime, a person should not be judged guilty of an offence unless he possessed a guilty mind at the time of the conduct. It was reaffirmed by the Supreme Court in State of Maharashtra v Mayer Hans George(1964), in which it was declared, among other things, that the common law notion of mens rea does not apply to statutory offences in India. As a result, there is a presumption that mens rea is a necessary component of a statutory offence.

It can be rebutted, however, by the exact words of the statute that created the offence or by necessary inference. Following that, in Nathulal v State of Madhya Pradesh(1965) and Kartar Singh v State of Punjab(1961), Justice K Subbarao, sitting for the Supreme Court, emphasised that the element of mens rea must be read into statutory criminal provisions unless a statute expressly or by necessary inference throws it out.

Concurrence of actus reus and mens rea  

A criminal purpose must exist at the same time as a criminal act, according to the concept of chronological concurrence. There must be a concurrence between the Mens rea and the actus reus.

What happens if D possesses the mens rea for a certain crime at some point and then does an act that meets the physical prerequisites for that crime, but the mental state was not present at the time the act was committed? For instance, D stabs his victim with the intent of killing him, but only wounds him, and then tosses the corpse into a river, believing the victim is dead. Is drowning the true cause of death? You mistakenly grab someone’s umbrella from a restaurant, discover it’s not yours after 5 minutes, and decide to keep it. Have you ever committed theft, which is defined as the stealing of another person’s property with the aim to deprive him of it? The following are the important points in this regard.

  • The fact that he later acquired the requisite mental state is irrelevant.
  • Concurrence must be with the act rather than the outcome.
  • A change of mind will not make the crime go away.
  • Concurrence can apply to any act that causes legal injury.
  • The act must be caused by a mental condition. There are a few exceptions which include insanity, involuntary intoxication, mistake of fact and Offence by a minor.

What happens if the D has the essential mens rea for one crime but his act fulfils the criteria for another? For example, suppose D plans to perform a simple assault on his victim, but the victim turns out to be a haemophiliac and bleeds to death unpredictably? At least in the case of crimes characterised in terms of undesirable outcomes, there must be an agreement between the mens rea and the adverse result. (For example, homicide, rape, and so on)

Thus, if the harm that really occurs is completely different from what the D intended, resulting in a different, more heinous crime, the D will not be found guilty of the more serious crime. The general idea is that if the actual injury is greater and connected to the desired result, there is no liability for the greater harm. If the actual harm is less severe than that intended and of the same broad nature but is related to a different and less serious crime, the D is accountable for the less serious crime.

In Mohindar Singh vs The State (1959), the Court held that the offence is determined by the existence of both mens rea and an actus reus. Both parts of the crime must be present, and proof of guilty purpose without the overt Act, or proof of a deed not prompted by any criminal intent, will not result in a conviction. The prosecution must prove both parts of the crime by demonstrating that the accused did anything that, in law, would constitute an intention to commit an offence and that in doing so, he was motivated by a desire to achieve a clear objective, which constituted the specific crime.

In Fowler v. Padget(1798), the Court held that Actus reus and mens rea are both required for the commission of a crime. Lord Kenyon stated, “Actus non facit reum nisi mens sit rea is a tenet of natural justice and our law.” To be a crime, both the intent and the act must be present. This was a bankruptcy-related case.

The instances where mens rea is not considered

In modern times, a large number of criminal offences have been developed in which no indication of intent or other mental condition is required. The absence of mens rea has traditionally been associated with a few crimes, such as statutory rape, in which knowledge that the victim is under the age of consent is not required for liability, and bigamy, in which the parties believe they are free to marry in good faith. A number of regulations regulating economic or other actions usually known as public welfare offences with low fines do not need mens rea to be demonstrated.

Strict liability

 A number of offences are considered under strict liability, even if they are committed without the presence of a guilty mind. Actus non facit reum nisi mens sit rea has a couple of exceptions.

The Supreme Court distinguished between taking and allowing a minor in the case of S.Varadrajan v. State of Madras (1964). According to the Court, just having a role in assisting the girl’s fulfilment of her objective does not constitute taking. That component falls short of inducing the minor to flee her authorised guardian’s custody and, as a result, is not equal to taking.

The two terms are not interchangeable. There are distinctions between the two. In this case, the accused did not remove her from the custody of her legal guardian. In a case such as this, the accused individual must establish some kind of incentive or active participation in the creation of the minor’s intention to leave the guardian’s house. She willingly accompanied him, and the law did not place any obligation on him to return her to her father’s house or even to tell her not to. There was no taking in this case. S. Varadrajan was found not guilty.

Mens rea and actus reus : a distinction 

Mens rea and actus reus were inherently connected in common law doctrine. Liability necessitated a guilty mind as well as a wrong act. However, it’s questionable whether this most fundamental organising distinction is consistent and effective in defining offence requirements. 

  • The requirements for actus reus do not all have to be ‘acts’ or even objective in character. For example, a circumstance element of a crime could be completely abstract, such as “being married” in bigamy or “without licence” in trespassing. Indeed, actus reus aspects might include simply subjective mental states, such as the need to instil “fear” in theft or the absence of “consent” in rape.
  • The mens rea theories aren’t all “state of mind” criteria, nor are they even subjective. The mens rea part of negligence, for example, is a failure to fulfill an objective norm of attentiveness rather than being subjective or a state of mind.
  • Furthermore, the mens rea and actus reus criteria serve no separate functions. Many aspects of the actus reus, including the voluntariness portion of the voluntary act requirement in commission offences, the physical capacity requirement in omission offences, and the possession offence requirement that the person has possession for a period sufficient to terminate possession, all contribute to determining whether a violation is blameworthy.
  • While many components of the actus reus define a criminal activity, such as the conduct and circumstance elements of the offence definition, some features of mens rea, such as the culpability criteria in inchoate offences, serve the same purpose of defining banned conduct.
  • The mens rea refers to factors that need the defendant to be in a certain state of mind or to be negligent, while the actus rea refers to all other crime requirements, which are typically divided into behaviour, circumstances, and results.

In R v. Tolson(1889), Mrs. Tolson was married in 1890. In December 1881, her spouse went missing. He had been on a ship that had gone missing at sea, she was told. She also enquired about her husband’s older brother. She married another six years later, assuming her spouse had died. The second husband was completely aware of the circumstances. Her husband returned 11 months after their wedding date. Under Section 57 of the Offences Against Persons Act, 1861, she was charged with bigamy. The reason for this was that she had married for the second time in less than seven years. She did so with the best of intentions. This part was devoid of any mention of the guilty mind. She was given the benefit of the doubt defence because it was reasonable to believe her husband was deceased in the circumstances. She was found not guilty. Honest and reasonable error is on the same level as the absence of the thinking faculty in childhood and the maintenance of that faculty in madness. Unless expressly excluded or by necessary inference, these exclusions apply equally to statutory offences. The actus non facit reum, nisi mens sit rea was applied by the Court.

Case laws 

Brend v. Wood (1946)

The fundamental rule that applies to criminal cases is actus non facit reum nisi mens sit rea, as Justice Goddard stated in the case of Brend v. Wood (1946). It is critical for the protection of the subject’s liberty that a court remember that “unless the statute expressly or by necessary implication rules out mens rea as a constituent part of a crime, a defendant should not be found guilty of an offence against the criminal law unless he has a guilty mind.”

Sherras v. De Rutzen (1895)

In the case of Sherras v. De Rutzen (1895), Justice Wright stated that 

  1. There is a presumption that mens rea, or ill purpose, or awareness of the wrongfulness of the act, is a fundamental part in every offence
  2. Unless the opposite is proven, mens rea is assumed in every statute.
  3. There is a presumption that mens rea, or evil intent, or knowledge of the act’s wrongfulness, is an essential ingredient in every offence; however, that presumption may be displaced either by the words of the statute creating the offence or by the subject-matter with which it deals, and both must be considered.

State of Maharashtra v. M.H.George (1964)

State of Maharashtra v. M.H George(1964) is a landmark judgment. On November 27, 1962, Mayer Hans George, a German smuggler, flew from Zurich (famous city of Switzerland) to Manila (Capital of Philippines) with 34 kilos of gold concealed on his person. On the 28th, the plane arrived in Bombay, but the respondent did not disembark. The customs authorities searched the plane’s manifest for any gold consigned by any passenger but found none. They boarded the plane, searched the respondent, recovered the gold, and charged him with an offence under Sections 8(1) and 23(1-A) of the Foreign Exchange Regulation Act, 1947, as well as a Reserve Bank of India notification dated November 8, 1962, which was published in the Gazette of India on November 24.

Several British and Indian cases were examined by the Supreme Court. The purpose of the FERA of 1947 was to combat smuggling. This case is related to the country’s economic situation. As a result, the Supreme Court adopted the strict liability concept rather than the maxim.

Prabhat Kumar Singh v. State of Bihar(2021) 

The Supreme Court recently stated in Prabhat Kumar Singh v. State of Bihar(2021) that Mens Rea’s absence, i.e. malicious or evil intent, is not a relevant factor in matters of medical negligence. At the same time, the Court has stressed the need to follow the correct procedure when trying any criminal complaint involving medical negligence.

Subhash Shamrao Pachunde v. State of Maharashtra (2005)

The Supreme Court in Subhash Shamrao Pachunde v. State of Maharashtra (2005) held that the involvement of special mens rea, which consists of 4 mental attitudes in the presence of any of which the lesser offence becomes greater, is important in determining the distinction between culpable homicide and murder.

Debeswar Bhuyan v. State Of Assam (2005)

The Court in Debeswar Bhuyan case (2005) noted that the burden on the accused to prove its plea of unsoundness of mind under Section 84 IPC is not higher than that on a party in a civil proceeding, and further noted that the accused/appellant was charged with murder and, under the maxim ‘actus non facit reum nisi mens sit rea’, the prosecution must prove that the act of assault and his guilty mind, i.e. mens rea, coexist. In another sense, the act alleged to have been performed by the accused must always be accompanied by his guilty thought or mens rea in order to be considered murder under the Penal Code. It is also noted that if the evidence on record regarding the accused’s mental state raises doubts about his mental culpability, it must inevitably be held that the prosecution has failed to prove the charge of murder against him, and this is permissible even if the accused has not been able to prove beyond a reasonable doubt that he was of unsound mind at the relevant time. And, after reviewing the facts on record, the Court concluded that the accused was not in a normal state of mind at the time he committed the attack, making it impossible to infer that he had the mens rea to conduct the crime with which he had been charged.

Conclusion 

Crime and punishment are intrinsically tied. In accordance with the criminal law system, mens rea is a crucial component. As a result, unless clearly stated otherwise with just reasons, mens rea becomes the sine qua non for all cases. By the presumption, every individual is presumed to intend the natural consequences of his act. Furthermore, taking into account relevant judgments, and the legislative framework, it is not possible to say that mens rea is not an essential element in statutory offences. The Supreme Court has stated numerous times that it is not obligated to adopt an English court’s decision, but rather is free to develop a law that is appropriate for Indian conditions.

“There can be no crime large or small, without an evil mind. It is, therefore, a principle of our legal system, as probably it is of every other, that the essence of an offence is the wrongful intent, without which it cannot exist.” – Bishop

References 


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