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Mens Rea – An Important Element To Criminal Law


The criminal law generally prohibits undesirable acts. Thus, proof of a crime requires proof of some act. Some of the Scholars labelled it as the requirement of an actus reus which means guilty act. Some crimes – particularly modern regulatory offenses – require no more, and they are known as strict liability offenses (E.g. Under the Road traffic Act 1988 it is a strict liability offence to drive a vehicle with an alcohol concentration above the prescribed limit). Nevertheless, because of the potentially severe consequences of criminal conviction, judges at common law also sought proof of an intent to do some bad thing, the mens rea or guilty mind. 

As to crimes of which both actus reus and mens rea are the requirements or we can say are essential, judges have concluded that the elements must be present at precisely the same moment and it is not enough that they occurred sequentially at different times.

Mens rea refers to the crime’s mental elements of the defendant’s intent. It is a necessary element, the criminal act must be voluntary or purposeful. Mens rea is the mental intention (mental fault), or the defendant’s state of mind at the time of the offense, sometimes called the guilty mind. It stems from the ancient maxim of obscure origin, “actus reus non facit reum nisi mens sit rea” which means “the act is not guilty unless the mind is guilty.”

For example, the mens rea of aggravated battery is the intention to do serious bodily harm. Mens rea is almost always a necessary component in order to prove that a criminal act has been committed.
Thus, in other words we can say most crimes require what attorneys refer to as “mens rea,” which is Latin term for a “guilty mind.”

In other words, we can say it’s what was the defendant’s mental state and what did the defendant intend when the crime was committed. Mens rea allows the criminal justice system to differentiate between someone who did not mean to commit a crime and someone who intentionally set out to commit a crime.

Another term which is important is ‘Actus Reus’ which literally means “guilty act,” and generally refers to an overt act in furtherance of a crime. Requiring an overt act as part of a crime means that society has chosen to punish only bad deeds, not bad thoughts.

In jurisdictions with due process, there must be both actus reus and mens rea for a defendant to be guilty of a crime. As a general rule, someone who acted without mental fault is not liable in criminal law.

We can also say that all the crimes may also require actus reus. That is, a criminal act or an unlawful omission of an act, must have occurred. A person cannot be punished for thinking criminal thoughts. This element is based on the problem of standards of proof. How can another person’s thoughts be determined and how can criminal thoughts be differentiated from idle thoughts? Further, the law’s purview is not to punish criminal ideas but to punish those who act upon those ideas voluntarily.

Unlike thoughts, words can be considered acts in criminal law. For example, threats, perjury, conspiracy, and solicitation are offenses in which words can constitute the element of actus reus.
The omission of an act can also constitute the basis for criminal liability.

Let’s take An example,

Imagine two drivers who end up hitting and killing a pedestrian.

Driver 1 never saw the person until it was too late, tried his best to brake, but could do nothing to stop the accident and in fact ended up killing the pedestrian. Driver 1 is still liable, but likely only in civil court for monetary damages.

Driver 2, on the other hand, had been out looking for the pedestrian and upon seeing him, steered towards him, hit the gas pedal and slammed into him, killing him instantly. Driver 2 is probably criminally liable because he intended to kill the pedestrian, or at least he intended to cause serious bodily harm. Even though the pedestrian is killed in both scenarios (the outcome is the same), the intent of both drivers was very different and their punishments will be substantially different as a result.


There are mainly four elements of crime namely: human being, Mens rea, Actus Reus and injury caused.
Human being: The first and foremost element of crime is that the injury must be caused by a human being. Only a human can be made legally bound to act in a judicially appropriate way as laws are only applicable to humans. Under Sec. 11 of Indian Penal Code the word person includes an artificial or judicial person hence they are punishable as well. Animals used to be punished in ancient times now their owners are made liable.
Mens Rea: Mens Rea is the most important element to prove a crime has taken place. It means it was the intention of the wrongdoer to purposely/knowingly/willingly and with proper planning to cause harm to a person, animal or property.
Actus reus: It is the guilty Act that follows the guilty intention. An act will only be called a crime if both the elements are present. The guilty intention of a person leads them to act in accordance to it and hence it turns into crime.
Injury: For a particular crime to take place it is necessary for the injury to occur. After having a guilty mind and doing the guilty act if the injury does not occur then that crime is not considered as committed.


Mens rea is a Latin phrase which means “guilty mind”. This is the mental element of the crime or the mental element of a person’s intention to commit a crime; or knowledge that one’s action or lack of action would cause a crime to be committed. It is a necessary element of many crimes. A guilty mind means an intention to commit some wrongful act. Intention under criminal law is separate from a person’s motive.

It is derived from the maxim “actus reus non facit reum nisi mens sit rea ” which means “that an act is not guilty unless the mind is not guilty”. The mens rea means some blameworthy mental condition, whether constituted by knowledge or intention or otherwise. It is almost always necessary to prove Mens Rea. It is to be proven that the person accused really had the intention to cause such harm to the other person property and also knows about the consequences of his action. Exception to Mens rea is the “Strict Liability offences” in which punishments are provided even when the act is done without a guilty intent.

Motive is the reason for the crime, but the law is more concerned with the intention of the accused. Mens Rea can be different in various crime for instance in murder the Mens Rea in the intention to incur a forbidden result that is to kill the other person whereas in assault cases it is to provide serious bodily harm.

In civil law it is not always necessary to prove the mental element. It was held by the SC that Mens Rea is not an essential ingredient for contravention of the provision of a civil act. In few cases such as tort the punishment may increase the scope of liability.


Actus reus is Latin term which means “guilty act” and is the physical element of committing a crime. It may be accomplished by an action, by threat of action, or exceptionally, by an omission to act, which is a legal duty to act. For example, the act of A striking B might suffice, or a parent’s failure to give food to a young child also may provide the actus reus for a crime.

It is derived from the same maxim i.e. “actus reus non facit reum nisi mens sit rea” which means “that an act is not guilty unless the mind is not guilty” and in other words, it means the guilty action that follows the guilty mind. Actus Reus is related to the actual work and action that is required for the completion of the crime. Only thinking about killing someone is not murder until action is taken in order to kill the other person. The action alone also cannot be considered as crime. Both mens rea and actus reus work hand in hand. A crime can only take place where both these elements are simultaneously present. In order to find whether these elements are present or not the facts and circumstances of the case is also taken into consideration as to what was the intention behind the actions of the accused.


The word Mens Rea have nowhere been used in the Indian Penal Code but they have been applied in two different ways:-
While defining offences some words used in the respective section which indicate the actual criminal intent required for the offence. Such words are fraudulently, dishonestly, voluntarily, intentionally etc. Such words haven’t been used in case of offences which can’t be committed by an innocent person. Such offences are Waging War against Government (Section 121), Sedition (Section 124-A) and Counterfeiting of Coins (Section 232) etc.
The Code also contains a separate Chapter i.e. Chapter IV on General Exceptions (Section 76 to 106) which indicates the circumstances where the absence of Criminal intent may be presumed.


As we all know that the word ‘Mens rea’ is not used in Indian Penal Code but there are some words used in the Indian Penal Code which denote the presence of Mens rea in Indian Penal Code, such words are –

❏ Fraudulently –

Generally, the term ‘Fraud’ means ‘the wilful, misstatement about material fact of a thing’. According to Section 25 of the code – “A person is said to do a thing fraudulently if he does that thing with intent to defraud but not otherwise”. The term ‘fraud’ has been defined under Section 17 of Indian Contract Act, 1872 which has received a meaning much extensive for the purpose of the code. Section 17 of Indian Contract Act provides that – ‘Fraud’ means and includes any of the following acts committed by the party to a contract, or with the connivance or by his agent, with intent to deceive another party thereto or his agent, or to induce him to enter into the contract –
(1) The suggestion, as a fact, of that which is not true by one who does not believe it to be true ;
(2) The active concealment of a fact by one having knowledge or belief of the fact;
(3) A promise made without any intention of performing it; 

• Case – Queen Empress V/s Soshi Bhushan
In this Case accused applied for admission to LL.B. (Final) class in Benaras University alleging that he had attended LL.B. (Previous) class in Lucknow Canning College. He was admitted and required to produce a certificate in support of proof of having passed LL.B. (Previous) examination. He produced a forged certificate and it was held that he acted fraudulently.

❏ Dishonestly –

Generally, ‘Dishonestly’ means ‘unchaste, shameful, or characterized by lack of truth, honesty’. According to Section 24 of the Code. ‘Dishonestly’ means – “Whoever does anything with the intention of causing wrongful gain to one person or wrongful loss to another, is said to do that thing dishonestly”. For Example – ‘A’ is entitled to the possession of his house from ‘z’ and sued him for the arrears of rent on the basis of rent note, which was found to be forged. Thus, he is not entitled to get the rent as per that rent note and as ‘A’s intention to cause wrongful gain to himself so he is said to do that thing dishonestly.

• Case – Krishan Kumar v/s. Union of India
In this case the Court has held that Wrongful gain includes wrongful retention and wrongful loss includes being kept out of the property as well as being wrongfully deprived of property. Therefore when a particular thing has gone into the hands of a servant he will be guilty of misappropriating the thing in all circumstances which show a malicious intent to deprive the master of it. There are some Sections in Indian Penal Code, where the words ‘fraudulently’ and dishonestly’ have been jointly used. Such sections are Section 209, 246, 247, 415, 421, 422, 423, 424, 464, 471 and 496.

❏ Voluntarily: –

Generally, the word ‘voluntarily’ means ‘an act done without influence or compulsion’. According to Section 39 of the Code- “A person is said to cause an effect voluntarily when he causes it by means which, at the time of employing those means, he knew or had reason to believe to be likely to cause it.” The word ‘voluntarily’ as used in Section 39 takes into account not only intention but also knowledge and reasonable grounds of belief. Voluntarily causing an effect embraces-
(a) with intention to cause the effect,
(b) with the knowledge of the likelihood of causing the effect.
(c) having reason to believe that the effect is likely to be caused.

• Case – Emperor V/s Raghu Nath Rai43
In this case, a Hindu took away a calf from a Mohammedon’s house without his knowledge and consent in order to save it from slaughter. The accused was held guilty of theft and rioting although he acted with the best of motive to save the life of the sacred cow.


In today’s western world, Mens rea and actus rea are two important terms in criminal law. The terms are taken from the Latin maxim ‘Actus non facit reum nisi mens sit rea’ which means an act does not make a person guilty unless the mind is also guilty.
Thus, mens rea refers to intention, while the actus rea refers to an action.

In any criminal case, the action, as well as the intention, must be established for a person to be charged with a crime. The degree and the kind of causation must also be considered. Also, all legitimate defenses, mitigating factors, and extenuating circumstances must be taken into account for a criminal charge to be determined.

A person can be found guilty of a crime when he or she has committed the crime:
Recklessly, or

The first two of the above constitute more serious crimes and are categorized as “intentional” crime. The latter two are considered less serious crimes and are categorized as ‘unintentional’ crime. The two crimes entail different punishment.

For instance, suppose that Simon fired a shot at Jack with the intention to kill, but missed completely. However, several years later Simon “accidentally” ran over Jack who died as a result. In this case, Simon is not guilty of murder, but manslaughter, which entails less severe punishment.


In IPC under chapter IV General Exceptions are enumerated which contains conditions when the actions occur but the person is not in a state that they can have any kind of guilty intention to do it.

Basically in that chapter the section contains conditions in which a prohibited action has taken place but the person doing it cannot possibly have Mens Rea i.e., a guilty intent to commit such crime. There are various conditions in which a person is not unable to have mens rea such as when a person is-
Of unsound mind.
Involuntarily intoxicated.
Working in good faith.
Bound by their occupation.
Mistaken by facts etc.

The only trouble is to prove whether or not Mens Rea was present because it is tough to estimate what actually goes on inside the mind of any person. If once proven criminal liability does not arise and the person can be excused for such crime.

In Indian criminal Law, it is considered that a certain section of people is not capable of having a guilty intention even if they have committed a prohibited act. And hence lack of guilty intention makes the action not a crime and can be excused. This category includes- a person of unsound mind, minor and a person under whose while committing the action was under the influence of alcohol/drugs. These also come under the Chapter –IV ‘General Exceptions’ in IPC including section 76-106. In detail these defences are termed as exceptions.


These defences or exceptions can be classified as follows :
Insanity: When a person is legally insane and they don’t know what they are doing and have no idea of right or wrong.
Involuntary intoxication: Due to the involuntary intoxication when a person loses their ability to distinguish between right or wrong and does not know what they are doing.
Mistake of fact: When a person accidently acts assuming that, for a fact, what they are doing is right and does it in good faith. Unlike the mistake of fact the Ignorance of law is not excusable.
Crime by a minor: A child of age less than 7 years is completely excusable of any crime. A child who is less than 12 years of age and is not able to distinguish between right or wrong then he is also excused.
Example :
X, a police officer, while in the process of calming down a mob fires his gun by which a person Y is killed. Here the Actus Reus is present, that is the death of a person but there is no mens rea. The X shot Y without any guilty motive. This situation does not embody all four elements of crime and hence, can’t be termed as a crime.

MENS REA: The Criminal State of Mind

Mens rea is divided into three categories:
General intent,
Specific intent,
Recklessness/criminal negligence.
Additionally, there is a class of crimes for which no mens rea element is required. These are called strict liability crimes. Strict liability crimes are crimes for which liability is imposed without consideration of the defendant’s knowledge or intentions.


Such crimes require that the defendant had the intention to commit an illegal act. All that is needed for a conviction is an intent to commit the act that constitutes the crime. This exists when the illegal act may reasonably be expected to follow from an offender’s voluntary act even without any specific intent by the offender.
To prove general intent, the prosecution must demonstrate that the defendant acted intentionally in the sense that he was aware of what he was doing. For general intent crimes, the very doing of acts that have been declared criminal shows the criminal intent necessary to sustain a conviction. For example, a defendant can be convicted for the illegal skinning of an alligator if he is merely in possession of an alligator that was not appropriately skinned. This is because a jury may infer the required general intent merely from the doing of the act.
Some examples of general intent crimes are the following:
False imprisonment


Specific intent designates a special mental element that is above and beyond any mental state required with respect to the actus reus of the crime. Specific intent is a term used to describe a state of mind that exists where a defendant objectively desires a specific result to follow his act. The prosecution must prove that the defendant acted with the intent to achieve a specific goal, as well as the intent to commit the illegal acts. Specific intent cannot be inferred from the commission of the act and specific proof is required to demonstrate that this element is satisfied. Conspiracy is an example of a crime requiring the mens rea to be specific intent.
Other examples of specific intent crimes are:
First degree premeditated murder
False pretenses


There are also crimes that require neither specific nor general intent. A prosecutor can secure a conviction by demonstrating that the defendant acted recklessly or negligently. Both recklessness and criminal negligence may exist when the defendant acted with a gross lack of care without paying attention to the unjustifiable risk that the circumstances exist or the result will occur. Recklessness is a higher level of guilt than criminal negligence. Both negligence standards and the possible criminal charges stemming from criminal negligence vary state to state.

Even though there are variations, the defendant’s mental state must be of such a nature and to such a risky degree that the failure to perceive the risks of his actions constitutes a gross deviation from the standard of care that an ordinary person would exercise. Unlike general or specific criminal intent, criminal negligence is negative, meaning it does not require an affirmative act by the defendant.

An example of a conviction based on a showing of recklessness occurred in a case involving drag racing. The defendant was convicted of negligent homicide as the result of illegal drag racing, where speeds were at least forty miles per hour over the speed limit. After two vehicles engaged in such reckless driving, there was a crash and a fatality. The prosecution successfully proved that the defendant’s mental state was reckless. In convicting the defendant, the court reasoned that driving at those speeds while drag racing “exhibited such disregard for the interest of others as to amount to a gross deviation below the standard of care expected of a reasonably careful man.”


There are some criminal laws that don’t require any mens rea. These strict liability laws apply to certain acts which deserve criminal punishment regardless of intent, usually those involving minors.
It is another class of crimes referred to as strict liability crimes. Strict liability crimes, also known as public welfare offenses, are crimes that do not require mens rea. The defendant could be found guilty merely because he committed the act.
Some examples of crimes that fall into the strict liability category are:
Statutory rape.
Selling alcohol to minors.

Statutory rape is a strict liability crime because even if the offender believed their partner was of consenting age, he is still guilty of committing the crime so long as the victim is under a certain age. These laws, even though very severe, are intended to protect certain classes of individuals from certain kinds of conduct. Determining whether a crime is a strict liability crime depends on the state legislature’s intention.


It can be said that Mens rea and actus rea have important implications in criminal law. Thus, Both must be present for a person to be convicted of a crime. An experienced criminal defense lawyer will look at the evidence to see whether the crime was committed intentionally or unintentionally. The lawyer will gather the evidence and present it in the court in a manner that can result in a favorable outcome for the defendant.


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Author: Sapna Jain

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