ALL ABOUT ACTUS NON FACIT REUM NISI MENS SIT REA – MENS REA
INTRODUCTION
Actus non facit reum nisi mens sit rea is one of the most important principle in criminal law. This maxim means ‘The act does not make a man guilty unless there is a guilty intention’. To every criminal offence there are two basic elements firstly the physical element or the guilty act called the ‘Actus Reus’ secondly the mental element or the guilty mind called the ‘Mens Rea’. The term mens rea is not properly defined in the Indian Penal Code (IPC) but can be identified with the help of words such ‘dishonestly, negligently, recklessly, knowledge, intention, etc.’ Both these elements are required to constitute a crime (ACTUS REUS + MENS REA = CRIME).
For e.g. If A attacks B with an intention to cause grievous hurt or injury then it is considered as a crime. But if A who is being attacked by B causes injury to B in private defence then under this maxim second situation shall not be considered as a crime since the act performed was unintentional.
This maxim is usually considered in cases where the crime is ‘Mala In Se’ i.e. wrong in themselves e.g. murder. These crimes require criminal intent which are different from crimes which are ‘Mala Prohibita’ i.e. not wrong in themselves but are prohibited by law e.g. fishing without a license. Such crimes do not require a criminal intent.
ORIGIN
The origin of this maxim is still ambiguous. The oldest and most remote reference of this maxim was traced by Pollack and Maitland to St. Augustine but they couldn’t state a proper context to the maxim found. Later Lord Edward Coke borrowed this maxim from modern theology which is now uniformly applied in the common law. He traced the origins of this maxim to Sermon 180 of St. Augustine. In the body of the sermon St. Augustine talks about a case of perjury. In this case he discusses about a man who is asked if it rained in a certain spot. The man supposes that it did not rain, but considers it to his interest to testify that it did really rain. In fact it did rain there, but the man was ignorant of that fact, and thinks it did not rain. Augustine says the man is a perjurer.
Augustine also continues by saying, “What is important to observe is how the word proceeds from our soul. One does not produce guilty speech unless one has a guilty mind.” (Reum Linguam Non Facit Mens Rea). After Lord Coke many other jurists have also tried to define this maxim. Some courts have even said that, “It is a sacred principle of criminal jurisprudence that, the intention to commit the crime is the essence of the crime.” References of this maxim is also seen in the case of R vs. Scofield (P.C 1028). In this case the servant was held guilty for a misdemeanor of burning his master house down with a lighted candle. In this case Lord Mansfield held that when an act is done, the law judges not only the act itself but also the intent with which it was done. Thus under this maxim without the required mens rea or when the mind is innocent no crime can be committed
EXCEPTIONS
However, there are cases where the legislation can create offenses which consist solely of the physical act not keeping in mind ‘the state of mind’ of the person committing the crime. Such cases are also punishable and considered as exceptions to this maxim. In simple words it can be said that a crime where mens rea is not an essential requirement is an exception to this maxim. Following are a few exceptions to the maxim.
Ignorance of law
Ignorance of law cannot be considered as an excuse to commit a crime as every citizen or non-citizen is expected to know the law of the country they are in or visiting. Thus in such cases presence or absence of intention is not considered therefore it is an exception to the maxim.
For e.g. the case of M.H George vs. the State of Maharashtra in this case the government had passed an order on the 24 November restricting the transit of gold outside the territory of India in order to conserve foreign exchange to prevent smuggling. On the 27 of November the appellant M.H George, a German national boarded a plane at Zurich to go to Manila. The plane had a stopover at Bombay on the 28 November where he was caught by a customs officer with 34 kilograms of gold. He was held liable under section 8 and 23 of the Foreign Exchange Regulation Act of 1947. Later this case reached the high court where he was acquitted since was recently introduced and being a German national he did not know about the law and had no intention to smuggle the gold. But when this case reached the Supreme Court he was held guilty as ignorance could be held as an excuse even though he did not have the intention to smuggle the gold.
Strict liability
Strict liability offences are those offences where the prosecutor does not have to prove that the defendant acted with a guilty mental state since the act itself is enough to prove the crime. The acts that come under these offences are harmful against the society or state
For e.g. section 375 under this section rape is define as act of sexual intercourse without the consent in such a case even though the requirement of mens rea is absent the physical act itself is enough to deem a person guilty under this section.
Petty offences
Petty offences are offences which are least serious in nature. In cases of petty offense such as jumping the red light it becomes difficult to prove the mens rea behind such an act. Therefore in such cases the act of jumping the red light itself can be considered as punishable. Thus it comes under exception to this maxim.
Public nuisance
A public nuisance is a criminal wrong: it is an act or omission that obstructs, damages or causes inconvenience to the right of the general public. It can also be defined as an act that interferes with the general community interest or the comfort of the public at large in such cases strict liability is imposed as the interest of the public is affected .Therefore these offenses are punishable with or without presence of mental intent.
For e.g. an oil tanker accident which occurred close to shore line of the city it caused heavy damage to the marine life and tourism of the city thus cause public nuisance. This incident affected many fishermen whose livelihood was impacted. In such cases even if the owner of the oil tanker had no intention he would be liable to compensate the fisherman.
Vicarious liability
When the master is responsible for the act of his servant during the course of employment such liability is called as vicarious liability. Under this maxim this general rule falls as an exception if the servant has committed a criminal offence without the knowledge of the master. In such a case the state of mind of the servant shall not be imputed on the master. This was stated in the case of Chisholm vs. Doulton (22 QBD 736).
Insanity
A criminal intent cannot be pinned on a person who due to their mental disorder or immature years cannot understand the nature of the act committed by him or is disabled to distinguish between good and evil. Thus the defence of insanity is considered as an exception to this maxim.
CASE LAWS
R VS TOLSON
The case of R vs. Tolson or a case of Bigamy. The Appellant Mr. Kelly Tolson who married the defendant Marie An Tolson in 1880 left for America by ship in 1881. Her father and her brother made enquiries about him and learnt that he was lost at sea. The Defendant waited for six years for the return of her husband. Having had no contact with him for a period of six years she believed him to be dead and remarried. Eleven months after the remarriage in 1887 the appellant returned. Finding her to be remarried he filed an appeal of bigamy against the defendant, under the Offences Against the Person Act of 1861.
Judgement
Initially the court pronounced the verdict in the favour of the appellant saying that a belief in good faith and on reasonable grounds that her husband was dead could not be considered as a good defence against the charges of bigamy. Hence the court found her guilty of her charges and she was sentenced to one day in prison.
She then appealed to court on grounds of absence of mens rea. She argued that she believed beyond reasonable doubt that her husband was dead (owning to the six months he was lost at sea) and had no intentions of committing bigamy. The bench with a majority of 9-5 ruled in her favour and thus acquitted her of her charges. In this case the legal maxim ‘Actus non facit reum nisi mens sit rea ’was applied as she had a bonafide belief on reasonable grounds in the death of her husband at the time of the second marriage. Thus having no intent of committing the crime.
R VS. PRINCE
In the case of R vs. Prince, the defendant Henry. Prince was convicted for taking an unmarried girl Annie Phillip who was under the age of 16 years out of the possession of her parents without their consent. The defendant was held guilty under section 55 of Offences Against Person Act of 1861. In this case it was claimed that the girl herself claimed she was 18 years old and she also seemed to be 18 years of age. Later the jury with the help of evidence found out that the girl willingly went with Prince and Prince under good faith believed that the girl was 18 years old. This was considered reasonable by the jury. Thus the defence argued that the maxim of ‘Actus non facit reum nisi mens sit rea’ should be as the defendant had no intention to commit the offence. This argument was only accepted by J. Brett who was a jurist and held that prince should not be held guilty but was refuted by justice Blackburn who held that the act of taking an unmarried girl was ‘Mala in Se’ that is both legally and morally wrong has in this case the mens rea under section 55 should be presumed.
Later in the decision it was held that the act of taking a girl out of the possession of the parent or guardian itself was an act of strict liability. Therefore the mens rea or of the girl age was not required to establish an offence. Hence the reasonable belief of Prince regarding the age of the girl could not be considered as a reasonable defence for the offence committed hence was convicted.
GAJRAJ SINGH VS. THE STATE OF RAJASTHAN
On the night of 26 August 1995 at 8 pm the prosecution witness Mithu Singh heard a scream “run, run he will kill her”. On hearing this he ran quickly to the house of the appellant where Smt. Bhanwar Kanwar, Smt. Nand Kanwar, Smt. Jagdish Kanwar and Smt. Mohan Kanwar was shouting loudly. Smt. Phool Kanwar informed the witness that the accused was beating his wife. It was found by an informant looking from the rooftop inside the house of the accused that the accused was holding the head of the deceased Smt. Govind Kanwar and the sickle in the other. The sickle was stained with blood and the floor was also covered with blood which was flowing from the body. Many other people including Sonnilal and Udai Singh who were part of the police force reached the crime scene. Constable Udai Singh climbed to the roof and also found the accused standing with a blood stained sickle in one hand and the chopped head of a lady in the other. With the help of the people present at the crime scene, the door was unbolted by the accused; he was arrested on the spot by the police. At 8:30 the information was lodged at the Partap Garh police station where further investigation took place and the charge sheet was filed.
In the trial court the accused was examined under section 313 of the Criminal Procedure Code ( CrPC) and he was later convicted and sentenced for the offence committed by him on the basis of the evidence found on the record of the court. During the trial a plea was made stating that the accused was of unsound mind and must be provided with protection under Section 84 of the Indian Penal Code (IPC). At first the High Court rejected the plea saying that section 84 of the IIPC would not be applicable in this case. Later it was also found that some witnesses stated that the accused was of unsound mind but the crucial question that lied here was whether the accused could not understand the nature of the act committed by at the time of committing the offence or suffered from insanity, whether the Section 84 of the IPC would be applicable in this case or no ?. The High Court then decided that the section 84 was correctly applicable as the accused had an history of insanity in the family. In this case the maxim of ‘Actus non facit nisi mens rea’ would not apply because in the case of insane people no culpability can be fastened on them since they no free will
References
Mohamed Elewa Badar ‘The Concept of Mens Rea in International Criminal Law: The Case for a Unified Approach’ retrieved from https://books.google.co.in/books?id=WITbBAAAQBAJ&pg=PA25&lpg=PA25&dq=the+sermons+of+augustine+legal+maxim&source=bl&ots=uu0HMaefAC&sig=ACfU3U1ZBO2yxDCsYo6OT6jSwhfqhvvPxA&hl=en&sa=X&ved=2ahUKEwjE4f3qnOrwAhV87XMBHRmZBY8Q6AEwB3oECAYQAw#v=onepage&q=the%20sermons%20of%20augustine%20legal%20maxim&f=false
A Pasayat ‘Bapu @ Gajraj Singh vs State Of Rajasthan on 4 June, 2007’ retrieved from https://indiankanoon.org/doc/673880/
Khushi Agrawal Mansi Vats and Vedant Agarwal ‘Insanity as a defence under the Indian Penal Code’ retrieved from
https://blog.ipleaders.in/insanity-defence-indian-penal-code/
Chandrachud J ‘ Mayer Hans George v. The State of Maharashtra’ retrieved from https://www.casemine.com/judgement/in/5608f955e4b0149711144a84
Dr Sunita Khariwal ‘ Legal Language and Legal Writing’
Author: Anushka Martis,
S.N.D.T LAW SCHOOL JUHU CAMPUS F.Y.B.B.A.LLB