Q. Explain the doctrine 'actus non facit reum nisi mans sit rea' with illustrations.
Ans: Since the Bharatiya Nyaya Sanhita, 2023 (BNS) has replaced the IPC from 1 July 2024, I’ll connect the doctrine
“Actus non facit reum nisi mens sit rea” with relevant BNS provisions.
Doctrine: Actus Non Facit Reum Nisi Mens Sit Rea under BNS
The principle remains the bedrock of criminal jurisprudence even in the new code. A person is criminally liable only
when there is both a guilty act (actus reus) and a guilty mind (mens rea), unless expressly excluded by statute.
Illustrations with BNS References
Theft:
Section 303, BNS (equivalent of Sec. 378 IPC): Theft.
Requires both:
Actus reus: Dishonestly taking property out of possession of another.
Mens rea: Intention to cause wrongful gain/loss.
Example: If A picks up B’s phone believing it to be his own, there is no theft because mens rea is
absent.
Murder:
Section 101, BNS (equivalent of Sec. 300 IPC): Murder.
Requires:
Actus reus: Causing death of a person.
Mens rea: Intention or knowledge that act is likely to cause death.
Example: If X stabs Y intentionally → guilty of murder.
If X accidentally drops a brick from a building → no murder (lack of mens rea, though negligence may
apply under Sec. 106, BNS → causing death by negligence).
Acts of Children:
Section 7, BNS: Nothing is an offence done by a child below 7 years.
Law presumes absence of mens rea in children below that age.
Actus reus may exist, but no liability without mens rea.
Negligence and Rash Acts:
Section 106, BNS: Causing death by negligence.
Here, mens rea is replaced by negligence/recklessness (a lower mental standard).
Shows that even in BNS, mental element is crucial though sometimes in milder form.
Strict Liability Offences (Mens rea not required):
Certain regulatory offences still punishable without proof of mens rea, e.g.:
Public nuisance (Sec. 357, BNS).
Selling adulterated food/drugs (covered under special laws like FSSA, Drugs Act).
Here, the legislature deliberately excludes mens rea to protect public interest.
Case-law (still relevant under BNS)
Mohammad Haji v. State of W.B., AIR 1974 SC 481 – mens rea is essential unless expressly excluded.
State of Maharashtra v. Mayer Hans George, AIR 1965 SC 722 – strict liability can apply in special statutes.
Sherras v. De Rutzen (1895, UK) – general presumption of mens rea unless law excludes it.
✅ In summary:
Under the Bharatiya Nyaya Sanhita, 2023, the maxim “Actus non facit reum nisi mens sit rea” continues as the
general rule. Most offences (e.g., theft – Sec. 303, murder – Sec. 101) require proof of both actus reus and mens rea,
while a few statutory and regulatory offences impose liability without mens rea.
Key Observations
The doctrine remains unchanged in BNS — both actus reus and mens rea are essential for most offences
Section numbers have changed (e.g., Theft: IPC 378 → BNS 303; Murder: IPC 300 → BNS 101).
Children (Sec. 7 BNS) and unsound mind (Sec. 23 BNS) continue as exceptions, reflecting absence of mens
rea.
Strict liability offences remain an exception, especially for public safety and regulatory offences.
Question: Definitions of and Distinctions between Common Intention and Common Object.
Ans: Common Intention & Common Object
1. Common Intention
Definition: When two or more persons intentionally act together to commit a crime, each of them is held
liable as if he alone committed the act.
Provision:
Section 34, IPC → now Section 3(5), BNS 2023.
Essentials:
Two or more persons.
A pre-arranged plan or meeting of minds.
Participation in the act in furtherance of that common intention.
Effect: All are equally liable for the entire offence, regardless of the role played.
Case law: Barendra Kumar Ghosh v. King Emperor (1925) – “They also serve who only stand and wait”; even a
lookout was held liable with shooters.
2. Common Object
Definition: When members of an unlawful assembly (5 or more persons) commit an offence to achieve a
shared object, each member is liable for acts done in pursuit of that object.
Provision:
Section 149, IPC → now Section 188, BNS 2023.
Essentials:
Unlawful assembly of 5 or more persons.
Offence committed in prosecution of the common object of the assembly.
Liability arises even if every member did not actively participate.
Effect: All members of the assembly are vicariously liable.
Case law: Lalji v. State of U.P. (1989) – Common object does not require prior meeting of minds, it can form on the
spot.
Distinction between Common Intention & Common Object
Point of
Common Intention (Sec. 34 IPC / Common Object (Sec. 149 IPC / Sec.
Difference
Sec. 3(5) BNS)
188 BNS)
Number of
Minimum 2 or more
Minimum 5 or more
persons
Based on prior meeting of minds Based on membership of unlawful
Nature
and pre-arranged plan
assembly; plan may form suddenly
Provision
IPC 34 → BNS 3(5)
IPC 149 → BNS 188
Active participation in some form Mere membership is enough, even
Participation
is necessary
without active participation
Constructive liability for acts
Vicarious liability for acts done in
Liability
done in furtherance of common
prosecution of common object
intention
Joint responsibility due to shared Collective responsibility due to
Basis
intention
unlawful assembly
A and B plan and stab C together A mob of 10 people attacks and kills C
Example
→ both liable for murder under → all liable for murder under Sec. 149
Sec. 34 IPC
IPC
✅ In short:
Common Intention → Smaller group (2+), requires pre-planned intention, liability under Sec. 34/3(5).
Common Object → Larger group (5+), no need for prior planning, liability under Sec. 149/188..