Importance of “Actus Reus” and “Mens Rea” under Indian Law – Explained!

Mens Rea is a well settled principle of common law in England. In every statutory offence, Mens Rea is an essential ingredient. It is presumed that the wrong-doer did the offence with an ill intention. The prosecution must prove the ill intention (Mens Rea) of the accused to prove the offence committed.

Only in the cases, where the applicability of Mens Rea is excluded by the Statutes, then only it can be exempted. Only in few exceptional circumstances the Doctrine of Mens Rea is excluded. Some of them are:

1. Public Nuisance;

2. Cases, which are not criminal in nature, but are prohibited in the interest of public at large.

Example:

Environmental Pollution cases, deficiency of services under Consumer Protection Laws etc. These Laws do not enquire into the Mens Rea of an industrialist who negligently pollutes the environment and releases hazardous and noxious effluents into the atmosphere and causes danger and harm to the public at large.

In the similar way, the manufacturer or occupier supplies the defective goods or services and causes the injury to the consumers.

3. These cases have criminal nature, but in practice, their proceedings are conducted in the Courts according to the Civil Procedure Code as civil proceedings and safeguard the civil rights of citizens.

This maxim has been applied to all common law crimes in England without any reservations. Its application to statutory offences was however uncertain upto 1947. There were two prominent case- laws leading the Doctrine of Mens Rea. One is R. vs. Prince and another R. vs. Tolson.

R. vs. Prince (1875 LR 2 CCR 154)

Brief Facts:

Henry Prince loved Annie Philips, an unmarried minor girl. He took away her with an intention to marry her. The father of girl reported to the police against Henry Prince alleging that Prince had illegally taken away his minor girl, below the age of 16 years.

The Police arrested Henry Prince and filed criminal proceedings against him. Henry Prince was tried for having unlawfully taken away an unmarried girl below the age of 16 years, out of the lawful possession and against the will of her father/the natural guardian.

The accused contended that he was under the belief that she completed 18 years. He also contended that the girl herself told him about her age was more than 18 years. The accused also argued that he had no mens rea (ill intention).

Judgment:

Jury found upon evidence that before the defendant took her away the girl had told him that she was 18. However Jury held that the accused’s belief about the age of the girl was no defence.

It was argued that the statute did not insist on the knowledge of the accused that the girl was under 16 as necessary for conviction, and that the Doctrine of Mens Rea, should nevertheless, be applied and conviction be set aside in the option of criminal intention. 16 Judges tried the case and all but one unanimously held that Henry Prince was guilty of kidnapping.

Principles: A mixed question of fact and law was treated as a question of fact, if the accused was misled into an aware of fact on account of an error of law. The jury formulated certain important rules, while disposing this case:

1. That when an act is in itself plainly criminal, and is more severely punishable if certain circumstances co-exist, ignorance of the existence of such circumstances is no answer to a charge for the aggravated offence.

2. That where an act is prima facie innocent and proper, unless certain circumstances co-exist, then ignorance of such circumstance is an answer to the charge.

2. That the state of the defendant’s mind must amount to absolute ignorance of the existence of the circumstances which alters the character of the act, or to a belief in its non existence.

3. Where an act which is in itself wrong, under certain circumstances, criminal/a person who does the wrong act cannot set up as a defence that he was ignorant of the facts which turned the wrong into a crime.

4. Where a statute makes it penal to do an act under certain circumstances, it is a question upon the wording and object of the particular statute whether the responsibility of ascertaining that the circumstances exist is thrown upon the person who does the act or not. In the former case his knowledge is immaterial.

R. vs. Tolson (1889 23 QBD 168)

Brief Acts:

The accused was tried under Section 57 of the Offences against the Persons Act, 1861 (similar provision in India is Section 494 of the Indian Penal Code, 1860) for having committed the offence of bigamy.

Under that Section, it was an offence for a married person to contract a second marriage during the life time of the husband or wife, as the case may be. In this case, Mrs. Tolson married in 1880.

In 1881, Mr. Tolson deserted her and went away. She made all possible enquiries about him and ultimately came to know that her husband Mr. Tolson died in a ship accident in America.

Therefore, supposing herself to be a widow, she married another man in 1887. The whole story was known to the second husband and the marriage was not secrecy.

In the meantime, Mr. Tolson suddenly re-appeared and prosecuted Mrs. Tolson for bigamy. In the trial Court, she was convicted for imprisonment on the ground that a belief in good faith and on reasonable facts about the death of husband was no defence to the charge of bigamy. She appealed to the Court of Appeal.

The question before the Court of Appeal was whether Mrs. Tolson had guilty intention (mens rea) in committing the offence of bigamy.

Judgment: The Court of Appeal by majority set aside the conviction on the ground that a bona fide belief about the death of the first husband at the time of second marriage was a good defence in the offence of bigamy.

It also opined that the statutory limitation for the second marriage of seven years was completed at the time of her second marriage and she informed the real facts to the second husband. Hence it acquitted the accused.

R. vs. Wheat and Stock (1921) 2 KB 119)

In this case, the accused/an uneducated man handed over his case to his solicitor for obtaining divorce from his first wife. He believed that as soon as he handed over his case to his solicitor, he obtained divorce from his first wife.

Believing it in good faith, he married another lady. The first wife prosecuted him. He pleaded that he did not know the procedure of law and he believed that he obtained the divorce and with bona fide intention he married another lady.

The Court did not accept his version, and convicted him for the offence for bigamy on the ground that reasonable belief about the dissolution of marriage would be no defence to the charge of bigamy, unless the divorce would be obtained from a Court of law.

Principles:

1. Two cases, i.e., Tolson and Wheat cases are quite distinct from each other. In Tolson’s case, it was a mistake of fact. In Wheat’s case, it was a mistake of law. Mr. Wheat did an act which was forbidden by law, whereas Mrs. Tolson had no such intention.

2. The Doctrine of Mens Rea was re-surrected and made applicable not only to common law offences, but also to all statutory offences.

3. 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.

Mens Rea in Indian Law

Technically the Doctrine of Mens Rea is not applied to the offences under the Indian Penal Code. Here it is wholly out of place. In the Indian Penal Code, 1860, every offence is defined very clearly. The definition not only states what accused might have done, that also states about the state of his mind, with regard to the act when he was doing it.

Each definition of the offence is complete in itself. The words “mens rea” are not used any where in the Indian Penal Code. However the framers of the Code used the equivalent words to those of mens rea in the Code very frequently.

Such expressions are – Fraudulently (Section 25); Dishonestly (Section 24); Reason to believe (Section 26); Voluntarily (Section 39); Intentionally; etc.

Moreover in the Indian Penal Code, a separate Chapter (Chapter-IV) on General Exceptions is provided. Chapter-IV (Ss. 76 to 106) explains the circumstances, where options of criminal intent may be presumed. Comparing with English Law, Mens Rea has been applied by the Indian Courts, and it is now firmly settled law that Mens Rea is an essential ingredient of offence.

Important Points:

A Hari Prasad Rao vs. State (AIR 1951 SC 204)

In this case, a servant of a petrol dealer supplied motor spirit without coupons and in some cases took advance coupons from the consumers, without supplying them the spirit, which was an offence under the Motor Rationing Order, 1941.

The Supreme Court held that there were no grounds for conviction of the master, especially when he was not present at the time of delivery of the spirit. He, however, was convicted for non-endorsement on coupons by his servant which was mandatory and an absolute rule. Non-observance of such statutory rules was punishable even without mens rea.

B. Nathulal vs. State of M.P. (AIR 1966 SC 43):

In this case, the accused/a food grain dealer applied for a licence and deposited the requisite licence fee. He, without knowledge of rejection of his application, purchased food grains and sent returns to the Licencing Authority, who on checking, found that it was in excess of the quantity permitted by Section 7 of MP Food Grains Dealers Licensing Order, 1958. The accused was prosecuted. However he was acquitted on the ground that he had no guilty mind.

C. Malhan K.A. vs. Kora Bibi Kutti (1996 SCC 281):

The accused was a financier. He seized a vehicle for which he financed but did not receive the instalments. The person from whom the vehicle was seized complained to Police alleging that the accused had stolen his vehicle.

The Supreme Court held that the element of mens rea is totally wanting in this case and the accused cannot be convicted for the offence of theft under Section 379.

D. In Sankaran Sukumaran vs. Krishnan Saraswathi (1984 CrLJ 317), the Supreme Court held that Mens Rea is an essential ingredient of the offence under Section 494 (Bigamy), where the second marriage has been entered in a bona fide belief that the first marriage was not subsisting, no offence under Section 494 is committed.

E. In C. Veerudu vs. State of Andhra Pradesh, 1989 CRLJ 52 (AP), the Supreme Court held that Mens Rea is an essential ingredient of the offence under Section 498-A. Cruelty in Section 498-A means “wilful conduct”. Cruelty by husband or relatives of husband against a wife includes wilful conduct. Wilful conduct includes Mens Rea.

F. Section 420 (Cheating) of the Penal Code defines cheating and dishonestly inducing to delivery of property. While delivering the judgment in Banvarilal Agarwal vs. A. Surya Narayan (1994 CrLJ 370 Ori.), the Supreme Court observed that the evidence adduced must establish beyond reasonable doubt, Mens Rea on the part of the accused.

The intention of the person must be dishonest and there must be Mens Rea. It has to be shown that his intention was dishonest at the time of making the promise. Dishonest intention cannot be inferred from the mere fact that he could not subsequently fulfil the promise. The dishonest intention must be from the very beginning.

G. Section 171-D of IPC defines and punishes for Personation at Elections (rigging). In Mool Chand vs. Emperor (AIR 1937 Sindh 21), the Privy Council held that Mens Rea is a constituent part of the offence under Section 171-D.

The words of this Section are wide enough to cover the case of a man who, knowing that he has no vote, or already voted, knowing that another person bearing the same name as himself as a vote applies for a voting paper though that name be the same name has his own.

H. The offences of abetment and conspiracy involve the most ingredient part of Mens Rea (guilty intention) or knowledge. The wrong-doer knowingly abets or conspirates.

I. While disposing Dahya Bhai Chagganbhai Thakkar vs. State of Gujarat (AIR 1964 SC 1763),

the Supreme Court observed and explained the law of burden of proof in insanity cases as follows: “The Doctrine of Burden of Proof in the context of the plea of insanity may be stated in the following propositions:—

1. The prosecution must prove beyond reasonable doubt that the accused had committed the offence with the requisite Mens Rea, and the burden of proving that always rests on the prosecution from the beginning to the end of the trial.

2. There is a rebuttable presumption that the accused was not insane, when he committed the crime, in the sense laid down by Section 84 of the Penal Code; the accused may rebut it by placing before the Court all the relevant evidence oral, documentary or circumstantial, but the burden of proof upon him is no higher than that rests upon a party to civil proceeding.

3. Even if the accused was not able to establish conclusively that he was insane at the time he committed the offence and, the evidence placed before the Court by the accused or by the prosecution may raise a reasonable doubt in the mind of the Court as regards one or more of the ingredients of the offence, including Mens Rea of the accused and in that case the Court would be entitled to acquit the accused on the ground that the general burden of proof resting on the prosecution was not discharged.

4. To differentiate between Culpable Homicide (Section 299) and Murder (Section 300), the Court depends upon the Doctrine of Mens Rea.

5. Section 292 of the Penal Code prescribes the punishment for the sale of obscene books, etc. Possession of the obscene literature, books, etc., includes ill intention. Section 299 connotes conscious possession and mens rea or guilty mind, which cannot be separated from the offence.”

J. Hari Prasad vs. State (AIR 1951 SC 204)

We read the brief facts, judgement and Principles of this case in “vicarious liability”. As a general rule, mens rea is considered to be the essential element of an offence.

However where the statutes specifically exclude the mens rea, and impose the criminal liability upon the principal, then the principal is liable for his servants’ misdeeds.

Conclusion:

In the case of modern statutory offences, the maxim has no general application and the statutes are to be regarded as themselves prescribing the mental element which is pre-requisite to a conviction.

So Mens Rea is an essential element of crime in every penal statute unless the same either expressly or by necessary implication is ruled out by the statutes.

Further it is not entirely correct to say that the Doctrine of Mens Rea is inapplicable to the offence under the Indian Penal Code. What the Indian Penal Code requires is not negation of Mens Rea, but Mens Rea of a specific kind and this differs from offence to offence.

K. Motive:

For every intention, there shall be one ‘motive’. Section 8 of the Indian Evidence Act, 1872 explains the importance and the evidentiary value of motive.

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