Whether mens-rea is foundation stone of crime or is there any exception of it - Somdutta Singh

Author :   Somdutta Singh [LL.B Hons.]
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Durkheim in his book Crime as a Natural Phenomenon stated “A society composed of persons with angelic qualities would not be free from violations of the norms of that society”.

Mens rea refers to criminal intent. The literal translation from latin is “guilty mind.” The plural of men rea is mentes reae. Justice Holmes famously illustrated the concept of intent when he said “even a dog knows the difference between being stumbled over and being kicked.” Earlier in the 12^th century mens- rea was not an element of crime, the wrongdoer used to get punish regardless the fact that whether the act done was intentional or not. The concept of mens rea in the 17^th century mens- rea means “An intention to do a forbidden act.” the terms mens rea is not defined in the Indian Penal Code. It is defined as the mental element necessary to constitute criminal liability. According to Samshul Huda, an eminent jurist  “the very corner stone of criminal jurisprudence is the mens- rea.” It is expressed in the Latin Maxim ‘actus non facit reum nisi mens sit rea’ as a fundamental principle for penal liability it means the act itself does not constitute guilt unless done with a guilty mind simply we can say that a person to be held guilty of a crime, it is necessary that he had intention to do it similarly, a person to be held guilty of theft, it should be establish that he had an intention to steal.  When we can find out intention then firstly we understand meaning of intention is the purpose or desire with which an act is done. To intent is to have in mind a fixed purpose to produce a particular result. 

• ·  Negligence is not taking care where there is a duty to take care. negligence or carelessness indicates a state of mind, viz., absence of a desire to cause a particular consequences. In criminal law the negligent conduct amount to mens-rea.
• ·   Recklessness occurs when the actor does not desire the consequences, but foresees the possibility and consciously takes the risk. It is classified with intention for all legal purpose.
• ·   Most crimes require general intent, meaning that the prosecution must prove only that the accused meant to do an act prohibited by law.
• ·  Malice is the intent without justification excuse or reason to commit a wrongful act that will result in harm to another.
• ·      Something premeditation is planned in advance and has purpose behind it. In other words it is not an Incident. A premeditation crime involves careful plan and research before it happens.

 

Felony Murder Rule states that if a person commits a violent felony and another person dies as result, the criminal can be charged the murder and all participants in that felony can be same charge as long as there is a casual connection

In England, mens rea is an essential ingredient of a crime /an offence. It is applied in all common laws cases (judge made laws) without any reservations. It is also applied in statutory offence with certain reservations like R. V. PRNICE (1875) 2 CCr154, R. V. Mrs. TOLSON, R. V. WHEAT & STOCK (1921) 2 K.B.119.

                         

In India application of doctrine of mens-rea has been has been applied by the Indian courts. But it has been applied in different aspects firstly, the actual intent required for the offence was used in defining the offence and secondly the expression fraudulently, dishonestly, voluntarily, and intentionally etc. are used in the definition to indicate the criminal intent.

                       

How to establish mens rea -  It is difficult to give a portrait of the  accusers mind or intention at the given moment as intention is an abstract idea, it is difficult to establish it and the help is taken of surrounding facts or factors:

1.  Previous relation between the accused and the victim, any object of hostility between them.
2.  Existence of instigation i.e. whether accused was hired and what prompted him to commit crime.
3. Whether the accused had something to gain out of the whole affair.

Thus, guilty intention is always preceded by a motive or real causal factors.

“Actus non facit reum, nisi mens sit rea”

The fundamental principle of penal liability is actus non facit reum, nisi mens sit rea, i.e., the act itself is not criminal unless accompanied by a guilty mind. It may be noted that mens rea must extend to all the three parts of an act, viz.-

1. The physical doing or not doing,
2. The circumstances, and
3. The consequences. If the mens rea does not extend to any part of the act, there will be no guilty mind behind the act.

Mens-rea is an essential ingredient of an offence but, it’s not essential in respect of some offences like as waging war against government of India ,sedition, kidnapping, Abduction,  coins etc. the framers of Indian Penal Code, while drafting code use the words voluntarily ,fraudulently ,dishonestly ,corruptly, malignantly, maliciously and wantonly  which are equivalent to the word “mens-    rea in several cases MOLHAN K.A. V. KORA BIBI KUTTI (1996) SCC281, NATHULAL VS. STATE OF M.P. AIR 1996SC43

GENERAL EXCEPTIONS : According to wright. J. the mens rea is an essential ingredient in every offence except in three cases:-

• ·        Cases which are not criminal but which are prohibited in the public interest are penalty.
• ·        Public nuisance.
• ·    Cases in which the form of criminal cases but actually are for enforce a civil right.

In Indian Penal Code general exceptions has been provided to subject matter of interpretation under section 76 to 106 of IPC but some situations given below where mens rea is an silent

1.  Material fact relating to an accident as under section 80.

2.  Submission relating to Minor as under section 83.

3.  Subject matter relating to unsoundness of mind under sec 84.

4.  Intoxicated person sec 85 and 86.

And so many exceptions tutored in statutory provision whether act was done in incidental or in any other ways. Therefore, there can be no crime without an evil mind and hence, the essence of an offence is mens rea .

The End

 

This article has been written by Mr. Somdutta Singh, a student of LL.B Hons. at CALC permanently affiliated to University of Lucknow.