Mens Rea

Understaning Criminal State of Mind or “Mens Rea”

Mens rea is latin term that literarily means evil intend or guilty mind. The above-stated maxim “actus non facit reum nisi mens sit rea” states that a person is said to be guilty if the act has been done by a guilty mind or with evil intention. While fixing the liability of an individual it becomes important to check the intention of the individual doing the particular act which in the eyes of law is a crime. The mental state of the person determines whether the person is guilty of a criminal offence or not. Mens rea is a subjective term i.e. it is to be seen from case to case and there is no straight-jacket formula to determine the same.

“For something to be a crime there must be both an Actus reus and Mens rea i.e a criminal act accompanied by a criminal Mind”

-Alan Dershowitz


The prime objective of the law is to punish the guilty mind by the provisions and procedures established by law. While deciding the liability of a person for the offence committed, it becomes important for fair and just adjudication, that no innocent is punished for an act which that person never intended to do. For this purpose, the framers of the law while drafting the penal statutes make it abundantly clear by defining who shall be held liable for committing a particular act or breach of law.


The statutes of law always either express it clearly or it is implicit in the bare language of the statute.

A mental element is involved while making a particular act a crime/offence. Any literary word which describes the state of the mind of the ‘doer’of the ‘act’. A person is said to be guilty if that person has committed a forbidden act with the presence of any of the following states of mind:

Reason to believe; etc

The element of Mens rea is an essential ingredient in the field of penology while fixing the liability, the legislation aims to create a punishment for an offence that is appropriate for the offender and not only the offence. In other words, one can understand from the fact that a habitual offender will attract more degree of punishment in comparison to the person who has committed the offence for the first time.

While giving the judgment in the case Nathulal v. State of Madhya Pradesh, justice K Subbarao held that mens rea is an essential element of criminal offence and it must be incorporated in the penal statutes expressing it explicitly or implicitly. However it was also made clear by the Supreme Court in Kartar Singh vs the State of Punjab, that to decide whether the element of mens rea has been excluded by the statute, it has to be checked by looking into the statutory language and intention of the legislatures framing the law.


In order to have a fair justice system, it is necessary that no innocent is punished for misdeeds of others. But there are certain exceptions where liability is fixed for misdeeds of others.

“Qui facit per alium facit per se”, is the rule of vicarious liability. When a person acts through another person he is said to have acted himself. When a servant acts or does any misdeed Master is held vicariously liable for that act. The burden of proof lies on the master to prove that the act did was without his permission and knowledge and there was no lack of care on his part. Negligence done in the line of duty may also attract vicarious liability. But in cases of offence in which there is a clause of strict liability, agents might be made liable for the acts done by the master through their agents, managers, or servant.


To clear this dilemma that what will be the fate of the person who has done a particular act that was not intended, it is necessary to look into the definition of the word ‘intention’ in the eyes of law. Supreme Court itself made the definition clear stating that “ intention is the conscious effort of the mind of a person to do a particular act for accomplishing the purpose”.

A person is presumed according to common law to have intended the natural or probable consequences of his own act. It can be understood from an example: reckless or harsh driving is a ‘voluntary’ act of which the natural or probable consequences are road accidents that causes loss of life and property. In such cases where the actions are voluntary, it can be presumed that the person deemed to have intended to cause injury/death of a person.


Merely because the crime is committed by a bad intention, this reason is solely not enough for convicting a person, as proper evidence is needed to prove the accused guilty beyond a reasonable doubt to the satisfaction of the court. But at times the crime is committed with a good motive for which a person may think to seek defense to his/her advantage, but in the eyes of law, a criminal act is a crime irrespective of the nature of the motive. The role of motive is that it helps in knowing the nature of the crime and is a relevant factor in determining the guilt of a person, which is reflected in the quantum punishment.


A person of normal intellect is presumed to know the consequences of his act. During the course of work, a person is supposed to observe certain facts by himself or sometimes the facts are conveyed to him by his manager or agent upon which a person is supposed to act or bear in mind the consequences of it. Knowledge separates intention by a very thin difference, that in course of the act, the mind of a person is passively involved, whereas, in intention, the person is consciously involved in the act.


Section 299 IPC contains provisions of culpable homicide whereas murder is defined u/s 300 IPC. While fixing the liability for questions as to whether a person was having the knowledge of the consequences of the act or intention, is a question of fact. To determine the intention, it is important to look into the circumstances and the actions of the accused, the degree of the intention determines the gravity of offence in cases of culpable homicide. Three parameters determine the gravity offence:

An intention to cause death
Intention to cause injury which is ‘likely’ to cause death
The knowledge that death is ‘likely’ to happen

Natural consequences are always expected by a person for his acts, this clearly shows that the person intended to cause death. The difference between (a) and (b) is of the degree of offence only. The Apex court has made it clear while deciding in Ashok Kumar Barik v. State of Orissa that when a person does any act which increases the likeliness that death is ‘likely’ to be the result of it, then it is culpable homicide, but if the death is the most probable result then it is termed as murder.

The burden of Proof while trying the cases of the criminal offence depends on the statute itself. The general presumption while trying the cases under IPC is that the accused has to be presumed innocent and it is the job of the prosecution to prove the accused guilty beyond a reasonable doubt. However in cases where the statute includes the element of mens rea, then the burden for proving the innocence is shifted to the accused, as the accused in such cases is presumed to be guilty.

Landmark case:

State of Tamil Nadu v. Nalini AIR 1999 SC 2640

In the case of the assassination of former prime minister Rajiv Gandhi, while determining whether the act of accused was a terrorist act or not, the Supreme Court after considering the evidence on record held that the intention of the accused was only to kill Rajiv Gandhi and not to commit an act to terrorize the society. As a result, she was held guilty for the murder of the PM and others but was not tried for offences under TADA.

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Author: Shiv Partap

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