Mens rea is a Latin term which means guilty mind. The element of mens rea is sine qua non to criminal law and its absence negates the condition of crime. It is also expressed in the Latin maxim actus non facit reum nisi mens sit rea which means “the act does not make one guilty unless the mind is also guilty.


The element of mens rea is included in the criminal law on the premise that every person has the capacity to choose between right and wrong. If the person has the choice of choosing between these then he/she should also be held responsible for the choices he/she makes. Therefore, the person is punished only for the acts which he has voluntarily done with a guilty mind. He/she can’t be put behind bars if they didn’t have any choice or free will of their own. For example in cases of intoxication where the person is unable to distinguish between right and wrong. He can’t be held liable for the crime in the same manner as the person who willingly commits a crime.

In India, we focus on the reformation and rehabilitation of the criminal. Hence it is necessary that the punishment which is being imposed on the person is in proportion to the moral compass which the criminal had at the time of committing a crime. In other terms, the punishment should not only fit the offence but it should fit the offender too.


Mens rea can be deduced from various elements. let’s look into those elements separately.


The intention of committing a crime is subjective to every person and is deducted from the facts and circumstances of the case. Because of its subjectivity, the term is hard to be moulded in a fixed set of words but, it can be defined as the purpose which a person consciously wants to accomplish. Therefore it is mostly used in relation to the consequence rather than in relation to the act itself. It is necessary that the consequence which resulted from a person’s act was deliberately intended by him to cause. For example- if a man had no intention of spreading terror but his actions did spread the terror, he cannot be held liable as the consequence was not intended buy him.


Section 39of IPC defines voluntary as – when a person causes an effect voluntarily if he causes it with the intention of causing 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.

In this manner, the term voluntarily is a wider term that includes the element of intention. As per the section for an act be become voluntary there are three requisites – (i) the act was done intentionally, (b) the person had the knowledge that the consequence of his act is a crime or offence and/or (c) he had a reason to believe that his act is an offence.


In general parlance, these two terms sound very similar but they are very different and have different uses in criminal law with respect to mens rea. Intention, as discussed earlier, is the fixed direction of the mind to a particular object, or determination to act in a particular manner.[1] On the other hand, motive is the psychological phenomenon that stimulates or incites an action. It acts as a mere spring for the intention. Motive reveals the nature of the intention therefore, it also to as ulterior intent.  Motive is not a good element for deducing the mens rea. A bad motive does not indicate that the person has committed the crime similarly a good motive can’t be used as a ticket to spare the person who has committed a crime. Motive is merely useful in deciphering the reason for committing an offence and deciding the quantum of punishment, but it cannot be used as a reliable means to decipher the mens rea.


In some sections of the IPC, it can be seen that mere knowledge of the fact can also invoke liability under the criminal law[2]. A person is said to have knowledge when he is aware of the consequences of his act. This is very subjective and can only be deduced from the facts and circumstances of the case.


In the common law doctrine, mens rea is an inseparable element of crime but the situation is not the same in all cases. As laid down in State of Maharashtra v. Mayer Hans George[3], the common law doctrine of men rea would not be applicable in cases where the statute by expressed mention or by necessary implication has excluded mens rea. There are certain provisions that are made criminal even if the person had no intention of committing that offence, if this had not been done, the very purpose of that section would be defeated. For example – if in the statute, the smuggling of gold is prohibited. The passenger, ignorant of the law, carried gold biscuits which are not allowed in the statute. In this case, if the court gave the defence of ignorance of the law, the purpose of having such a law would be defeated as the main purpose of this law is to prohibit the unwanted transfer of gold. Therefore, the general rule of mens rea is also not free of exceptions.



  • RATANLAL & DHIRAJLAL, The Indian Penal Code, 2006
  • P S A Pillai’s Criminal Law, LexisNexis, 2019


[1] S Raghubir Singh Sadhwala v CIT, AIR 1958 Punj 250.

[2] For example, section 86 Of IPC.

[3] AIR 1965 SC 772

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