MENS REA: DIFFERENT SCENARIOS

There is an ancient rule: There is an ancient rule: actus non facit reum nisi mens sit rea – the act does not create guilt unless the mind is also guilty.” – William Landay[1]

I. AN INTRODUCTION: WHAT IS MENS REA?

The estimation of the exact mental element or mens rea’ essential for a crime is the most fundamental aspect of criminal law and has been the most puzzling issue throughout the generations.[2] For a defendant to be convicted of a crime, the prosecution must demonstrate both actus reus as well as mens rea, or the physical thing and the criminal intent. The word “mens rea” is not found under the IPC, however, IPC contains the word ‘fraudulently’ ‘maliciously’ ‘dishonestly’ which denotes the reprehensible state of mind.

II. THE HISTORY: WHAT WAS THE PLACE OF MENS REA IN PRIMITIVE CRIMINAL LAW?

By the finish of the twelfth century, two significant impacts had emerged. One was the revival of Roman law in Europe’s colleges during the 11th as well as 12th centuries, when it swept the continent with renewed force. A second, even more potent impact was the canon law, which emphasized on moral guilt on mental element of crime yet further. In determining sin, the mental element must be examined with the same degree of scrutiny as the actual act. The book of Leges of Henry I, also, as we’ve seen, includes verses heavily imbued with the enduring concept of absolute liability regardless of nefarious intentions, nonetheless mentions reum non facit nisi mens rea when discussing perjury. [3]

II. PRETEXT/ ESSENTIALS OF MENS REA:

  • Intention: The mental condition of the person who commits the wrongs is the determining factor. It seems to be established when the plaintiff can anticipate with reasonable certainty that the individual’s conduct will result in actual harm or other limited harm. [4]
  • Motive: A criminal justice intention is a rationale that compels an ordinary person to incite a particular action. An essential aspect of the wrongs, although it is examined in its entirety during the investigation of a criminal case. The IPC imposes obligations on multiple foundations of intent as well as knowledge. In sections 299 and 300, the terms ‘intention’ and ‘knowledge’ are both present.[5]
  • Voluntarily: This term is found in IPC section 39[5] to indicate that the individual committing an act was aware of it, intent to cause it, and was fully in control of its consequences. This term is used only because it carries a broader meaning known as “intentional” and is employed to demonstrate intent.

Every conscious action is preceded by a particular mental state. Without physical motion, no physical action is probable.

III. WHO OWES THE BURDEN OF PROOF?

Any person suspected of wrongdoing is presumed innocent till the trial determines their guilt. This signifies that the statute presumes the innocence of the accused in any criminal proceeding. Premised on this presumption of the suspect’s innocence, it is always the responsibility of the prosecutors to unambiguously investigate all the essential parts of the wrongs, in order to establish the suspect’s guilt.[6]

IV. JUDICIAL INTERPRETATIONS ON MENS REA:

 In SWEET APPELLANT AND PARSLEY RESPONDENT[7] it was held that “Mens rea is a crucial component of each and every offence until there is a compelling reason to conclude that it does not, and the court should not retain that a crime is an ultimate offence unless that makes it appear that this was the intent of the legislature.” Per Lord Diplock

“It is of the greatest priority for the safeguard of the individual freedom of the subject, in my viewpoint, that a court should invariably be aware that, until a law explicitly or even implicitly picks out mens rea as a supporting object of a crime, a respondent cannot be convicted of a violation of the procedure until there is an presumption of a mind of guilt” (Brend v Wood) [8]

V. WHEN CAN MENS REA BE EXCLUDED IN A CRIMINAL OFFENCE?

“Mens rea is a necessary element of any criminal offence. Undoubtedly, a state may not include the component of mens rea, however, it has been an acoustic law of development embraced in United Kingdom and then recognised in India to interpret a law establishing a crime in pursuance of the common law, except if the law either explicitly or indirectly excludes mens rea” as reiterated in Nathulal v. State of M.P.[9]

VI. AN AMBIGUITY: MASTER SERVANT CULPABILITY WITHOUT MENS REA?

Under the F & D Act, there are incidences well-known to these courts in which the master is held liable, even if he is unaware of the act committed by his servant, and he could be penalised or made liable for the statutory penalty. In such instances, the law prohibits the act categorically and tends to make the principal culpability regardless of intent.[10]

VII. SHORTCOMINGS IN MENS REA: RAPE CASES

Admittedly, the modern English criminal justice system is still abundant with instances in which this adequacy is missing. Manslaughter, malicious wounding, and assault resulting in actual bodily injury are each subject to the argument that the required mens rea tends to fall far narrow of a mental element that represents the entirety of the actus reus.[11] Regarding mens rea in rape, uncertainties remain. No official definition of the offence requires proof of a subjective component. Nonetheless, it is evident that rape is not an absolute travesty, as it is subjected to punishment by life in prison, a very severe reprimand. Mens rea as used in rape is defined as the intention to involve onself in sexual activity with a woman not with her permission, according to judicial dicta. This definition leaves the issue unclear. Sexual activity is by its own essence a deliberate act.That once sexual activity has been established, it is inconceivable that there will be struggle establishing the intent to engage in sexual contact. The ambiguity, however, arises with regard to the defendant’s mental state that must be demonstrated quoad the woman’s refusal to give consent.[12]

VIII. CONCLUSION:

Clearly, the vast differences in the preceding meanings are at least partly attributable to differing conceptions of the term mens rea’s scope. There is just one possible exit. Either the phrase must be abandoned entirely, or its meaning must be precisely defined. Definitions of themselves provide no resolution. However, they may be of immense assistance in clarifying thought. Too many have refused to acknowledge that the precise details of mens rea cannot be ascertained without a detailed understanding of what the phrase encompasses.[13]


[1] Quotefancy, https://quotefancy.com/quote/730446/William-Landay-There-is-an-ancient-rule-actus-non-facit-reum-nisi-mens-sit-rea-the-act (last visited 11th August, 2022)

[2] Francis B. Sayre, Mens Rea, Vol. 45, No. 6 Harvard Law Review 974, 974 (1932)

[3]  LEGES HENRICI PRIMI c. 5, 28

[4] Legal60, https://legal60.com/doctrine-of-mens-rea-and-its-application-under-ipc/ (last visited 11th August, 2022)

[5] Ibid.

[6] Supra note 4

[7] SWEET APPELLANT AND PARSLEY RESPONDENT, [1970] A.C. 132

[8] Brend vs Wood (1946) 110 JP 317

[9] Nathulal v. S. of M.P., AIR 1966 SC 43

[10] MOUSELL BROTHERS v. LONDON AND NORTH-WESTERN RAILWAY COMPANY [1917] 2 K.B. 836

[11] G. R. S., Cause of actus reus and Mens rea, Vol. 52, No. 3 The C. Law J. Vol. 52, No. 3 487, 488 (1993)

[12] M. V. Sankaran, MENS REA IN RAPE, Vol. 20, No. 3 J.of the I. Law I. 438, 440 (1978)

[13] Francis Bowes Sayre, Mens Rea, Vol. 45, No. 6 Harvard Law Review 974, 1025 (1932)

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