Actus non facit reum nisi mens sit rea-Maxim with Case Laws and Illustrations

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The act alone will not constitute to make a man guilty unless it is done with a guilty mind or intent. This is the fundamental maxim in criminal law.

‘Actus reus’ means a wrongful act or criminal act[1]. It is the physical deed or result of human conduct which is wrongful one. ‘Mens’ means mind, intention, understanding and will[2]. Hence mens rea necessarily means criminal intention. If we read the two terms together, it could mean that a wrongful act in itself will not constitute a crime unless coupled with a criminal intention to do it[3].

Actus Non Facit Reum Nisi Mens Sit Rea


Famous English case on the maxim is R versus Tolson[4]. In this case, the defendant appealed against a conviction for bigamy under the defense of mistaken belief. She was under the strong, honest and reasonable belief that her husband is dead. Stephen J. stated: The full definition of every crime contains expressly or by implication a proposition as to a state of mind. Therefore, if the mental element of any conduct alleged to be a crime is proved to have been absent in any given case, the crime so defined is not committed; or again, if a crime is fully defined, nothing amounts to that crime which does not satisfy that definition.

INDIAN LAW


In R.Balakrishna Pillai versus State of Kerala[5] the Supreme Court discussed the maxim based on Criminal Law by K.D.Gaur and  Glanville Williams.

As per K.D.Gaur’s Criminal Law:
It signifies that there can be no crime without a guilty mind. To make a person criminally accountable, it must be proved that an act, which is forbidden by law, has been caused by his conduct, and that the conduct was accompanied by a legally blameworthy attitude of mind. Thus, there are two components of every crime, a physical element and a mental element, usually called actus reus and mens rea respectively.”

Glanville Williams in Criminal Law has also stated as follows in connection with the intention accompanying the act :

“The chief problems in the general part of criminal law pertain to the requirement of a criminal state of mind, mens rea; but these cannot be adequately discussed without a preliminary exploration of the nature of an actus reus”.

It is further stated :

“Although thoughts are free, the uttering of them is another matter. Speaking or writing is an act, and is capable of being treason, sedition, conspiracy or incitement; indeed, almost any crime can be committed by mere words, for it may be committed by the accused ordering an innocent agent (e.g., a child under eight) to do the act. But to constitute a criminal act there must be (as said already) something more than a mere mental resolution. Apparent, but not real, exceptions to this proposition are treason and conspiracy. It is treason to compass the King’s death, but the law requires an overt act manifesting the intention, and this act must be something more than a confession of the intention. It must be an act intended to further the intention; perhaps, too, it must actually do so”

INDIAN STATUTE


Some words mentioning criminal intention are defined in IPC viz. dishonestly[6], fraudulently[7], voluntarily [8]. The definitions quoted below are self-explanatory:


“Dishonestly”.—Whoever does anything with the intention of causing wrongful gain to one person or wrongful loss to another person, is said to do that thing “dishonestly”.


“Fraudulently”.—A person is said to do a thing fraudulently if he does that thing with intent to defraud but not otherwise.



“Voluntarily”.—A person is said to cause an effect “volun­tarily” when he causes it by means whereby he intended to cause it, or by means which, at the time of employing those means, he knew or had reason to believe to be likely to cause it. Illustration A sets fire, by night, to an inhabited house in a large town, for the purpose of facilitating a robbery and thus causes the death of a person. Here, A may not have intended to cause death; and may even be sorry that death has been caused by his act; yet, if he knew that he was likely to cause death, he has caused death voluntarily.

There are some instances which fully comes under the meaning of the above maxim under the Chapter General Exceptions in the IPC.


Act done with Knowledge

Section 81 of the IPC deals with the circumstance where a person knowingly does a wrongful act but without criminal intention to cause any harm. Here the person has the knowledge that by doing the act he may cause damage to some other. But it turns inevitable for him for some legal reason to do so. The illustration provided in IPC is that of a ship captain who was forced to change his course to save a boat with more passengers. In doing so, he may collide with another boat with fewer passengers. However, he chose to save the first boat and thought that he may possibly save the second boat with fewer passengers. But, he ran down the second boat. Here, the wrongful act is not coupled with ill intention and hence he is not punishable.




Acts done by children


Section 82 IPC saves a child from culpability as he is not able to judge the nature of his acts and he is not having free will. An act done by a child under seven years of age is not considered an offense as mens rea is absent. Section 83 also saves a child above seven years of age up to 12 years of age on the basis of the said maxim.

Insanity


Section 84 of the IPC is another example of this maxim. In Hari Singh Gond versus State of Madhya Pradesh[9], it was observed that Section 84 of the IPC contains the most fundamental maxim of criminal law. In order to constitute an offense, there must be a concurrence of the act and intent. Insane persons do not have free will and therefore cannot be attributed with criminality or criminal intention.


The above section saves unsound persons who are incapable of knowing the nature of their acts and unable to differentiate right from wrong.


The Supreme Court has decided on this aspect in State of Rajasthan versus Shera Ram Alias Vishnu Dutta[10]. Shera Ram @ Vishnu Dutta was charged for murder and allied offences under the Indian Penal Code and sentenced to undergo life imprisonment by the trial court. This was reversed by the High Court of Rajasthan. Then State moved the Supreme Court against the verdict of High Court. The accused pleaded insanity. The Court decided in favour of the accused. The Court held:


To commit a criminal offense, mens rea is generally taken to be an essential element of crime. It is said furiosus nulla voluntus est. In other words, a person who is suffering from a mental disorder cannot be said to have committed a crime as he does not know what he is doing. For committing a crime, the intention and act both are taken to be the constituents of the crime, actus non facit reum nisi mens sit rea. Every normal and sane human being is expected to possess some degree of reason to be responsible for his/her conduct and acts unless contrary is proved. But a person of unsound mind or a person suffering from mental disorder cannot be said to possess this basic norm of human behavior.

Intoxication

A drunkard who is also unable to judge the consequences of his wrong acts is saved under Section 85. However, the substance intoxicating him must be given against his will or without his knowledge. This proviso given in the exception because drinking too much of alcohol may fade one’s mind and the drunkard is supposed to know this fact. Section 86 of IPC says along those lines.

Consent


Consent is also an exception provided under General Exceptions of IPC under Section 87 which saves a person from culpability based on the above maxim. A and B agreed to engage in a sword fight for fun not knowing that someone may get grievously injured or dead by their fight. However, there is an implied consent on the part of each to suffer any harm which may be caused due to their fight. If A causes hurt to B without any foul play, then he is not liable to be punished as there is no mens rea though there was a knowledge that harm may be caused.


Coercion


Section 94 IPC saves a person from culpability because of the absence of a guilty mind. A, being a blacksmith is seized by dacoits and threatened to kill him unless he opens a safe locker to plunder all valuables. Here, A knows that he is doing a wrong act. But, here he must save his life and there is no option for him other than opening the safe locker. He will not be punished as there is no ill-intention on his part.


Sections 96 to 106 of IPC deals with private defense. Private defense is not a criminal act. Yet, in some cases, willful harm is caused to others so as to avert any danger to self and property. These acts are done with intention. But these intentions cannot be said to be an illegal one as these are exempted expressly under the statute.


Footnotes

  1. https://thelawdictionary.org/actus-reus/
  2. https://thelawdictionary.org/mens/
  3. https://thelawdictionary.org/actio-non-facit-reum-nisi-mens-sit-rea/
  4. (1889) 23 QBD 168
  5. 2003(9)SCC 700
  6. Section 24
  7. Section 25
  8. Section 39
  9. Criminal Appeal No:321 of 2007
  10. 2012(1)SCC 602

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