This Article is written by Hitakshi Maggo from Fairfield Institute of Management and Technology.


Criminal law is basically public law because when a crime is committed it harms the state in any way. To live in this world or society peace is most important but sometimes it gets hampered. When a crime or criminal liability is in question there are three ways to determine it- firstly, Mental (mens rea) or bodily activity (actus rea), secondly, its circumstances and thirdly, its consequences. Basically, Mens rea means guilty mind, suppose A wants to kill B, but solely on this basis that he can’t be punished unless he does something in order to fulfil his motive (There is Mens Rea but not Actus Rea). Now suppose in the same example A rushed to B with his gun pointing on him, now act done on part of A (Both actus reas and Mens rea commit) now he may be guilty. In order to perform justice it is important to consider each and every rule of criminal code which is prescribed. This paper is all about Mens Rea and related aspects (objective or significance) basically to understand the guilty mind and how to prove it.


In above introduction we see what is mens rea (guilty mind) but now you may consider that how courts or anyone establish mens rea in any case, there are some points or say some factors which are consider in this journey, like, previous relation of accused and victim (good or bad), any kind of instigation between them, what benefit accused gains in order to commit this crime. These types of guilty intentions are mostly considered in situations like these. In simple terms, subjective mens rea asks what was in the defendant’s mind. The term subjective is used to indicate a mens rea requirement, which is, viewing internally to the mind of accused. While, the term objective is used to indicate a mens rea requirement that does not involve eyeing internally into the accused’s mind but instead is detecting externally. In simple terms, objective mens rea asks what would have been in the mind of a reasonable person.

There is a maxim Actus non facit reum, nisi mens sit rea, which means act itself is not criminal unless it is accompanied by a guilty mind. It is the most considerable and important principle of penal code because it helps to provide justice. Motive is an intention that encourages a guy. It’s a second intention; in other words, it’s a mental state immediately. Means are the purpose, but motivation is the result. The motive for bringing the crime home to the accused, although not a sine qua non, is crucial in the issue of intent. Motive is essentially an indication of the intention. Where clear evidence of the reasons for the crime exists, the court finds the accused guilty but the absence of clear evidence leads not necessarily to the opposite judgement. There can be a crime without a purpose that cannot push a person to perform an offence in the same way as the greatest motivations. Pure motivation can be observed that a person cannot be exempt from criminal accountability. So if a person wants to kill his hungry children because he feels they are going to move on to a better world, his purpose is noble but his intention is bad. The cause for the crime is the motive, although the law concerns the accused more closely. In various crimes, such as the killing of Mens Rea.


Mens Rea can differ in the aim of producing a prohibited consequence to kill another person; in assault instances, it is substantial physical harm to be caused. In civil law, the mental element is not always necessary. The SC argued that Mens Rea is not a necessary factor in violating civil law. In a few circumstances, such as damage, the extent of obligation may rise. Muhu Naicker v. State (AIR 1978 SC 1647) – Where a large crowd of those who did not share the ordinary purpose of the illegal meeting was brought together, a stray assault by someone charged with any particular testimony could not have been considered to be an assault on the common purpose of the illegal assembly, so that the remaining accused could be charged with knowing that such an offence could likely be committed in prosecution

Mens Rea is not included in penal code but to define it properly there are some words which denote the same meaning as mens rea and give power to it. Like, fraudulently, the term ‘fraud’ generally indicates ‘a deliberate mistake concerning the fact that the object is material’. Section 25 of the Code states “Whoever does this with the purpose of defraud, but not in any other way does something fraudulent”. Under Section 17 of the Indian Contract Act, 1872, the term “Fraud” has been defined and has a significant significance for the code. Section 17 of the Indian Contract Law stipulates that – ‘Fraud’ shall be construed to include any of the following acts undertaken by or with the co-contracting party or by its agent with the intent to deceive or incite any other party to the contract or its agent; VOLUNTARILY, The phrase ‘voluntarily’ usually refers to ‘doing without influence or force’. Section 39 of the Code states: ‘A person is said to have caused an effect deliberately by means of which at the time of the usage he knew or had reason to believe that he might have caused it.’ The phrase ‘voluntary’ in Section 39 does not merely take into account intent, knowledge and reasonable beliefs. Dishonestly, generally speaking, ‘Dishonestly’ refers to ‘disappointment, embarrassment, or dishonesty.’ Section 24 of the Code provides. ‘Dishonestly’ means – ‘Whoever is trying to make an unlawful profit or an unlawful loss, is told to do it dishonestly’. Thus, if a creditor in order to compel his debtor to discharge the debt takes his goods without his consent, he will be guilty of theft for causing wrongful loss to the debtor (Queen -Empress v. Chum Chunga ILR (1845) 22 Cal 1017), According to Section 25, A person is said to do a thing fraudulently if he does that thing with intent to defraud but not otherwise. No definition of fraud has been given in the IPC.


Mens Rea is constructed from a person’s thought process, their motive and intention.

Two different ideas are motive and intention. The cause is the intention whereas a person’s mindset and readiness to violate the law is an intention.

Intention: It is an individual’s state of mind. It could be demonstrated that the defendant can virtually foresee that the consequences of a person’s action will kill him, cause serious damage or harm to him/her.

Motive: The reason why people are moved into a particular action is a criminal law motive. Motive is not a fundamental element of crime, but is examined mostly during the investigation.

Knowledge: In some places in IPC the word knowledge or know-how is used to describe Mens Rea. It can be seen by two sides: first a person had misunderstandings and was wrong in his actions, and secondly, he knew the harmful effects and therefore chose not to act in error. Both of these can be understood and punished as part of Mens Rea.

Negligence: It can’t be employed as a synonym for Mens Rea, but in criminal cases this aspect is also covered while looking for culpable purposes. Negligence is the lack of care or attention a reasonable or cautious person may have in carrying out a 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 voluntarily to show in the code that the actor knows what he/she does and is fully responsible for the actions he/she does. You can also use it voluntarily to show your intention. It is only used because the significance is more broad than ‘intended.’


  1. Cases which are not criminal but are prohibited in the public interest under penalty.
  2. Public nuisance- In cases of public distress, there is another exception to the doctrine of men rea. Strict liability should be imposed for the sake of public safety. Whether a person has a guilty mind or a guilty mind, he must be punishable.
  3. Cases which are in the form of criminal cases but actually are for enforcing a civil right.
  4. No excuse for ignoring law – Everyone is supposed to know the law of land. Almost every legal system follows the principle of ignorantia juris non excusa. This is an irrepressible presumption that everyone knows the country’s law.
  5. When it’s hard to prove Mens Rea – An additional exception to the Mens rea doctrine is where men are hard to be shown and penalties are small fines. On the basis of expediency a statute could remove the need for Mens rea. Such small cases require rapid disposal and proof of mens rea is not easy. Even with no evidence by Mens Rea, an accused may be punished.



9th Feb, 2021

Zamie Habib, 31st march, 2012, SSRN,