Actus Reus and Mens Rea: Two Elements of Crime

Actus Reus and Mens Rea Two Elements of Crime

Every crime essentially has four elements: 1. A human being (indicated by the word “whoever” or “person” or “a man”). 2. Evil intent (mens rea or guilty mind). 3. The act (or omission) willed or the consequences of an act or omission (actus reus). 4. Injury.

In this article, we will understand the first two elements i.e the physical element, and the mental element individually and in relation to one another.

What is Actus Reus?

Actus Reus refers to the physical element of a crime. It is not what you think but what you do. There must be an overt act in relation to the crime. An overt act may be referred to as an act put in action to achieve some intention.

Actus reus is commonly the commission of some act, e.g. assault, but maybe an omission, e.g. failure to exhibit lights on a vehicle, or a commission by omission, e.g. refraining from feeding an animal. An omission of either kind can be actus reus and criminal only where there was a legal duty to act.

What is Mens Rea?

Mens Rea refers to the intention behind an act. The intention of a person makes him act and when this intention is guilty, the same act constitutes a crime provided other conditions are also fulfilled.

In other words, Mens Rea means some blameworthy mental condition irrespective of the fact that such an intention is constituted by knowledge otherwise.

The only time when this mental element is not needed to establish criminal liability is when the statutory provision directly lists the offence as under strict liability. That is, irrespective of the fact that the wrong-doer had no guilty intention, the wrong-does will be criminally liable.

The general idea of crime associates guilt not with the mere conduct but with a guilty mind, that is, generally there is no crime without an evil mind. This idea is well expressed by the Latin maxim actus non facit reum, nisi mens sit rea. Act and intent both must concur to constitute a crime, that is, physical as well as mental element both must combine to constitute a crime. Of course, mental element varies according to different nature of different crimes. Though essentially a rule of common law, the principle of mens rea has been followed in statutory offences as well, though in some cases liability may be fixed without any proof of guilty mind.

Thus, for the offence of bigamy, it is a defence that the convict honestly believed her husband to be dead but for a charge of abducting an underage girl, an honest and reasonable belief that the girl was major was declared to be no defence. In later decisions, however, the House of Lords has taken a view that mens rea shall be a constituting element of crime unless expressly or by necessary implication, its application has been ruled out.

In Sherras v. De Rutzen, it was observed that mens rea is an essential element in every offence except in the following three cases:

(a) cases not criminal in any real sense but which in the public interest are prohibited under a penalty; for example, the Revenue Acts;49

(b) public nuisance; and

(c) cases criminal in form but which are really only a summary mode of enforcing a civil right.51The abovestated observation still holds good in the majority of the statutory offences whether the guilty mind has been expressly mentioned therein or not.

The mens rea maxim does not apply to all the crimes because nowadays offences are accurately defined with all the constituting elements and insofar as the Code is concerned, it does not apply in its purely technical sense.
Huda holds the opposite view because the mental elements or the state of mind of the accused are stated in the definition of various offences, for example — intentionally, dishonestly, fraudulently, knowingly, negligently, voluntarily, rashly, etc.

Though an overwhelming majority of offences in the Code have been defined with a guilty mind as one of the elements, it is not uncommon to find offences in the Code where mens rea has not been expressly mentioned.

Thus, in the offence of sedition [S. 124-A], kidnapping [S. 363], bigamy [S. 494], one finds no word indicating the requirement of a guilty mind. Some of the recently added offences to the Code through the Criminal law (Amendment) Act, 2013, for example, Sections 354-A, 354-C and 354-D also do not have an express mention of guilty mind as a constituting element.

It is, however, important to note that the courts in India have interpreted these offences as subject to the doctrine of mens rea. In Umashanker v. State of Chhattisgarh, the Supreme Court has said that an accused charged with possession of counterfeit currency shall not be guilty if the prosecution fails to prove the requisite guilty mind.

Difference between Actus Reus and Mens Rea

One major difference between Mens Rea and Actus Reus is that the first one is a physical element that is some overt act in connection with the crime while the latter i.e Mens Rea is a mental element behind the criminal act.


A attacked B with a knife in order to occupy his property.

In the above case, the thought of Illegally occupying the property of B is the guilty intention i.e Mens Rea while Attacking B with a knife is the Actus Reus i.e an overt act to reach the intention.

Mens Rea and Actus Reus together

The Latin Maxim, actus reus nisi mens sit rea together means that the act itself does not constitute an offence unless done with a guilty intention.

These two elements must combine together to form a crime unless the act is statutorily declared as triable without criminal intention as discussed above.

Another example would be,

A person with neurological disorders who strikes another during a seizure or attack has not committed the offence of battery because the essential mental element is missing and his act does not concur with his intentions.

This is based on the principle of criminal law that the law does not punish an innocent person.

On the other hand, if the same person who knows he should not drive but does and causes injury, he may be guilty of reckless behavior and criminal liability should follow.

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