The state of mind with which an act is done is often of more consequence than others; it is not the act but the intent or the knowledge with which it is done that makes it punishable. To certain extent, and in a certain sense, it is true that nothing is moral or immoral and only thinking makes it so; the thought behind makes the act, moral, immoral or non-moral.
The same principle applies to law as to morals. If evil is born of innocent or thoughtless act, we feel sorry for the consequences and call them mistakes or unfortunate accidents. Tragic consequences may follow from the innocence of an infant or the frenzy of a mad man, but whoever thinks of punishing the one or the other, punishment would indeed fail in its purpose if it were to be given without discrimination.
When acts combine with evil thoughts, acts become evils. The concept of a guilty mind is not easy to analyse. The law regards a guilty mind as consisting of evil knowledge no less than an evil intention.
Thus, a man may act with knowledge that evil consequences will follow, though he does not intend such consequences. The political zealot who blows up a train causes the death of so many of his countrymen for whom he would rather lay down his life than kill them and yet he has no less a guilty mind than he would have, if he had really denied to kill them. The act and the thought behind it together make up a crime. This principle is known as mens rea.
Let us deal the doctrine mens rea in more detail. The word mens rea is not used anywhere in the Code. But specific words and phrases have been used in the Code, indicative of the mens rea that is required in respect of similar or identical offences found in English Laws.
So the importance, of mens rea arises even in respect of a study of the Penal Code. ‘All crimes have their conception in a corrupt intent, and their consummation and issuing in some particular fact. In other words, the guilt of an act charged against a prisoner must always depend upon two conditions — (i) the act in question was prohibited by law, and (ii) that, when he did the act the prisoner knew, or ought to have known, that it was within such prohibition. These two conditions may be called the condition of illegality (actus reus) and the condition of culpable intentionality (metis rea).
The modern tendency in penal legislation is more and more to dispense with the condition of culpable intentionality (mens rea) and the actus is treated as reus when it is prohibited by the statute in question.
Modern statutory crimes aim at punishing certain acts as penal which are considered anti-social for the time being even though they may not have been done or occasioned with any culpable intentionality or metis rea as it is called.
Actus non facit reum nisi mens sit rea is an old maxim. The origin of the maxim was traced by Justice Coke from the sermons of Augustin as ‘ream Linguam non facit nisi mens rea’. After the Coke maxim was explained by different British Judges. Lord Kenyan accepted this maxim as principle of natural justice under English Law.
It means that the intent and act must both concur to constitute the crime. In its ultimate analysis the foundation of the doctrine embodied in this maxim rests in the sense of morality of civilized human beings.
Mens rea means guilty mind, without which there cannot be committed any crime. The maxim is the bedrock of the English Common Law of crimes and it amounts ‘to no more and no less than that all crime is characterized by and necessarily involves some form of culpable intentionality’.
According to Stephen, ‘it means no more than that the definition of all or nearly all crimes contain not only an outward and visible element, but a mental element varying according to the different nature of different crimes’.
There are some observations as to its meaning:
(1) In the first place, the question relates to the positive law of the country in reference to which it is asked. General theories as to what ought to be the conditions of criminal responsibility may not be useless but they must depend upon the taste of those who form them and they cannot be said in any distinct sense to be either true or false.
(2) In the second place, criminal responsibility is nothing more than actual liability to legal punishment as Stephen understands it.
(3) In third place, Stephen understands by morality, right and wrong, the positive morality of his own time and country and which is generally regarded as right or wrong by people of average education and sensibility.
The term actus reus or criminal act may either be an act or an omission as it is understood or a mere state of fact or facts, and mens rea as related to the actus reus or as the latter’s motive force may have reference to any of the state of mind in doing of the act, such as, intention, knowledge, negligence, rashness and the like. The maxim carries with it two basic elements of a crime, whether in English Common Law or under the Code, viz., conduct or act on the part of the actor or doer or state of mind with which the act is done. ‘An act does not make a person guilty unless the mind is guilty, that is the maxim……….. ‘
In order, therefore, the actus may be reus, the mens, with which the act was done must be rea. That is why an act does not become a crime unless the mind with which it is done is also criminal.
When we speak of intentional doing we mean also intentional non-doing or omission. A mere act unaccompanied by any of the recognized state of mind is nothing from the point of view of criminal law. An act in the sense that a wild bird is shot or wild rabbit is killed is not considered by modern criminal law.
If a normal human being shoots another human being without any justification whatever different considerations arise, as when A kills B by shooting. A is guilty of murder, the act of A speaks for itself and no searching enquiry into the state of mind of A is at all necessary and the intention to kill, malice afore thought as it is called in English Law is quite so obvious and the presumption of law that a man intends the natural consequences of his act become at once applicable.
The situation of A may be totally different if he had shot B under an impression in good faith that B was a wild pig. The mistake of identity of B before the fatal shot was fired by A will be an excellent answer to a charge of murder.
A can say that he went into a forest hunting and that he was within the range of his gun. There was a movement and he came to the conclusion that he had come across a good game and the animal appeared to him to be a wild pig for which he had gone hunting and having shot at his object, unfortunately, the object turned out to be a human being.
The state of mind, with which the act was done resulting though in the killing of a human being, can by no stretch of argument be termed criminal and the mens rea for the offence of murder cannot be arrived at. Mens rea is conspicuous by its absence.
The mens was not rea at all for there was no intention to kill a human being. On the other hand, A may have intentionally killed B and still justify the killing of B on the ground that he (A) was compelled in order to protect or save his own life to kill his assailant (B).
A can plead that B was in a temper to murder him (A) and A had no time to secure the protection of law and that if he (A) had hesitated to take the extreme step that he had actually taken, he would have been killed by B.
In other words, A may say that he had a reasonable apprehension that he would be killed by B; and, therefore, in self-defence when no other method of saving his life was available he had killed B and averted the danger to his life.
The mens rea or guilty mind, e.g., the intention to kill is there but the act of killing in the circumstances is not murder and so it is justified for that reason. Any civilized system of criminal law allows this measure of self-protection in case of this nature.
Mens rea — Exceptions:
Sherras v. De Rutzen, is an emphatic re-assertion of the doctrine that mens rea is an essential ingredient in every offence except in the following cases:
1. Cases not criminal in any real sense but which in the public interest are prohibited under a penalty, e.g., Revenue Acts;
2. Public nuisances; and
3. Cases criminal in form but which are really only a summary mode of enforcing civil right.
The law on mens rea is fairly well settled. Mens rea is an essential ingredient of an offence. Doubtless a statute may exclude the element of mens rea, but it is a sound rule of construction adopted in England and also accepted in India to construe a statutory provision creating an offence in conformity with the common law rather than against it unless the statute expressly or by necessary implication excluded mens rea.
The mere fact that the object of the statute is to promote welfare activities or to eradicate a grave social evil is by itself not decisive of the question whether the element of guilty mind is excluded from the ingredients of the offence.
Mens rea by implication may be excluded from a statute only where it is absolutely clear that the implementation of the object of the statute would otherwise be defeated. The nature of the mens rea that would be implied in a statute creating an offence depends on the object of the Act and the provisions thereof.
Section 76. Act done by a person bound, or by mistake of fact believing himself bound, by law. —Nothing is an offence which is done by a person who is, or who by reason of a mistake of fact and not by reason of a mistake of law, in good faith believes himself to be, bound by law to do it.
(a) A, a soldier, fires on a mob by the order of his superior officer, in conformity with the commands of the law. A has committed no offence.
(b) A, an officer of a Court of Justice, being ordered by that court to arrest Y, and after due enquiry, believing Z to be V, arrests Z. A has committed no offence.