Topic

Elements of Crime

INTRODUCTION:
Crime is a social phenomenon. It arises first when a state is organised,
people set up rules, the breaking of which is an act called crime. Law regulates the
social interests, arbitrates conflicting claims and demands. The security of persons
and property is an essential function of the state and the same can be achieved
through the instrumentality of criminal law. Physical element, (actus reus) and
mental element, (mens rea) is two tests of criminality known to our law, which is
based on English law. The object of this lecture is to deal with the fundamental
elements of crime. These are not the only two elements of crime but there are in all
four elements that go to constitute a crime, viz., (1) a human being (2) guilty
intention or mens rea on the part of such human being, (3) actus reus, illegal act or
omission, and (4) injury to another human being.

1) HUMAN BEING:

The first element requires that a human being must commit the act. In
ancient times when criminal law was dominated by the idea of retribution,
punishments were inflicted on animals also for the injury done by them. Now if an
animal causes injury we hold not the animal but its owner liable for such injury. So
old and punitive methods due to advancement have completely disappeared. So the
first essential of a crime is a human being who i) Must be under a legal obligation
to act in a particular manner and ii) Should be a fit subject for award of
punishment. Section 2 of IPC clearly provides that every person shall be liable to
punishment under this code for every act or omission contrary to the provisions
thereof, of which he shall be guilty within India. Section 11 of IPC provides that
the word person includes a company, or association or a body of persons whether
incorporated or not. The word person hence includes artificial or juridical persons.

In R.V. Daily Mirror Newspapers ltd (1922 KB 530, distinguished in 1975

Cri LJ 1148) it was held that a limited company cannot be committed for trial on
an indictment and therefore, it cannot also be tried. It was pointed out in that case
that in order that a person may be brought to trial, he must be committed for trial in
that case the company could not be committed for trial as the Interpretation Act,
1889 in England explained what was meant by the expression ‘committed for trial’
shall mean committed to prison tried before judge or jury.

In state of Maharashtra v. Syndicate Transport Co. Ltd. (AIR 1964 Bom

195) it was held that corporations can be prosecuted under Sections 420, 403 and
406 because the word person includes a company under Section 11. The court held
that “a company cannot be indicted for offences like bigamy, rape, perjury, etc.
Which can only be committed by a human individual or for offences punishable
with imprisonment or corporal punishment. Barring these exceptions, a corporate
body ought to be indicted for criminal acts or omissions of its directors or
authorised agents or servants whether they involve mens rea or not, provided they
have acted or have purported to act under authority of the corporate body.’’
However, for making the corporation criminally liable each case should be
considered on its own facts.

Criminal liability of a corporation is an imputed liability and not a vicarious

liability. As the corporation itself cannot be executed or punished the liability is to
be imputed to its high managerial agents who are responsible for the conduct of its
policy and business. The fault or privity of the company is that the fault or privity
of somebody who is not merely a servant or agent for whom the company is liable
upon the footing of respondent superior, but somebody for whom the company is
liable because his action is the very action of the company itself. For example,
Section 17 of the prevention of Food Adulteration Act, 1954 provides that where
an offence under the act has been committed by a company, every person who at
the time the offence was committed was in charge of and was responsible to the
company for the conduct of business shall be deemed to be guilty of the offence
and shall be liable to be punished.

2) MENS REA:
The second important element of crime is mens rea or evil intent. There can
be no crime of any nature without an evil mind. Every crime requires a mental
element. Even in strict or absolute liability some mental element is required. That
is why mens rea or “actus non facit reum nisi mens sit rea’’ is considered a
fundamental principle of penal liability. The meaning of the term “actus non facit
reum nisi mens sit rea’’ is that intent and act must both concur to constitute a
crime. From this well-known maxim follows the other proposition, “actus me
invite factus non set mens actus’’, which means an act done by me against my will
is not my act. It has however, been a matter of great difficulty to arrive at the true
meaning of mens rea.
In sweet v. Parsley 1970 AC 132ALL ER 347. Lord Diplock said an act
does not make a man guilty of crime unless his mind is also guilty. It is thus not the
actus which is reus but the man and his mind respectively.... Notion of mens rea in
early primitive societies was non – existent and liability was absolute and offender
was responsible whether he acted innocently or negligently. Before the 13th
century, the doctrine of mens rea was almost non-existent. Even then it was not
completely disregarded and was kept in view in awarding the punishment. The
notion of mens rea as we understand it today was however fully established during
the 14th and 15th centuries and by the end of 17th century it was universally
settled law that mens rea is an essential ingredient of crime. No act of the person
was punishable unless the same is done with evil intent.

MENS REA AND STATUTORY CRIMES:

There are certain circumstances under which the state, by legislation/statute

prohibits the doing of certain acts irrespective of the considerations of mensrea. In
other words, statutory offence is an offence punishable irrespective of mens rea. In
England, mens rea is an essential ingredient of a crime/offence. It is applied in all
common law cases without any reservations. The application of mens rea in
statutory offences may be explained in R.V. Prince (1875) 2 CCR 154 according to
Section 55 of the offences against persons Act, 1861 ‘’taking away an unmarried
girl below the age of 16 years from the lawful custody of her parent or guardian
against the will of her parent/guardian is an offence and such person is guilty of
misdemeanor’’.

Mr. Prince, the accused in the instant case, was in love with a girl Miss
Annie Philips who was below the age of 16 years. The accused had taken away the
unmarried girl from the lawful custody of her parents with an intention to marry
her. He thought she was above 16 and the girl told him that she was 18 years old.
The father of the girl lodged a complaint, alleging that prince had illegally taken
away his unmarried minor daughter below the age of 16 years. Prince was arrested
and criminal proceedings were instituted against him. The accused though he had
no mens rea was convicted on the ground that his act of taking an unmarried girl
below 16 from the lawful custody of her parent itself was an offence punishable
irrespective of the proof of mens rea.
 In R V. Mrs. Talson (1889 Q.B.D 168.) Marrying again during the life time
of the other spouse amounts to bigamy and is punishable under Section 57 of the
offences against person act 1861.Similarly bigamy is an offence under Section 494
of the Indian penal code, 1860. Mrs. Tolson married Mr. Tolson in September
1880. Her husband deserted her in 1881. Mr. Tolsons whereabouts were unknown
for more than 7 years. She made all enquiries about her husband and learnt from
reliable sources that he died in ship- wreck. Mrs Tolson got remarried in 1887
reasonably believing that her husband died. Sometime after her remarriage, her
first husband reappeared and charged her for bigamy. The trial court convicted her
for one day. On appeal, she was acquitted on the ground that she had no mens rea.
In R. V. Wheat and Stock, (1921) 2 KB 119. The accused in the instant case was
an illiterate. He was informed in good faith that he had been granted divorce and
he got remarried. His first wife charged him for bigamy. The court held him guilty
of bigamy and convicted him.

Tolsons case and Wheats case are quite distinct from each other. In the
former there was mistake of fact, which is excusable and hence Mrs Talson was
acquitted, while in the latter case, there was mistake of law, which is not
excusable, and hence the accused was convicted.

INDIAN LAW (Application of Doctrine of mens rea in Indian Cases):

The word mens rea has nowhere been used in IPC. But it has been applied in
two different ways to avoid confusion.

1) The actual intent required for the offence was used in defining the offences.

2) The expressions fraudulently, dishonestly, voluntarily and intentionally etc.,

are used in the definition to indicate the criminal intent.
 The Indian courts have applied the doctrine of mens rea. It is now settled
that mens rea is an essential ingredient of an offence. But, it is not essential in
concept of certain offences viz. Waging war Section 121, Sedition Section 124A,
Kidnapping Section 359, Abduction Section 363, Counterfeiting of Coins Section
232 etc. The framers of the Indian Penal Code, while drafting the code used the
words viz. Voluntarily Section 39, fraudulently and dishonestly Sections 24, 25
etc., which are equivalent to the word mens rea.

The word voluntary has a more extended meaning than the word
intentionally. According to Section 39 of the code, “A person is said to cause an
effect voluntary, when he causes it by means, which at the time of employing those
means, he knew or had reason to believe to be likely to cause it.’’ In simple words,
the word voluntary means an act done without influence or compulsion.

The word ‘fraud’ has not been defined in IPC. But according to Section 24
IPC “A person is said to do a thing fraudulently if he does that thing with intent to
defraud but not otherwise’’. The word dishonestly according to Section 24 IPC
means “Whoever does anything with the intention of causing wrongful gain to one
person or wrongful loss to another is said to do that thing dishonestly’’.

In Srinivasamall v. Emperor, AIR 1947 PC 135, Srinivasamall was a salt

distributor. His servant infringed a rule without his master’s knowledge. He was
acquitted on the ground that he had no guilty intention since the act was committed
without his knowledge.

Ravula Hari Prasad Rao v. The State, AIR 1951 SC 204, in this case the
servant of a petrol dealer, supplied motor spirit. The supreme convicted the master
even though he had no knowledge as to the act. He was convicted for non-
endorsement of coupons, which was mandatory/compulsory.
3) ACTUS REUS (ACT OR OMISSION):

The third essential element of a crime is actus reus. In other words some
overt act or illegal omission must take place in pursuance of the guilty intention.
Prof. Jerome hall said that something in addition to a mens rea is required to
produce a criminal harm. There must also be a manifestation of mens rea in the
external world. It has long been the custom of lawyers to describe a deed
prohibited by law in the words actus reus. Prof. Kenny has defined the term thus
“such result of human conduct as the law seeks to prevent.’’ He was the first writer
to use the term actus reus and Russel called it physical event.

According to Section 32 of IPC words referring to acts done extend also to

illegal omissions if no contrary intention appears from the conduct. Glanville
Williams says that when we use the technical term actus reus we include all the
external circumstances and consequences specified in the rule of law as
constituting the forbidden situations. Words illegal or ‘legally bound to do ‘have
thus been defined in Section 43, the word illegal is applicable to everything which
is an offence or which is prohibited by law, or which furnishes grounds for a civil
action: and a person is said to be legally bound to do, what ever it is illegal in him
to omit.’’

To constitute a ground for civil action under Section 43, there must be a
right in a party, which can be enforced. It may be a breach of contract or a claim
for damages or some such similar right accruing under any law. So an act or
omission must be forbidden or commanded by some statutory provisions and to
constitute a crime the intent and act must both concur. The actus reus is constituted
by the event and not by the activity which caused the event. A deed may consist of
harm and destruction of property or even of life, but it is not a crime unless the
circumstances are such that it is legally prohibited.
 Accordingly, a duly appointed executioner who hangs to death a criminal
because in spite of his full intention to kill, his act was commanded by the law
commits no crime. Similarly, no crime is committed and no criminal liability arises
when a properly skilled person in the course of a surgical or dental operation upon
a patient inflicts hurt. It would however be unlawful (or actus reus) if the accused
is put to death by an unauthorized person or even by a lawfully appointed
executioner if the method of taking the accused life was unlawful.

It is one of the essential principle of criminal jurisprudence that a crime is

not committed if the mind of a person doing the act in question is innocent.

4) INJURY:

The fourth requirement of crime is the injury to another person or to society

at large. The injury should be illegally caused to any person in body, mind,
reputation or property as according to Section 44 the word injury denotes any harm
whatever illegally caused to any person in mind, body, reputation or property. The
word ‘injury’ is of wide connotation and included all injuries caused tortuous act.
Three sections in the code specifically deal with threats of injury, i.e., Section 189-
----threat of injury to public servant, Section 190-----threat of injury to induce
person to refrain from applying for protection to public servant and Section 385----
putting a person in fear of injury in order to commit extortion. A false charge laid
before the police and never intended to be prosecuted in court, may obviously
subject the accused party to very substantial injury. So also unlawful detention of a
cart for realizing illegal toll is an injury. Social boycott of a person in order to
compel him to cooperate with his fellow workmen in collective bargain for
securing better terms does not amount to an injury within Section 44.Threat of a
decree that could not be executed by any competent court amounts to harm or
injury within the meaning of Section 44. So the above are the four elements that go
to constitute a crime. It will not be out of place to say something here about good
faith, which plays a vital role in the law of crimes.

GOOD FAITH:

The term “good faith’’ has been thus defined in Section 52 “nothing is said
to be done or believed in good faith which is done or believed without due care and
attention.’’ The term has been used in many sections but has not actually been
defined. Section 52 gives only a negative definition of the term. Words ‘due care’
and ‘attention’ used in Section 52 are of importance and on proper analysis of the
definition it is derived that a thing shall be deemed to be done in good faith if
established will negative criminal liability but before exonerating the liability the
court should take into account the accused’s intellectual capacity, his status and
surrounding facts and circumstances in which he acted.

In Doraswamy Pillai v. Emperor 1 Cri LJ 274: ILR 27 Mad 52, movements

of the accused of suspicious character were watched by the police. A police
constable knocked at his door at about midnight to see if he was present. The
accused came out, abused and pushed the constable whose turban fell to the
ground. Then he brought a stick from inside and lifted it up as if he was going to
beat the constable with it. It was held that the constable could not be regarded as
acting in good faith under colour of his office as he was off duty. In Emperor V.
Hayat 1888, 11 PR, the accused believing a stooping child, whom he saw in early
morning at a haunted place, to be a demon or an evil spirit killed him by inflicting
blows. It was held that he acted without due care and attention and was rightly
charged of causing death by negligence. The Supreme Court has in this connection
laid down that good faith requires not logical infallibility but due care and
attention. The question of good faith is always a question of fact to be determined
in accordance with the proved facts and circumstances of each case.