The Doctrine of Mens Rea

By | February 23, 2019

Last Updated :

The Doctrine of Mens Rea

Mens rea refers to the mental element necessary for a particular crime. Mental element may be either intention to do the act or bring about the consequence or in some crimes recklessness as to that consequence. It implies a blameworthy condition of mind which involves a knowledge of the character of the act and foreknowledge of the results. The fundamental prerequisite of the principles of Mens Rea is that the accused must have known or been aware of all those elements in his acts or doings which makes it the wrongdoing with which he is charged. That means, he must have intended the ‘actus reus’ or have been reckless whether he caused an ‘actus reus’ or not. It is not necessary that he must know the act which he is going to commit is the crime. In Sweet v. Parsley[1] Lord Diplock said, “An act does not make a man blameworthy or guilty of a crime unless his mind is also guilty. It is thus not the ‘actus’ which is ‘reus’ but the man and his mind respectively…it is well to record this act as it has frequently led to confusion”. The liability to the conviction of an individual depends not only on his having done some outward acts which the law forbids but on his having done them in a certain frame of mind or with a certain will.[2]

In India, the question of whether the common law doctrine of mens rea is relevant while interpreting a criminal statute has often come up for discussion. It is generally argued that since the common law came to be abolished by the enactment of the Penal Code, any analysis of the applicability of a penal statute must begin with a reading of the statute only. On one hand, it is argued that it is the exclusive province of the legislature to define by statute by the acts that shall constitute a crime and to prescribe punishment for commission or omission of acts. On the other hand, some argue that interpretation of criminal law statutes, particularly on the mental element of a crime, should be on the way English courts had chalked out in earlier times.

In State of Maharashtra v Mayer Hans George[3], the Supreme Court of India had occasion to examine the various principle of criminal law in the Indian context including the impact of the exclusion of mens rea from the definition of the crime. Technically the Doctrine of Mens Rea isn’t connected to the offenses under the Indian Penal Code. Here it is completely strange. In the Indian Penal Code, 1860, each offense is characterized by clarity. The definition not just states what denounced may have done, that additionally states about the condition of his mind, with respect to the demonstration when he was doing it. Every meaning or definition of the offense is finished in itself. The words “mens rea” are not utilized anyplace in the Indian Penal Code. Anyway, the framers of the Code utilized the relative or equivalent words to those of mens rea in the Code every now and again. Such expressions are – Fraudulently (Section 25); Dishonestly (Section 24); Reason to believe (Section 26); Voluntarily (Section 39); intentionally; and so on. In addition in the Indian Penal Code, a different (Chapter-IV) on General Exceptions is given. Section IV (Ss. 76 to 106) clarifies the conditions, where choices of criminal intent might be assumed. Comparing with English Law, Mens Rea has been connected by the Indian Courts, and it is presently solidly settled law that Mens Rea is a fundamental element of an offence.

Objective of Mens Rea

The object of the law is to punish a person with a guilty mind. It does not want to put behind bars an innocent person who may have the misfortune of being involved in an incident and event, which he did not have the intention of participating in. That is why one would notice that many penal statutes, which define or describe what is an offence, very often bring in the mental element to the act by using the words, ‘intentionally’, ‘voluntarily’, ‘willfully’, ‘knowingly’, ‘reason to believe’ etc. These words have been used in the different definitions of crime to indicate the state of mind of the person at the time of the commission of the offence. The existence of the guilty mind or mens rea at the time of the commission of actus reus or the act alone will make the act an offence. For instance, the IPC is replete with words which indicate the mental state of the mind.

Significance of Mens rea

The significance of mens rea or goal can be comprehended when we think about its application to factual circumstances. For example, A slipped as he walked and fell. As he believed, he lost his balance and pulled down B with him. B hit his head against the divider, sustained head injuries and died. Is A liable of murder? A, fulfills one bit of the meaning of murder, or, in other words, act which causes demise. Yet at the same time, it doesn’t comprise the offense of murder on the grounds that another fundamental element of the offense of murder, the intention to cause death is missing. Subsequently, A isn’t blameworthy of murder.


Every conscious act which we do is preceded by a certain state of mind. No physical act is possible without bodily motions. According to Austin, bodily movements obey wills. They move when we will they should. The wish is ‘volition’ and the consequent movements are acts. Besides this, there is a will which is the author of both. The desire is called an act of the will, when I will a movement I wish it, and when I conceive the wish I expect that the movement wished will follow. The desire which implies the motion is called Volition.

Intention and Motive

According to Austin, “Intention is the aim of the act of which the Motive is the spring.” According to Stephen, “Intention is an operation of the will directing an overt act; Motive is the feeling which prompts the operation or activity of the will, the ulterior object of the person willing.” For example- If a person kills another man, the Intention directs the act which causes death, the Motive is the object which the person had in view, such as revenge. According to Bentham, Motive is anything which by influencing the will of a sensitive being is supposed to serve as a means of determining him to act upon any occasion. Intention refers to an immediate object, while Motive refers to the ulterior object; which is at the root of the intention.

Origin and Development of Mens Rea

It is the principle of almost all legal systems that the essence of an offence is a wrongful intent without which it cannot exist. Coke traces origin of the maxim, ‘actus non facit reum nisi mens sit rea’ to the Sermons of Augustin as a ‘ream linguam on facit nisi mens rea’ Lord Kenyon[4] accepted this maxim to be a principle of natural justice in English law. In the case of R v Allday[5], Lord Arbinger observed that “It is a maxim older than the law of England that no man is guilty unless his mind is guilty”. The liability in Early English law was absolute. The doer of the deed was responsible, whether he acted inadvertently or innocently because he was the doer. The modern notion of mens rea was non-existent until 12th century but the criminal intent was not entirely disregarded. 13th century English law was influenced by Roman law conception of ‘Dolus Culpa’. By the time of Edward I the incapacities resulting from infancy and insanity were recognized as defences. By the reign of Edward III, coercion was a defence in certain cases. It was also settled that in order to punish or make the owner criminally liable for the injuries caused by its animal, it must be shown that he must have had the knowledge of its ferocity.

During the 14th and 15th centuries, mens rea developed as a necessary element of crimes though they were still evidence to the contrary. In 1467, Catesby put the case that, “if I cut my tree and it falls down on a man and kills him, I shall not be attained of a felony for the same for the cutting was permissible and the falling was against my will.” Common law made an emphasis on moral guilt. Bracton[6] wrote, “we must consider that with what mind (animo) or with what intent (voluntate) a thing is done in fact or in judgment in order that it may be determined, accordingly, what action should follow and punishment be awarded.” Mens rea maxim appeared in Leges Henrici it does not seem to have been used by Bracton. Bracton used the words, ‘Voluntas’, ‘Nocendi’, ‘Animo’ and ‘Maleficid’. It is said in the Mirror, ‘…..there can be no crime and sin without a corrupt will.[7] During the 16th century it was settled that if there is a criminal intent which is not accompanied by an act, it will not be punishable. In the case of R v Livett,[8] it was held that where a man killed an old housemate under a mistaken belief, thinking her to be a thief, is not guilty of murder. By the second half of the 17th century, it was firmly established that to constitute a crime, an evil intent was necessary as the act itself. The first systematic treatment of mens rea was provided by Sir Matthew Hale, who stated that “Where there is no will to commit offence, there can be no just reason to incur the liability”. Hall posits that “the consent of the will is that which renders human actions either commendable or culpable.”

Mens Rea consists of two elements, firstly, the intent to do an act and secondly, a knowledge of the circumstance that makes that act a criminal offence. The essential meaning of mens rea, which is, represented in the ‘intentional doing of a morally wrong act’ has persisted for centuries, but the concept has changed with the advance of the laws and the morals.


On account of the present day (modern) statutory offenses, the maxim has no broad application and the rules are to be viewed as themselves prescribing the psychological component which is pre-imperative to a conviction. So Mens Rea is a basic component of a crime in each penal statute except if the equivalent either explicitly or by necessary implications is precluded by the statutes.

Further, it isn’t totally right to state that the Doctrine of Mens Rea is inapplicable to the offense under the Indian Penal Code. What the Indian Penal Code requires isn’t an invalidation of Mens Rea, but Mens Rea of a particular kind and this varies from offence to offence.

By – Vasundhara Kaushik

Faculty of Law, University of Allahabad

[1] 1970 AC 132

[2] Hart H.L.A; The Morality of the Criminal Law, 6.

[3] AIR 1965 SC 722

[4] Fowler v Padget, (1798)

[5] (1837) 8 C & P, 136 at 139

[6] Bracton, De legibus 101B (A.D. 1640).

[7] The Mirror of Justices, 138 (Seldom Society ed. 1893)

[8] 1629 Cro Car. 538.

Books referred:
  • The Indian Penal Code by Prof. S.N.Mishra, Twentieth Edition, 2016
  • P.Srivastava’s Principles of Criminal Law revised by Prof Ram Naresh Choudhary, Sixth Edition, 2013
  • General Principles of CRIMINAL LAW by K.N. Chandrasekharan Pillai 2nd Edition  
Websites referred:

Disclaimer – This document is intended to provide information only. If you are seeking advice on any matters relating to information on this website, you should contact us directly with your specific query or seek advice from qualified professionals only. We have taken all reasonable measures to ensure the quality, reliability, and accuracy of the information in this document. However, we may have made mistakes and we will not be responsible for any loss or damage of any kind arising because of the usage of this information. Further, upon discovery of any error or omissions, we may delete, add to, or amend information on this website without notice.

Click Here for more Articles.

Click Here to write your own Blog/Article on Legal Bites.

We hope you found this useful.  Support us by  Sharing Your Knowledge or any information. Every contribution toward a goal is valuable, regardless of how small it may be. 

One of the things that have always kept us motivated is that knowledge sharing is essentially an act of giving. And in that sense, it brings a bit of humanity and warmth to an organizational setting. Keep spreading knowledge ………

Team Legal Bites