Chapter III

THEORY OF MENS REA

Traditionally speaking the theory of criminal liability requires both a
wrongful act and a guilty mind. Long ago Lord Kenyon, Chief Justice in Fowler
v. Padget1 observed that the intent and the act must both concur to
constitute crime.

This is expressed through the general maxim actus non facit reum nisi
mens sit rea. Thus as general rule of law a guilty mind is an essential
ingredient of crime and prima-facie a penal statute should make mens rea
ingredient of any offence. In common law, for crimes other than public
nuisances mens rea is always required. Against this background we now
propose to discuss the conceptual aspects of criminal liability.

3.1 CONCEPTUAL ASPECT OF THE MAXIM

The maxim “actus non facit reum nisi mens sit rea” first appeared in
1641 in Coke’s Institutes.2 Pollock and Maitland state that3 the original source
of this maxim is to be found in the sermons of St. Augustine, where the
wording is reum linguam non facit nisi means sit rea. The maxim later appear
in the Leges Henrici as Reum non facit nisi mens rea”. Coke states it as “Et
actus non facit reum nisi mens rea sit.

Lord Coke when commented upon stat. 25 Edw. III, c.2, which made
compassing the death of King high treason remarked in his Third Institute that
an act is done per Infortunium i.e., by mischance, accidentally, without

1 Fowler v. Padget ( 1798) 7 T.L.R.509, at 514.

2 E. Coke, Thired Institute, (1797) pp.54,107 as Cited in George P. Fletcher, The Theory of Criminal
Negligence: A Comparative Analysis, (Jan 1971) 119 (3) University of Pennsylvania Law Review, at
411.
3 Edwin R. Keedy, Insanity and Criminal Responsibility, (1917) 30 (6) Har.L. R, at 539.
 Theory of Mens Rea

compassing or intent, is not within the statute and then added to his
statement, actus non facit reum nisi mens sit rea. (An Act does not make one
guilty unless his mind is guilty).

The former principle assumed a Latin maxim was repeated in some

English decision and was first cited as a principle by Lord Kenyon C.J. in Fowler
v. Padget.4 He remarked "It is a principle of natural justice and of our law that
“actus non facit reum, nisi mens sit rea." and Lord Abinger in Reg v. Allday5
said, “It is maxim older than the law of England, that a man is not guilty unless
his mind be guilty.”

This principle has even in modern times been accepted to be a leading

doctrine of criminal law. Stephen is of the view that 6 “The maxim not only
looks more instructive than it really is, but suggests fallacies which it does not
precisely state”

The maxim is one of the oldest maxims of common law. The maxim
means that the intent and act must both concur to constitute the crime.
There can be no crime large or small without an evil mind says Bisop 7. It is
therefore a principal of our legal system, as probably it is of every other, that
essences of an offence is the wrongful intent without which it cannot exist.
The same view has been expressed by Salmond 8 “that there are two
conditions to be fulfilled before penal responsibility can rightly be imposed.
The one is the person to be held liable and other is the mens rea or guilty
mind with which the act is done. It is not enough that a man has done some

4 ( 1798) 7 T.R.509
5 (1837) 8 C & P 136.
6 Stephen, History of Criminal Law Vol. 2 at 95.
7 Bishop, Criminal Law,9th Ed. (1930).at 287 as cited in Eugene J. Chesney, “Concept of Mens Rea in
the Criminal Law” (1939) Vol.29 (5) Journal Of Criminal Law and Criminology, at 627.
8 Salmond, Jurisprudence,10th Ed. (London: Sweet & Maxwell, 1947) at 366.
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 Theory of Mens Rea

act which on account of its mischievous results the law prohibits, before the
law can justly punish the act, an inquiry must be made into the mental
attitude of doer.”

In modern times, however, a change is noticeable ever since lord Chief

Justice Goddard made his famous observation in Brend v. Wood9 actus non
facit reum, nisi mens sit rea is a cardinal doctrine of the Criminal Law. This
maxim which has been accepted not only by the courts of England but also
our own courts recognise that there are two necessary elements in a crime,
namely, first, a physical element, and, secondly, a mental element. The
former is known technically as actus reus and later as mens rea. These are the
tests of criminality known to our law and to the laws of England.

The above maxim, it appears has not so wide an application as it is

sometime considered to have. It has undergone a modification owing to the
greater precision of modern statutes. It is impossible to apply it generally to
all statutes, and the substance of all reported cases is that is under
consideration to see whether and how for knowledge is of the essences of the
offence created. Crimes are at the present day much more accurately defined
by statutes or otherwise than they formerly were.

3.2 DEFINITION OF MENS REA

Dr. Stallybrass10 says that mens rea did involve moral blame, and did
mean a guilty mind.

9 (1946) 62 T.L.R.462.
10 Stallybrass, The Modern Approach to Criminal Law (1945) at 293.
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 Theory of Mens Rea

Justice Devlin11 said mens rea consists of two elements. First of all, the
intent to do an act and secondly, knowledge of the circumstances also that
makes that act a criminal offence.

Prof. F.B. Sayre12 is of the view that the criminal intent necessary to
convict normal adults acting without compulsion for crime other the public
welfare offence which is not based upon negligence and dose not require any
particular form of specific intent.

Jerome Hall13 says two factors determining the meaning of the mens
rea are actual harm and the mental state of the actor who voluntarily
commits it. mens rea is the mental state exhibited in any conduct or behavior
which violates any penal law. It is referred to as actual distinctive state of
mind. Mens rea is an intention to do the act which is made penal by the
statute, or by common law. However the issue of mens rea present peculiar
problem in the context of the criminal law mainly for two reasons, first mens
rea is understood differently for varying crime. And second, despite the
evident importance of proper definition of the mental element the
performance of court and legislatures in this area has been for form
satisfactory. Criminal statutes are frequently silent on what sort of mens rea,
if any must be shown in other instances, as many as two dozen different
terms intended to signify various mental states are employed without clear
indication of how such terms are to be interpreted and applied. In still other
instances the same term is used in several statutes although entirely different
meaning is intended to be conveyed.

11 Devlin, The Statutory Offenses, (1958 ) 4 Soc Pub Tchrs L at 401.

12 F.B. Sayre. The Present Significance of Mens Rea in the Criminal Law, (1934).Harvard Legal
Essays at 411.
13 Jerome Hall, General Principles of Criminal Law, 2n Ed. (Indianapolis: The Bobbs Merrill
Company, 1960) at 391.
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 Theory of Mens Rea

3.3 MENS REA DOES NOT HAVE STRAIGHT JACKET FORMULA

The degree of mens rea varies from crime to crime. Its character is
rather a matter of law than of morals and depends upon the rules that have
grown up or have been made by the legislature. Indeed modern civilization
has led the legislature to introduce certain more or less arbitrary offences in
which guilty intention need not exist in any real sense.” 14

Prof. Sayre has opined that 15 mens rea has no fixed continuing
meaning. The conception of mens rea has varied with the changing
conception and objectives of criminal justice.

3.4 HISTORICAL DEVELOPMENT OF MENS REA

Historical development of the notion of mean rea from very early law
to this day is that the guilty mind in early primitive society was never of any
application. It is the view of historians that in early Germanic and Anglo-Saxon
law the idea of criminal intent prevailed. We know that early law was
developed out of blood feud and was rooted in desire of vengeance. A man
was ‘prima facie’ answerable for all the consequences of his wrong whether
done accidentally or negligently. This idea has been expressed by Pollock and
Maitland in the following words, “Law in its earliest day tries to make a man
answer for all the ill of an obvious kind that their deeds bring upon their
fellows.”16

Dean Wigmore opines17 :

14 Potter, English Legal History, p. 348 cited in B.S. Sinha,Principal of Criminal Law, 2nd ed.
( Lucknow: Eastern Book Company, 1974) at 57.
15 F.B. Sayre, Mens rea, (1932) 45 Har LR at 1016.
16 Pollock & Maitland, History of English Law, at 476 as Cited in B.S. Sinha, Principal of Criminal
Law, 2nd Ed.( Luck now: Eastern book company, 1974) at p. 59.
17 Wigmore, Responsibility for Tortuous Act, (1894) (7) Har LR at 317.
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 Theory of Mens Rea

In early law the liability was absolute. The doer of the deed was
responsible whether he acted innocently or inadvertently
because he was owner, though the instrument has been wielded
by a thief, the owner of an animal, the master of slave, was
responsible because he was associated with it as owner, as
master.

Certain offences in early law were waylaying, robbery, rape, house-

breaking and house-burning the commission of which was impossible without
criminal intent. Therefore, our conclusion should be that in early law the
criminal responsibility was not always based upon criminal intent but it was
not entirely disregarded in some offences and it was also taken into account
in awarding the punishment.

In the 13th century the influence of Roman law and its conceptions
Dolus and Culpa influenced the English law. Again common law which
emphasised moral guilt was also influencing English Courts. Pardon was being
granted where the death was the result of misadventure. Bracton wrote as
follows:

We must consider with what mind or intent a thing is done, in

fact or in judgment, in order that it may be determined
accordingly what action should follow and what punishment.
For tale away the will and every act will be indifferent, because
your state of mind gives meaning to your act and a crime is not
committed unless the intent to injure intervene not is a the
committed except with the intent to steal.18

Of Homicide he wrote,

The crime of homicide be it either accidental or voluntary, does

not permit of suffering the same penalty because in one case

18 Bracton, De Legibus 101 b cited in Supra note 15 at 985.

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 Theory of Mens Rea

the full penalty must be exacted and in the other there should
be mercy.19

In the thirteenth century if a felony was committed, then the guilt was
determined according to the guilty mind. In the region of Edward III (1327-77)
it was laid down that if an offence was committed under compulsion when
there was or rebellion, it was excusable.20

During the 14th and 15th centuries the notion that mens rea is always
necessary for crime was well-established.

During the 16th century it was settled law that if there is criminal
intent which is unaccompanied by an act, it will not be punishable. It was laid
down in Hales v. Petit21:

The imagination to do wrong without an act is not punishable. In

our law neither is the resolution to do that wrong which he does
not, punishable, but the doing of the act is the only point which
the law regards; for until the act is done it cannot be an offence
to the world. When the act is done, it is punishable.

The present law is that criminal law does not interfere for moral
blameworthiness. On the other hand in Common law if the act was done
22
without wrongful intention, it was excusable. In R. v. Levett where a man
killed an old house-maid thinking her to be a belief under mistaken brief it
was held that he was not guilty of murder.

By the second half of the 17 th century it was universally laid down that
an evil, intent was as necessary as the act itself, Hale wrote:

19 Id.
20 Hale P.C. pp. 49-50, as cited in B.S. Sinha, Principal of Criminal Law. 2nd Ed. (Lucknow: Eastern
Book Company, 1974) at 59.
21 1 Hale P.C. 38 as cited in P.H. Winfield, The Modern Approach to Criminal Law,(1948) at 279.
22 (1638) I, East, Pleas of The Crown, 274.
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 Theory of Mens Rea

As the criminal proceedings if the act, that is committed is

simply casual, and per infortunium, regularly that act, which,
were it done exanimi intentione, were punishable with death, is
not by the laws of England to undergo that punishment, for it is
the will and intention, that regularly is required, as wall as the act
and event, to make the offence capital.23

3.5 VARIOUS CONDITION OF MENS REA

3.5.1 Intention

A person intends, or acts intentionally or with intent, to accomplish a

result or engage in conduct described by the statute defining the offense,
when his conscious objective or purpose is to accomplish that result or
engage in that conduct. The idea of intention in law is not always expressed
by the words intention or intentionally or with intent to. It is expressed also
by words such as voluntarily, willfully, deliberately, or knowingly etc. 24

Professor Kenny 25stated that the intention is use to denote state of

mind of a man who not only foresee but also will the possible consequences
of his conduct

In Jayawant Dattaray Surarao v. State of Maharashtra26 the court held

that for finding out the intention of the accused there would be direct
evidence. It has to be mainly inferred from the circumstances of each case.

The terms mens rea and criminal intent are covered under two kinds of
intent, general intent and specific intent.

3.5.2 General Intent

23 Supra note 21 at p. 279.

24 I.P.C, Sec. 39.
25 C.Turner, Kenny’s Outline of Criminal Law, 17th Ed. at 36.
26 (2001) 10 SCC 109.
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 Theory of Mens Rea

The general intent, required in all crimes, is an intention to do the act

done; and there is no need of an independent averment of it, since it would
be naturally understood. For example reap is usually called a general intent
crime because its mens rea requires no more than the intent to cause a
particular result. Like wise homicide is also a general intent crime as it only
requires the intent to cause death.

3.5.3 Specific Intent

The specific intent is some independent mental element which must

accompany the physical act in order that the crime in question may be
committed. It is an element of many but not of all crimes. An allegation of the
act alone would not sufficiently charge such a crime, and it is therefore
imperative that the specific intent should be explicitly stated. On this
principle, if the offense must be done maliciously, willfully or knowingly, the
malice, intention or knowledge must be expressly averred.

3.5.4 Knowledge

A person knows, or acts knowingly or with knowledge of

(a) The nature or attendant circumstances of his conduct, described by the

statute defining the offense, when he is consciously aware that his
conduct is of such nature or that such circumstances exist. Knowledge
of a material fact includes awareness of the substantial probability that
such fact exists.

(b) The result of his conduct, described by the statute defining the offense,
when he is consciously aware that such result is practically certain to

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be caused by his conduct. Conduct performed knowingly or with

knowledge is performed willfully, within the meaning of a statute using
the latter term, unless the statute clearly requires another meaning.

3.5.5 Intention and Knowledge

The terms intention and knowledge which denote mens rea appear in
Sections 299 and 300 having different consequences. Intention and
knowledge are used as alternate ingredients to constitute the offence of
culpable homicide. Generally intention and knowledge are two different
things, intention is the desire to achieve a certain purpose while knowledge is
awareness on the part of the person concerned, indicating his mind. 27

27 Basdev v. State of Pepsu, AIR1956 SC 488.

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3.5.6 Intention and Motive

Intention is different from motive. Motive is the reason of an act or

ground of an action whereas intention is the volition or active desire to do an
act. Motive is the feeling that prompts the operation of the will and intention
is an operation of the will directing an overt act. Motive is not a basis for
criminal liability, criminal law takes into account only a person’s intention and
not his motive the Supreme Court of India in Basdeo v. State of Pepsu28
observed that motive is something which prompts a man to form an
intention.

3.5.7 Recklessness

The term recklessness is not defined in the penal code. It is a state of

mind. Recklessness is foreseeing the possible consequences, but it is not
intention. Intention cannot exist without foresight, but foresight can exist
without intention. A person may foresee the possible or even probable
consequences of his conduct and yet not desire this state of risk of bringing
about the unwished result. The state of mind is known as recklessness. 29 The
words rash and rashness have also been used to indicates this same attitude 30

In other words, a person is reckless or acts recklessly, when he

consciously disregards a substantial and unjustifiable risk that circumstances
exist or that a result will follow, described by the statute defining the offense,
and such disregard constitutes a gross deviation from the standard of care
which a reasonable person would exercise in the situation. An act performed

28 AIR1956 SC 488.
29 Andrews v. D.P.P., (1937) AC 576.
30 Hudston v. Viney, (1921) 1 Ch. 98,104.
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recklessly is performed wantonly, within the meaning of a statute using the

latter term, unless the statute clearly requires another meaning.

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 Theory of Mens Rea

3.5.8 Recklessness and Foresight

A recklessness on the part of the accused is sufficient mens rea for

certain statutory offences and the common law crime of manslaughter, and for
these purposes a person is reckless if he has done an act which in fact involves
an obvious and serous risk of causing injury or damage and either a person
fails to give any thought to the possibility of there being any such risk.
Recklessness in relation to rape that if a man unsuccessfully tries to have a sex
with a women who does not consent, and he is recklessly as to whether or not
she consents, does this amount to attempted rape.

3.5.9 Negligence

A person is negligent, or acts negligently, when he fails to be aware of a

substantial and unjustifiable risk that circumstances exist or a result will
follow, described by the statute defining the offense, and such failure
constitutes a substantial deviation from the standard of care which a reasonable
person would exercise in the situation.

Negligence in crime, unlike in the case of torts, is not basis of liability

in general. In some cases criminal liability is fixed on the ground of
negligence. For instance, a man in liable for negligence, if it affects the life or
personal safety of others, such as in the case of rash and negligent driving, 31
rash navigation of a vessel 32,negligent conveying of persons by water for hire
in an unsafe or over loaded vessel, etc.33

3.6 APPLICATION OF MENS REA IN ENGLISH LAW

31 IPC Sec 304A,337,338,279.

32 IPC Sec 282-287,289.
33 IPC Sec 282-287,289.
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 Theory of Mens Rea

The doctrine of mens rea in English criminal law as illustrated in some

English cases are given below:

In Sherras v. De Rutzen,34 Privy Council accepted as correct the classic

statement of the doctrine of mens rea. It held that there is a presumption that
mens rea, or evil intention or knowledge of the wrongfulness of the act, is an
essential ingredient in every offence, but that presumption is liable to 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.

This mens rea presumption received a blessing from the House of Lords
in Sweet v. Parsley.35 Thus, in cases in which a section of statutes is silent as to
mens rea, Lord Reid held:

In such cases there has for centuries been a presumption that

parliament did not intend to make criminals of persons who were
in no way blameworthy in what they did. That means that
whenever a section is silent as to mens rea there is a
presumption that, in order to give effect to the will of parliament
we must read in words appropriate to require mens rea.

In R v. Hibbert36 the interpretation and application of section 55 of the

Offences against the Person Act, 1861 which defines the offence of taking any
unmarried girl under the age of 16 out of the possession and against the will
of her father, were in issue. Accordingly, the court quashed the conviction of a
man who apparently knew that the girl in the case was under age but who did
not know that she had a father. But the same court affirmed in R v. Prince37
the conviction of a man who took the girl knowingly out of the possession and

34 (1895) Q B 918.
35 (1970) AC 132.
36 (1869) L.R 1 CCR184.
37 (1875) LR 2 CCR 154.
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against the will of her father, but who reasonably believed her to be over
sixteen years. These are not isolated cases. Under section 57 of the same
statute, the offence of bigamy is said to be committed by “whosoever, being
married, shall marry any other person during the life of the former husband
or wife”.

In R v. Tolson,38 a reasonable belief that her first husband was dead

when she married again was a complete defence to the accused against a
charge of bigamy. But surprisingly in R v. Wheat and Stocks,39 a reasonable
belief that he was divorced from his first wife when he married again was not
at all a defence to the accused against the same charge of bigamy. Although
Wheat and Stocks was later overruled by R v. Gould,40 it seems that the
jurisprudence that informed the distinguishing might have perhaps been
based on the idea of the existence of common law reasonable presumption of
death. The unsettling nature of the mens rea concept was further manifest in
the offences connected with trading in liquor. In Curdy v. Lecocq,41 a publican
was held guilty of selling liquor to a person who was drunk not knowing the
latter’s condition but in Sherras v. De Rutzen42, the conviction was quashed of
a publican who sold liquor to a police constable on duty, because he
reasonably believed the latter that was in plain clothes, to be off duty.

All the above cases serve to indicate that the application of mens rea
doctrine was far from uniform even in matters involving the same or similar
facts or offences. The differences in interpretation were coterminous with the

38 (1889) 23 QB.D 168.

39 (1921) 2 KB 119.
40 (1968) 2 QB 65.
41 (1884) 13 QB.D 207.
42 (1895) 1QB 918.

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varieties of the psycho judicial idiosyncrasies and behaviours of the courts.

Even though on deeper and more recondite reflections, it may be possible to
reconcile these cases, yet that effort would be spent at the expense of the
lucidity and clarity of the law. However, the presumption of mens rea is a
legal not necessarily a moral one. It can never make any sense to invoke it for
the purpose of defending one who has committed a crime with the requisite
intention, knowledge or recklessness, but whose mind is not morally guilty.

Thus concept of mens rea is deeply rooted in the history of the criminal
law an essential element of a crime lay in the intent with which the act was
done. Stephen contended that the maxim actus non facit reum nisi mens sit
rea was an unfortunate one since “there is no one such state of mind.” 43
Stephen's problem was one of nominalism. The mens rea concept is a general
one, and as such it has performed a salutary part in the development of the
criminal law. What Stephen, perhaps, did not foresee was that his statement
had a broader implication than that toward which his criticism was directed.
Under the impact of the evolving mores, the maxim has proved to be too
sweeping. The mens rea concept, while still a major factor in the
establishment of criminal guilt, 44 has, in the last century, undergone
substantial modification.

What merits emphasis is that the objectives in criminal law

administration are in a process of evolution, and that this is entailing a
modification in the meaning of mens rea. The trend is away from punishment
as an institution and toward punishment as a means to an end, as a means of
social protection.45 This trend has had its most striking manifestation in the

43 Stephen, History of Criminal Law of England (1883) at 95.

44 Dennis v. United States ,351 U.S. (1951) 494, 500.
45 Supra note 15 at 974.
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growth of strict liability or public welfare offenses. The beginnings of this

development were inconspicuous. Today it is having a mighty impact on law
administration. It is a doctrine which in various areas of human activity
subjects the individual to criminal penalties for the doing of an act without
regard to what his intent may have been. Mistake of fact, though reasonable,
is not a defense. The doctrine does not have general application, but as to
particular acts it baldly announces “that he who shall do them shall do them
at his peril and will not be heard to plead in defense good faith or
ignorance.”46

The application of this doctrine was, at first, confined to minor offenses

involving slight punitive sanctions. In the early stages of its development it
moved into the areas of buyer-seller relations, the sale of adulterated foods,
and narcotics, intoxicating liquor, drugs, misbranded articles, etc. 47 The
rationale for it was persuasive. The seller was in a better position to know the
genuineness or the purity of the article sold than the buyer, hence he must
sell at his peril. But it was not confined to these areas. A new and potent
weapon for control had been discovered. If it was an effective measure as to
minor offenses and simple relations, why not have it apply also to more
serious crimes and more complex and obscure legal situations? It was
resorted to in statutory rape cases and other sex offenses 48 and in the control
of motor vehicle thefts. It moved into areas of administrative law as an
instrument for rent control and price administration.49

It was of no avail to an accused who ran afoul of this doctrine that the
actual violation of the statute was by another, even though the accused was
46 Shevlin Carpenter Co. v. Minneota, 218 U.S. (1910) 57,70.
47 F.B. Sayre, Public Welfare Offenses, (1933) 33 Col L R , at 55.
48 Perkins, Ignorance and Mistake in Criminal Law, 88 Pa L R (1939)35 pp.63-64.
49 Gilbert v. Thierry,58 F.Supp.(1944) 235.
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innocent of wrongdoing and the other intentionally violated, so long as the

accused was the principal in the transaction. 50 The rule and the raison d'etre
for it is stated in a recent opinion by Mr. Justice Frankfurter, “The offense is
committed by all who do have such a responsible share in the furtherance of
the trans-action which the statute outlaws, namely, to put into the stream of
interstate commerce adulterated or misbranded drugs. Hardship there
doubtless may be under a statute which thus penalizes the transaction though
consciousness of wrongdoing be totally wanting. Balancing relative hardships,
Congress has preferred to place it upon those who have at least the
opportunity of informing themselves of the existence of conditions imposed
for the protection of consumers before sharing in illicit commerce, rather
than to throw the hazard on the innocent public who are wholly helpless.” 51

It is difficult to appraise the import of this development. That it is

having a significant impact on the social and legal context of our time there
can be no doubt. As to objectives, it is reasonably clear that the stress of the
movement is less on punishment for wrongdoing, and more on social control
and protection. It is a movement, typical of others in our day, in which the
public interests are in the ascendency over those of the individual. For the
individual it has grim forebodings. He is reconciled to, if, indeed, he does not
approve, the application of the doctrine to police and other minor
regulations, but when employed in more serious measures, it strikes him as
arbitrary and unjust. In its wider social implications the movement is tinged
with capriciousness and appears not to have adequate brakes to stop it or to
slow it down, unless, perhaps, they are to be applied through the due process
clause of the Constitution. The development calls for an early and thorough

50 U.S . v. Parfait Powder Puff Co. Inc, 163 F.II (1947) 1008.
51 U.S . v. Dotterweich, 320 U.S.(1943) 277.
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evaluation by our legislative bodies and the courts as to its impact upon
human integrity and welfare.52

3.7 APPLICATION OF MENS REA IN INDIAN PENAL CODE

The general concept of mens rea is not applicable to the Indian Penal
Code because the law is codified and the offences are carefully defined so as to
include the mens rea in the definition itself.

53
M.C. Setalvad observed about mens rea “what the Indian courts seen
to have is to incorporate into the common law crime the mens rea needed for
the particular crime so that the guilty intention is generally to be gathered not
from the common law but from the statute itself.

Mayne54 has also observed “under the penal code such a maxim is
wholly out of place”

H.S. Gaur and Rattan Lal55 has observed “The maxim56 however no
application to the offences under the Indian penal code in its purely technical
senses because the definition of the various offences contain expressly
proposition as to the state of mind of the accused.”

In Commissioner of Sales Tax v. Rama and Sons, General Merchant,57

Ballia, the Allahabad High Court observed as under:

The principle of mens rea comes from English Criminal Law from
times when the law was not codified. It was said that actus non

52 Albert J. Harnot , Some Significant Developments in Criminal Law and Procedure in the Last
Century 42 (4 )Journal of Criminal law ,Criminology and Police Science , .423 (1951).
53 M.C. Setalvad, The Common Law in India (London: Stevens & Sons Limited,1960) at 139.
54 Mayne, Criminal Law of India, 4th Ed. at 9.
55 H.S. Gaur, The Penal Law of India, Vol. II 1955 at 202.
56 Actus non facit ream nisi mens sit rea.
57 1999 UPTC 25, All.
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facit reum nisi mens sit rea (the intent and act must both concur
to constitute the crime). But this principle has lost much of its
significance owing to greater precision of modern statutes. The
nature of intent or the ingredients of offences are now clearly
stated in the statutes and nothing further is required to
establish as offence then what the statute specified. We have
words like voluntarily, intentionally, negligently, knowingly,
fraudulently, dishonestly, rashly, omits, without lawful authority
etc.., omits, without lawful authority etc., used in various
sections of the Indian Penal Code defining various offence. Proof
of the State of mind or of the conduct of the person as indicated
by the aforesaid word establishes the offence and no further
guilty intent or mens rea need be proved. In fact there are many
acts which are offences and do not require proof of any mens
rea or guilty intention.

The words mens rea are not used anywhere in I.P.C. However the
equivalent words to those of mens rea in the I.P.C. are very frequently used,
such expressions are dishonestly58, fraudulently,59 reason to believe,60
voluntarily61 so mens rea will mean one thing or another according to the
particular offence. The guilty mind may be thus a fraudulent mind, or a
dishonest mind, or a negligent or rash mind.

Under the code the definition of various offences contain expressly a

proposition as to the state of mind of accused. The definitions state whether the
act must have been done “voluntarily”, “knowingly”, “dishonestly” or
“fraudulently” or the like were such words are used mens rea is deemed
essential only to from the particular offence and in such cases there ought not
to be a conviction unless the guilty mind is proved.62

58 IPC Sec. 24.

59IPC Sec. 25.
60 IPC Sec. 26.
61 IPC Sec. 39.
62 Emperor v. Chaturbhuj Narain Choudhurya, AIR 1936 Patna 350.
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In Jyoti Prashad v. State of Haryana63 the Apex Court has observed that
under the Indian penal law guilt of almost all these offences is fastenings there
of the ground of intention or knowledge or reason to believe. The principle has
been followed R.S. Josi v. Ajit mills Ltd.64 in this case the provision in a sales
tax act prohibited collection of any sum by way of tax which was not payable
as tax or which was in excess of tax payable and contravention of the
prohibition was made punishable offences and the person contravening was
also made liable to forfeit the sum collected in contravention of the prohibition.
It was held by the Supreme Court that mens rea was not ingredient for making
a person liable for the offence of forfeiture. It was held that the principle “no
mens rea no crime” has no application to economic offences. It was also held
that the word collected did not include amounts gathered tentatively to be
given back if found non eligible and “shall be forfeited” meant that it shall be
liable to be forfeited leaving a discretion to the authorities not to forfeit the
sums returned to person from whom they were collected.

The existence of mens rea as an essential ingredient of an offence has

to be made out by the construction of the statute. Wright J. said in Sherras v.
65
De Rutzen on the subject “There is a presumption that mens rea, an evil
intention, or a knowledge of the wrongfulness of the act, is an essential
ingredient in every offence, but that presumption is liable to 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.”

The Supreme Court in Nathulal’s case66 there after in several other

cases has held that “there is a presumption of mens rea, It is of utmost
importance for the protection of liberty of the subject that a court should

63 AIR 1993 SC 1167 at p.1169.

64 AIR 1977 SC 2279.
65 (1895)1 QB 918.
66 Nathulal v. State of M.P., AIR 1966 SC 43.
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always bear in mind that, unless the statute either expressly or by necessary
implication rules out ‘mens rea’ as a constituent part of crime, a defendant
should not be guilty of an offence against the criminal law unless he has got a
guilty mind. The mere fact that the object of a statute is to promote welfare
activities is by itself not decisive of the question whether the element of guilty
mind, is excluded from the ingredient of the offence. mens rea by implication
may be excluded by the statute only where ‘it is absolutely clear that the
implementation of the object of the statute would otherwise be defeated.”

The above observations summaries the position of mens rea as

accepted by the Indian Courts which are prepared to dispense with mens rea
if legislative enactment has so expressed or intended. The legislatures must,
therefore, especially exclude the ingredient of mens rea wherever, in there
wisdom, they consider it unnecessary.

3.8 MENS REA IN STATUTORY OFFENCES

Several laws have come into force since the enactment of the Indian
Penal Code a century ago. Many of them have provided for the punishment of
various offences specified by them. In a few cases the legislature has
dispensed with mens rea so much so that offences automatically entail strict
liability. This discarding of mens rea in statutory offences is a departure from
the common law doctrine of Actus non facit reum mens sit rea. How far this is
desirable has been a matter of controversy among jurists.

The following main grounds have been given for recognizing offences
of strict liability.67

i. For certain offences, it will be difficult to prove mens rea.

67 K.N.C. Pillai, Essays on Indian Penal Code (New Delhi: The Indian Law Institute, 2005) at 95.
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ii. It is of paramount importance to take into account the social purpose

of a statute, which should be so framed and interpreted as to give
effect to the intention of the legislature.

iii. In most strict liability offences the punishment is a light one, usually a
fine.

iv. Strict liability offences are mala prohibitia and not mala in se.

The law relating to mens rea in statutory offences is substantially the

same. The basic rule of interpretation of statutory offences is that “unless the
statute, either clearly 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.” This rule is of
the utmost importance for the protection of liberty of the subject. With this
view their Lordships of the Privy Council agreed in Srinivasa Mall v. Emperor68.
This statement of the law by the Privy Council was approved by the Supreme
Court in Ravula Hariprasada Rao v. State69. Further Justice Subba Rao, in State
of Maharashtra v. M.H. George70 observed “It is a well settled principle of
common law that mens rea is an essential ingredient of a criminal offence.
Doubtless a Statute can exclude that element, but it is a sound rule of
construction adopted in England and also accepted in India to construe a
statutory provision creating an offence in conformity with the common law
rather than against it unless the statute expressly or by necessary implication
excluded mens rca. To put it differently, there is a presumption that mens rea
is an essential ingredient of a statutory offence; but this may be rebutted by
the express words of a Statute creating the offence or by necessary

68 AIR 1947 P.C. 135.

69 AIR 1951 SC 204.
70 AIR 1965 SC 722.
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implication. But the mere fact that the object of a Statute is to promote
welfare activities or to eradicate grave social evils is in itself not decisive of
questions whether the elements of guilty mind is excluded from the
ingredients of the offence. It is also necessary to enquire whether a Statute by
putting a person under strict liability helps him to assist the State in the
enforcement of the law.

In this case a person who does not know that gold cannot be brought
into India without a license or is not bringing into India any gold at all cannot
possibly do anything to promote the observance of the law. Mens rea by
necessary implication can be excluded from a statute only where it is
absolutely clear that the implementation of the object of a Statute would
otherwise be defeated and its exclusion enables those put under strict liability
by their act or omissions to assist the promotion of the law. The nature of
mens rea that will be implied in a Statute creating an offence depends upon
the object of the Act and the provisions thereof. 71

Mens rea means in statutory offences as observed by the supreme

court in State of Gujarat v. Acharya Shir Devevndraprasadji Pande72 “some
blameworthy mental condition whether condition by knowledge or otherwise
but this rule has several exception where the subject matter of statute is the
regulation for the public welfare of a particular activity statutes regulating the
sale of foods and drinks are to be found among the earliest examples it can be
and frequently has been inferred that the legislature intended that such
activities should be carried out under conditions of strict liability. The
presumption is that the statute or statutory instrument can be effectively
enforced only if those in charge of the relevant activities are made

71 AIR 1965 SC 722.

72 AIR 1971 SC 866.
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responsible for seeing that they are complied with when such a presumption
is to be inferred, it displaces the ordinary presumption of mens rea.

3.9 THE HARMFUL CONSEQUENCE OF THE ACT

Learned author wrote in his book73, the maxim “nullum crimen sine
poena” no crime without punishment, means that people cannot be punished
for acts which are not punished or punishable under the law in force. Society
punishes a man under law if he has done some act which has harmful
consequences to the society or individuals or both. This does not mean that
all acts which have harmful consequences are punished in law. If the
individual has a legally recognized defence or justification for the act, mistake
of fact, consent, intoxication, etc, he cannot be punished. This is the reason
for the dictum “Nulla Poena Sine Lego” no punishment without law. It is
recognized in criminal justice administration.

In criminal law an “individual is treated as if he was autonomous, but in

fact an act which harms an individual also harms the groups in which he has
membership”.74 Sutherland and Cressey argue “There must be a causal
relation between the legally forbidden harms and the voluntary misconduct” 75
For instance, to convict an individual of murder, it must be proved that the
person actually stabbed the victim or behaved in some other way that led
directly to the death of the victim. It is necessary to prove that the harmful
consequence was the effect of the alleged offender’s act.

73 J. Vadackumchery, Criminal Law and Police Science, 2nd Ed. (New Delhi: Concept Publishing
Company,2003) at p.7
74 Jerome Hall, General Principles of Criminal Law (1947) as cited in J. Vadackumchery, No. 63 at
7
75 E.H. Sutherland and D.R. Cressey, Principles of Criminology (1965) as cited in J. Vadackumchery,
Ibid.
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3.10 CRIMINAL LIABILITY AND ABSENCE OF MENS REA IN INDIAN PENAL CODE

Learned author wrote that76 criminal liability in certain circumstances a

person may be criminal responsible but entirely excused from criminal
responsibility for legally prohibited harm which has resulted from his conduct
and in certain other circumstances he may be excused merely from
punishment for the commission of such harm. But in both instances there
should be some legal provision expressly exempting the person committing
the harm. The grounds which can be advanced by the individual who has
committed a legally forbidden deed for getting exemption from penalty are
given, as stated earlier, under General Exceptions in chapter IV of the Indian
Penal Code 1960.This chapter dealing with exceptions to criminal liability
contains altogether 32 sections and these section generally apply where there
is absence of criminal intent.

3.10.1 Act of Necessity

According to Section 81 “Nothing is an offence merely by reasons of its

being done with the knowledge that it is likely to cause harm if it be done
without any criminal intention to cause harm, and in good faith for the
purpose of preventing or avoiding other harm to person or
property.”77Explanation – it is a question of fact in such a case whether the
harm to be prevented or avoided was of such a nature and so imminent as to
justify or excuse the risk of doing the act with the knowledge that it was likely
to cause harm.

This section gives legislative sanction to the doctrine of necessity. In

other words, the law permits the doing of an evil so that good may result

76 Cited in J. Vadackumchery, Id 63 at pp.12-24.

77 Sec 81of Indian Penal Code, 1860.
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from such transactions. To avoid or prevent a greater or more severe evil, the
person is permitted to inflict a lesser evil. C. Turner in this context writes:

“When the defence of “necessity” is set up it will be found that

this really means that the accused person with freedom of choice
before him, had preferred to act in the way he did act, thus
performing an actus reus, rather than in another way with
different results. The dilemma which faced the man have been a
cruel one, either alternative leading to serious harm. There is
really no escape from the dilemma in many cases and the
situation is not alleviated by loose use of the word necessity”. 78

Necessity may create the law and at times will supersede rules. In such
situations whatever is just and reasonable will also be legal. For example; the
illustration given in the I.P.C. is that A, in a great fire, pulls down houses in
order to prevent the conflagration from spreading. He does this with the
intention in good faith of saving human life or property. Here, if it be found
that the harm to be prevented was of such a nature and so imminent as to
excuse A’s act. A is not guilty of the offence. It must be remembered here that
necessity vincit legem and all good involves some sacrifice and hardship.

3.10.2 Acts of Infants

In all cases, competent age, sanity, and some degree of freedom from
coercion etc. are presumed to be essential to criminality. 79 Sections 82 and 83
of IPC deal with the criminal responsibility of children in Indian Law. According
to law, “Nothing is an offence which is done by a child under seven years of
age80 and nothing is an offence which is done by a child above seven years of

78 C. Turner, Kenny’s Outlines of Criminal Law Cited in J. Vadackumchery, Id. at 13.

79 R. v. Tolson (1889) 23 Q.B.D.
80 Sec. 82 of Indian Penal Code, 1860.
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age and under twelve, who has not attained sufficient maturity of
understanding to judge his conduct, the nature and occasion 81

When the doctrine of mens rea has been accepted in criminal

jurisprudence as an essential ingredient in crimes, it became necessary to
exempt children from criminal liability. Accordingly the law in India is that a
child under seven years of age is incapable of mens rea or criminal intent and
therefore he is called “doli incapax”

But this presumption weakens when the child grows in age and
therefore section 83 IPC attaches only a qualified criminal liability to children
above seven and below twelve years of age. in such cases, it is necessary to
look into the child’s behavior and see whether or not it had attained sufficient
maturity of understanding to judge the nature and consequence of its
conduct on that occasion. This exemption granted in favour of children
extends to all offences under special and local laws as well. 82 Under the
Juvenile Justice (Care and Protection of Children) Act, 2000 in India and other
special laws applicable to children, action can be initiated against delinquent
children. In fact the above acts deal not only with delinquent children, but
also with neglected and uncontrollable children.

3.10.3 Mistake of Fact and Mistake of Law

Section 76 I.P.C. reads:

“Nothing is an offence which is done by a person who is, or who

by reason of a mistake of fact and not by reason of a mistake of
law in good faith believes himself to be bound by law to do it”.

81 Id. Sec. 83.

82 L. Uttam Chand v. Emperor AIR 1945 Lah. 238 (FB).
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The well known maxim: “ignorantia facit excusat ignorantia juris non
excusat” ignorance of fact excuses, ignorance of law does not excuse is a
ground here for the non-liability for criminal action. But the mistake must be
real. A, a police officer arrests B thinking or believing that he is C wherein B
and C are identical twins. Here the officer is committing an honest mistake
and he is excused for the harm caused. The mistake negatives mens rea and
actus reus. Another condition is that the mistake must be reasonable one.
And finally, “The mistake however reasonable, must not relate to matters of
law but to matters of fact”. 83 For, the maxims are ignorantia juris, quod
quisque tenetur scire neminem excusat i.e ignorance of law which every man
is presumed to know excuses no one, and ignoram corum quo escire tenetur
non excusat ignorance of those things which one is bound to know, excuses
not. Ignorance of law can not be therefore made a defence, for if it were so,
it would be a loophole for offenders to escape and ultimately lead to variety
of complications. However, the word ‘law’ used here refers to the general law
of the Country and the principle applies to all laws, bye-laws, rules and
regulations having force of law.

3.10.4 Intoxication

According Section 85 IPC “Nothing is an offence which is done by a

person who, at the time of doing it is, by reason of intoxication, incapable of
knowing the nature of the act, or that he is doing what is either wrong, or
contrary to law provided that the thing which intoxicated him was
administered to him without his knowledge or against his will”. Here it can be
seen that the person has been intoxicated through no fault of his and
therefore the law gives him full exemptive effect. The section makes it clear

83 C. Turner, Kenny’ s Outlines of Criminal Law as Cited in J. Vadackumchery Id at 15.

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that the drink must have been administered to him without his knowledge or
against his will. The result of the intoxication has been that the person
intoxicated became “incapable of knowing the nature of the act or that he is
doing what is either wrong or contrary to law”. Any person who gets himself
intoxicated voluntarily cannot claim the benefit of this section. For, section 86
I.P.C. makes it very clear that in such instances the person who is intoxicated
voluntarily is presumed to have the same knowledge as he would have had if
he had not been intoxicated. The law cannot permit voluntary drunkenness as
a plea to get immunity, for, in such cases the leniency will be more misused by
people. The law exempts people and declares them immune to their criminal
acts if they have been intoxicated without their consent or against their will,
because the law attaches ‘dementia offectata’ temporary insanity to such
persons and it so happened for no fault of theirs. When does this state
occur ?This state takes place when a man is made to drink “through
stratagem or the fraud of another or through ignorance or coercion practiced
by his friend or foe, when a person is dragged by his enemies or given to eat
or drink such a thing as causes frenzy, or his unskillful physician gives him an
intoxicant to drink, in all of which cases the person intoxicated may be said to
have been free agent, and therefore, not responsible for the consequence of
his act”.84 Drugs and drinks come under the operation of this law.

3.10.5 Unsoundness of Mind

Section 84 of the IPC provides “Nothing is an offence which is done by

a person who, at the time of doing it, by reason of unsoundness of mind is
incapable of knowing the nature of the act or that he is doing what is either
wrong or contrary to law”. In a discussion on insanity as a ground for

84 Hale P.C. 32.

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immunity, it is necessary to study the M’ Naghten Answers in English legal

history. In the case of Daniel M’ Naghten the judges in England made very
authoritative pronouncements with respect to persons afflicted with insane
delusions and their criminal acts. The principle may be summed up as 85:

i. Every man is presumed to be sane, and to possess a sufficient degree

of reason to be responsible for his crimes, until the contrary be proved
to the satisfaction of a jury.

ii. To establish a defence on the ground of insanity, it must be clearly

proved that, at the time of committing the act, the party accused was
labouring under such defect of reason, from disease of the mind, as
not to know the nature and quality of the act he was doing or, if he did
know it, that he did not know he was doing what was wrong.

Section 84 IPC has incorporated this view of unsoundness of mind in

Indian law. Unsoundness of mind is applicable not only to insanity proper (like
psychosis), but also to cases of mental retardation (morons, imbeciles and
idiots whose development of intelligence has been arrested) in other words
to lunatics as well as mentally deficient people. In all such cases, the point to
be proved is whether or not the person can be viewed as legally insane as
described in section 84 IPC i.e, at the time of doing the act, is he by reason of
unsoundness of mind, incapable of knowing the nature of the act or that he is
doing what is either wrong or contrary to law.

Legal insanity is not the same as medical insanity and moral insanity.
The courts are concerned with only legal insanity, 86 and what is meant by legal
insanity is explained in section 84 IPC. For instance, people suffering from

85 R v. M’ Naghten (1843) 8 ER 718.

86 AIR 1957 Orissa 168.
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manias such as nymphomania, kleptomania etc. it is seen, have got an

understanding into the nature of their acts but they suffer from irresistible
impulses i.e., obsessive-compulsive reactions to such a degree that they may
be morally insane or even medically insane but cannot be treated as legally
insane.

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3.10.6 Privileged Acts

Sections 77 and 78 of IPC relate to privileged acts of judges when

acting judicially and to acts done pursuant to the judgment or order of a
Court. Here they are judicial acts and immunity is attached to such acts. These
deeds are legal when done lawfully for the advancement of justice and in such
instances the deeds do not constitute punishable acts.

3.10.7 Accidents and Acts of Triviality

Under Section 80 IPC deals with cases of accident wherein a person is

exempted from criminal liability in cases of accident or misfortune. In such
instances the mens rea is not there and it must be proved that the person was
doing a lawful act, in a lawful manner, by lawful means and with proper care
and caution. The absence of criminal intention and criminal knowledge should
be there to get the benefit of section 80 IPC. The legal dictum is that “no act is
per se criminal unless the actor did it with criminal intent”

“Actus non facit nisi mens sit rea” The act itself does not make a man
guilty unless his intentions were so. Dealing with accident and misfortune, Sir
Hari Singh Gour writes:

“Now, in the first place literally, the term means only the
befalling of an event. In ordinary parlance it means an event
that takes place without one’s foreseen expectation. And this is
substantially the sense in which the term has been used here. It
means here not only an event, or a thing which occurs, for every
occurrence in not an accident. An accident is an occurrence out
of the ordinary course which no man of ordinary prudence could
anticipate or provide against. A misfortune is only accident with
attendant evil consequences. Now as the words “accident” as
well as “misfortune” are here used necessarily in the sense of
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implying injury to another, the word “misfortune” differs from

“accident” in that while the latter involves only injury to another
the former causes injury as much to the author as to another
unconnected with the act”

Section 95 IPC concerns with acts of triviality is that, “nothing is an

offence by reason that it causes, or that it is intended to cause or that it is
known to be likely to cause any harm, if that harm is so slight that no person
of ordinary sense and temper would complain of such harm”. This law
recognizes the maxim de minimis non curat lex i.e., ‘law does not care about
trifles, Sir Hari Singh Gour in his Penal Law of India enumerates a number of
examples to illustrate this further. He writes:

“As our definitions are framed it is theft to dip a pen in another

man’s ink, mischief to crumble one of his wafers; an assault to
cover him with a cloud of dust by riding past him; hurt to
incommode him by pressing against him in getting into a
carriage. There are innumerable acts without performing which
men cannot live together in society-acts which all men
constantly do and suffer in turns and which it is desirable that
they should do and suffer in turns yet which differ only in degree
from crimes”.

3.10.8 Acts Done by Consent

Sections 87, 88, 89 and 90 of IPC relate to acts done by consent. Indian
law recognizes it, in some instances, as a good defence to the causing of
harm. The principle is the outcome of the acceptance of the doctrine. No one
will consent to that which is harmful to his interests. Sir James Stephen
defines consent in law to mean “a consent freely given by a rational and sober
person so situated as to be able to form a rational opinion upon the matter to
which he consents”87 He continues “Consent is said to be given freely when it

87 Dig. of Cr.Law Art 224 as Cited in J. Vadackumchery Id 63 at 19.

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is not procured by force, fraud or threats of whatever nature”. Consent can be

either express or implied. Consent is said to be “implied” if it is used to signify:

i. a consent by acts and conduct e.g. a modest girl may even signify her
consent to her lover’s proposal by uttering ‘no’ thereby denoting ‘yes’
or when you ask for pen to a friend, he may not say anything back, but
his silence can be treated as to signify his consent.

ii. Consent presumed though never given or in any way signified e.g., A
and B are friends. A goes to B’s house and puts on B’s shirt with the
intention of returning it. Here A presumes the consent of B. 88

But illegal acts cannot be justified on the ground of consent. Section 87

I.P.C. reads: “Nothing which is not intended to cause death, or grievous hurt,
and which is not known by the doer to be likely to cause death, or grievous
hurt, is an offence by reason of any harm which it may cause or be intended
by the doer to cause, to any person, above eighteen years of age, who has
given consent, whether express or implied, to suffer that harm, or by reason
of any harm which it may be known by the doer to be likely to cause to any
such person who has consented to take the risk of that harm”. Here it is
necessary that the consent must be given by the person suffering the harm
and he must be above eighteen years of age. The intention and knowledge of
the person causing the harm are important considerations in such instances. If
the offence is of a public character, the consent given by the party suffering
the harm is not treated as consent at all, offences relating to army, navy and
air-force or those affecting public tranquility or offences by or relating to the
public servants. For example, in case of illegal gratification, if at all the money

88 H.S. Gour, Penal Law of India as Cited in J. Vadackumchery Id 63 at 20.

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is received by consent, it will not mitigate or negotiate the criminal liability of

the crime doer.

Section 88 I.P.C. relates to acts not intended to cause death, done by

consent in good faith for person’s benefit. “Nothing which is not intended to
cause death is an offence by reason of any harm which it may cause, or be
intended by the doer to cause, or be known by the doer to be likely to cause,
to any person for whose benefit it is done in good faith, and who has given a
consent, whether express or implied to suffer that harm, or to take the risk of
that harm”. In this section, unintentional causing of grievous hurt or death is
made justifiable in law. Here the act is done in good faith for the benefit of
the person injured by the act. Surgeons and medical officers can claim
immunity for their acts done in good faith. No doubt the section has wider
applicability. At the same time, no one can perform the act in good faith for
the benefit of another under this section without obtaining the consent of the
person for whom the help is extended. The consent here need not be express.
It can be implied as well. The intention of the person working for the benefit
of another is given due consideration in the applicability of the scope of this
section. It is not right to think that a surgeon desires harm to be inflicted of
his patients, although he may know that harm is likely to be caused by the
surgical operation. But the harm is, in fairness, to be treated as one intended
for the benefit of the patient unless the contrary is proved. The consent on
the part of the patient and good faith on the part of the surgeon are
interdependent.

Section 89 I.P.C. concerns itself with acts done in good faith for benefit
of a child or an insane person, by or with consent of guardian. The guardian or
other person similarly positioned can inflict harm either himself or through

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some one else. But in such situations, the consent of the guardian or person
similarly situated should be given. The infliction of harm should be (I) done in
good faith (ii) for benefit of the person (ill) and it is not an act which is
immoral or illegal. Thus the de jure or de facto’ guardians can give consent for
the benefit of a person under twelve years of age or of unsound mind and the
benefit contemplated here is the personal temporal benefit of the child or the
person of unsound mind. Spiritual benefits, e.g., sacrificing the innocent child
to the deity if at all it is for the benefit of the child according to the guardian,
cannot be justified under the law.

Section 90 of I.P.C. provides for consent known to be given under fear

or under misconception of facts. In such cases the consent given is not
deemed as ‘consent’ for the purpose of law. Misconception may arise from
fraud or misrepresentation of the fact. It is observed “where consent is
obtained by duress, fraud or misrepresentation, there is not even the
freedom of will necessary for consent”. Mere submission is not treated as
consent in law. Similarly the consent given by a person who, from
unsoundness of mind or intoxication, cannot understand the nature and
consequence of that to which he gives his consent and the consent given by a
child under twelve years of age (in the case of a child, unless the contrary
appears from the context) are not considered as ‘consent’ in law. Section 91
IPC says that “the exceptions in sections 87, 88 and 89 do not extend to acts
which are offences independently of any harm which they may cause or be
intended to cause, or be known to be likely to cause, to the person giving the
consent or on whose behalf the consent is given”. For example the consent of
an individual to obscene publications, indecent exhibitions and public

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nuisances has no effect on criminal responsibility of the person guilty of

them.89 Sir Hari Singh Gour in this context writes,

“The section is recognition of the two great sub-divisions of

crime, public offences and private offences. Such are the
offences against the state, or it’s various departments or its
currency or revenue offences intended to produce public
commotion or disturbance, acts intended to interfere with
public convenience or to corrupt public morals which are all
punishable regardless of the consent of any person who may
have been incidently affected by them”.

3.10.9 Act Done in Good Faith

Section 92 deals with cases of emergency and the illustrations given

under section 92 IPC sufficiently prove the nature of emergency warranted in
the situation. The interference in such situations of emergency is to save life
or property or both and not to imperil it and the purpose is to do more good
than harm. Prompt assistance and immediate relief needed in such situations
do not necessitate the obtaining of consent from the person who suffers
harm. Similarly 93 IPC is about the harm caused by communication made in
good faith. The illustration given under section 93 IPC is an example of a
communication made by a surgeon in good faith to a sinking patient who dies
in consequence of the shock. Here the doctor may be under the painful and
hard necessity of communicating to his patient a timely warning about his fast
approaching death. And it was, no doubt, done in good faith and it has to be
deemed necessary for the benefit of the ailing patient. Therefore no offence is
committed.

3.10.10 Act done by Threats

89 H.S. Gour, Penal Law of India as Cited in J. Vadackumchery Id 63 at 22.

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Section 94 of IPC deals with acts which a person is compelled to do by

threats. Compulsion can be (i) over powering physical compulsion, (ii)
superior orders, (iii) threats, (iv) necessity, and (v) marital coercion in English
law. According to the Indian law, no compulsion can justify murder and
offences against the State punishable with death under section 121 and
section 300 I. P.C. Here the person who claims the benefit of this section
should have to show that he was not a voluntary agent at the time he
committed the offence and also that he had no alternative left with him but to
do or die. The compulsion can be physical or moral. Dr. Gour says “Necessity,
short of the threat of the death, does not excuse a crime” and there should
have been reasonable apprehension of instant death provided that the
person did not voluntarily expose himself to the constraint.

3.10.11 Acts done in Private Defence

According to section 96 IPC nothing is an offence which is done in the

exercise of the right of private defence. This is a right essentially of defence
and it can be exercised at actual or imminent danger. It should, on no
account, be exercised in a spirit of revenge.

“Section 97 IPC reads, Every person has a right subject to the

restrictions contained in section 99 to defend:

First, His own body, and the body of any other person, against any
offence affecting the human body;

Secondly, The property, whether movable or immovable, of himself, or

of any other person against any act which is an offence falling under the

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definition of theft, robbery, mischief or criminal trespass, or which is an

attempt to commit theft, robbery, mischief or criminal trespass”.

Section 99 sets out limitations on the right of private defence i.e., the
right does not arise if there is time to have recourse to the protection of the
public authorities and also the right does not extend to the infliction of more
harm than is necessary for the purpose of defence. Again if death is caused,
the person exercising the right of private defence must be under reasonable
apprehension of death or grievous hurt to himself or to those whom he has to
offer protection. In the case of property, the danger must be of such a
character, as is specified in section 103 I.P.C. Regarding the commencement
and continuance of the right of private defence of the body and the same of
the property the laws are given under sections 102 and 105 I.P.C. respectively.

The onus of proof when right of private defence is pleaded rests with
the accused in the case. Section 105 of Indian Evidence Act, 1882 makes an
exception to the general rule regarding burden of proof in the accusatorial
system of criminal justice that prevails in India. This section reads that the
onus of proving the existence of the circumstances bringing the case within
any of the general exceptions in the Indian Penal Code, or with any special
exception or proviso contained in any other part of the Code or in any other
Law, shall be on the accused and the Court shall presume the absence of such
circumstances.

Section 106 I.P.C. permits a person to run the risk of harming innocent
persons in case of extreme necessity in order to save himself from deadly
assault or fatal injury.

3.10.12 Modern Trends of Mens rea

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The modem trends of mens rea indicate clearly that the doctrine has
revived with greater vigour after a temporary phase of eclipse, if it may be so
called. Lord Goddard C.J. was the first to resurrect it and to make it applicable
not only to common law offences but also to all statutory offences, unless it
was ruled out specifically in the statute itself. He 90 observed very clearly

The general rule applicable to criminal cases is actus non facit

reun nisi mens sit rea, It is of the utmost importance for the
protection of the liberty of the subject that a court should
always bear in mind, that unless a statute, either clearly or by
necessary implication, rules out mens rea as a constituent part
of a crime, the Court should not find a man guilty of an offence
against the criminal law unless he has a guilty mind.

Mens rea has got both physical and mental elements the maxim “actus
reum”tells us such result of human conduct as to law seeks to prevent. The
word actus connotes the physical result of human conduct and the word
“reus” connotes the act forbidden by law.

Prof Kenny has defined “actus reus as such result of human conduct as
the law seeks to prevent.”91Lombroso believed that criminality was closely
related to the possession of certain physical qualities. From his examination of
prisoners he believed that certain physical characteristics revealed a tendency
to crime in their possessor and that if several of these characteristics were
found in one person he belonged to a criminal type92.

90 Brend v. Wood (1946) 62 T.L.R. 462, 463

91 JWC Turner, Kenny’s Outlines of Criminal Law, 19th Ed. P. 17 Cited in K.D. Gaur, Criminal Law,
Cases and Materials 3rd Ed. (New Delhi: Butterworth’s, 1999) at 23.
92 G.W. Paton, A Text Book of Jurisprudences (1964)at 327.
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Paton thus conclude that while it is impossible to find general physical

characteristics which make all the criminal population, nevertheless in one
individual case a physical condition may be a contributory cause of crime 93.

In Halsbury’s Law of England it has been said that 94 “As a general rule
every crime requires a mental element. The nature of which will depend upon
the definition of the particular crime in question. Expressions connoting the
requirement of a mental element include: “with intent”, “recklessly”, and
“unlawfully” “maliciously”, “unlawfully and maliciously”, “willfully”,
“knowingly”, “knowing or believing”, “fraudulently”, “dishonestly”,
“corruptly”, “allowing” and “permitting”. Each of these expressions is capable
of bearing a meaning which differs from that ascribed to any other. The
meaning of each must be determined in the context in which it appears, and
the same expression may bear a different meaning in different contexts.

Although the view has been expressed that it is impossible to ascribe

any particular meaning to the term mens rea,95 concepts such as those of
intention, recklessness and knowledge are commonly used as the basis for
criminal liability and in some respects may be said to be fundamental to it.
Generally, subject to both qualification and exception, a person is not to be
made criminally liable for serious crime unless he intends to cause, or
foresees that he will probably cause, or at the lowest, that he may cause, the
elements which constitute the crime in question.

The word “mens rea” means a guilty mind. It is described as the state
of mind or intention that together which accompany conduct is an offence.
Thus it consists of the mental state of the person at the time of offences. It
93 Ibid.
94 Halsbury’s Law of England, Vol. 2 Para 10 at p. 16.
95 Stephen, History of Criminal Law Vol. 2 at 95.
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96
has been observed in Ram Kumar v. State intention is used to denote the
state of mind of a man who not only foresee but also desires the possible
consequces of his conduct”

Salmond is of the view that 97 a man is responsible, not for his acts in
themselves, but for his acts coupled with the mens rea or guilty mind with
which he does them. Before imposing punishment, the law must be satisfied
of two things: first, that an act has been done which by reason of its
harmfu1idenoies or results is fit to be repressed by way of penal discipline
and secondly, that the mental attitude of the doer towards his deed was such
as to render punishment effective as a deterrent for the future, therefore just.
The form which mens rea assumes will depend on the provisions of the
particular legal system. Criminal liability may require the wrongful act to be
done intentionally or with some further wrongful purpose in mind, or it may
suffice that it was done recklessly; and in each case the mental attitude of the
doe is such as to make punishment effective. If he intentionally chose the
wrong, penal discipline will furnish him with a sufficient motive to choose the
right instead for the future. If, on the other hand, he committed the forbidden
act without wrongful intent but yet realising the possibility of the harmful
result, punishment will be an effective inducement to better conduct in the
future. Yet there are other cases in which, for sufficient or insufficient
reasons, the law is content with a lower form of mens rea. In the case of
crimes of negligence A person may be held responsible for some crimes if he
did not do his best as a reasonable man to avoid the consequence in question.
Sometimes, however, the law goes even beyond this; holding a man
responsible for his acts, independently altogether of any wrongful state of

96 1970 Cr L.J. 486.

97 P.J. Fitzgerald, Salmond on Jurisprudences 12th Ed. (London: Sweet & Maxwell,1966) at p. 366.
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mind or culpable negligence. Wrongs which are thus independent of fault may
be distinguished as wrongs of strict liability. Following observation is not out
of context:

i. Intentional or Reckless Wrongs, in which the mens rea amounts to

intention, purpose, design, or at least foresight. Such wrongs defences
like mistake operate to negative the existence of mens rea.

ii. Wrongs of Negligence, in which the mens rea assumes the less serious
form of mere carelessness, as opposed to wrongful intent or foresight.
With these wrongs defences such as mistake ‘will only negative mens
rea if the mistake itself is not negligent.

iii. Wrongs of Strict Liability, in which the mens rea is not required, neither
wrongful intent nor culpable negligence being recognised as a
necessary condition of responsibility and here defences like mistake
are of no avail.

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