Mens Rea: Mental Element in Crime

Mens Rea

Earlier in the 12th century Mens Rea was not an element of crime. The wrongdoers used to get punished regardless the fact that whether the act done was intentional or not. The concept of Mens Rea was first introduced in the 17th century along with the Latin maxim ‘actus reus non facit reum, nisi mens sit rea’ which means ‘there can be no crime without a guilty mind’. This maxim cleared the conflict that a crime can only be said to be constituted where the action was done in accordance of a guilty intention.

Later the concept of Mens Rea was taken from the English law and was incorporated in the Indian criminal laws at the time of British era. A draft of the Indian Penal Code of 1860 was prepared by Lord Macaulay and was enacted in 6th October, 1860. Though Mens Rea originally is a part of English Law but it was included with after modifying and systematically arranging it accordingly, so that it could suit the circumstances of the British India.  Mr M.C Setalvad said that “Basic English notions underlie most of the crimes defined in the code but also these notions were simplified and modified to adapt to the Indian conditions.”[i]

Mens Rea or the mental element of crime is a very important part of criminal law in India as well as other countries. Most laws in India contain the element of guilty mind so as to make an act by a person criminally liable for punishment. Mens Rea is the whole essence of crime. Without having an intention to act in a manner that it causes harm to person or property then in front of law it is not a crime. The presence of Mens Rea implies that the wrongdoer had the ability to choose between what is good and what is not.

In Indian Penal Code (IPC), the significance of word ‘Mens Rea’ can be traced in two ways:

1. All the definitions of crime are carefully defined with focus on showing the evil intention for doing the act. Usage of words like – intentionally, fraudulently, knowingly, voluntarily etc. emphasis the presence of Doctrine of Mens Rea.

2. In Chapter IV- ‘General Exceptions’, which is based on that no action would lie but without guilty mind.

Understanding the Implication of Mens Rea

For the better understanding of the Concept of Mens Rea it is necessary to understand the meaning of certain words that are often used as synonyms for Mens Rea.

  • Intention: It is the state of mind of the person doing the crime. It can be proved when the defendant can foresee virtually that the consequences of the action of the person is going to kill, cause grievous injury or any other prohibited harm to them.
  • Motive: A motive in criminal law is the cause that moves people to induce into a certain action[ii]. Motive is not a basic element of crime but it is mostly looked into while investigation of a criminal case. Motive is the reason of any act, hence, even if motive was good but the act was wrong then criminal liability may arise.
  • Knowledge: the word knowledge or knowingly is used in certain places in IPC to denote Mens Rea. It can be seen from two sides, firstly a person had knowledge and act in a wrongful manner and secondly they had knowledge about the bad consequences and chose not to act hence resulting in a wrongful act. Both can be understood as a part of Mens Rea and are punishable.
  • Negligence: It cannot be used as a synonym for Mens Rea but while looking for guilty intent in any criminal case this aspect is also covered. Negligence is the lack of attention or due care that a reasonable or prudent person may have while performing any task. For a negligent act to turn into criminal negligence its degree shall be high enough to cause criminal liability.
  • Voluntarily: This word is used in the code to show that the person doing an act had the knowledge of what they are doing and had full control of their actions. Voluntarily can be used to show intention as well. It is used only because it has more extended meaning than ‘intentionally.’

Essentials of Mens Rea

  • Mens Rea is constructed from a person’s thought process, their motive and intention.
  • Motive and intention are two separate ideas. Motive is the reason behind the act whereas intention is a person’s state of mind and willingness to break the law.
  • Presence of both Motive and Intention facilitates the prosecution of a crime but motive is not a necessary element for conviction.
  • Intention, whereas, on the other hand is more important than motive. It is a subjective fact which is required by the criminal law by the prosecution.
  • Example: A person takes another person’s bike with them in good faith but it was taken without consent. This act will be considered as theft.

Mens Rea in Statutory Offences

Offence can be defined as the violation of law. The word offence is generally interpreted as a criminal wrong. There are certain offences that are not created by criminal laws but by different statutes like taxation, national security etc. are Statutory Offences. The acts those are inherently wrong such as murder, rape or grievously hurting someone etc. are offences but acts like driving on the wrong side of the road which is not inherently wrong but is also an offence. Such offences are known as statutory offences. Some examples of these offences are:

  • Adulteration of food items and drugs.
  • Tax evasion or avoidance
  • Black Marketing, false advertising, hoarding, profiteering etc.
  • Misappropriation or theft of public funds or property.
  • Misuse of position by public servants in any field of work.

While statutory interpretations are done there are certain aspects that are presumed. Here the presumption is that all criminal actions contain the element of Mens Rea. It has also held that- “ it is of the utmost importance that the protection of the liberty  of the subject that a court should always bear in mind that, unless a statute, rules out Mens Rea as a constituent part of crime the court should not find a man guilty of an offence against criminal law, unless he has guilty mind’.

Though a statutory crime does not contain the explicit but a statute require specific intention, knowledge malice etc. to act in such manner. In some case the statute may be silent on the requirement of Mens Rea in such a situation the objects and terms of the statutes are looked into. The court some court has also stated that even when there is no clear mention of state of mind in the language of the statute it is implied that Mens Rea is an important ingredient in the constitution of any offence.

In other instances the court has created a strict liability on statutory offences irrespective of the presence of mens rea. Strict liability arises on matters concerning food[iii], drugs[iv], taxes[v] etc.


1. A driver was waiting for person ‘P’ to show up on the streets, and when he did the driver deliberately hit that person in order to kill him or at least with an intention to cause grievous injury to him. In such case mens rea is present and the driver is criminally liable for his actions.

2. In a case where ‘A’ was out for hunting and in a sudden haste shot fires his gun which caused the death of ‘B’, here B is dead but ‘A’ did not intended to kill him or did any type of prior preparation for it. Here Mens Rea is not present. ‘A’ shall be given punishment for his actions but not for murder.

Frequently Asked Questions

1. Whether Mens Rea is a necessary ingredient of crime?

Having Mens Rea mean having the guilty intention to commit such a an. Person who did not had any intention to cause harm to any person or didn’t had the knowledge about the consequences of his actions should not be made criminally liable for that act. To give a person punishment for a crime then mental element for committing that act must be present in the mind of that person. It is also laid down by a judgment by the Apex Court that Mens Rea is considered as in important ingredient of crime[vi].

2. How can Mens Rea impact a defence?

In IPC under the chapter of General Exceptions the crimes that are mentions does not contain Mens Rea and hence can be used by the defence to prove that there was no guilty mind involved in their actions. Basically this chapter contains conditions prohibited actions that has taken place but the wrongdoer does not had Mens Rea. The conditions in which a person is not in a state to make a decision what is right and what is not are, when that person is:-

  • Of unsound mind
  • Involuntarily intoxicated
  • Minor
  • Working in good faith
  • Bound by their occupation
  • Mistaken by facts. Etc.

Edited by Parul Soni
Approved & Published – Sakshi Raje


[i]M.C.Setalvad, The Common Law of India, p. 139.

[ii]Garner, Bryan A. (2005). Blacks Law Dictionary, Abridged Eight Edition. Thomson / West. p. 855.

[iii]Krishan Gopal Sharma v. Govt, of NCT of Delhi (1996) 2 Crimes 218 (SC).

[iv]Rajasthan Pharmaceutical v. State of Karnataka, AIR 1981 SC 809.

[v]Additional Commissioner of Income-tax, Gujarat v. M/Section I.M. Patel and Co, AIR 1992 SC.

[vi]Nathulal v. State of M.R, AIR 1966 SC 43.

Rajni Negi
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