CONCEPT OF CRIME

Of all the branches of law, the branch that most closely touches and concerns a man in his day-to-day
life is criminal law. However, criminal law is not a satisfactory statute. Many attempts have been
made to define the word crime, but the kind of act or omission that constitutes a crime varies. This is
perhaps because the notion of crime changes from time to time and place to place. The very
definition and concept of crime vary according to the form of government, structure, and other
factors as well. For instance, what is considered an offence against property in a capitalist culture
may be a lawful way of living in a socialist society. The Parliament can also scrap a crime from the
statute book.

Hence, crime may be defined as the commission of acts prohibited by criminal law, and criminals are
those who commit such acts. Natural law relies heavily on the feeling of moral sense and an
individual’s instinct for the fitness of things. Under natural law, an act that violates moral and ethical
codes is considered a crime, while an act that does not violate these codes is not a crime.

Thus, the general concept is that adherence to a basic moral code is considered right, and its
violation is considered wrong. According to the positive law theory, crime is a man-made creation.
Under this law, crime is defined as a violation of the sovereign’s authority. Crime, under positive law,
consists of those acts and omissions that are specifically prohibited by criminal law under the threat
of punishment.

CHARACTERISTICS OF AN OFFENCE/CRIME

The outstanding characteristics of an offence are that it normally results in punishment, and special
legal procedures are followed to determine the guilt of the accused person. One can understand
what constitutes a crime by considering the following three attributes:

1. Crime is an act of commission or omission on the part of a human being that is considered
wrongful by the state.

2. The transgression of such acts is prohibited by a threat or sanction of punishment

administered by the state.

3. The guilt of the accused is determined after the accusation against him is proven in
accordance with special legal procedures.

DEVELOPMENT OF MENS REA

The ancient maxim actus non facit reum nisi mens sit rea has remained unchanged as a declaration
of the principle of common law throughout the centuries, up to the present day. It states that no
man should be convicted of a crime unless both elements—actus reus and mens rea—are satisfied in
every case. It is a principle of natural justice that intent and the act must come together to constitute
a crime.

Criminal law is concerned with the behavior of men. Therefore, the physical element, indicated by
the term actus (the act done), must consist of some manifestation of physical behavior. The mental
element, indicated by the term mens (mind), must consist of some operation of a man's mental
processes.

DEVELOPMENT OF ACTUS REUS

In the past liability depended on two objective facts stated below

a. that a thing (deed) has been done which the law has prohibited

b. the man accused has done it (this second fact being ascertained by the following chain of
caution)

A further ingredient of liability was added later on that the accused should have been actuated by a
legally reprehensive attitude of mind. In short there are five main points in the totality of criminal
responsibility

1. human action or abstention from conduct (action) which for the purpose of present
discussion is termed as conduct

2. such circumstances that are prohibited by law

3. the result of the conduct in these specified circumstances

4. the conduct must be voluntarily done

5. the result must be foreseen

ACTUS REUS

To constitute a crime at common law, there must always be a result brought about by human
conduct a physical event that the law prohibits. For example, killing a man or raping a woman.
It has long been the custom to employ the term Actus Reus to denote a deed so prohibited as a
result of human conduct. It is an event which, for the present purpose, must be carefully
distinguished from the line of conduct which produced that event.

A man can lead a line of conduct without producing a continuing series of events, any one of which
may or may not constitute an event forbidden by law.

One example: A man intending to murder another may lawfully purchase a revolver for the purpose
or he may secretly take and carry away the revolver without the consent of the owner, thus
performing the Actus Reus of theft. He may then break and enter a victim’s dwelling house during
the night, thereby performing the Actus Reus of another crime, i.e., burglary.

MENS REAS

Mens Rea is a technical term generally taken to mean some blameworthy mental condition, whether
constituted by intention or knowledge or otherwise. The absence of which on any particular occasion
negatives the intention of the crime.

No act is per se criminal; the act becomes criminal only when the actor does it with a guilty mind.
The guilty intent does not necessarily mean intending the very act or thing done and prohibited by
common or statute law. But it must at least be the intention to do something wrong.

However, there is no single state of mind that must be present as a prerequisite for all crimes. Mens
Rea, in fact, takes on different forms in different surroundings. An evil intent for one kind of offense
may not be so for another kind.

Example: In case of murder, it is the intent to cause death. In case of theft, the intention to steal. In
case of receiving stolen goods, knowledge that the goods were stolen. In case of rape, the intention
to have forcible cohabitation without consent.

MENS REA UNDER IPC (NOW BNS)

The doctrine of Mens Rea as such has no application to the offences in general under IPC (now BNS),
which is codified unlike its counterpart in common law. However, the doctrine has been incorporated
in two ways:

1. The provision as to the state of mind required for a particular offence, having been added to
the section by using such words as "intentionally, knowingly, voluntarily, fraudulently,
dishonestly," etc., depending on the gravity of the offence concerned.
That is to say, every offence under IPC (now BNS) virtually imports the idea of Mens Rea.

2. The concept of Mens Rea has been incorporated into provisions relating to the general
exceptions.
DIFFERENCE BETWEEN INTENTION AND MOTIVE

Intention must be distinguished from motive. Motive is the reason or ground of action, whereas
intention is the active desire to do an act. In other words, intention is an operation of the will
directing an overt act, while motive is the feeling which prompts the operation of the will—the
ulterior objective of the person willing.

For instance, if A kills B, the intention is the state of mind which directs the act, which causes death.
The motive is the objective which the person had in view, namely the satisfaction of some such
desire—revenge, hatred, and the like.

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 what is in fact a crime. If a man steals food in
order to feed his starving child, the act amounts to theft in spite of the fact that the motive for the
act was to save the life.

Likewise, a bad motive will not make unlawful that which is lawful. An executioner may enjoy putting
a convict to death because of spite against him, but this would not render his lawful act a crime.
Thus, motive is not a sine qua non, meaning an indispensable requisite or condition, for holding the
accused liable.

INTENTION AND KNOWLEDGE DIFFERENCE

Intention is distinguishable from knowledge. An intention to commit an offence may be inferred from
knowledge, though at times intention and knowledge merge into each other.

If A sets a house on fire in an inhabited locality at night for the purpose of facilitating a theft and
thereby causes the death of some person leaving the house, A is liable for murder of the inhabitants.
Intention to cause death will be inferred from the awareness of the risk involved in the act of setting
fire.

Nevertheless, there is a distinction between intention and knowledge. Knowledge is the awareness
of the consequences of an act. A man may be aware of the consequences of his act, though he may
not intend to bring them about.

For example, A, attacked by a wild animal, calls out to B to fire in order to save him, though imminent
hazard to A is involved. B, in response to A’s request, fires, which causes the death of A. B is not liable
for A’s death. Here, B’s act was not the intentional killing of A, though he knew the act was likely to
cause A’s death but it was only to save his life.

KNOWLEDGE AND REASON TO BELIEVE DIFFERENCE

Knowledge is again distinguishable from reason to believe. The person is supposed to know a thing
where there is a direct appeal to his senses, whereas reason to believe means sufficient cause to
believe a thing but not otherwise.

If A comes to B at midnight under suspicious circumstances and offers to sell a valuable watch for
₹20 only, B may not know that the watch is stolen, but he has sufficient reason to believe that the
watch might be stolen, as is evident from the low price demanded.

General Principles (Different stages of crime)

In every crime, there are 4 successive stages in its commission:

1. Intention to commit a crime.

2. Preparation to commit a crime.

3. Attempt to commit a crime.

4. Actual commission of a crime.

1- Intention to commit a crime

Intention to commit a crime is not punishable under the Indian Penal Code, like the Penal Laws of
other countries, because it is impossible to read the mind of a man even the devil himself knoweth
not the thought of a man and so it is absolutely difficult to define contemplation in the mind of a
man and to punish him for ideas in his head.

2- Preparation is not punishable

In general, preparation is not punishable because a preparation apart from its motive would
generally be a harmless act. It would be impossible in most cases to show that the preparation was
directed to a wrongful end or was done with an evil motive or intent, and it is not the policy of the
law to create offences that in most cases it would be impossible to bring home the culprit or which
might lead to harassment of innocent persons.

Intention is the direction of conduct towards the object shown upon understanding considering the
motive which suggests the choice.

Preparation consists of a man devising or arranging the means or measures necessary for the
commission of an offense. Besides, a mere preparation would not ordinarily affect the sense of
security of the individual intended to be wronged, nor would society be disturbed or its sense of
vengeance aroused by what an outward appearance would be an innocent act.
Take a case of murder, purchasing a gun is not punishable being merely preparation, but if having
procured the gun, he pursues his enemy with it but fails to overtake him or is arrested before he is
able to complete the offence, or fires without effect, this amounts to attempt. And obviously, none of
the considerations which justify the exclusion of preparations from the category of crime will apply.

preparation punishable in exceptional cases

There are however exceptional cases where the counterplated offence may be so grave that it would
be of the utmost importance to stop the initial stage and punish the preparationary in this stage
itself. These are perpetrators to:-

1- collecting the arms etc with the intention of war against the Government of India under section
128 of the Indian Penal Code

2- making or selling or being in possession of instruments for Counterfeiting coins or government

stamps under section 223-235 and 257 of the IPC

3- committing depression on Terrorist of power or at peace with the Government of India under
Section 126 of IPC

4- possession of counterfeit coins government stamps false weight or measure under section 242
243 259 266 of IPC

5- making preparation to commit dacoity under section 399 ipc

If intention and preparations were made punishable it would be impossible to prove that the
objective of an accused was to commit an offence for instance a man might purchase an area for a
medical purpose not for committing murder. Again, the acts of mental determination and that of
preparation are too remote from the completion of crime.

Attempt

The word attempt said by chief justice Cockburn conveys with the idea that if the attempt have
suicides the offence charge would have been commuted in other words attempt is the direct
movement towards the commission of an offence after the preparation had been made.

According to English Law a person may be guilty of an attempt to commit an offence and act which is
more preparatory to the commission of the offence even though facts are such that the commission
of an offence is impossible. Once an act enters into the arena of attempt criminal liability begins
because attempt takes the very successful completion of crime and so it is punishable in law for
completed offences. An attempt areates an alarm which of itself is an injury and the moral guilt of
the offender is the scene as he had succeeded. The act may be sufficiently harmful to society by
region of close proximity to the completed offence class as a crime. Hence, unlike civil laws criminal
law takes notice of an attempt to commit punishable, wrong acts and punishes them according to
the gravity of the offence attempted and if the third stage is successful then the crime is completed
and the accused will be liable according to the offence committed by him.
Thus, an attempt in order to be criminal that is the penultimate act is sufficient in law if there is at
present an latent coupled with some over act in execution there off.

What is attempt under the Indian Penal Code?

First

The Indian Penal Code has not defined attempt to commit a crime but has dealt with attempt in 4
different ways:-

a) There are some offences under IPC in which the attempt to commit the offence and the actual
commission of the offence are viewed on the same level and punishment for both is also the same.
Example – Waging war (Section 121 IPC) and attempting to wage war.

b) Assaulting or attempting to assault the President of India, the government or government of the
state with intent to compel or restrain the exercise of any lawful power (Section 124 IPC).

c) Sedition (Section 124 IPC) - waging war, attempting to wage war or abetting waging war. Section
161 IPC - public servant taking gratification (Section 161 IPC), (Section 131 IPC) etc.

Second

Attempt to commit offences and commission of specific offences have been dealt with separately to
commit such an offence from those offences committed for example attempt to commit culpable
homicide murder attempts to commit robbery section 309,308,393 under IPC where as murder
culpable homicide and attempt to robbery section as 304,392 of IPC respectfully. Attempt to commit
suicide is punishable under section.

Attempt to commit offence in general concept is those Falling In the above stated categories made
punishable under Section 511 IPC.

It leaves unpunished attempts to those who are punishable with fine only.

Offences relating to Property

Theft

Theft – Whoever intending to take dishonestly any moveable property out of possession of any
person without his consent moves that property in order to such taking is said to commit theft.

Explanation:

1. A thing so long as it is attached to earth, not been a immoveable is not a subject of theft but
it becomes a subject of theft as soon as it is severed from earth.

2. A moving affected by the same act which effects the severance maybe a theft.

3. A person is said to cause a thing to move by removing an obstacle which prevented it from
moving or by separating it from any other thing as well as by actually moving it.

4. A person who by any means causes an animal to move is said to move that animal and to
move everything which in consequence of the motion so caused is moved by that animal.

5. The consent mentioned in the definition maybe expressed or implied.

Illustration:

‘A’ cuts down a tree on Z’s ground with the intention of dishonestly taking the tree out of ‘s
possession without Z’s consent. Here as soon as ‘A’ has severed the tree in order to such taking, he
has committed theft.

Meaning (theft):

This section defines the offence of theft and section 379 prescribes punishment for theft. Theft as
defined in section 378 is the dishonest removal of movable property out of the possession of any
person without his consent. It is thus an offence against possession and not against ownership. The
offence of theft consists of the dishonest taking of any property out of the possession of another
without his consent. Such an act does not amount to theft unless there be not only no legal right but
appearance of colour of legal right. By the expression colour of legal right is meant not a false
pretense but a fair pretense. Not a complete presence of claim but a bonafide claim but weak. There
are five explanation attached in section 378 to explain when an act amounts to theft.
Ingredients:

To constitute theft the following ingredients are required

1. The accused must have a dishonest intention to take the property

2. The property must be movable

3. The property must be taken out of the possession of another person, resulting in wrongful
gain by one and wrongful loss to other.

4. The property must be moved in order to such taking that is obtaining property by deception
and,

5. Taking must be without the person’s consent expressed or implied.

Dishonest Intention-

Intention is the gist of the offence. The taking will not amount to theft unless the intention with
which it is taken is dishonest. If it is not taken dishonestly, it will not amount to theft.

Movable property-

The subject of theft must be movable property that is corporel property of every description except
land and things attached to earth or permanently fixed to anything which is attached to earth.
Property is said to be movable when it is capable to be carried about. It is said to be immovable
when it is permanently attached to the earth.

Possession and custody distinguished-

The term possession must be distinguished from custody. A man is said to be in possession of a thing
when he can deal with as the owner with the execution of other. The possession that is in his custody
when he cannot deal with it as the owner but merely keeps it for the sake of another as in the case
of servant keeping of possession for the owner.

Moving property to such taking-

Theft is complete the moment a ting is moved over though such thing is yet be for from passing into
the thieves’ possession. Moving a thing is the initial stage in the possession of that which is taken
and theft is considered completed at such an initial stage, thus the actual taking or possession is not
of much consequence in determine whether theft have been committed or not.

It is not necessary that the taking must be of a permanent character or the accused derived any
profit. A temporary removal of a office file from an office of chief engineer and making it available to
a private person for a day or two is theft. Taking out of a possession being an essential ingredient of
theft one of the ingredient of theft is intention to take dishonestly.

Without consent-

The offence of theft is committed if the property of another person is taken away from him without
his consent expressed or implied with a dishonest intention. From a temporary retention or
deprivation is enough to show that offence has been committed. The removal of the property must
be without the consent of the person in possession of it.

Extortion

Extortion Section 383 IPC 308 BNS

Whoever intentionally puts any person in fear of any injury to that person or to any other and
thereby dishonestly induces the person so put in fear to deliver to any property or valuable security
or anything signed and sealed which maybe converted to valuable security commits extortion.

Illustration:

1. ‘A’ threatens to publish a defamatory liable concerning ‘Z’ unless ‘Z’ gives him money. He
thus induces ‘Z’ to give him money. ‘A’ has committed extortion.

2. ‘A’ threatens ‘Z’ that he will keep Z’s child in wrongful confinement, unless ‘Z’ will sign and
deliver to ‘A’ a promissory note/cheque binding ‘Z’ to pay certain money to ‘A’. ‘Z’ signs and
delivers the note. ‘A’ has committed extortion.

Explanation:

Section 383 defines extortion and section 384 provides punishment for extortion. The offences of
extortion consists of

1. Intentionally putting a person in fear of injury to himself or another

2. Dishonestly inducing the person so put in fear to deliver to any person property or valuable
security.

Putting a person in fear of injury-

The fear of injury must be of a real nature so as to unsettle the mind of the man upon whom it is
exercised in such a way that is the act does not remain voluntary. The injury that a person maybe put
in fear of is not necessarily physical injury. Injury to the character may also be an injury.

Dishonest inducement of fear to deliver valuable property or valuable security-

 ‘A’ threatens to use a process of law for the purpose of black mailing is criminal and when property
or a document is obtained by threats for the purpose, the offence of extortion is committed.

Difference between Extortion and Theft-

The offence of theft and extortion have many common features. Both are offences against property.
The object of both the offences is wrongful gain of property. However there are certain point of
distinction between the two.

Sl no. Theft Extortion

1. In theft property is taken away without the In extortion the consent of the owner is
consent of the owner. obtained but wrongfully.

2. Theft maybe only in respect of movable The property maybe movable or

property. immovable.

3. There is no element of force. Property is obtained by putting a person in

fear of injury and inducing him to part with
his property.

4. There is no delivery of property by owner. There is delivery of property by owner.

Robbery

In all robbery there is theft or extortion. Robbery in common language means to deprive a person
from his/her property and the chief distinguishing element of robbery. Theft and extortion is the
eminent fear of violence. In all robbery there is either theft or extortion. The essence of the offence
of robbery that is the offender for committing theft or carrying away or attempting to carry the
looted property voluntarily causes or attempts to cause death, hurt or wrongful restraint.

When theft is robbery-

Theft is robbery if in order to the committing of the theft or in carrying away or attempting to carry
away property obtained by theft, the offender for that and voluntarily causes or attempts to cause to
any person death or hurt, wrongful restraint or fear of instant death or of instant hurt or of instant
wrongful restraint.

When extortion is robbery-

Extortion is robbery if the offender that the time of committing the extortion is in the presence of
the person put in fear and commits the extortion by putting that person in fear of instant death or of
instant hurt or of instant wrongful restraint to that person or to come other and by so putting in fear
induces the person so put in fear then and there to deliver up the thing extorted.

Explanation:

The offender is said to be present if he is sufficiently near to put the other person in fear of instant
death or of instant hurt or of instant wrongful restraint.

Example:

‘A’ holds ‘Z’ down and fraudulently takes Z’s money and jewel from Z’s clothes without Z’s consent.
Here ‘A’ has committed theft, and in order to committing of theft has voluntarily caused wrongful
restraint to Z, A has therefore committed robbery.

Dacoity

Whenever five or more person conjointly commit or attempt to commit a robbery or where the
whole number of persons conjointly committing or attempting to commit a robbery and a person
present in aiding such property or attempt amount to five or more every person so committing,
attempting or aiding is said to commit dacoity.

Dacoity (Gang robbery defined)(391 IPC)

This section defines dacoity. Here is no difference between robbery and dacoity except in the
number of offenders. Robbery is dacoity is the person committing robbery is five or more in number.

Ingredients:

The ingredients are

1. The accused commit or attempt to commit robbery.

2. Persons committing or attempting to commit robbery and persons present and aiding must
not be less than five.

3. All such persons should act conjointly.

The word conjointly refers to united or consorted action of five or more person participating in the
act of committing the offence. In other words five or more persons should be concerned in the
commission of the offence and they should commit or attempt to commit robbery.

Punishment for robbery (section 392)

Whoever commits robbery, shall be punished with rigorous imprisonment of ten years, and shall be
liable to fine; and, if the robbery is committed on the highway between sunset to sunrise, the
imprisonment will extend to fourteen years.

Attempt to Robbery (section 393)

Whoever attempts, shall be imprisoned for term extending to seven years and will also be liable to
fine.

Punishment for Dacoity (section 395)

Imprisonment for life or rigorous imprisonment which may extend to ten years along with a fine.

Criminal Misappropriation of Property

Section 403 of IPC

Dishonest misappropriation of property, whoever dishonestly misappropriates or converts to his own

use any movable property, shall be punished with imprisonment of either description for a term
which may extend to two years; or with a fine or with both.

Example:

A takes property belonging to Z out of Z’s possession, in good faith, believing at the time when he
takes it, that the property belongs to himself. A is not guilty of theft; but if A after discovering his
mistake, dishonestly appropriates the property to his own use, he is guilty of an offence under this
section

Meaning:

Section 403 and 404 IPC relate to the Criminal Misappropriation of property. Section 403 defines
Criminal Misappropriation of property and prescribes the punishment for the offence and section
404 deals with misappropriation of a deceased person’s property. The word misappropriation means
a dishonest appropriation, and use of another’s property for the sole purpose of capitalizing it for
one’s own use.

Criminal Misappropriation takes place when the possession has come innocently, but is continued
due to a subsequent change of intention or after knowledge of some new fact with which the party
was not previously acquainted. The retaining of property becomes wrongful and fraudulent when
the fact is known. The offence is punishable with imprisonment that may extend to two years (simple
or grievous) with fine or with both.

Ingredients:

To constitute the offence of misappropriation the following ingredients must be established:

 1. The accused misappropriated that property and converted the same for his own use
dishonestly.

2. The movable property must belong to the complainant.

The offence of misappropriation consists in dishonest misappropriation or conversion either

permanently or temporarily of movable property which is already in the possession of the offender.
No entrustment beavered to constitute this offence; When the property of another person comes
into possession of the offender and is dishonestly converted or misappropriated by the offender to
his use, the offence is committed.

Finder of Goods

Under the code, the intention of the accused at the time the property was taken is taken into
account and his subsequent dishonesty does not suffice to make him guilty to this offence. If the
intention was not dishonest at the time possession was taken, a subsequent change of mention does
not make the possession illegal.

Dishonest Misappropriation or conversion of property: The word appropriate means to set apart or
assign the property to oneself or to another to the exclusion of the owner. The words ‘Converts to his
own use’ necessarily connote the use or dealing with the property in derogation of the rights of the
owner. There must be an actual misappropriation or conversion of the thing and it must be to the
accused’s own use. When an accused found a thing and merely retained it in his own possession, he
was acquitted of this offence.

Property must be Movable

The misappropriation must be of a movable property and it must be in possession of someone. Its in
possession of no one or nobody is its owner, no criminal misappropriation can take place with
respect to that property.

Example: A Bull set at large in accordance with Hindu religion usage is the property of no one, and
therefore no criminal misappropriation can take place neither can it take place when a thing has
been abandoned. There must always be an owner.

Difference between Criminal Misappropriation (403) and Criminal Breach of Trust (405)

Criminal Misappropriation Criminal Breach of Trust

The property comes into the possession of The property comes into the possession of
the accused in some natural manner. the accused either by an express
entrustment or by some process.

The property comes into possession of the The offender is Lawfully Entrusted with the
offender by some casualty or otherwise and property (may or may not be in writing,
 he after-wards misappropriates it. mostly in writing) and he dishonestly
misappropriates the same.

Difference between Criminal Breach of Trust and Theft

Theft (378) Criminal Breach of Trust (405)

In theft, property is moved from possession The offender is Lawfully Entrusted with the
of another man with dishonest intention. property and he dishonestly
misappropriated it.

In theft, the offender comes in possession Possession is denied with the consent of
of the property without the consent of the the owner.
person in possession.