(..4..)
ELEMENTS[1] OF CRIMINAL LIABILITY
QUESTION BANK
Q.1. What is mens Rea? What are the exceptions to means Rea?
Q.2. ‘Actus non facit reum nisi mens sit rea’ –Discuss fully.
Q.3. What is mens Rea? What are the exceptions to mens Rea?
Q.4. “Nothing is guilty without the mind showing guilty” Discuss.
Q.5 Explain doctrine of mens Rea.
Q.6 Explain importance of mens Rea in fixing liability under Indian
Penal Code.
Q.7 “Mens Rea is an essential element to constitute an offence”.
Q.8 Explain the proposition with exception if any.
Q.9 What are the essential elements to invoke criminal liability?
SHORT NOTES
- Omission
- Injury
SYNOPSIS
I] Introduction
II] Elements of Crime
- A) Actus Reus
1) Human action (i.e. conduct)
2) Result of conduct
3) Acts prohibited by law
- B) Mens Rea
- a) In English law
- b) In India
1) Intention
2) Recklessness
3) Negligence
4) Knowledge
5) Dishonestly (S 24)
6) Fraudulently (S.25)
I] INTRODUCTION
The fundamental principle of penal liability is embodied in the maxim, ‘Actus non-facit reum nisi mens sit rea[2]’. It means the act is not a crime unless done with a guilty mind. Thus, there are two conditions of criminal liability. Viz-
1) Physical act (Actus reus)[3]
2) Mental (Mens Rea, i.e. Guilty mind)[4]
In other words, act (i.e. physical movement) and intent (mental process) must concur to constitute the crime.
Therefore, to make a man criminally liable, it is to be proved that the conduct of the accused causes the act and that the legally blameworthy attitude of mind accompanied the conduct.
II] ELEMENTS OF CRIME
A crime has two components or elements: a physical element, usually called actus reus, and a mental element, called mens rea.
A] Actus Reus:-
The word ‘actus’ connotes a ‘deed’, a ‘physical result’ of human conduct. The word ‘reus’ means ‘forbidden by law’. Thus, the word ‘actus reus’ means such a result of human conduct, which the law seeks to prevent.
‘Actus reus’ is made up of three constituent parts, viz.-
1) Human Action (i.e. Conduct)
An ‘act’ means something voluntarily done by a human being, e.g. giving a blow, walking, speaking or any external manifestation of one’s mind. An ‘act’ includes commission (i.e. positive ‘act’ as discussed above) and omission. ‘Omission’ means inaction or non-doing something he ought to have done. Thus, in other words, it is called a ‘negative action’ and ‘commission’ or ‘act’ is called a positive action. Thus, a parent will be held liable for the murder of the child by feeding it poisonous food (i.e. ‘act’) or by starvation by not feeding it (i.e. omission).
(Discussed in detail in the note at the end).
2) Result of Conduct
To constitute a crime, there must be a result brought about by human conduct or a physical event that the law prohibits, e.g. in the case of murder; it is the victim’s death brought about by the conduct of the accused, which is ‘actus reus’.
3) Acts Prohibited by Law:-
Only those acts or results that are forbidden by law are crimes. Therefore, an act that is not forbidden by law is not a crime. For example, adultery in England is not an offence, but the same is an offence in India.
B) ‘Mens Rea’:-
a) In English Law:-
Mens Rea is important in the common law of England. The maxim ‘actus non facit reum nisi mens sit rea’ is the bedrock of the English criminal justice system.
Mens Rea is “the mental element necessary to constitute criminal liability.” No act is per se (on its appearance) criminal unless the actor does it with the intention of a guilty mind.
Illustration
‘A’ shoots ‘Z’ with the intention of killing him. ‘Z’ dies in consequence. ‘A’ commits murder. But if A shoots at a bush, believing a ‘wild animal’ behind it and kills ‘B’. A did not know that B was there. A has not committed murder.
This distinguishes murder, ordinary road mishaps, and accidental death.
Therefore, a combination of ‘act’ and ‘intent’ makes a crime. In other words, the act plus the intention is equal to the crime. Therefore, the act itself is not a crime unless done with a guilty mind.
Illustration
Although A believes that he is appropriating B’s property, he cannot, in any circumstances, be guilty of theft if the property belongs to no one. Because though A has Mens Rea, he lacks the other fundamental elements of the crime, i.e. actus reus.
The Mens Rea or guilty mind is usually inferred from either.
- a) The facts and circumstances of the case; or
- b) Whether the accused had the foresight of the consequence of his conduct (i.e. whether the result was foreseen)
Illustration
If A is found brutally killed by his enemy, Mens Rea is inferred from the circumstance of killing, whereas if A gives several Sword cuts on the head of B, the result can be easily foreseen that B would die.
In Salil Bali V/s Union of India (2013 Laws (SC) (7) 96)
Supreme Court held that:- The minimum age of criminal responsibility in England and Walse is ten years, and those below the said age are considered to be doli incapax[5] and thus incapable of having mens rea, which is similar to the provisions of S. 82 and 83 of the I.P.C.
b) In India; In Indian Penal Code
To avoid confusion present in English Law as to “Mens Rea”, the word “Mens Rea” as such is not used in the Indian Penal Code. But the idea underlying “Mens Rea” is seen running through the whole statute of I.P.C. except in certain offences such as offences against the state, i.e. Waging War (S.121), Sedition (S. 124A), Kidnapping and Abduction (S. 359,363), and counterfeiting of coins (S. 232).
The framers of the I.P.C. have incorporated the idea of Mens Rea in the I.P.C. in two ways, viz-
Firstly, the provisions regarding the state of mind required for a particular offence are added to the section by using words such as intentionally, knowingly, voluntarily, fraudulently, dishonesty, etc. In other words, every offence (section) under I.P.C. imports the idea of ‘Mens Rea’ in its specific form, such as intentionally, knowingly, dishonestly, etc.[6].
Secondly, the concept of Mens Rea has been incorporated into the provisions relating to ‘General Exceptions.[7]’ (in chapter IV of the Code). These exceptions explain the circumstances (i.e. private defence, accident, the act of a person of unsound mind, etc.) where the absence of criminal intent is presumed, and prosecution is required to prove the presence of mens rea of the accused.
In Malhan K.A. V/s Kora B. Kutti[8]
Facts:-The accused was a financer. He seized a vehicle for which he had financed. The vehicle owner complained to police, alleging that the accused had stolen his vehicle.
The Supreme Court held that the element of the mens rea is totally absent in this case, and therefore, an accused cannot be convicted of theft.
We will now discuss the meanings of some expressions used in the Indian Penal Code, which embodies mens rea, viz-
1) Intention:-
‘To intend’ is to have a fixed purpose of producing a particular result in mind. It indicates the state of mind of a man who not only foresees but also desires the possible consequence of his conduct, e.g., “if I throw a stone at a man straight at his body with the desire that it should hit him, I have intentionally thrown the stone at him”.
The burden of proving guilty intention lies upon the prosecution (where the intent is expressly stated as part of the definition of a crime). In a number of sections under I.P.C., ‘intentionally’ is the requirement of crime, e.g. intentionally joining unlawful assembly (S.142), intentionally preventing service of summons (S.173), intentionally causing death (S.300) etc.
Intention and Motive[9] Distinction:-
Motive is the reason or ground of the accused’s action, e.g., If ‘A’ kills ‘B’, the intention is the state of mind which directs the act, which causes the death; the motive is to misappropriate the property of B.
One can elicit the motive by asking the question of why he did that act. The answer may be for property, hatred, revenge, etc. Likewise, the intention can be elicited by asking the question, ‘How did he do it?’
Motive is not a basis for determining criminal liability. A motive may be good or bad, e.g. a Hindu seized a cow from a Muslim in order to save its life; nevertheless, he has committed theft. Thus, a good motive will not render lawful what is, in fact, a crime.
However, the evidence of motive is relevant since it throws light on the intention and gives a clue to the crime; however, the prosecution is not bound to prove the motive for the crime.
In Basudev V/s State of Peps[10]
Supreme Court held. That motive is something which prompts a man to form an intention.
2) Recklessness[11]:-
Recklessness is the state of mind of a person who foresees the possible consequences of his conduct but acts without any intention or desire to bring it out. In this case, the doer (actor) is said to be reckless towards the consequences of the act in question.
Illustration
If I throw a stone in the midst of the crowd, I am reckless in my conduct, for although I have no intention or desire to cause injury to any particular person or persons, because I know, or ought to have known as a reasonable man that the result of my throwing the stone in the crowd would certainly cause injury to somebody in the crowd.
3) Negligence[12]:-
Negligence is used to denote want of care and precaution, which a reasonable man would have taken under the particular circumstances of the case, e.g., If during a quarrel with his wife, in sheer anger, ‘A’ throws a paperweight out of the window, breaking skull of by-passer, A is liable for the injury. Here, A, while throwing the paperweight out of the window, had neither foreseen injury to anyone nor contemplated it, yet A is culpable because he failed to conform to the conduct of a reasonable man.
Only in a few cases does I.P.C. fix liability on the grounds of negligence, e.g., rash and negligent driving, rash navigation of a vessel, etc.
4) Knowledge[13]:-
Knowledge means the personal information of the person doing the act. It is the awareness of the consequence of an act. A man may be aware of the consequences of his act. However, he may not have intended to bring them about, e.g. if a patient gives his consent to take the risk of an operation (which in a large proportion of cases has proved fatal), the surgeon who performed the act would not be punished for murder, if the patient dies during the course of operation. The death was not intentional, though it was known that the operation might result in the death of the patient[14].
c) Exceptions to the Mens Rea (Offences of Strict liability)[15]:-
Following are the circumstances wherein Mens Rea is not required to impose criminal liability; they are called the offence of strict liability.
1) Offences of strict liability:-
Where the Statute imposes strict liability, the presence or absence of a guilty mind is irrelevant. These statutes are generally passed for public safety and social welfare. Such strict liability is imposed under The Motor Vehicle Act, The Arms Act, Licensing of Shops, Hotels, Restaurants and Chemists, Essential Commodities Act, Food and Drugs Act, etc.
2) Difficulty in proving Mens Rea:-
In cases when it is challenging to prove mens rea, and the penalties are petty fines, and where statutes do not require mens rea on the basis of expediency etc., e.g. Traffic offences etc., the law imposes strict liability.
3) Public Nuisance[16]:-
In the case of Public Nuisance, the mens rea is not required to be proved because protecting public health, comfort, etc., is in the public interest.
4) Criminal proceeding, enforcing Civil Rights[17]:-
It includes cases in which, although the proceeding is criminal, it is really a mode of enforcing civil rights, e.g., Cases of violation of municipal laws and regulations, proceedings under S. 125 of the Criminal Procedure Code, etc.
5) Ignorance of Law[18]:-
A person cannot be excluded from liability under criminal law for the act he has committed in ignorance of the law. In other words, any act made against criminal law in ignorance of the legal provision is no defence. Everybody is presumed to know the law.
In R. V/s Bailey[19]
Facts: – A British Sailor did an act at African cost. The act was forbidden by the Act (law) of the British Parliament a few days before a sailor committed the act. There was no possibility for him to know at African Cost that such and such law had been passed by the British Parliament prohibiting the act he was doing. He was arrested for that offence. He pleaded the defence of ‘ignorance of the law’.
Court Held:– Sailor was held liable, and the court further held that ‘ignorance of the law was no defence’.
NOTE
A) Vicarious Liability[20]:-
Vicarious Liability is the liability imposed upon one person for the wrong of another in some relations. Such relations are master and servant, principal and agent, company and directors etc. In it, the superior is held liable for the act of the inferior. The principle behind it is that ‘One who does act through other does it himself’. The doctrine of Vicarious Liability is widely applicable in civil law, but it is not applicable in criminal law except in very few cases; viz.
(1) Statutory Liability[21]:-
Sometimes, the statute provides strict rules that the superior needs to obey; otherwise, he would be held liable. Examples are the liability of a newspaper proprietor for libel published in it and the liability of the owner of the property for any injury caused to others, for riots that took place on it (S.154 and S. 155).
(2) Public Nuisance[22]:-
If a servant does any public nuisance while performing the work entrusted by his principal, the principal is held liable.
(3) Neglect of duty[23]:-
The Factories Act 1948 provides strict liability for owners of hazardous industries for any injury caused to workers due to non-providing skilled staff, safety measures, etc.
B) ‘Act’ and ‘Omission[24]’ (Ss. 32 and 33):-
An ‘act’ means something voluntarily done by a human being, e.g. giving a blow, walking, speaking or any external manifestation of one’s mind. An ‘act’, i.e. commission (i.e. positive ‘act’ as discussed above), also includes’ omission’ (S. 32). ‘Omission’ means inaction or non-doing something he is duty bound to do. This, in other words, is called a ‘negative action’ and ‘commission’ or ‘act’ is called a positive action. Thus, a parent will be held liable for the murder of the child by feeding it poisonous food (i.e. ‘act’) or by starvation by not feeding it (i.e. omission).
In Gibbins and Proctor[25]
Facts:- It is an English case. A man and a woman with the intention of causing death had not provided food to a child for many days; the child died as a consequence of starvation.
Held:- They are guilty of the murder of a child by omitting to provide food to it.
In Om Prakash V/s State of Punjab[26]
Facts:– The appellant and his wife’s relations were strained. She was deliberately starved and was not allowed to leave the house, and only sometimes a piece of bread after five or six days used to be given. Her condition deteriorated to such an extent that she was reduced to a skeleton. One day, she managed to go out of the house and reached the Civil Hospital, where she met a Lady Doctor and told her of her suffering. The Lady Doctor found her condition very critical and reported the matter to the police for initiation of prosecutions of the accused.
Supreme Court Held:– that the accused is liable for an attempt to commit murder of his wife (S. 307) by omitting to provide food to her for days together.
However, ‘omission’ to be punishable should be ‘illegal omission’. In other words, ‘legal duty’ should be imposed on the person who omits its performance. Thus, if A sees a child drowning in a tank, in the absence of any relationship between A and the child, he is guilty of no offence if he allows the child to die.
The word ‘act’ denotes as well a series of acts as a single act. The word ‘omission’ denotes as well a series of omissions as a single omission (S.33). Thus, if a person gives ten slaps to another, he will not be punished for each slap separately; ten slaps will be treated as one ‘act’ for the purpose of punishment. At the same time, the act may constitute an offence under two or more enactments, e.g., ‘bribery’ is an offence under the I.P.C and the Preventive of Corruption Act. Still, the person guilty of the offence of bribery cannot be punished for the offence more than once.
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[1] गुन्ह्याचे घटक
[2] जर व्यक्तीचे मन निर्दोश असेल तर केवळ कार्यामुळे तो गुन्हेगार किंवा दोशी ठरत नाही. म्हणजेच गुन्हेगार ठरविण्यासाठी व्यक्तीचे कृत्य व त्याचे मन सुध्दा दोशी असले पाहीजे. [यदि किसी व्यक्ति का मन निर्दोष है, तो मात्र कार्य उसे दोषी या दोषी नहीं बनाते हैं। अर्थात अपराधी बनाने के लिए व्यक्ति का कर्म और उसका मन भी दोषी होना चाहिए।]
[3] दोशपूर्ण /अपराधी कृत्य. [एक दुराचार/आपराधिक कृत्य।]
[4] अपराधी/ पापी/ दोषी मन.
[5] गुन्हा करन्यास अपात्र [अपराध करने से अयोग्य घोषित]
[6] संहीतेत दोशी मनाची (मीन्सरीया) ची संकल्पना दोन प्रकारे दिलेली आहे. प्रत्यक्ष दोशी मन असा उल्लेख न करता प्रथमतहः गुन्हयासाठी अवष्यक असणा-या विषिश्ठ प्रकारच्या मनाच्या स्वरूपाचा उल्लेख केलेला आहे उदा. उद्देष, लबाडी, माहिती, निश्काळजीपणा, हेतुपूरस्सर ई. तसेच दुसÚया पध्दतीत दोशी मनाला अपवाद असना-या घटना ‘‘सर्वसाधारण अपवाद’’ या प्रकरनात दिलेल्या आहेत. [संहिता में दोशी मन (मीन्सरिया) की अवधारणा दो तरह से दी गई है। सबसे पहले, वास्तविक दोषी मन का उल्लेख किए बिना, यह अपराध के लिए आवश्यक विशिष्ट प्रकार के दिमाग को संदर्भित करता है, उदा। आशय, छल, ज्ञान, लापरवाही, इरादतन इ. साथ ही, दूसरी विधि में, जो मामले दोषी मन के अपवाद नहीं हैं, उन्हें “सामान्य अपवाद” शीर्षक के तहत दिया गया है।]
[7] सर्वसाधारण अपवाद. [सामान्य अपवाद।]
[8] (1996 SCC 281)
[9] उद्देष आणि हेतू. [उद्देश्य और मंशा।]
[10] 1956 SC 488
[11] अविचार. [दोषपूर्ण मन]
[12] निश्काळजी [लापरवाह]
[13] माहीती /ज्ञान असताना. [जबकि सूचना/ज्ञान।]
[14] Dishonestly and Fraudulently:-
5) Dishonestly (S.24) ( लबाडीने) [बेईमानी से].
- 24, Defines ‘dishonestly’ as “whoever does anything with the intention of causing, (i) wrongful gain to one person, or (ii) wrongful loss to another person, is said to do that thing ‘dishonestly’.
The term ‘dishonestly’ used here is not used in its common parlance i.e. honesty or probity but used in connection with property. ‘Dishonestly’ means an intention to cause either ‘wrongful gain’ or ‘wrongful loss’
‘Wrongful gain’ is deemed to be gained by unlawful means of property to which the person gaining it, is not entitled. On the other hand, ‘wrongful loss’ is the loss through unlawful mens of property to which the person losing it is legally entitled (S .23).
A person is said to ‘gain wrongfully’ when such person retain wrongfully as well as when such person acquires wrongfully.
A person is said to ‘lose wrongfully’ when such person is wrongfully kept out of any property, as well as when such person is wrongfully deprived of property. Illustration
A having pawned his watch to ‘Z’, takes it out of ‘Z’s’ possession, without his consent and without paying an amount which he had borrowed on the security of watch. He commits theft, because he takes it dishonestly. He commits theft, because he takes it dishonestly even though the watch is his own.
The word ‘dishonestly’, is used in the definitions of theft (S. 378), robbery (S.390), criminal misappropriation (S. 403), criminal breach of trust (S.405) and receiving stolen property (S. 411). It occurs with the word ‘fraudulently’ in several other offences e.g. offences relating to coins (Ss 245 and 247), cheating (S. 415) etc.
6) Fraudulently (S.25) (कपटपूर्वक[धोखे से ]): –
S.25, defines word ‘fraudulently’ as, ‘A person is said to do a thing ‘fraudulently’ if he does that thing with intent to defraud, but not otherwise.’
Fraud undoubtedly includes deception. But legal fraud requires one more element i.e. intention to injure (or defraud). To be a legal ‘fraud’ besides deception, there must be an intention to cause injury or an infringement of others legal right. Mere deception like a falsehood is a moral wrong. The law therefore does not ordinarily punish a deception or falsehood unless it is intended to injure someone else.
Illustration
A husband may magnify to his wife the value of presented article as one hundred rupees, when its real price is only sixty rupees. Similarly, we may say to a dying patient, that he will be all right. These are all deceptions but not fraud. Since, it is not intended to injure other person.
The word ‘fraudulently’ occurs in several offences under I.P.C., e.g. offences against public justice (S. 206 to 208, S. 210), weights and measures (S.264), counterfeit coins and stamps (S.242, S. 243 etc).
Distinction between ‘Dishonestly’ and ‘Fraudulently’ –
There are following differences between these two Viz-
1) Fraud necessarily involves deception whereas dishonesty does not.
2) Dishonesty necessarily involves injury to property; fraud covers injury to property as well as injury of every other kind e.g. fraudulently forging document for the discharge of prisoner etc.
3) By a dishonest act, injury is caused to a specified property of definite individuals whereas; by fraudulent acts injury is caused to unspecified property belonging to unknown and unascertained persons.
[15] दोशी मनाचे संकल्पनेला अपवाद. [दोषी दिमाग की अवधारणा के लिए एक अपवाद।]
[16] सार्वजनिक उपद्रव
[17] फौजदारी कार्यवाही की ज्यामध्ये दिवाणी अपधकारांची अंमलबजावनी केली जाते [आपराधिक कार्यवाही वे हैं जिनमें नागरिक अधिकारों को लागू किया जाता है]
[18] कायद्याचे ज्ञान [कानून का ज्ञान]
[19] 1810
[20] प्रातिनिधिक जबाबदारी / एकाच्या कृत्यास दूसरा जबाबदार. [प्रतिनियुक्त दायित्व / एक के कार्य के लिए दूसरे को जिम्मेदार बनाना।]
[21] कायदयाने दिलेली जबाबदारी.[कानून द्वारा दी गई जिम्मेदारी।]
[22] सार्वजनिक उपद्रव [सार्वजनिक उपद्रव]
[23] कर्तव्यात कसूर. [कर्तव्य की उपेक्षा।
[24] कृत्य आणि अकृत्य (कर्तव्यात कसूर). [कार्य और कार्य (कर्तव्य में दोष)।]
[25] 1918
In Common Wealth V/s Cali (1923)
Facts: – It is an American case; wherein, a fire had accidentally started in the defendant’s premises, he deliberately refrained from extinguishing it in order to claim insurance money.
Held:- He was held guilty of arson, as if he himself had started fire.
[26] AIR 1961 SC 1782
In Benoy Chandra v. State (1984) Cri.L.J.1038 (Cal).
Facts– The accused allowed a live, naked electric wire to remain unprotected. A boy came into contact with it and died.
Held– the accused was convicted for culpable homicide not amounting to murder.