Author:- Manik Tindwani
Where law safeguards people from crime, it also punishes the wrongdoers. This research paper not only aims at elucidating the practical nuances of crime or the pre-requisites for constituting criminal liability against any felonious conduct but also enlightens the importance of studying these fundamental elements of crime while enumerating all the crucial case laws to support the analysis.
NATURE AND DEFINITION OF CRIME
“To define crime is a task which so far has not been satisfactorily accomplished by any writer.” Kenny defines crimes as those wrongful conducts whose sanction is punitive and is in no manner remissible by any private person; but is remissible by crown alone, if remissible at all. Blackstone also appositely remarked that a crime is an act committed or omitted in violation of a public law forbidding or commanding it. He further elucidates that crime is a ‘violation of the public rights and duties due to whole community, considered as a community, in its social aggregate capacity.’ Miller also supports this view by stating that crime is ‘the commission or omission of an act which the law forbids or commands under pain of a punishment to be imposed by the State by a proceeding in its name. The social study conducted to discover the causes of criminality is known as “Criminal Science”.
FUNDAMENTAL ELEMENTS OF CRIME
- Wrongful Act or Omission
“Offense” is defined under Section 40 of the Indian Penal Code (hereinafter referred as ‘IPC’) as “a thing made punishable in this code”, it has therefore enlarged the ambit of the word “offense” by using the phrase “a thing” instead of “any act or omission” as a thing punishable under special or local law also falls unswervingly within the ambit of “offense”.
- Et actus non facit reum nisi mens sit rea
Coke devised the most famous principle of criminal liability in form of a Latin maxim “Et actus non facit reum nisi mens sit rea”, it means that for a crime to be constituted not only a guilty act but also a guilty mind is required. Actus Reus refers to a result of conduct that is prohibited by the law and Mens Rea refers to a guilty mind. Both these prerequisites must be present at the same time to beget conviction under criminal law. Thus, the intent and the act must both concur to constitute the crime.
- Actus Reus
Actus reus is different from the conduct of the accused which precedes the result. It is an event! Yes, the actus reus is constituted by an event and not by the cause or act or omission which caused the event. The question as to what may or may not constitute actus reus was dealt with by Kenny while he was working on the identification of the physical elements of criminal liability.
- Kenny’s Physical Elements of Criminal Liability
Kenny examined the assessment of the physical element in the criminal liability under the following six heads:
- The Materiality of Physical participation – Physical participation is not necessary to determine criminal liability mere apprehension of fear of injury is also punishable as “assault” under crime. Also, a person can be punished as an abettor, accessory, or conspirator.
- Indirect Participation – Indirect participation in the commission of a felony punishable under criminal law is itself punishable and thus the offender will be attributed to liability.
- Foreign Intervention – You might be aware of the principle of novus actus interveniens, if not let me brief it for you. This principle of law is applied in a situation where the offense is a result of a series of events and not of a single act causing injury. In such a situation where the result was caused partly by the conduct of the accused and partly by the conduct of a third person then the criminal liability is bestowed on the person whose act led to the following consequence and the actus reus would be attributed to him. The criminal liability may be joint also according to this principle and all the persons involved in the commission of the offense may be punished but the degree of the punishment awarded must be in proportion to the degree of contribution made to the consequence by the conduct of the wrongdoer.
- If Victim is himself the wrongdoer – In such a situation the regard had to be made as to whether the final result would have remained the same if the victim had not done anything subsequently, if the answer is in affirmative then the actus reus must be attributed to the accused.
- Contributory negligence of victim – Contributory negligence of victim is immaterial while determining the attribution of actus reus in the criminal law because the purpose of criminal law is to deter the wrongdoer and not to. If such a plea is allowed in the law of crime then every pedestrian who is being knocked by vehicles will be devoid of justice just because he was also at fault no matter the degree of negligence on his part! The legal rationale in support to denial of the plea of contributory negligence is that every crime is felonious unlike the breach of civil rights as it is concerned majorly with bodily injury and degree of crime thus overweighs degree of negligence of the victim as it is presumed by the law that no person would voluntarily contribute to injury to himself.
- If the participation is superfluous – In such situations where the participation of the accused in the commission of offense is superfluous then also the actus reus would be attributed to the accused if he could foresee the felonious consequence. For example, if a person is beating the victim and the accused joins him and gives him a blow owing to which the victim dies. In such a situation the actus reus would be attributed to both, the person and the accused.
- Mens Rea
Mens Rea means a “guilty mind”. Unlike physical elements, it is difficult to prove mental elements as it is well said by Chief Justice Brian that “The thought of man is not triable, for the devil himself knoweth not the thought of man’. It can be observed from the below-mentioned precedents.
In the case of R. v. Khandu the accused gave some blows on the head of the victim with the intention to kill him, resultantly the victim became unconscious. Assuming him to be dead, the accused burnt the house causing the death of the victim. Ispo facto it may be deduced that it was the crime of “murder” but it’s not! The reason is while the accused did the act with mens rea but actus reus was missing as the deceased was alive. Thereafter, while burning the house there was actus reus but the intention to kill (mens rea) was absent as the accused assumed the victim to be dead. Since both the elements were not present at the same time the Hon’ble Court held that it was not “murder”.
A similar observation was made in R. v. Shorty also wherein the accused felled the victim with the intention to kill and then threw his body in a sewer. Thereafter, the medical evidence revealed that the victim died not owing to the blow struck but owing to drowning in the sewer. It was affirmed further in the case of Meli and others v. R.. In all these cases the crime was committed in two stages: firstly, the actus reus was present but mens rea was absent and secondly, the mens rea was present but actus reus was absent. Although they were not guilty of murder they were punished for their felonious conduct. The only difference between the former two decisions and the latter decision was that where the approach was ‘liberal’ in former cases, in the latter case the approach was ‘strict’. The Liberal approach means that where the accused is entitled to any benefit, be it technical also, he must get it.
- Application of the Principle in India
In India, this principle is applicable both in IPC as well as in Criminal Procedure Code (hereinafter referred as ‘Cr.P.C.’). In the former, the principle is applied in three distinct but correlative ways – positively, negatively, and based on strict liability.
- Positive application is concerned with the use of words in the provisions denoting guilty mind for example: intentionally, fraudulently, rashly, negligently, dishonestly, fraudulently etc. Where “intention” refers to complete knowledge of the fact as to the conduct is likely to cause injury, “negligence” refers to a situation where the accused may or may not have complete knowledge.
- Negative applicationis concerned with “general exceptions” to the crime enumerated under Section 76 to 106 of IPC as it is presumed by the law that the guilty mind is absent if the conduct of a person falls under any of these exceptions.
- Application based on strict liability is concerned with those conducts for conviction of which merely actus reus is requisite as it is presumed by the law that without the guilty mind such conduct is not possible. For example, as per Section 292 of the IPC merely selling or distributing obscene content is punishable. For such offenses there is no need to prove the presence of mens rea.
In Cr.P.C. the principle is applied by the way of differentiation of procedural guidelines as to nature of offense and materiality of actus reus and mens rea. For this purpose, the crimes are classified into cognizable and non-cognizable, heinous crimes and non-heinous crimes, compoundable and non-compoundable etc. For example, if someone has committed murder it is cognizable as it involves both actus reus and mens rea but if someone committed assault it is non-cognizable as merely actus reus is enough to convict the person. Where murder is a heinous crime and is non-compoundable, assault is a petty crime and is compoundable as per Section 320(1) of Cr.P.C.
- Materiality of Location of Commission & Citizenship
No matter whether you are an Indian or not if you have committed a crime within the territory of India then the criminal liability will be attributed to you by the virtue of Section 3of IPC. But if you are liable by any Indian law and have committed a crime outside India then the criminal liability will be attributed to you only if you are a citizen of India or are on a ship or aircraft registered in India as per Section 4 of IPC. Let me give you a practical problem and test your legal acumen:
Q. Assume if ‘A’ is the lawfully married husband of B under Hindu Marriage Act, 1955 which prohibits ‘bigamy’ under Section 17. ‘A’ went to USA and acquired its citizenship. It is known that by the virtue of Article 9 of the Indian Constitution his citizenship of India is automatically terminated. He then married another girl under the laws of USA. Thereafter, an FIR was lodged against him by B under Section 494 of IPC and Section 17 of the Hindu Marriage Act, 1955. Now, the question of fact which arises is that whether the accused is punishable for ‘Bigamy’?
The answer is an unstinted ‘No’. Although it may sound unjust and unfair but such a course of the commission of bigamy falls outside the purview of IPC by the virtue of Section 4 of IPC and is not punishable as ‘A’ ceased to be a ‘citizen of India’ while he committed bigamy. Therefore, ‘A’ is not liable under any of the aforesaid provisions.
- ‘Person’ against ‘Person’ or ‘other living beings’
Also, it must not be ignored that for a crime to be registered not only the conducts of a human being but the conducts of “any Company or Association or Body of Persons, whether corporate or incorporated”, are to be taken into account no matter whether these conducts are against human beings or other living beings as defined under Section 11of the IPC. Also, in the case of Jabbar v. State the Hon’ble Allahabad High Court held that an unborn child may be called a person if its body is sufficiently developed in its mother’s womb to call it a child. In Standard Chartered Bank v. Directorate of Enforcement the Hon’ble Supreme Court held that companies have no immunity from prosecution merely because it is in respect of offences for which punishment of imprisonment is mandatory. In such case in lieu of imprisonment, fine can be imposed.
Also, it must be noted that gender does not make any difference to the conviction of the person although it may affect the degree of punishment. However, unfortunately, according to IPC, the word ‘gender’ includes only ‘male’ and ‘female’ within its ambit and does not explicitly include ‘transgender’ as a separate gender. This amendment is still awaited in the upcoming criminal law amendments.
According to Section 44 of the IPC the word “injury” means not only bodily harm but also includes harm to “mind, reputation or property”. For a crime to be constituted there must be some injury caused to the victim, bodily or otherwise.
- Voluntary and Active Participation in Conduct
It is crucial for determining the criminal liability of an accused that the accused was actively, intentionally, and consciously committing the offense. If the accused was unconscious of some material fact, or was involuntarily intoxicated, or was of unsound mind, or was an immature child below 12 years of age then he may not be attributed with criminal liability as per Section 76, 85, 84, 82 & 83 of the IPC. Section 76 is governed by the principles “ignorantia facti excusat” which means that “ignorance of fact is excusable” and “ignorantia juris non excusat” which means that “ignorance of the law is not excusable”.
Not only is this but it is also essential that the actus reus is committed voluntarily and not owing to force of any kind including coercive force. In the case of State v. Shew Mangal Singh where the facts were that a police patrol party open fire under the orders of a Deputy Commissioner of Police after it was attacked on a dark night. One Assistant Police Commissioner was injured and two persons were killed due to firing. On the institution of the suit, the Court held that the officer acted by the authority of law and obeyed the orders of their senior for which they were obligated to render obedience. Therefore, the accused was acquitted in the exercise of his authoritative power.
- Act must not fall under any of the exceptions
As is already explained that if the conduct of the accused falls under any of the exceptions it is assumed by the law that the mens rea was absent during the commission of the offense. For example, self-defense to save one’s person or property is recognized as a defence under Section 94 & 96 of the IPC provides that there must be a sudden and imminent threat and the degree of force used for defense must be proportional to the degree of threat
- Punishment through the agency of State
It is well known that criminal wrong leads to violation of the right in rem and it is considered as a wrong against the society as a whole. The state therefore must take action against it but to what extent can State take action? The answer is that until or unless the crime is heinous, cognizable and non-compoundable State may by itself take an action but when it is petty, is compoundable and is non-cognizable then the discretion of parties to resume action is taken into consideration.
The State takes action through its agencies which is the ‘Judiciary’. In India, generally the ‘deterrent theory’ is fostered to deal with increasing crimes by awarding punishments. The punishments include, inter alia¸ the capital punishment, life imprisonment, simple imprisonment, rigorous imprisonment, solitary confinement, forfeiture of property, nominal fine, and exemplary fine. The degree of punishment must be in proportion with the degree of crime.
WHY IS IT ESSENTIAL TO STUDY THESE FUDAMENTALS?
After reading about all the quint-essentials of crime you might have a fair idea as to why is studying about these essentials is crucial. Let us assume about a world where the aforesaid notions are absent, such world will be devoid of the word “crime”. It might sound funny but it’s true! In a world where the essentials of a crime are not recognized every felonious conduct would be right as every wrongdoer will take some or the other defense and will escape the criminal liability. Not only justice will be denied but the faith of people in the judiciary will also lapse. These principles coupled with theories of punishment (Retributive Theory, Expiratory Theory, Deterrent Theory, Preventive Theory, and Reformative Theory) play a vital role in dispensing quality justice in criminal matters as it not only ensures that the wrongdoers are convicted but also emphasizes liberal approach while determining punishments and punitive damages (mulct or fine).
CONCLUSIONS AND SUGGESTIONS
I am no expert to comment on the fundamentals of crime but can affirm the verity that it is an evolving concept. Changing times will add more categories to crime. Who knows that in the future maybe robots get convicted for their felony! In my humble opinion, I would like to construe these fundamentals of crime as its very essence and spirit without which the criminal law is devoid of life. Where it is essential to strictly follow the rules to determine criminal liability it is also necessary to follow the liberal approach while determining punishment. I would like to conclude by saying that if you wish to wipe the crime from society then first learn to identify it and these fundamentals will indeed help you out!
Manik Tindwani is a first-year law student who is pursuing B.A.L.L.B. (Hons.) from University Five Year Law College, Jaipur. He is a profound debater, mooter, article writer, legal researcher and has a keen interest in constitutional law, criminal law, corporate law and legislative drafting.
 1 KENNY, THE OUTLINES OF CRIMINAL LAW 18 (Cambridge University Press, 11th edtn.)
 Id at 15
 PROF. T. BHATTACHARYYA, THE INDIAN PENAL CODE xxxi (Central Law Agency, 2017)
 Fowler v. Padget, (1798) 7 T.R. 509 (TAC).
 KENNY supra note 1 at p. 21-26.
 KENNY supra note 1 at p. 15-16.
 R. v. Khandu, (1890) ILR 15 Bom 194.
 R. v. Shorty, 1950 SR 280.
 Meli and others v. R., (1954) 1 WLR 228.
 Jabbar v. State, AIR 1966 All 590.
 Standard Chartered Bank v. Directorate of Enforcement, AIR 2005 SC 2622.
 State v. Shew Mangal Singh, AIR 1981 SC 1917.