MENS REA - The Guilty Mind

MENS REA (THE GUILTY MIND) Introduction The common law principle is that actus non facit reum, nisi mens sit rea, that is to say, “A person cannot be convicted and punished in a proceeding of a criminal nature unless it can be shown that he had a guilty mind”. Chisholm v. Doulton (1889) 22 Q.B.D It is one of the principles of the English Criminal Law that a crime is not committed if the mind of the person during the act in question be innocent. The Maxim governing the above proposition is actus non facit reum nisi mens sit rea, i.e . The act itself does not constitute guilt unless done with a guilty intent. In the words of Lord Kenyon “The Intent and an act must both concur to constitute a crime”. Thus mens rea in the case of murder afore thought; in the case of theft an intention to steal and in the case of receiving stolen goods knowledge that the goods were stolen. The Maxim therefore, connotes that the act itself does not make a man guilty unless his intentions was to commit crime. You shoot a Jackal but actually kill a man behind a bush which was concealed from your view. No offence is committed if you were not negligent and the act will be excusable as an accident. There is no offence if you have taken proper precaution and the act is excusable as an accident. But if you kill a man under circumstances which afford you no legal justification, you are guilty of Murder Before we jump further into Mens Rea, lets look a little into what a Crime is.

Definition of Crime Crime is a social wrong. When the State organized itself into a Political entity and laid down certain rules of conduct for the people, breaking of such rules was declared crime. Law regulates the various interests of the society and settles the various claims and disputes. Law is the force which the state is authorized to wield in order to maintain peace and tranquility and satisfaction in the society and among the people. Breaking of such laws can be called a Crime. Many jurists have tried to define with precision but still to exactly define a ‘Crime’ is a difficult task. According to Austin “A wrong which is pursued at the discretion of the injured party or his representatives is a civil injury; a wrong which is pursued by the sovereign or his subordinates is a crime.”1 According to Stephen, “A crime is a violation of a right considered in reference to the evil tendency of such violation as regards the community at large.” Sir James Stephen in his book History of Criminal Law has observed that “Crime is an act which is both forbidden by law and revolting to the moral sentiments of the society.” In fact there is no satisfactory definition of crime which covers all important aspects of what a crime is. Crime is a wrong committed by an individual in a society. IPC uses the term ‘Offence’ instead of crime.

Criminal Law and Morality Every Society must have a Moral code to properly function. The standard of such Moral code may differ in each society. Certain morals are universal and are common for all societies. The legislation ought to protect these essential morals by backing them with penal action. The Law should support a minimum morality as the roots of both morality and criminal law lie in the society. The scope of Criminal law is narrower than that of morality. All crimes are immoral, but all immoral are not crimes. In certain countries, Homosexuality and adultery are not crimes but such acts are nonetheless immoral in nature. The Standard of Morality and Immorality differs in every society. Law and Morality change with the development of the Society Mens Rea: A Fundamental Element Of Crime There are two major elements of a crime Physical Element i.e Actus Reus , Mental Element i.e Mens Rea Let’s look into Mens Rea in detail. The most important essential of a crime is Mens Rea or The Guilty Mind. An act without the evil intention to do such act cannot be said to be a Crime. Evil intention is the most important element of a Crime. The Latin Maxim actus non facit reum nisi mens sit rea is a fundamental principle of Criminal Liability. The maxim states that the Intent and an act must both concur to constitute a crime.

The concept of mens rea has been changing ever since the advancement of society since the pre historic times. Earlier primitive societies had no concept of mens rea and the liability of an individual in a crime was absolute. But as the societies advanced, the Intention was recognized as an important element of crime. The Maxim has, however, not so wide application as it is sometimes considered to have. It has undergone a modification swing to the greater precision of modern statutes. A statute may be so framed as to make an act criminal whether there has been an intention to break the law or otherwise or not. There is a larger body of Municipal Law which is so conceived. Breach of, municipal bye laws, regulating the width of thoroughfares, the height of the buildings, the thickness of walls or bye laws governing the general welfare, health, etc., constitutes an offence whether the person committing it had made an accidental miscalculation or an erroneous measurement. It is therefore, not possible to apply the maxim generally to all statutes. Crimes are much more accurately defined by statues today than they were before. The modern trend is of excluding mens rea in socio-economic offences. If the statute in plain and explicit terms excludes mens rea as an essential ingredient of the crime, there is no difficulty in holding a person liable for his act if sufficiently within the ambit of the statute. The difficulty arrises when the statute is silent on this point. In R.V Prince (1875) L.R. Henry Prince was prosecuted for abducting a girl below the age of 16 years under the belief that she was above 18 years age. The girl had told the accused that she had attained the 18 years of age and the accused on bona fide belief on her statement took her away. According to the statute it was quite immaterial whether the accused had guilty intention or not. It was pleaded that the accused should not be held responsible

as he had no mens rea. The court did not accept the argument and Prince was convicted. In the changed socio economic context, the crimes of strict liability are being created by the statutes. Such laws need not mens rea as an essential element for making the act guilty. According to Prof. Kenny – ‘There are following conditions when mens rea is not essential to constitute an act an offence. 1. Where the Penalty incurred is not great. 2. The Damage caused to the public by the offence is in comparison with penalty, very great, and. 3. The offence is such that there would usually be peculiar difficulty obtaining the evidence of mens rea, if that degree of guilt is required to be proved.’2 Wright J. held that ‘Mens rea is an essential ingredient in every offence except in three cases. 1. Cases not criminal in any real sense but which in the public interest are prohibited under a penalty. 2. Public Nuisance 3. The cases where the proceedings are criminal in form but really they are summary mode of enforcing of civil rights.’3 An Indian book on Law of crimes in India observes – “We may state that Crimes of strict liability fall under three categories : First the crimes of Public Nuisance, libel and contempt of court, Secondly the serious offences of abduction and bigamy, thirdly, statutory crimes created under various social welfare laws, for example., Food and drugs Act, Licensing Act, Road – Traffic Act and so on.”4 According to Dean Roscoe Pound, “ Such statutes are not meant to punish the vicious but to put pressure upon the thoughtless and inefficient to do their whole duty in the interest of Public Health, safety and morals.”5

Conclusion The Maxim actus non facit reum nisi mens sit rea has no application to the offences under The Indian Penal Code; because the definitions of various offences contain expressly a proposition as to the state of mind of the accused. The Indian Penal code defines every crime with a specific evil intent. The words denoting mens real, e.g. intentionally, recklessly, voluntarily, dishonestly, fraudulently, wantonly, knowingly, etc. have been used. This gives positive force to the mens rea. However, there is a view that mens rea is not applicable to Penal Code since the liability for a crime can be ascertained only on the basis of the specific intent falling in the crime itself. But this view is rebutted by chapter IV of the penal code where in the provisions of general exceptions lay down the circumstances when the liability for the crime is negatived. This chapter thus negatively gives force to the doctrine of mens rea. However, there are certain sections of The Penal Code( 121, 124A, 232, 359, 363) where the words indicating mens rea have not been used. These sections do not contain such words because the consequences arising out of the act prohibited by the sections so harmful to the society that the acts should be punished without any reference to mens rea. Further, the intention is presumed because it becomes apparent due to the acts being of very grave nature. Any way, the accused charged under the above said sections may take the plea of defence under general exceptions. References – 1. Lectures on Jurisprudence (1920). 2. Outlines of Criminal Law, P.44 3. Sherran V. De Rutzens (1895) 10.KB 4. Law of Crimes in India, vol. 1 5. Spirit of Common Law. P.52 6. Notes on Criminal Law – Amar Singh Chauhan J. 7. Priniciples of Criminal Law – K.A. Pandey