Actus non facit reum, nisi mens sit rea

1. Latin maxim ‘actus reus non facit reum, nisi mens sit rea’ which means ‘there
can be no crime without a guilty mind’. The above well-known latin maxim
describes the relation between mens rea and a crime in general.
2. The fundamental principle of penal liability is actus non facit reum, nisi mens
sit rea, i.e., the act itself is not criminal unless accompanied by a guilty mind.
3. It may be noted that mens rea must extend to all the three parts of an act, viz.
 The physical doing or not doing,
 The circumstances, and
 The consequences. If the mens rea does not extend to any part of the act,
there will be no guilty mind behind the act.

4. Thus, there are basically three factors of proving criminal liability:

 Origin in some mental or bodily activity,
 Its circumstances, and
 Its consequences.

5. The maxim actus non facit reum nisi mens sit rea has been integrated into the
Indian Penal Code, 1860 in two basic ways:
 Through express inclusion of the required state of mind (mens rea) in the
definition of an offence.
 Through ‘General Exceptions’ enumerated in Chapter 5 of the Code, some
of which, such as mistake of fact, accident, infancy, and insanity, deny the
existence of mens rea.

6. If actus reus is not accompanied by a mens rea, it would not constitute a crime
per se. Alternatively stated, if a wrongful act committed by a person is not the
result of a guilty intention, the said act would not constitute a crime. Section
14 of the Indian Evidence Act, 1872 reflects the crux of this maxim. In order to
prove the accused’s guilt, it must be shown that the illegal act was coupled
with the intention of the accused to commit the said act. Hence, it can be said
that guilty mind i.e., intention of the accused to commit the crime is
preliminary in proving the accused guilty of that particular crime.

7. Importance of Actus Non Facit Reum Nisi Mens Sit Rea:-

As established before, Actus Non Facit Reum Nisi Mens Sit Rea has
predominant role in determining the guilt of the accused with respect to the
crime. The application of this maxim helps one distinguish between
unintentional criminal acts (example: act done in private defence) and
intentional criminal acts. This may prove extremely beneficial in determining
the quantum of punishment. Understanding and determining the intention of
the accused behind committing the crime also helps one determine the
severity of the crime. The absence of mens rea may help in reducing the
punishment or even negating the liability altogether i.e., acquittal of the
alleged accused. The maxim helps in determining the criminal nature of the
wrongful act as well.

8. Case:- The Apex Court has tried to depict the importance of Actus Non Facit
Reum Nisi Mens Sit Rea with regard to Section 84 of the Indian Penal Code,
 1860 (hereinafter “IPC”). The Court in the case of Siddhapal Kamala Yadav v.
State of Maharashtra opined that Section 84 of the IPC embodies the
fundamental maxim of criminal law, i.e., Actus Non Reum Facit Nisi Mens Sit
Rea. A similar observation was made in the case of State of Rajasthan v. Shera
Ram. In this case, the Supreme Court was of the view that in order to commit a
crime, the intention, as well as the act, are understood to be the constituents
of the crime as given in actus non facit reum nisi mens sit rea.
Conclusion:-
The legal maxim, Actus Non Facit Reum Nisi Mens Sit Rea is an integral part of
criminal law. It focuses on the fact that an accused may not be guilty unless the
act is accompanied by criminal intent. Although, there are certain cases and
concepts like strict liability where the ‘intention’ of the wrongdoer is not taken
into consideration, this maxim helps us understand the dual role of actus reus and
mens rea in conviction of the accused. The maxim by laying emphasis on the
blameworthy condition of the mind makes us realize that in most cases, an act
alone would not convict the accused, the mental state of the accused also plays a
primal role.
Actus mi invictu reus, nisi mens facit reum
This is generally used as a defence in criminal law. The principle underlying this
maxim is that if a person is forced to do an act which he generally would not do or
has no intention to do, but he is being coerced to do the act, then such an act
cannot be said to be his own act because it was not voluntary or free.

Illustration: A is forced by B on gunpoint to assault C. Here if A assaults C then the

act of A will be said to be not free and is done by force thereby making it not his
act.

CONSTRUCTIVE JOINT LIABILITY

The rule of constructive liability is based upon the connecting link between the
main offender and the others who are constructively made liable.

Some provisions in the Indian Penal Code determine the liability of a person
committing a crime in combination with some others. In all such provisions, joint
liability is created either because there is a common intention and common object
to all the persons forming a group alleged to have committed a crime. Such
connecting link has been identified under section 34 and section 149 of the Indian
Penal Code.

It refers to the liability of two or more persons for an offence. Where two or more
persons are engaged in commission of an offence, if any one of them or more
done an act which is prohibited by law, for benefit of all of them, each person
engaged will be liable for that act in the manner as it is solely committed by him.
This rule of criminal law is called as joint criminal liability.

Section 34: Common Intention :- Section 34 of the Indian Penal Code is enacted
on the principle of joint liability in doing a criminal act. Section 34 IPC deals with
the act done by several persons in furtherance of common intention. The section
is a rule of evidence and does not create a substantive offence.

Essentials of Section 34

The three essential ingredients for section 34 of the Indian Penal Code are as
follows:

1. Several Persons:- The court held in Sachin Jana vs State of West Bengal (2008)
that an act done by two or more people jointly and intentionally can be treated as
if done by each individual individually.

2. Common Intention:- The term ‘common intention’ has been given a different
meaning in different cases depending upon the circumstances of the cases as:
 prior meeting of mind
 pre-arranged plan
 desire to commit a criminal act without contemplation of consequences
In Krishna Govind Patil vs State of Maharashtra (1963), it was held that common
intention might develop on the spot also.

3. Criminal Act in Furtherance of Common Intention:- When several people

commit a crime in furtherance of their common intention, each of them who does
some act – similar or different, big or small – is liable for that act.

In Barendra Kumar Ghosh vs Emperor (1925), the term criminal act was defined
as the unity of criminal behaviour that results in something for which an individual
would be punishable if it were all done by himself alone in an offence.

In Mahbub Shah vs Emperor (1945), attention was drawn by the Privy Council
that care must be taken between same or similar intention and common
intention. That distinction is real and substantial and, if overlooked, will result in
the miscarriage of justice.

In Barendra Kumar Ghosh vs Emperor (1925), the appellant was charged under
section 302 IPC read with section 34 of the Indian Penal Code, with the murder of
sub-postmaster. The appellant contended:
 that he did not fire at the sub-postmaster.
 that he was standing outside and that he was compelled to join others for
robbery and had no intention to kill the deceased.
 The Privy Council held that even if the appellant did nothing as he stood
outside the door, it is to be remembered that in crime as in other things,
they also serve who stand and wait.

Section 149: Common Object

Section 149 of the Indian Penal Code states every member of unlawful assembly is
guilty of the offence committed in prosecution of the common object. Section 149
of the IPC creates a substantive offence. The term ‘unlawful assembly’ is defined
under section 141 of the Indian Penal Code.

Essentials of Section 149

The two essential ingredients for section 149 of the Indian Penal Code are as
follows:

1. Some offence must be committed by any member of an unlawful assembly.

In Yunis vs State of Madhya Pradesh (2003), the Supreme Court held that the
presence of the accused as a member of the unlawful assembly is sufficient for
conviction. Even if no overt act is attributed to the accused, the fact that he was a
member of an unlawful assembly and was present at the time of the occurrence is
sufficient to hold him guilty.

2. Such offence must have been committed in prosecution of the common object
of the assembly or must be such as the members of the assembly knew it to be
likely to be committed in prosecution of the common object.

The term ‘common object’ means the purpose or design. To make a common
design, it must be shared by all.

The phrase ‘in the prosecution of the common object’ indicates that the offence
committed was directly related to the common object of the unlawful assembly of
which the accused were members.

In Paran vs State of Rajasthan (1976), the court held that the individual acts
cannot be grouped in such cases, and the individuals are to be held responsible
for the individual acts.

In Munna Chandra vs State of Assam (2006), it was observed that the common
object is different from common intention. It does not require a prior concert. The
common object can develop on the spur of the moment.

The word ‘likely’ means knowledge to the members of an unlawful assembly that
the offence was likely to be committed and also that it was likely to be committed
in prosecution of the common object of the assembly.

Difference Between Section 34 and 149 of IPC

Section 34 (common intention) and section 149 (common object) of the Indian
Penal Code differ as follows:

1. Section 34 of the IPC speaks of common intention, but section 149 of the IPC
discusses common object.

2. Section 34 of the IPC does not create a specific offence as it is a rule of

evidence, but section 149 of the IPC creates a specific offence.

3. Common intention denotes action in concert and postulates the existence of

the pre-arranged plan, while a common object does not necessarily require proof
of prior meeting of minds.

4. Under section 34 of the Indian Penal Code, active participation in the

commission of the crime is necessary. However, mere membership of the unlawful
assembly at the time of the commission of a crime would be sufficient to apply
section 149 of the IPC.

5. To hold a person liable for an offence by applying section 34 IPC, at least two or
more members are required. But for application of section 149 of the Indian Penal
Code, the offence must be committed by at least five or more persons.

Punishment
In the dictionary meaning, the term ‘punish’ means to make someone suffer from
a crime or for an unlawful behaviour or the imposition of penalty as punishment
for an offense.

In criminal law, ‘punishment’ means any pain, penalty, suffering inflicted upon a
person by the authority of law and the sentence of the court for some crime
committed by him or for his exclusion of a duty enjoyed by law. The punishment
maintains the law and order, it safeguards the person and the property. The
culprit abstains from wrongdoing for the fright of punishment and therefore, the
punishment and the law are indivisible.

The concept of punishment has also been recognized in the Dharmakshetra. In the
Hindu shastras, the king had the superiority to penalize the wrongdoer or law-
breaker and protect the law follower. Thus, it is clear-out that punishment is one
of the oldest practices of managing crime and criminality. The objective of the
punishments and it makes changes with the converting of times. The procedures
for executing the sentences are also altered and supporting human rights. As we
recall our past we have seen that the death sentence was given for a very small
cause but it has been awarded only in the ‘rare cases’. Even still some societies are
there which use ancient forms of brutal punishment but the punishment has also
evolved along with civilization and has become less brutal.

Types of Punishment

In Ancient India :- The history of the penal system states that the punishment was
twisting, brutal, and ruthless in nature. The objective of the punishment was
deterrence and retribution. Due to his Penal procedure, the crimes were less in
numbers. Such punishments are categorized under the following:

 Capital Punishment:- Capital punishment means the legally authorized

killing of someone as a punishment of a crime, a death penalty for a crime.
In simple words, it means a government-sanctioned practise where a
person is put to death by the state as a punishment for a crime. In ancient
times, capital punishment was executed for every small crime. It is the most
extreme form of punishment. The procedures of execution of the death
penalty have varied from time to time.
 Corporeal Punishment:- It means a punishment that is intended to cause
physical pain on a person. It is also known as physical punishment. It is a
punishment for the violation of law which involves the infliction of pain on
the body. The objective behind corporeal punishment is not only to punish
 the offender but also to prevent the repetition of the offense by such
offender or any other person.
 Social Punishment:- It is a punishment in which a person is restrained to
make any kind of contract from the other persons or to move him at other
places where he has no contract with the other persons can help him in any
manner otherwise he is also liable for the punishment for it.
 Financial Punishment:- It is also known as imposing for fine. It was the
common way of punishment which was not significant in nature and it was
assigned specially for the breach of traffic rules, revenue laws, and minor
crime. It also includes the payment of compensation to the victims of the
crime and also the payment of the costs of prosecution.

In modern India
Although some of the societies are still using the ancient forms of the
punishments, the punishments have also evolved along with the civilization and
become less brutal or harsh. Now, the severity of the punishment depends on the
crime. If the person commits a serious crime, he shall be liable to be punishable
with the severe forms of punishment. In industrialized societies, the forms of
punishment are either fines or terms of imprisonment or both. The objective
behind such punishment is to correct unlawful behavior rather than directly
punish wrongdoers. According to Section 53 of the Indian Penal Code, the
principal forms of punishments to which offenders are liable are as follows:

 Capital Punishment (Death sentence):- In modern times, capital

punishment is the most severe punishment of all, which is given for severe
offense. It is the most debated topic among modern penologists. It is not
awarded for small offenses just like in early times or ancient times. It is
given for the case of a severe offense. As society develops the concept and
producer of punishment have been changed. It is awarded only in the
‘rarest of rare cases’ under the Indian Penal Code. there are some offenses
under the Indian Penal Code, in which capital punishment may be given by
the court:
 Under Section 121, states that waging, or making an attempt to wage
war against the government of India.
 Under Section 132: Abetment of mutiny, if mutiny is performed.
 Under Section 194: Giving or Fabricating False Evidence upon which an
innocent person suffers death.
 Under Section 302: Punishment for Murder.
 Under Section 303: Murder by Life Convict.
 Under Section 305: Abetment of Suicide of a Minor or an Insane or an
intoxicated person.
 Under Section 307: Attempt to Murder by a person who is under
sentence of life imprisonment, if the hurt is caused.
 Under Section 364A: Kidnapping for Ransom etc.
 Under Section 396: Dacoity with Murder.
 After the Criminal Law (Amendment) Act, 2013 the following are the
offenses under the Indian Penal Code in which the death penalty may
be awarded by the court:
 Under Section 376A: Punishment for rape resulting in death or
permanent vegetative state.
  Under Section 376E: Punishment for repeat wrongdoer of rape.

 Life imprisonment:- Life imprisonment means a person shall remain in jail

for the rest of his entire life. It is one of the best alternatives to the death
sentence for those offenses in which either punishment can be awarded.
There is a fixed term of life imprisonment but in case of the fraction of
terms, it should be 20 years under Section 57 of the Indian Penal Code.
 Imprisonment:- In dictionary meaning, an imprisonment is an act of putting
someone in prison or in jail as a legal punishment. The imprisonment is
having three types and they are as follows:

 Rigorous Imprisonment: Generally, it means ‘hard labor’. In this type of

imprisonment, the offender is compelled to do hard labor or hard work in
the jail such as grinding corn, digging the earth, drawing water, etc.
 Simple Imprisonment: In this type of imprisonment the offender is
confined to jail simply and he is not compelled to do any kind of work but
they can be asked to work at their own choice with wages.
 Solitary Confinement: It means keeping a person isolated from any kind of
contact with the outside world. It differs from a view that feeling of
loveliness may produce an influence on the mind of the offender and thus
change his mindset. Section 73 and 74 of the Indian Penal Code provides for
solitary confinement.
 Forfeiture of Property:- the ‘forfeiture’ means something that is lost
or surrendered as a penalty and the word forfeiture of property
means the loss of property or money because of a breach of legal
obligation. There are three sections in the Indian Penal Code that
described the forfeiture of the property, and they are:
 Under Section 126: Property used or intended to be used in committing
depredations on the territories of friendly countries.
 Under Section 125 & 127: Property received with the knowledge that
the same has been taken by waging war or committing a robbery.
 Under Section 169: property purchased by a public servant who is
legally banned to purchase for such property.
 Fine:- Generally fine means Imposing of monetary liability on an
accused in consequences of the offense committed by him. There are
some offenses which provide a fine with imprisonment. The amount
of fine depends upon the commands of the court.

Theories of punishment:- Sentencing the guilty person is most important, albeit a

difficult chapter in a trial. Theories of punishment are:

a) Retribution theory:- Retribution means something done or given to

somebody as punishment or vengeance. It is just retribution for their crime.
This theory says to return the same injury to the culprit or wrongdoer,
which he had committed against the victim. It says ‘tit for tat’. It is often
assimilated revenge, but a public rather than an act of private revenge. This
theory punishes culprits because they are deserving of it. It says to
offenders that ‘you have caused harm or damage to society, now you
should have to pay it back to society. It is probably the oldest goal of
criminal punishment. The Bible states that when one strikes another and
 kills him, he shall be put to death. Whoever strikes a beat and kills, shall
make restitution, life for life, when one injures and disfigures hie fellow
countryman, it shall be done to him as he has done; ‘separation for
separation’; ‘a tooth for tooth’’ the damages and spoiling that has to
impose upon another shall, in turn, be inflicted upon him.
b) Deterrent theory:- Deterrent or deterrence means something that deters
somebody or something, restrain anyone from taking action, to discourage
someone from taking action or prevent something happening, especially by
making people feel afraid or anxious. In another word, it is a ‘warning’,
‘preventive’, ‘restrictive’, or ‘limiting’, someone for any particular act. The
term ‘deter’ means abandon from the action and to deter means a variety
of reasons may deter anyone from a commitment. It also means the well-
judged and afraid are alike easily to be discouraged.
This is also known as Utilitarian Preventive Theory. Utilitarianism assesses
punishments on the basis of the good that punishments do for individuals
or for society.
c) Prevention theory:- It means with the purpose of preventing something
used or devised to stop something from happening or to stop people from
doing a particular thing. Preventive theory penalizes the wrongdoer, to stop
future crime in the society, by separating the criminals from society. This
theory believes that the aim of punishment is restraint. If a criminal is
confined, executed, or otherwise incapacitated, such punishment will deny
the criminal ability or opportunity to commit further crimes and prevent
the society from that harm. Preventive philosophy of punishment is
predicated on the proposition ‘not to avenge crime but to stop it’. In
punishing a criminal, the community protects itself against or person or
property of its member.
d) Reformative theory:- Another objective of the punishment is a reformation
of the offender. Supporters of reformation pursue crime by providing
offenders with the education and necessary treatment to eliminate criminal
tendencies, also because they have the talents to become productive
members of society. Reform means change and it improves somebody by
correcting faults, removing inconsistencies and abuses, and imposing
modern methods or values or to adopt a merely acceptable way of life and
mode of response or influence or force someone else to do so. It is the act
of reforming somebody, especially a general improvement in behaviour.
This theory affirms that a criminal can be changed into a good citizen as a
law-upholder by giving him capable treatment during his imprisonment
period.
 General Defenses IPC

Introduction
Indian Penal Code encompasses a wide range of punishments that differ in every
case. However, a person does not always have to be punished for a crime that he
or she has done.

There are exceptions to every rule, and each offence has its own set of rules. The
IPC was written with the assumption that there would be no exceptions in
criminal proceedings, which was a serious flaw. As a result, the Code created a
distinct Chapter IV that applies to the entire notion.

In Chapter 4 of the Indian Penal Code, 1860, under the heading “General
Exceptions,” defences are recognized. These defences are covered by sections 76
to 106 of the IPC. Certain legal defences exist to absolve a person of criminal
liability. These defences are premised on the basis that even if a person commits a
crime, he cannot be held responsible. This is because, at the time of the offence,
the circumstances were either such that the person’s act was justified or his
condition was such that he could not create the necessary men’s rea for the
crime. The defences are divided into two categories: justifiable and excusable.

Excusable Defences:- Acts that are exempted from criminal liability are referred to
be excusable. When the accused did not have any inferable guilty intention at the
time of the act, and the offence needed the presence of guilty intention to
complete the commission of the crime, an excuse is granted. As a result, the
accused is exempt from punishment for the offence.

a) Mistake of fact [Section 76 and 79] outline two separate scenarios in which
a mistake of fact might be used as a defence. Section 76 of the Act allows
for a defence if the accused has committed an act but believes in good faith
that he was legally bound to do so due to a mistake of fact. In the instance
of Section 79, the defence is applicable if the accused thinks in good faith
that his act is legally justified due to a mistake of fact.

b) Accident [Section 80]:- Section 80 exempts an accident that transpires

while doing a legal act. In the absence of a criminal intent to do such an act,
it is absolved. When an accused causes injury to another person without
having any criminal intention or knowledge of doing so, the court will
consider the incident to be an accident if the accused did not do so
intentionally or negligently.

c) Infancy [Section 82 and 83]:- Section 82 of the Criminal Code covers the
defence provided in the case of any offence committed by a child under the
age of seven, as it is presumed that a child under the age of seven is
mentally incompetent and so cannot be held criminally liable. Section 83
further exempts a child over the age of seven but under the age of twelve
from criminal liability if the offence is committed by a child who has not
acquired sufficient maturity to perceive the implications of the act
committed.
 d) Unsoundness of mind [Section 84] A person who is mentally incapacitated
is protected from criminal liability under section 84 because they are unable
to understand the nature and consequences of their actions. Section 84
considers the following types of mental illness:

 A lunatic who has been insane since infancy.

 A person who is unable to think owing to illness.
 A lunatic who exhibits unsound mental health at times.

e) Intoxication [Section 85]:- Section 85 is a provision that can be viewed as

an extension of Section 84. If the accused was intoxicated at the time of the
crime and was unable to understand the nature and consequences of the
crime, he is exempt from criminal accountability.

Justifiable Acts:- Justifiable defences are those that are provided in circumstances
when the accused’s actions are legally justified. Such activities are deemed crimes
under regular conditions, yet they are regarded as bearable and non-punishable
under particular situations. Justifiable defences are those acts that are only
accepted in specified conditions.

a. Judicial Acts [Section 77 and 78]:- Section 77 of the Judicial Act provides a
defence to judges who are acting judicially and believe in good faith that
such power has been granted to them by law. As a result, this rule protects
judges from criminal procedure. A person who has committed an act by an
order or judgment of the Court of Justice is entitled to a defence under
Section 78. This is a unique clause that allows a mistake of law to be used as
a defence to a limited extent.

b. Necessity [Section 81]:- Act likely to inflict injury but not with the purpose
to commit a crime, and to prevent further injury. Nothing constitutes an
offence just because it is done with the knowledge that it is likely to cause
injury, as long as it is done without any criminal intent to cause harm and in
good faith to prevent or avert additional injury to a person or property.
Given the act done was necessary to contemplate the entire scenario.

c. Consent [Section 87, 88 and 89]:- The clauses that recognize consent as a
defence are founded on the maxim volenti non fit injuria, which states that
he who consents does not incur any harm. Consent can be given explicitly
or implicitly. The clauses that provide this defence are most commonly
invoked to excuse the act in cases of medical negligence, where the doctor
performed surgery or therapy with the patient’s agreement.
d. Communication [Section 93]:- Section 93 of the Criminal Code states that
communication conducted in good faith is not considered an offence. The
harm caused cannot be punished if the communication is meant to benefit
the other person.

e. Duress [Section 94]:- If a person does an act under duress, he is free from
criminal liability under Section 94. However, where the offences include
murder and against the state, this section does not give protection.
 Because offences against the state endanger national security, they cannot
be used as a defence.

f. Trifles [Section 95]:- Section 95 is founded on the maxim de minimis

noncurates, which implies that the law ignores trivial matters. If the acts are
insignificant and a person of ordinary intelligence and temper would not
consider them harmful, they are justified and supplied as defences.

g. Private Defences:- In certain cases, sections 96 – 106 provide for private

defences. Section 96 establishes a general rule that no act performed in the
exercise of private defence constitutes a crime.

Conclusion:- The general defences contained in the IPC play a critical role in
defining the scope of criminal offences. Criminal liability holds a person
accountable for conduct that is illegal under the law. The Indian Penal Code
recognised the fact that not all acts are punishable. Acts that do not need the
presence of men’s rea are not punishable.

BURDEN OF PROOF
The Indian Evidence Act does not define the term "burden of proof." However, in
simple terms, the burden of proof refers to the legal requirement or responsibility
of the parties to establish the facts that will assist the court in reaching a decision
in their favour. Therefore, the duty to prove a fact in a lawsuit is known as the
Burden of Proof. The requirements under the burden of proof are covered in
Chapter VII of the Indian Evidence Act.

Under the Indian Evidence Act, 1872, sections 101 to 103 deal with the burden of
proof in general, whereas sections 104 to 106 deal with the situation where the
burden of proof is placed on a specific individual. The concepts of Onus Probandi
and Factum Probans include the underlying principles of the burden of proof.
Onus Probandi is a general rule that requires a person asserting the positive to
prove it. A person who maintains an affirmative stance has the onus probandi. The
onus probandi is on the party seeking to strengthen his case with a specific fact
that he is said to be aware of.

Factum Probans and Factum Probandum

Order 6, Rule 2 of the Civil Procedure Code, 1908, states that the pleading shall
only contain important facts that must be shown in a concise form Evidence is a
relative term that refers to a connection between two facts: the fact in dispute
(factum probandum), or statement to be proven, and the evidential fact (factum
probans), or material corroborating the proposition. The former is inherently
hypothetical; the latter is advanced as fact in order to persuade the court that the
former is likewise true.
According to the fundamental premise of criminal law, the accused should be
deemed innocent unless proven guilty beyond a reasonable doubt. The
prosecution has the first burden of proving that the accused has committed a
crime in a criminal proceeding.
In the case of the State of Rajasthan vs Sher Singh, 1994, it was held that it was
unlawful to examine defence evidence before prosecution evidence in criminal
proceedings.

In criminal trials, the prosecution bears the burden of proof. The prosecution must
show beyond a reasonable doubt that the defendant is guilty until the prosecution
proves otherwise. The court shall assume that the accused is innocent. It was held
in the case of Md. Allmuddin v. State of Assam, 1992, that the defence version
may even be false, nevertheless, the prosecution cannot derive any advantage
from the falsity or other infirmities of the defence version, so long as it does not
discharge its initial burden of proving the case beyond all reasonable doubt.

In criminal trials, the prosecution bears the duty of establishing the defendant's
guilt, and they must do it beyond a reasonable doubt. The plaintiff has the burden
of proving his case by a majority of the evidence in civil cases. If the prosecution
fails to prove the accused's guilt beyond a reasonable doubt, the accused is
entitled to an acquittal. This was determined in the case of Ouseph v. State of
Kerela, which was decided in 2004.

The burden of proof is defined under Section 101 of the Indian Evidence Act:
Anyone who wants a court to rule on a legal right or responsibility based on facts
he claims must first show that such facts exist. The second Section of the statute
specifies that when a person is required to show the existence of a fact, that
person shall also bear the burden of proof.

As a result, a person seeking a favourable decision from the court must provide
evidence in support of his case, according to this clause. The usual rule is that the
party that asserts a truth bears the burden of proof, not the side that denies it.

Section 102 of the Indian Evidence Act: Who bears the burden of proof - In a suit
or procedure, the person who would fail if no evidence was presented on either
side has the burden of proof.

Section 103 of the Indian Evidence Act states: "The burden of proof as to any
specific fact is with the person who asks the court to believe in its existence unless
any law provides that the burden of proof rests with any particular individual."

Section 104 of the Indian Evidence Act states that the burden of proof is on the
person giving the evidence to prove the facts that must be shown in order for the
evidence to be admissible.

Section 105 of the Indian Evidence Act When an accused is charged with criminal
conduct, the burden of proof is placed on the accused to establish the
circumstances that gave rise to the accusation under any general exceptions
provided by the Indian Penal Code or any other particular legislation. Under this
Section, the prosecution's duty is limited to establishing the accused's guilt; once
that is established, the burden transfers to the accused, who has the advantage of
relying on general exceptions to the IPC or Criminal Procedure Code.
This is one of the unique traits that only applies in criminal proceedings. As a
result, according to Section 105 of the Act, the onus of evidence is on the accused
to know about every incident that has occurred. Additionally, this is referred to as
the reverse onus clause.

Section 106 of the Indian Evidence Act :- advances the concept of a fair trial by
making it easier to establish all conceivable facts and removing the burden of
proving anything that is impossible and in the accused's favour. Additionally, it
allows the accused to challenge the presumption of facts drawn from the
sequence of events. However, it is observed that the prosecution exploits this
clause and attempts to evade his responsibilities to establish the legal burden.

Concept of Presumptions under the burden of proof Presumptions are legal

conclusions made by the court about the presence of particular facts.
Presumptions are an exception to the usual rule that the party that asserts the
existence of particular facts has the first burden of proof, but they eliminate this
necessity. When certain facts are believed to exist, the party in whose favour they
are presumed to exist is relieved of the burden of proof in that regard.

Documentary Evidence is subject to several presumptions. Presumptions may be

divided into three types: factual presumptions, legal presumptions, and mixed
presumptions. When a certified copy of an original document is presented to the
court, the law presumes that the copy is a genuine copy of the original evidence,
according to Section 79 of the Act. The court shall infer that a power of attorney
issued before the court is by a real authorised person, according to Section 85 of
the Act.

The presumption of innocence is a legal notion stating that everyone is presumed

innocent unless proved guilty. Justice Thomas articulated the need of changing
the perspective on this idea in the case of State of West Bengal v. Mohd. Omar
(2002). According to him, the traditional approach of constantly placing the
burden of evidence on the prosecution benefits only the accused of horrific
crimes and creates fatalities for society. When a prosecutor successfully
establishes specific facts of the case, the court must infer their existence and rely
on such circumstances. In other words, after the court is satisfied with the
prosecution's case, the burden of proof shifts to the accused since only the
accused is aware of every occurrence committed.

Conclusion:- As can be seen, the Evidence Act of 1872 is a well-codified statute

that deals extensively with the issue of the burden of proof. The current
innovations in electronic evidence and burden of proof, on the other hand,
require additional clarity, particularly when it comes to judicial interpretation.
History of Mens rea
In 12th century Mens Rea was not an element of crime. The
wrongdoers used to get punished regardless the fact that
whether the act done was intentional or not. The concept of
Mens Rea was first introduced in the 17th century along with
the Latin maxim ‘actus reus non facit reum, nisi mens sit rea’
which means ‘there can be no crime without a guilty mind’. This
maxim cleared the conflict that a crime can only be said to be
constituted where the action was done in accordance of a guilty
intention.

What is the concept of mens rea in Indian criminal law

Mens Rea has a very prominent usage in Indian criminal law. The reasons behind
this are self-evident. One of the key reasons is that in India, the entire criminal law
has been codified, and all of the offences have been properly specified. If mens
rea is viewed as a precondition, it is then incorporated into the definition of the
crime and treated as a component of it. Many definitions in the penal code
demand that the crime is committed ‘voluntarily,’ ‘dishonestly,’ ‘knowingly,’
‘fraudulently,’ and so on. A fraudulent, dishonest, or negligent mind is hence the
guilty mind.
Furthermore, certain offences under the Indian penal code are defined without
regard to mens rea or purpose, such as crimes against the state, counterfeiting
coinage, and so on.
In India, mens rea as a condition of penal liability works to such an extent that it is
codified in the General Exceptions (Sections 76 to 106) of the penal code, which
stipulates all those conditions in which mens rea appears to have been
subordinated, and therefore no culpability.

What are the four types of mens rea:-

a. Purpose/intent :The term ‘intention’ is a difficult one to define. The Penal
Code does not define it. It is a well-known term that, at the same time,
resists clear definition. It can refer to the object, purpose, ultimate goal, or
design of action in numerous ways. The intention is the deliberate use of a
person’s mental powers to do an action to achieve or satisfy a goal. As a
result, the intention is frequently employed in relation to the outcomes of
an act rather than the act itself. If he wants a consequence to follow from
his conduct, he must state it explicitly.
The words ‘intention,’ ‘intentionally,’ or ‘with intent to’ are not usually used in law
to represent the concept of ‘intention.’ Words like ‘voluntarily’, ‘willfully’,
‘deliberately’, ‘deliberate intention’, ‘with the purpose of’, or ‘knowingly’ are also
used to represent it. All of these numerous expressions can be found in the IPC’s
various Sections.

‘Voluntarily’ is defined under Section 39 of the 1860 Act as follows:

Section 39 : Voluntarily — When a person causes an effect “voluntarily,” he does
so by using methods that he meant to use, or by using means that he knew or had
reason to believe were likely to cause it at the time he used them.

Section 298 of IPC the terms “deliberate intention” and “premeditated intention”
refer to premeditated intentions to damage religious feelings. However, on a first
understanding of the text, the terms ‘deliberate’ and ‘intent’ appear to be
interchangeable.

Sections 285, 286, and 287 state deliberately or negligently omitting to take
reasonable care so as not to cause harm to human life in respect of possession of
poisonous substance, fire, inflammable matter, and explosive substances, an
offence.

The defendants in Niranjan Singh v Jitendra Bhimraj (1990), sought to eliminate

two people named Raju and Keshav in order to acquire control of the underworld.
They were accused of committing a terrorist offence in violation of TADA. In this
case, the Supreme Court determined that the intention was evident based on the
facts. However, it cannot be argued that their purpose was to terrorise the general
public or a subset of the general public. As a result, it acquitted the accused in the
lack of an intention to cause terror, even though the outcome of their act was to
cause terror.

b. Knowledge: The term ‘knowledge’ refers to a person’s awareness of his or

her own thinking. When there is a direct appeal to a person’s senses, he can
be assumed to know. The awareness of the act’s repercussions is known as
knowledge. It is a person’s state of mind towards existent facts that he has
personally observed or whose existence has been transmitted to him by
others whose veracity he has no cause to dispute. The essence of
knowledge is that it is subjective. In many circumstances, though, intention
and knowledge blur together and imply the same thing, and intention can
be inferred from knowledge. Although the border between knowledge and
intention is blurry, it is clear that they mean distinct things. Knowledge, in
contrast to intention, denotes a state of mental realisation in which the
mind is a passive recipient of certain ideas or impressions that arise in it,
whereas intention denotes a conscious state of mind in which mental
faculties are summoned into action to achieve predetermined,
predetermined outcomes. Obviously, knowledge is predicated on a
thorough understanding of the facts and situations, as well as the
consequences of one’s actions.

A person was prosecuted in Ranjit D Udeshi v State of Maharashtra (1964) for

selling a popular novel by DH Lawrence called Lady Chatterley’s Lover. The
accused claimed that he had no knowledge of the book’s contents and hence
lacked the essential mens rea. The Court dismissed this argument, holding that
because Section 292 of the Code, unlike numerous other provisions, does not
include the words ‘knowingly,’ knowledge of obscenity is not an essential element
of the crime under Section 292 of the Code.

c. Recklessness Recklessness is regarded as a person’s state of mind in which

he foresees the prospective repercussions of his actions but does not intend
or seek to bring them about. A guy is said to be reckless when it comes to
the consequences of his actions if he foresees the possibility of them
happening but neither desires nor expects them to happen. It’s possible
that the perpetrator is unconcerned about the consequences, or that he
doesn’t care. In all of these circumstances, the offender is considered to be
unconcerned about the consequences of his or her actions.

To put it another way, recklessness is a mental attitude of disregard to the

apparent risk. Driving at a high speed through a congested and small street is
dangerous. The guy realises that his actions may damage someone in the crowd,
but is indifferent to this. Similarly, if A throws a stone over a crowd without regard
for whether it will damage anyone and the stone lands on the head of one of the
people in the crowd, A is guilty of recklessly causing injury.

The respondent was driving a car with a customer in the front seat in R v Reid
(1978). While remaining in the nearside lane, he tried to pass another vehicle. The
rest stop for taxi drivers protruded six feet onto the nearside lane. The defendant
was found guilty of causing death through reckless driving, in violation of Section
1 of the Road Traffic Act 1972. The risk must be clear to a reasonably sensible
person; however, the defendant does not have to be aware of it.

D. Negligence:- Negligence is a legal term that refers to a lack of care and caution
that a rational person would have done in the given circumstances. Negligence is
defined as failing to do something that a prudent and reasonable person would do
or doing something that a prudent and reasonable person would not do based on
the considerations that normally govern the conduct of human affairs. It is a man’s
state of mind when he pursues a path of action without considering the
repercussions.

A is liable for injuring a passer-by if, during a fight with his wife, A takes up a
paperweight from the table and throws it out the window, shattering the passer-
skull. by’s A had neither predicted nor contemplated injury to anyone when he
threw the paperweight, yet he is liable since he failed to do so.

Despite the fact that the court acknowledged that the defendant was exercising all
the skill and attention to be anticipated from a person with his limited experience,
he was found guilty of driving without due care and attention in McCrone v Riding
(1938) as he had failed to meet the necessary standard.

In contrast to torts, negligence is not the basis of liability in general in crimes. Only
in a few instances does the IPC, 1860 establish criminal liability based on
negligence. For example, a man is accountable for negligence if his actions
endanger the lives of others, such as in the case of rash and negligent driving, rash
vessel navigation, negligent conveyance of individuals by water for hire in an
unsafe or overloaded vessel, and so on. It’s important to distinguish between
negligence and neglect. Neglect, unlike negligence, does not imply a particular
state of mind, but rather describes a fact that could be the outcome of either a
deliberate or negligent act. A man who knows his scooter’s brake is broken fails to
repair it and crashes into a youngster on the road. The injury to the child is caused
by his intentional neglect or recklessness in failing to repair the brake, rather than
his negligence.