Element of crime
ELEMENTS OF CRIME
- The two essential ingredients constitute an offence as per the provision of the IPC. "Actus non facit reum, nisi mens sit rea".
- The principle "actus non facit reum, nisi mens sit rea" and the importance of Mens Rea in criminal offences.
Table of content.
- Introduction
- Meaning of actus reus.
- Meaning of mens rea.
- Mens rea under the Indian penal code,
- Strict liability
- Caselaw
- Conclusion
1. INTRODUCTION
Crime is an act committed or omitted
in violation of a public law forbidding or commanding. Some criminologists
define crime in terms of criminal behaviour. According to them." Crime is act
that has been shown to be actually harmful to society or that is believed to be
a socially harmful group of people that has the power to enforce its beliefs,
and that places such act under the ban of itive penalties." The meaning of
Latin maxim, actus non facit reum, nisi mens sit rea, there can no crime
without a guilty mind.
To make a person criminally liable, it
must be proved that the conduct was accompanied by a legally blameworthy
attitude of mind. Thus, there are two components of every crime, physical
elements and a mental element, usually called actus reus and mens rea respectively.
2. MEANING OF ACTUS REUS
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| ACTUS REUS |
The word actus connotes a "deed', a physical result of human conduct. The word reus means bidden by law. The word artus reus, may, therefore, be defined as 'such result of human conduct the law seeks to prevent. The ectus reus is made up of three constituent parts, namely:
- human action which is usually termed as 'conduct'
- the result of such act in the specified circumstances, which is designated as 'injury, and
- such an act is prohibited by law.
The first chief characteristic of a crime is that the offender or accused is a human being. It a defined as "an event subject to the control of the will of the human being". Thus, an act means something done voluntarily by a human being. These human actions include acts of commission as Il as acts or omissions, e. g. giving a blow, failure to arrest accused, etc. For the purpose of fixing criminal liability, the act may be analyzed as consisting of three parts
- its origin in some mental or bodily activity or passivity of the doer, that is, a willed movement or omission
- its circumstances
- its consequences
Under modern criminal law, only persons are made criminally liable. U/s. 11 of Indian Penal Code person includes any company or association or body of persons whether incorporated or not. In short, the word person includes not an only human beings, but also legal persons. There are certain offences that are also committed by legal persons though short of human limbs. Because of the development of industrialization, the emergence of new corporate jurisprudence, corporate criminal liability came into existence. Even public corporations like State will be subject to criminal liability for the criminal wrongs unless otherwise provided for.
- Result of conduct
It is one of the essential to
constitute the crime that there must always be a result brought about by human
conduct, a physical event which the law prohibits, e. g. in case of murder the
death is caused by the conduct of the accused, which is actus reus. Thus, crime
is constituted by the event and not by the activity which causes the event.
- Acts prohibited by law
- S. 32 of LP.C. provides that words referring to act include illegal omission.
- S. 32 reads "every part of this Code, except where a contrary intention appears from the context words which refer to acts done extend also to legal omissions."
- S. 43 defines illegal and it reads the word 'illegal' is applicable to everything which is an offence of which is prohibited by law, or which furnishes ground for a civil action, and a person is said to be "legally bound to do whatever it is illegal in him to omit.
- S. 33 Act' 'Omission' - The word act' denotes as well as a series of acts as a single act; the word 'omission denotes as well as a series of omissions as a single omission. S. 36 Effect caused partly by act and partly by omission Wherever the causing of a certain effect, or an attempt to cause that effect, by an act or by an omission, is an offence, it is to be understood that the causing of that effect partly by an act and partly by an omission is the same offence.
Illustration
Illustrations of omission' to do acts amounting to crimes.
There are certain omissions for which IPC expressly provides
- Omission to produce documents, S. 175.
- Omission to give notice of information, S. 176.
(These two omissions are made crimes if done by persons who are bound)
- Omission to assist a public servant, S. 187. JV)
- Omissions on the part of a public servant to apprehend, S. 221 and 222.
3. MEANING OF MENS REA:-
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MENS REA |
Actus reus refers to the physical aspect in a crime. Besides this, there is a mental element in a crime. Thus, crime consists of actus reus plus mens rea. This can be seen from the maxim. "Actus non facit reum nisi mens sit rea".
Mens rea is a technical term, generally taken to mean some blameworthy mental condition. whether constituted by intention, knowledge or otherwise. There must be a mind at fault to constitute a crime. No act per se criminal, the act becomes criminal when the Actor does it with a guilty mind, c. g. causing injury to the assailant in self-defence is no crime, but the moment injury is caused with intent to take revenge, the act becomes criminal. In the same way, shooting in the air is not a crime but shooting with the intent to kill a man is a crime.
Mens rea is a wider concept. It
includes intention, motive, knowledge, recklessness and negligence, etc., which
are often used to indicate the different possible mental attitudes constituting
actus reus of a particular crime. "Guilty mind" is an intention to do
that which one knows to be wrongful or prohibited by law. Where a person does a
wrong, he is a wrongdoer. It is that condition of mind that attracts liability.
Glandwill Williams says that
a guilty mind implies
- The conduct is voluntary and,
- There should be an intention to produce evil consequences or recklessness in mens rea it is necessary to have a clear conception of words like producing them that the conduct is voluntary and. To appreciate the meaning of intention, motive, knowledge, recklessness, negligence, etc. which are often used to indicate the different possible mental attitudes are conditions constituting the actus reus of a particular crime.
1. Intention-
- Intention means a purpose or desire to bring about a contemplated result or foresight that certain consequences will follow from the conduct of a person. For instance, if a man throws a boy from a high tower or cuts off his head, it is obvious that he desires the victim's death.
- Motive Intention must be distinguished from motive. Motive is the reason or ground of an action, whereas intention is the violation or active desire to do an act. In other words, the intention is an operation of a will directing an open act, while motive is the feeling that prompts the operation of the will the ulterior object of the person willing.
e.g., A kills B. The intention was to cause death and the motive was to remove political rivalry.
Thus, the motive is an ulterior object for which the act is done. One can find out the motive of a person by asking why he did that act and the intention of a person by asking how he did it. Motive is not a basis for criminal liability- Criminal law takes into account only a man's intention and not his motive A good motive will not render lawful that is in fact a crime. If a man steals food in order to feed his starving child, the act amounts to theft, though the fact that motive behind the act is to save the life.
Knowledge - Intentions is also distinguishable from knowledge. An intention to commit an offence may be inferred from knowledge, though, at times, intention and knowledge merged into each other. Knowledge is the awareness of the consequences of an act. A man may be aware of the consequences of the act, though he may not intend to bring them about, c. g. An attack by a tiger calls out to B to fire in order to save him. B fired and caused the death of A. B is not liable for A's death because the act was not intentional.
Negligence - Negligence is used to denote want of care and precautions, which a reasonable man would have taken under the particular circumstances of the case. It is a state of mind of a man, who pursues a course of conduct without adverting at all to its consequences. In crimes. negligence, unlike in the case of torts, is not the basis of liability in general. It is only in a few cases that IPC fixes criminal liability on the ground of negligence, for instance, if a man affects the life, or personal safety of others, such as in case of rash and negligent driving, etc.
4. MENS REA UNDER THE INDIAN PENAL CODE
The doctrine of meus rea has no application to the offences in the general Code, unlike the common law. The framers of IPC have not mentioned mens rea the Code. However, the doctrine has been incorporated in two ways.
- The provisions as the state of mind required for a particular offence have been added in the section itself by using such words as "intentionally", knowingly, voluntarily, fraudulently, and dishonestly, etc. depending upon the gravity of the offence. Therefore, it is said that there is no room for the doctrine of mens rea in the Indian Penal Code.
- The concept of mens rea has been incorporated into the proviso is relating to general exceptions 2 in Chapter of the Code.
5. STRICT LIABILITY
The legislature may pass an Act that whoever commits a wrong whether knowingly or unknowingly should be punished. In such cases, even though there is no mens rea, they are punished. These are the cases of absolute or strict liability. Generally, public welfare offences or regulatory offences come under strict liability, e. g. selling adulterated goods, violating licensing laws.
A general rule is that mens rea
applies to all criminal offences but it is subject to certain exceptions. In
other words, in some exceptional circumstances, a person is held responsible
for his criminal act even though there was no mens rea. Such offences to term
as offences of strict liability or absolute liability. The doctrine of mens rea
not applicable
- The acts are not criminal in any real sense but are of quasi-criminal nature and are prohibited in the public interest under penalty, e. g. social and economic offences, offences relating to food and drugs
- The second category includes the cases of public nuisance, libel and contempt of courts.
- The category includes cases in which the proceeding is criminal. It is really a mode of enforcing a civil right,
e. g., cases of violation of municipal law and regulations
6. CASE LAW
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| case law |
i) Crown V. Prince (1875) LR 2 CCR 154 (HL):
Henry Prince took an unmarried girl named Annie Philips out of the possession and without the consent of her father. She was under 14 but looked very much older than 16. She told Prince that she was 18. Prince's defence was that when he took her, he believed her on reasonable grounds to be - 18. Held he was guilty u/s 55 of the Offences against the Person Act, 1861 which states Whoever shall unlawfully take or cause to be taken any unmarried girl being under the age of 16 years out of the possession and against the will of her father or mother or any other person having the lawful care or charge of her shall be guilty of a misdemeanour.
On a case being reserved for crown cases, by a majority of fifteen to one, the court was of opinion that the conviction was correct. It was proved that the accused believed on reasonable grounds that the girl was above sixteen (eighteen years old) and the jury found upon reasonable evidence that before the accused took her away she told him that she was eighteen, and that the accused bonafide believed that statement and that such belief was reasonable. The lower court convicted the accused and the House of Lords by a majority of fifteen to one, upheld the conviction.
The Court held that the accused though has not knowledge actually that the girl was above eighteen years, he knew that he was committing something immoral and herice possesses mens rea.
i) Queen V. Tolson (1889) 23 (QBD 168(HL):
In 1888, the prisoner Martha Ann Tolson was convicted of bigamy at the court of Assizes at Carlisle. The marriage of the prisoner to Tolson took place on 11 September. 1880, that Tolson deserted her on 13 December 1881; and that she and her father made inquiries about him and learned from his elder brother and from general reports that he had been lost in a vessel bound for America. which went down with all hands-on board. On 10 January 1887, the prisoner, supposing herself to be a widow, went through the ceremony of marriage with another man. The circumstances were all known to the second husband, and the ceremony was in no way concealed. In December, 1887, Tolson returned from America
Stephen J. directed the jury that a belief in good faith and on reasonable grounds that the husband of the prisoner was dead would not be a defence to a charge of bigamy. The jury convicted the prisoner, stating, however, that they thought that she in good faith and on reasonable grounds believed her husband to be dead at the time of the second marriage, and the judge sentenced her to one day's imprisonment.
The Court for Crown cases, by a majority of nine to five, quashed the conviction. It was held that she bonafide believed that her husband be dead, she has no mens reu. An innocent act always makes a defence in the common law.
Observed that mens rea is a state of mind. Under Criminal Law 'mens rea' is considered as the 'guilty intention' and unless it is found that the accused had the guilty intention to commit the crime, he cannot be held guilty of committing the crime.
7. CONCLUSION
Thus, actus and mens rea are the two basic elements to constitute a crime. No act per se is criminal. The act becomes criminal when the actor does it with a guilty mind. The concept of the guilty mind is very wider. It includes intention, motive, knowledge, recklessness negligence etc. A guilty mind is an intention to do that act which he knows to be wrongful or prohibited by law.
SUGGESTED READINGS -
Ratanlal and Dhirajlal. Indian Penal Code
K.D. Gaur. A textbook on The Indian Penal Code
PS. A. Pillai. Criminal law
Mishra S. N, The Indian Penal Code
T. Bhattacharya The Indian Penal Code
REFERENCES -
i)
Basu's queue. Indian
Penal Code - Vol. 1 and 2.
ii)
Dr Srillari Singh Gour's. Penal Law of India, Vol. 1 to
4.
iii)
Gaur K.D., Criminal
Law Cases and Materials
iv)
Jaspal Singh. The
Indian Penal Code
v)
Kenny's. Outlines
of Criminal Law.
vi)
6.. R.C. Nigam. Principles of Criminal Law.
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