The general conditions of criminal liability are indicated with sufficient accuracy in the maxim ‘actus non facit reum nisi mens sit rea, that is, the act alone does not amount to guilt, it must be accompanied by a guilty mind. Thus, there are two conditions of criminal liability—
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(1) Act; and
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(2) Guilty mind or mens rea.
These two conditions have been expressed in the celebrated Latin maxim thus: Actus non facit reum nisi mens sit rea. The meaning is that an act does not make a man guilty unless his intention is so. In other words act and intent must both concur to constitute the crime.
A brief study of the two elements is quite pertinent.
1. Act
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An act is a willed movement of body. Austin defines it “as a bodily movement caused by volition—a volition being a desire for bodily movement, which is immediately followed by such movement provided the bodily member is in a normal condition”. Holmes observes that “an act is always a voluntary muscular contraction and nothing else”. Salmond. Defines act in a
1. State v. Abdul Latif and others, 1974 All Cr C 275. wider sense. He says, we mean by it (act) any event which is subject to the control of human “will”. Thus, according to Salmotid, act includes all those events which are subject to control of human will.
This act may be of different kinds. It may be positive act done by some body or it may be omission to check something from happening on account of inaction, it may be intentional or unintentional.
The word ‘actus’ connotes a physical result of conduct. The ‘actus reus’ may be defined ‘such result of human conduct as the law seeks to prevent. As actus reus is the result of conduct of human beings, it should be distinguished from event.
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For example, in case of murder, the result is victim’s death by the conduct of the murderer may be said as actus reus and murderer’s intention to cause the death is the mens rea. Actus reus may be classified into following branches—viz., —
(i) A willed movement or omission;
(ii) Certain surrounding circumstances (including present and past acts);
(iii) Certain consequences.
A willed movement is a conduct which results from the operation of the will. It may be external or internal. According to Austin any movement of the body which is not a consequence of the determination of the will, is not an act.
The involuntary actions will not become criminal acts. In an important Melbourne case (Australia Cogden) reported in ‘Daily Telegraph Paper’ Dec. 20, 1950, a mother dreamt that her daughter was seduced by a soldier. Immediately she got up in her sleep, took an axe and killed her daughter thinking that she was killing the soldier. She was held not guilty of murder.
Criminal Law is generally concerned to the conduct of such person which is hurtful to the society. Such conduct should be prevented by law or made punishable under the law if it is committed by a person. If the conduct is not prohibited by law, the act will not be termed as a crime.
For example:
A shoots at P, misses him and kills a rabbit. This is not a murder because actus reus of murder requires a harmful result in addition to the act of shooting of a human being. In present example shooting is there but shooting of human being is not there. So murder cannot be constituted.
Actus reus includes negative as well as positive elements. The actus reus of murder includes not only person’s killing but such person’s killing who is under the protection of the king or under state’s protection. Negative act refers the omission also.
2. Mens rea or Guilty Mind:
It is defined as “the mental element necessary to constitute criminal liability”. For the completion of any crime mens rea is essential and in making a person criminally liable an inquiry into his mental attitude is made. It is the very corner-stone of criminal jurisprudence according to the eminent jurist Samshul Huda.
There must be a mind at fault before any crime can be committed. An act, pure and simple, does not catch the attention of criminal law, as it is simply a conscious movement of the body. But as soon as the act is done with an evil intent, criminal law is at once concerned to investigate and bring the offender to book.
To illustrate, A may accidentally kill B in the act of shooting at a fox hiding in a bush while actually behind the bush was B crouching for safety from the attack of a wolf some time earlier and B dies as a result of the shot which wounds him fatally.
Here A would not be liable for the murder of B as he has killed him accidentally, but it would be murder if A knowing that B is behind the bush shoots at the bush. In the latter case as A has shot with the intention of killing B it would be murder.
It is, therefore, combination of act and intent which makes a crime. Act by itself is not wrong. But act, if prohibited, done with a particular intent makes it criminal. Therefore, intent and the act must both concur to constitute a crime.
Mens rea may exist without an actus reus but if there is no actus reus there can be no crime. To illustrate, although A belie. That he is appropriating B’s property he cannot in any circumstances be guilty of theft if the property belongs to no one. Because A has the mens rea but the actus reus, the other fundamental element of the crime, is lacking.
The Supreme Court in State of Gujarat v. Acharya} Shri Devendra Pande, observed mens rea is some blameworthy mental condition whether constituted by knowledge or otherwise.
Mens rea can also be said an evil intention or knowledge of the wrongfulness of the act. Man’s intention is essentially a subjective fact. It is also said that there must be a mind at fault before there can be a crime. Metis rea is nothing more than that a person has done intentionally the prohibited act.
Mens rea began as a matter of morality and law. Earlier it was a subjective test but gradually it became an objective test. The objective test is applied to ascertain whether a person has committed an offence with an evil intention. Mens rea may be of different kinds as —
Intention:
Intention indicates the state of mind of a man who not only foresees but also desires the possible consequence of his conduct. For example—I throw a stone at a man with the desire to cause injury to him. As a result injury is caused to such person by the stone. The desire to cause injury to the person is intention or mens rea and throwing the stone is actus reus.
Recklessness:
It occurs when the actor does not desire the consequence but foresees the possibility and consciously takes the risk about the consequences. Such consequences may or may not happen.
Negligence:
Negligence as opposed to intention indicates a state of mind or absence of desire to cause a particular consequence. Negligence means blame-worthy inadvertence. Negligence, in law, has got two meanings: (i) Firstly, it indicates inadvertence of conduct of a reasonable man; (ii) Secondly, the conduct of man should be a legal fault.
Recklessness, more or less, includes negligent conduct. Negligence requires subjective and objective inquiry of the conduct of a man.
Motive:
There is difference between motive and intention. Motive is an attitude of mind or ultimate object which is intended to achieve. Motive may be said as an emotion prompting the act e.g., love, compassion, fear, jealousy, perverted lust, hatred, political gesture, desire for money, desire for religion.
Mens rea in English law:
Mens rea is important in the English law of crimes. Stroud in his treatise on mens rea observes that, “All crimes have their conception in a corrupt intent and their consummation and issuing in some particular fact”.
He further elaborates the statement that, “In other words the guilt of an act charged against a prisoner must always depend upon two conditions —(1) the act in question was prohibited by law, and (2) 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 conditions of illegality (actus reus) and the condition of culpable intentionality (mens rea).”
The position of mens rea under British law where the statute is silent about the mens rea. One view is that if the Legislature has not written anything about mens rea, the mens rea will not be considered by the court to determine the offence.
The literal interpretation should be made by the court. Another view which is former in time, establishes that Legislature is bound to follow the common law rules. According to common law rules, any offence cannot be established without mens rea.