Regarding the distinction between tort and criminal liability, there is no doubt about the mens rea being one of the main requirements to establish criminal responsibility – the point that we can find its obvious reflex in the principle of ‘actus non facit reum mens rea’. The less vague example is the murder – particularly in Iranian criminal law. The crimes based on intention, usually, are defined as ones which need perpetrator’s act of will accompanied by intent and knowledge (consciousness). However, it is a matter of ambiguity that the intent and knowledge are evaluated how and upon which approach-subjective or the objective one? Can we apply the objective criterion in this evaluation at the fact level or is it applicable merely at the evidence level? I am, through this article, going to find the applicability of the objective criterion in respect to mental state of murder and I will show that there is a false and erroneous confusion between these two different levels in our legal doctrine: fact and evidence. I do believe that the act which will practically certain result in death, is only evidence from which we can infer the perpetrator’s intent. The new Islamic Penal Code (2013) will be examined in this paper as a comparative approach will be taken to the American jurisprudence in this respect
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