2. Introduction
• The act itself does not constitute guilt
unless done with a guilt intent
• It is cardinal doctrine of the criminal
law
• To be guilty of a crime under criminal
law requires criminal -
1. Actus reus (A guilty act)
2. Mens rea (A guilty state of mind)
3. Continued...
• Actus reus and mens rea must coincide to create criminal liability.
• The act itself does not make a man guilty unless his intention be so.
• There must be vicious will or criminal intention as well as
unlawful act.
• Where one engaged in doing a lawful act, without any wrongful
intention, unfortunately and inadvertently kills another person,
the homicide is excusable.
4. The strict approach
• PALANI GOUNDAN V. EMPEROR (1919)
• The appellant struck his wife on the head
knocking her senseless, believing her
dead, but she was not, later he hung her
from a beam by means of rope to show a
fake suicide. Later it came to know that
she died by hanging. It was held in
convicting the accused of grievous hurt -
5. • Cout held that -
" The intention of the accused
must be judged not in the light of the
actual circumstances, but in the light of
what he supposed to be the
circumstances, it follows that a man is
not guilty of culpable homicide if his
intention is directed only to what he
believes to be a lifeless body."
6. Series of the Act
• Thabo Meli v. R (1954)
• The appellants, in accordance with the
prearranged plan, took the victim to a hut where
they gave him beer, when he was partially
intoxicated, they struck him on the head,
believing him to be dead, they rolled his body
down a cliff to make his death look like an
accident. He died of exposure when lying
unconscious at the foot of the cliff.
7. • Privy council held:
• It was impossible to divide up what was really one series of act in this way.
There is no doubt that the accused set out to do all these acts in order to
achieve their plan, and as part of their plan..."
• They were therefore held guilty of murder.
• It is hard to disagree with this decision, which represents a genuine
exception to the concurrence requirement. The defendants did exactly what
they planned to do and brought about exactly the result they intended. The
fact that the way their success occurred was unexpected seems no ground
for exculpation.
• Thabo Meli applies in cases of intentional murder where “it is impossible to
divide up a course of conduct into separate acts”
8. Exception to
need for mens
rea – strict
liability offences
• Mens rea is a common law doctorine. But by the
passage of time statutory laws came into force
and in those laws there are some offences where
mens rea is not required or neccesay and the
acussed are liable here for strict liability.
• So, An offence of strict liability is one where the
element of mens rea is not required.
• It is fundamental rule of statutory interpretation
that penal statutes should be normally construed
in favour of the accused.
• Thus, if there is any doubt, a penal statute
should be interpretated so as to require mens rea
9. R. v. Prince
• Henry Prince (H) took an unmarried girl under the age of 16 out of the
possession of her father without the father’s consent. The girl, Annie Phillips
(A), was in fact 14 years old, however A had told H that she was 18, and H
reasonably believed that that was her age.
• Issue
• Section 55 of the Offences Against the Person Act 1861 is silent as to
the mens rea required for the offence. The issue in question was whether
the court is required to read a mens rea requirement into a statute which is
silent as to the mens rea for an offence, and therefore if H’s reasonable
belief was a defence to the offence under Section 55.
10. • Held
Where a statute is silent as to the mens rea for an offence, the court is not
bound to read a mens rea requirement into the statute. The offence was one
of strict liability as to age, therefore a mens rea of knowledge of the girl’s
actual age was not required to establish the offence. H’s reasonable belief
was therefore no defence, and the conviction was upheld. This decision did
not survive the later case of Sweet v. Parsley [1970] AC
132, however. Sweet v. Parsley clarified the mens rea requirement for
statutory offences, as it distinguished between regulatory crimes (imposing
strict liability), and ‘true crimes’ which require a mens rea element.
11. State of Maharasthra V/s
M. H. George
• The respondent, Mayer Hans George, a German smuggler, left
Zurich by plane on 27th November 1962 with 34 kilos of gold
concealed on his person to be delivered in Manila. The plane
arrived at Bombay on 28th of November. The Customs Authority,
inspected to check if any gold was dispatched by any traveler and
looked through George, seized his gold and accused him of the
offence under sec 8(10) and 23(1-A) of the Foreign Exchange
Regulation Act. George was initially acquitted by the High Court,
but the further appeal was made by the state in the court of
law. However, the respondents were of the view that mens rea is a
fundamental element of any criminal offence and George was not
aware of the notification published by the Reserve Bank.
12. • However, the court further said that even though mens rea is an essential
requirement to commit a crime but regardless of that the statutory provision
can exclude the mental element. The express words of the statute can
exclude the mens rea as an essential ingredient of the crime. This may be
done for various reasons, for instance, to promote public welfare and
activities or to eradicate social evils. The statute which complies strict
liability helps the offender to assist the state in the enforcement of the law.
• When the provision of the act clearly and explicitly prohibits carrying a
certain amount of gold and then if a person chooses to carry gold more than
the specified amount without disclosing it in the manifest than he will be
held liable.
13. Ravula
Hariprasad Rao
v. State, A.I.R.
1965 S.C. 722.
• In this case also Supreme court held that -
• “There is a presumption that mens rea, an evil intention, or a
knowledge of the wrongfulness of the act, is an essential
ingredient in every offence, but that presumption is liable to
be displaced either by the words of the statute creating the
offence or by the subject matter with which it deals, and both
must be considered.”
• Even here we may reject the notion that a penalty or a
punishment cannot be cast in the form of an absolute or no
fault liability but must be preceded by mens rea. The
classical view that ‘no mens rea, no crime’ has long ago
been eroded and several laws in India and abroad,
especially regarding economic crimes and departmental
penalties, have created severe punishments even where the
offences have been defined to exclude mens rea.”
• Same was retrated in the case of Kartar singh V. State of
Punjab
15. Surjit Bhagatsingh
Gambhir vs The
State Of
Maharashtra
(Writ Petition No. 913 of 2019)
Two candidates who were contesting election, arranged a dinner party for
their supporters and voters. It is alleged that in the said party, liquor was
served along with dinner and two brothers of the complainant who attended
the party died because of that. During investigation, it was revealed that the
alcohol, which was supplied in the party was manufactured in one 'Sai
Bhushan canteen' of the City Civil Hospital, District Ahmednagar, which was
allegedly run by the petitioner.
Later it was established by the investigation that the petitioner didn't even
take the control of the canteen in 2013 as he did not pay bank gurantee and
no possession was given to him. There is no material brought on record to
establish that the Petitioner had any knowledge of the activities ,’’
“On marshalling the evidence collected during the course of the
investigation, we find that the said mens rea is conspicuously absent. The
element of mens rea and intention must accompany the culpable act
and… it must be established that he possessed the mental state or
degree of fault at the relevant time. The burden lies on the prosecution to
prove that the accused satisfied the definition of actus reus (conduct
which is a constituent element of crime) of a particular crime which is
coupled with men's rea which would vary depending on the nature of the
crime…’’ said the HC.
16. Asha Patil v. State of Maharashtra, 2019 SCC OnLine Bom 2056
• The facts of the case are that the victim of the crime was about 5 years of age at the time of the crime and
accused 2 is the biological mother of the victim child. Accused 1 is the step-father. At the Dashera festival,
accused 2 accompanied by victim child visited PW 2 who noticed injuries on the person of the victim female child.
Victim child disclosed to PW 2 that she was beaten by her stepfather, on hearing this, PW 2 asked accused 2 to
accompany her in order to lodge the report but the same was declined by accused 2. Further, while the female
child victim was being bathed by PW 2, she noticed some injuries on the person of the victim, which were caused
by her step-father. Victim informed PW 2 that accused 1 used to insert something in her vagina and also put
chilly powder in her vagina. She even disclosed that she is beaten by him after tying her hands with wire
of the mobile charger.
• Abbetment case was also filled against the accuused 2.
• High Court stated that the evidence of child female victim makes it clear that accused 2 was not present either
before or at the time of the commission of the act. Court held that “mere giving aid will not make the act of
abetment of an offence if the person who gave the aid did not know that the offence was being committed or
contemplated.
• Subsequent failure on the part of accused 2 in non-reporting the matter to police, as such, does not amount to
intentionally aiding the commission of offence by co-accused 1. Mens rea is an essential element of the
offence of abetment.
17. Sumitra v. State of Maharashtra,2018 SCC OnLine Bom 1550
•
• The High Court perused the record very carefully. In light of the post-mortem report along with evidence
of witnesses, it was proved that death of the deceased was homicidal. However, the Court was of the
view that since the defendant did not have any intention to kill the deceased, the conviction of the
appellant was liable to modified from that under Section 302 to Section 304 Part II. The order was
made accordingly.
