The a term which may extend to

The Indian Evidence Act, 1872 is another important Act describing the procedure of evidence in the Courts for civil and criminal cases. Both the Indian Penal Code and Criminal Procedure Code are sister codes, and interwoven into the texture of sentencing.

The Indian Evidence Act also helps them in fixing the criminal liability of the wrong-doer. All these three Acts are called “Criminal Major Acts”.

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The Indian Penal Code, 1860 defines the offences and prescribes the punishments. For example, Section 147 prescribes punishment for rioting: “Whoever is guilty of rioting shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both.

According to the facts of the case, proven acts, the Court has to decide the punishment. Here the discretion of the court is .important. The Court may punish the accused with, —

(a) Simple imprisonment; or (b) rigorous imprisonment; or

(c) Period of imprisonment – one month to 2 years; or

(d) With fine according to the discretion of the Court; or

(e) With both, i.e., imprisonment and fine.

For using the discretionary powers, the Court measures the punishment.

Criminal Liability:

The purpose of punishment is the protection of the society and to prevent such offences in future. The aim of protecting society is achieved by deterrence, prevention, protection, expiation and reformation, which are explained in the above Chapter.

Criminal law provides the ultimate means to the society for the protection of individuals and its institutions by punishing the criminals by Re fixing their criminal liability. The police investigate into the offence and produce the offender and the evidence before the Court through the public prosecutor. The Court inquires into the matter in detail. In inquiry, there are three divisions, viz.—

(i) The conditions;

(ii) The incidence; and

(iii) The measure of penal liability/punishment.

(i) The Conditions:

There are certain important conditions in fixing the criminal liability. The most important condition is Mens Rea (ill-intention). This is explained by the legal maxim “Actus non facit reum, nisi mens sit rea.” (The Act itself does not constitute guilt unless done with a guilty mind.) This principle has been applied to all crimes in Common Law of England without any reservations. The same is applied in Indian criminal law also. It is well settled principle: “Crime should be treated as a disease of the mind.”

“Actus reus” means “the conduct which law prohibits”. In the criminal law, actus reus requires mens rea. If a person participates in a criminal act with intention, he will be punished therefore.

Sometimes, even though the act of the actor does not fruitful and does not achieve its object, the actor is punishable. Example: An agreement of criminal conspiracy, abetment, attempt to do any criminal act, etc. [Also refer to Topic “Mens rea”.]

R. vs. Prince (1875 LR 2 CCR 154)

R. vs. Tolson (1889 23 QBD 168)

R. vs. Wheat & Stock (1921) 2 KB 119)

[In Topic “Mens rea” all the three cases are explained.]

Mens rea in Indian criminal law:

The words mens rea are not used in the Indian Penal Code. However, every offence is defined with clear terms and each definition states not only what the accused has done, but also the state of his mind, with regard to the act when he was doing it.

Each definition of the offence is complete in itself. Instead of using the terms mens rea, more meaningful terms are used frequently in the Indian Penal Code, such as/fraudulently, dishonestly, voluntarily, intentionally, etc.

Besides this effort, there is a separate Chapter-IV (General Exceptions) (from Section 76 to Section 106) is created, which indicates the circumstances where absence of criminal intent may be presumed. Comparing with English Law, mens rea has been applied by the Indian Courts perfectly.

In India, it is now firmly settled law that mens rea is an essential ingredient of an offence, in measuring the criminal liability and fixing the punishment of the wrong-doer.

E.K. Chandrasenan vs. State of Kerala (SC 1995 SCC 796)

Brief Facts:

The accused adulterated liquor with methyl alcohol, a poisonous substance, resulting in death and permanent loss of eye-sight of several persons. The accused pleaded that he had no knowledge that the effect of consumption of the adulterated liquor would be so injurious.

The Supreme Court held that his contention could not sustainable, because adulteration would itself be an illegal act under the Excise Laws.

Having regard to the percentage of methyl alcohol, the poisonous substance, in the liquor, it is clear that the person, responsible for mixing the same, had knowledge that consumption of the liquor was likely to cause very serious adverse effects.

The accused took another plea that all the consumers were not adversely affected. The Supreme Court not accepted their argument too, and confirmed the conviction against the accused.

Nathulal vs. State of M.P. (AIR 1966 SC 43)

Brief Facts:

The accused, a food grain dealer, applied for a licence and deposited the requisite licence fee. He, without knowledge of rejection of his application, purchased food grains and sent returns to the Licensing authority, who on checking found that it was in excess of the quantity permitted by Sec. 7 of M.P. Food Grains Dealers Licensing Order, 1958. The accused was prosecuted.

The Supreme Court acquitted the accused believing the good faith in his act. While disposing this case, Subba Rao, J. of the Supreme Court observed: “Mens rea is an essential ingredient of a criminal offence.

Doubtless a statute may exclude the element of mens rea, but it is a sound rule of construction adopted in England and also accepted in India to construe a statutory provision creating an offence in conformity with the Common Law rather than against it unless the statute expressly or by necessary implication excluded mens rea.

Generally, it is one of the essential principles of criminal jurisprudence that a crime is not committed if the mind of a person doing the act in question, is innocent. Therefore, to constitute a crime, the intent and act must both concur.”


In the modern statutory offences, the maxim has no general application and the statutes are to be regarded as themselves prescribing the mental element which is pre-requisite to a conviction.

Therefore, mens rea is an essential element of crime in every penal statute unless the same either expressly or by necessary implication is ruled out by the statute. However, it is distinguished very clearly with intention, recklessness, negligence, etc., depending upon the circumstances of each case.

(ii) Incidence:

The second important division is that incidence, which says about “vicarious liability”. This principle means to punish the superior than the actual wrong-doer. For example: If a car driver causes an accident to one-X, the car owner, being the employer and superior in economy, has to pay compensation to X.

The car driver is not ordered to pay compensation to X, being he is a poor employee. In the law of contracts, law of torts, the vicarious liability is applied. But in criminal law this doctrine is not applied. For the criminal act of son, father cannot be punished.

For the criminal act of an employee, the employer cannot be made criminally liable and punished. However, the car driver is punished under Indian Penal Code, 1860, if drives the vehicle with rash negligence, and is liable for punishment, viz., imprisonment, fine or for forfeiture of driving licence, etc. The car owner is not punished for the rash driving of his car driver.

However, there are a few Sections in the Indian Penal Code, adopting the vicarious liability. According to Section 154, the owner or occupier of land on which an unlawful assembly was held is liable for punishment.

It says that the owner or occupier of a land upon which a riot is committed, and any person who has or who claims to have an interest in such land, shall be punishable with fine up to one thousand rupees.

If he or his agent or manager, has knowledge that either such offence is being committed or has been committed, or has reason to believe that it is likely to be committed, and does not notify at the earliest opportunity thereof in his or their power to the police, and in case of his or their knowledge that the offence is likely to be committed, and do not use all lawful means to prevent the same, and in the event of its happening, is also liable for punishment with one thousand rupees.

According to Section 155, when a riot is committed for the benefit of a person, and that person has the knowledge of that riot, and does not take any precautionary steps to prevent it, he shall be punished. But this principle cannot be adopted in other offences, viz., murder, cheating, rape, etc. The wrong­doer should only punish, but not his superior.

Where a person abets another person to do a criminal act, the abutter shall be punished. The abetment itself is an offence defined under the Indian Penal Code. Where two or more persons commit criminal conspiracy to do a criminal act, and one of them does such act, all the conspirators shall also be punished.