“Law Master’s Publication”

“Elements of Crime”

Prof. Santosh D. Bhosale 6

(..2..)

ELEMENTS 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 the doctrine of mens Rea.

Q.6 Explain the importance of mens rea in fixing liability under the Indian

Penal Code.

Q.7 “Mens Rea is an essential element to constitute an offence”.

Q.8

Q.9

Explain the proposition with any exceptions.

What are the essential elements to invoke criminal liability?

SHORT NOTES

1. Omission

2. Injury

“Law Master’s Publication”

“Elements of Crime”

Prof. Santosh D. Bhosale 7

SYNOPSIS

I]

Introduction

Elements of Crime

A)

II]

Actus Reus

1)

2)

3)

Human action (i.e. conduct)

Result of conduct

Acts prohibited by law

B)

Mens Rea

a)

b)

In English law

In India

1)

2)

3)

4)

5)

6)

Intention

Recklessness

Negligence

Knowledge

Dishonestly

Fraudulently

I]

INTRODUCTION

The fundamental principle of penal liability is embodied in the maxim, ‘Actus

non-facit reum nisi mens sit rea’. It means the act is not a crime unless done with

a guilty mind. Thus, there are two conditions of criminal liability. Viz-

1)

2)

Physical act (Actus reus)

Mental (Mens Rea, i.e. Guilty mind)

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)

“Law Master’s Publication”

“Elements of Crime”

Prof. Santosh D. Bhosale 8

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

“Law Master’s Publication”

“Elements of Crime”

Prof. Santosh D. Bhosale 9

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

circumstances 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 Wales is ten years, and those below the said age are considered to be

doli incapax 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 the Indian Penal Code

To avoid confusion present in English Law as to “Mens Rea”, the word

“Mens Rea” as such was 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 same system has been carried forward under BNS, 2023.

The framers of the I.P.C. (now BNS) have incorporated the idea of Mens

Rea in the I.P.C. (BNS) 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, dishonestly, etc. In other words, every offence (section)

under BNS (I.P.C) imports the idea of ‘Mens Rea’ in its specific form, such as

intentionally, knowingly, dishonestly, etc.

Secondly, the concept of Mens Rea has been incorporated into the provisions

relating to ‘General Exceptions.’ (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.

“Law Master’s Publication”

“Elements of Crime”

Prof. Santosh D. Bhosale 10

In Malhan K.A. V/s Kora B. Kutti¹

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 BNS

(I.P.C), 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 several sections

under I.P.C., ‘intentionally’ is the requirement of crime, e.g. intentionally joining

an unlawful assembly (S.189 (2) of BNS), intentionally preventing service of

summons (S.207 BNS), intentionally causing death (Murder) (S. 101 BNS) etc.

Intention and Motive 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.

1

(1996 SCC 281)

“Law Master’s Publication”

“Elements of Crime”

Prof. Santosh D. Bhosale 11

In Basudev V/s State of Peps²

Supreme Court held. That motive is something which prompts a man to

form an intention.

2)

Recklessness:-

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:-

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., causing death by rash and negligent act (S. 106 of BNS), rash driving or riding

on a public way (S. 281), rash navigation of a vessel (S. 281), etc.

4)

Knowledge:-

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

2

1956 SC 488

“Law Master’s Publication”

“Elements of Crime”

Prof. Santosh D. Bhosale 12

the death of the patient³.

S. 100 (Culpable Homicide) knowingly killing a human being, S. 101

Knowingly causing death (Murder) S. 124 Knowingly causing injury (grievous

3

Dishonestly and Fraudulently: -

5) Dishonestly (S.24)

S. 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 a person retains wrongfully, as well as when such a 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

Having pawned his watch to ‘Z’, he takes it out of ‘Z’s possession, without his consent and without paying the 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): -

S.25 defines the 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 rights. 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 a 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 another 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 the 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 a document for the discharge of a 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.

“Law Master’s Publication”

“Elements of Crime”

Prof. Santosh D. Bhosale 13

hurt), S. 178 Knowingly counterfeiting coins, etc. S. 317 retaining property

knowing it to be stolen.

c)

Exceptions to the Mens Rea (Offences of Strict liability):-

The 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:-

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:-

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. 144 of the BNSS proceedings relating to

maintenance of wife and children, etc.

5)

Ignorance of Law:-

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 Bailey⁴

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’.

4

1810

“Law Master’s Publication”

“Elements of Crime”

Prof. Santosh D. Bhosale 14

Court Held: - Sailor was held liable, and the court further held that

‘ignorance of the law was no defence’.

NOTE

A)

Vicarious Liability:-

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:-

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.193 (1) and (2)).

(2) Public Nuisance:-

If a servant does any public nuisance while performing the work entrusted

by his principal, the principal is held liable.

(3) Neglect of duty:-

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’ :-

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.3 (4)). ‘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 Proctor⁵

⁵1918

In Common Wealth V/s Cali (1923)

“Law Master’s Publication”

“Elements of Crime”

Prof. Santosh D. Bhosale 15

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 Punjab⁶

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. 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 BNS and the Prevention of Corruption Act. Still,

the person guilty of the offence of bribery cannot be punished for the offence more

than once.

****

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.

⁶AIR 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.