Author: Sibani Panda, Research Associate
“It might be pardonable to refuse to defend some men, but to defend them negligently is nothing short of criminal.” – Marcus Tullius Cicero
The law of crimes has been known through all ages of our civilization. It is recognized on all hands that apart from liability for reparation or compensation , which everyone who wrongs another must incur and pay the wronged individual , the state also imposes certain penalties with the object of preserving peace and tranquility in the society and promoting good behavior towards each other and the community as a whole.
In the primitive society, the damages to be awarded to the victim of a crime were determined on the basis of vengeance. If an offender was caught red handed, he was given a more severe punishment than the one who was detected afterwards. From the earliest times known to history, the Hindu law of punishment occupied a more prominent place than compensation for wrongs. If the injury inflicted by the wrong doer was serious in character, the wrongdoer was not only compelled to compensate the injured but also the wrongdoer had to undergo a punishment imposed by the king.
A crime is generally considered to be an act which is forbidden by law and revolting to the moral sentiments of the society1. Sir William Blackstone defined crime as “an act committed or omitted in violation of a public law forbidding or commanding it2.” Sir Stephen observed a crime is a violation of a right considered in reference to the evil tendency of such violation as regards the community at large. According to Oxford Dictionary, crime is defined as an act punishable by law as forbidden by statute or injurious to the public welfare.
Mainly there are three attributes of a crime:
- It is a harm brought about by some anti social act of a human being , which the sovereign power desires to prevent;
- The preventive measures taken by the state appear in the form of a threat of a sanction or a punishment;
- The legal proceedings; wherein the guilt or otherwise of the accused is determined, are a special kind of proceedings governed by the special rules of evidence.
Main elements that constitute a crime are as follows:
A human being under a legal obligation to act in a particular way and a fit subject for the infliction of appropriate punishment: here a human being should do the act before it can constitute a crime punishable under law. The offender must be a human being who must have developed a sufficient maturity of understanding to know the nature of the act of which he is to be held liable. The human being should be capable of being punished, namely, he should have a body.
Mens rea: The most essential element of a crime is Mens Rea or evil intent or guilty mind. There is a well known maxim in this regard, i.e. “actus non facit reum nisi mens sit rea” which means that, the guilty intention and guilty act together constitute a crime. This maxim explains that no person can be punished in a proceeding of criminal nature unless it can be showed that he had a guilty mind. There can be no crime of any nature without mens rea or an evil mind. The principle of mens rea brings in several other state of mind, namely, will, intention, motive. Every crime requires a mental element and that is considered as the fundamental principle of criminal liability. The basic requirement of the principle of Mens Rea is that the accused must have been aware of those elements in his act which makes the crime with which he is charged. It is one of the principles of the English criminal law that to constitute guilt there must be a guilty intent along with the act itself. There must be an intention to do some act before a person can be held to be guilty of such crime. In the words of Lord Kenyon “the intent and act must both concur to constitute a crime.”
In Sherras v. De Rutzen3, it was observed that mens rea is an essential ingredi¬ent in every offence, but that presumption is liable to be displaced either by the words of the statute creating the offence or by the subject matter with which it deals, and both must be considered.
Some of the few exceptional circumstances where the Doctrine of Mens Rea is excluded are:
- Public Nuisance;
- Cases, which are not criminal in nature, but are prohibited in the interest of public at large.
Actus Reus: The Actus Reus is the physical action that a person must take in order to be responsible for a criminal oﬀense. Actus reus is a physical result of human conduct. When criminal policy regards such a conduct as sufficiently harmful, then it is prohibited and the criminal policy provides a sanction or penalty for its commission. According to Prof. Kenny, Actus Reus is defined as “such result of human conduct as the law seeks to prevent4.” Such human conduct may consist of acts of commission as well as acts of omission. As laid down in Indian Penal Code5, “words which refer to acts done also extend to illegal omissions.” In Actus Reus, it is necessary that the act done or omitted to be done must be an act forbidden or commanded by some statute law, otherwise it may not constitute a crime. As regards the acts of omission which make a man criminally responsible, the rule is that no one would be held liable for the lawful consequences of his omission unless it is proved that he was under a legal obligation to act. In other words, some duty should have been imposed upon by the law, which he has omitted to discharge. Under the Indian penal code, the word “illegal’ is applicable to everything which is an offence or which is prohibited by law, or which furnishes a ground for civil action and a person is said to be “legally bound to do whatever it is illegal in him to omit6.” Therefore, an illegal omission would apply to omissions of everything which he is legally bound to do.
Injury to human being: One of the essential elements of crime is that there should be an injury caused by a person to another human being or to the society at large. This injury to another human being should be illegally caused to any persons in body, mind, reputation or property7. The consequences of harmful conduct may not only cause a bodily harm to another person but it may also cause harm to his mind or to his property. Sometimes, by a harmful conduct, no injury is caused to another human being, yet the act may be held liable as a crime, because in such a case, harm is caused to the society at large. All the public offences, especially offences against the state like treason, sedition etc are instances of such harms. They are treated to be very grave offences and the offenders are punished severely also.
Criminal liability reflects the orderly structure of the criminal law. Each element of a crime that the prosecutor needs to prove (beyond a reasonable doubt) involves a principle of criminal liability. It is not possible to apply the maxim generally to all statutes. What is necessary is to look at the object of each act which is under consideration and see how far knowledge is of the essence of the offence created. Crimes are much more accurately defined by statutes today than they were before. There are some crimes that only involve a subset of the principles of liability, but these are rare and are called “crimes of criminal conduct.” On the other hand, there are crimes that involve all the principles of liability, and these are called “true crimes” that reflect “black letter law.” Criminal liability requires a concurrence, or unity, of two general criteria: an act or physical element, called actus reus; and a mental state or intent called mens rea. In order to constitute a criminal liability, the physical act must be voluntary and cause social harm. The general basis for imposing liability in criminal law is that the defendant must be proved to have committed a guilty act with a guilty state of mind. Thus, the two principles of actus reus and mens rea are considered distinct elements of crime and they must be distinguished and must be present in order to constitute a crime.