Since the dawn of human civilization, crime has been a baffling problem. There is hardly any society which is without the problem of crime. Violation of norms and rules do occur in a society. Durkheim in his book “Crime as a Natural Phenomenon” said: “A society composed of persons with angelic qualities would not be free from violation of the norms of that society.”

The concept of crime is essentially concerned with the social order. A sense of mutual respect and trust for the rights of others regulates the conduct of the members of society inter se. Although most people believe in peace and harmony, yet there are a few who deviate from this normal behavior pattern. This imposes an obligation on the state to maintain normalcy in society which it performs through the instrumentality of law.

Crime is a public wrong. It is an offence against the community or society as a whole. It causes threat to social security and creates social disorder. Eg:-Murder, Rape, Theft, Robbery, Forgery etc.

Crime is defined as “an act punishable by law as forbidden by statute or injurious to the public welfare.”It is a very wide definition. Anything which is injurious to public welfare is a crime.

A ‘CRIME’ can be said to be an act of commission or omission contrary to law, tending to the prejudice of a community, for which punishment can be inflicted as the result of judicial proceedings taken in the name of the state. When a person commits a wrong, he is said to be liable for it.

The word ‘crime’ is derived from the Greek word “Krimos” which means “social order” and it is applied “to those acts that go against social order and are worthy of serious condemnation”. It is very difficult to give a correct and precise definition of the term ‘crime’.

According to Bentham, “Offences are whatever the legislature has prohibited for good or for bad reason. If the question relates to a theoretical research for the discovery of the best possible laws according to the principles of utility, we give the name of offence to every act which we think ought to be prohibited by reasons of some evil which it produces or tends to produce.

William Blackstone in his “Commentaries on Law of England” define ‘crime’ as “an act committed or omitted in violation of Public Law either forbidding or commanding it.”

According to James Stephen, “Crime is an act, which is both forbidden by law and revolting to the moral sentiments of the society.”

Austin writes, “A wrong which is pursued at the discretion of the injury party and his representatives is a civil injury, a wrong which is pursued by the sovereign or his subordinate is a crime.”

Keeton has defined crime as, “A crime today would seem to be any undesirable act, which the state finds it most convenient to correct by the institution of proceedings for inflicting of penalty instead of leaving the remedy to the discretion of some injured person.”

To constitute a crime there are four chief elements:-

  1. A human being under a legal obligation to act in a particular way and a fit subject for the infliction of appropriate punishment;
  2. An evil intent on the part of such a human being;
  3. An act committed or omitted in furtherance of such an intent ;
  4. An injury to another human being or to the society at large by such act.

“Crime is not static quality nor it can be considered in absolute terms. There is actually no such thing as a crime in se.”

The word “CRIME” has not been defined in the Indian Penal Code .In its broad sense, however, it may be explained as an act of commission or omission that is baneful to the society in general. By commission of an act (i.e., killing a person by giving/administering poison or by a negligent surgical operation) or by omission of an act (i.e., killing of a person without giving food or by omitting to give medical aid on time).The word ‘act’ denotes as well as series of acts as a single act, and the word ‘omission’ denotes as well a series of omission as a single omission  -Section 33 of Indian Penal Code. But all acts tending to the prejudice of the community are not “crime” unless they are punishable under the law.

As there is no satisfactory definition it is not defined in the Indian Penal Code. The word ‘offence’ is used in the Penal Code in place of “crime”. According to Section 40 of the Indian Penal Code, except in chapters and sections mentioned in Clauses 2 and 3 of this section, the word ‘offence’ denotes a thing punishable by this Code.

According to Osborn, Crime is an act or default which tends to the prejudice of the community, and forbidden by law on pain of punishment inflicted at the suit of the state. In its legal sense, therefore, crime includes such offences being acts or defaults which have been made punishable by the Indian Penal Code. It is apparent from the above that there is nothing which by itself is a crime, unless it has been declared by the legislature as punishable.

The authors of the Indian Penal Code themselves remark that Penal Code is not by any means to be considered a body of ethics, nor ought the legislature to punish acts merely because those acts are immoral, nor, further, from the fact that an act is not punished at all should it follow the legislature considers that acts are innocent. Many things which are not punishable are morally worse than those which are punishable.

The rich man who refuses a handful of rice to save a fellow creature from death may be a far worse man than the starving wretch who snatches and devours the rice, yet the Indian Penal Code punishes for theft, and not the former for hard-heartedness.

Crime is, therefore, a relative conception. Different societies view different acts of commission and defaults as crime in different ages and according to different localities and circumstances.

The recognition of a crime, therefore, varies with public opinion of a given society at a given time and there cannot be any rigid or absolute criterion to determine it.

Ideas may change, standards of ethical morality may differ, and with them may differ the recognition of any offence by the legislature within the amit of its Penal Code.

It has, therefore, been rightly said that crime is not quantity nor can it be considered in absolute terms. There is actually no such thing as a crime in se or crime by itself.

MENS REA

Mens Rea means “mental element or civil intent or guilty mind”. One of the fundamental principles of our legal system is to determine punishment depending upon mental condition of the accused. In other words, criminal liability depends upon the evil intent or guilty mind, which is known as Mens Rea. It means an intention to do a forbidden act.

The term ‘Mens Rea’ is not defined in the Penal Code. It may be defined as “the mental element necessary to constitute criminal liability.” Mens Rea means “an intention to do a forbidden act”. It is expressed in the Latin maxim “actus non facit reum nisi mens rea” as a fundamental principle for penal liability. It means ‘intent and act both must concur to constitute a crime. In other words, an act itself is no crime, unless it is coupled with an evil intent.

For the vast majority of offence, mens rea will be satisfied if the defendant can be shown to have intended their actions or can be considered to have been reckless as to whether a consequence would occur or circumstances would exist following their conduct. However, in certain circumstances, a defendant will satisfy mens rea if they are considered to have acted negligently and for certain offences, known as offences of strict liability, no mens rea at all is required.

In the course of time, two tests were evolved to determine mens rea:-

First, whether the act in question was a voluntary act of the accused, and Secondly, whether the accused had the foresight of the consequence of his conduct, i.e., whether the result was foreseen.

The doctrine of mens rea has been applied by the Indian Courts. It is now settled that mens rea is a essential ingredient of an offence. According to Wright, J. the mens rea is a essential ingredient in every offence except in three cases:-

  1. Cases which are not criminal but are prohibited in the public interest under penalty;
  2. Public nuisance and
  3. The cases which are in the form of criminal cases but actually are for enforcing a civil right.

In the primitive society, i.e., before the 13th century, the concept of ‘mens rea’ was non-existent as it was not taken into consideration, while fixing the criminal liability. However, it was full established during the 14th and 15th centuries. By the end of the 17th century, it was universally settled law that “mens rea’ is an essential ingredient of crime. No act of the person was punishable in the absence of mens rea.

Mens rea is a loose term of elastic signification and covers a wide range of mental states and conditions, the existence of which would give a criminal here to actual reus. There might be actus without mens rea. Thus, for example, if an infant of 2 years while playing with a loaded pistol lets it go and kills another person, there is actus reus without mens rea. There might also be mens rea without actus reus. In ethics or religion an evil deed may be committed in mind and might constitute a wrong, even though it had no manifested itself in physical conduct.

Actus non facit reum,nisi mens sit rea

Actus non facit nisi sit rea is a well known maxim of criminal law. It means ‘the act itself does not make a man guilty until his intentions were so. Another maxim which is proposition to it is: “ACTUS ME INVITO FACTUS NON EST MENS ACTUS” which means ‘an act done by me against my will is not my act at all’. Which means an act in order to be punishable by law must be willed at or voluntary act and at the same time must have been done with a criminal intent. The intent and the act both must concur to constitute the crime. Where the criminal intent necessary to constitute a crime is wanting there is no criminal responsibility unless the offence is expressly or by necessary implication punishable without reference to the wrong-doer.

In the earliest times, the trials were held on fundamental presumption that a man must almost in every case be deemed to have intended to do what he had done. The older English criminal law began with the principle of strict liability for in those days the distinction between crime and tort was not clearly drawn and the punishment in those days mainly consisted of money compensation to the person wronged. Therefore, the mental attitude of a person was an irrelevant consideration in so far as the trial and punishment were concerned.

A criminal offence is only committed when an act, which is forbidden by law, is done voluntarily by a human being. The maxim actus non facit reum nisi mens sit rea (the act alone does not amount to guilt, it must be accompanied by a guilty mind) is considered to be the condition of penal liability. Thus, there are two conditions of penal liability:- (1) act or actus reus and (2) a guilty mind or mens rea. Actus reus represents the physical aspect of crime and mens rea represents its mental aspect.

The expression “actus reus” denotes the “physical act” which includes an act or omission as well. To constitute crime, there must exist commission or omission of an illegal act. When the intention is to do a prohibited act, it is known as ‘actus reus’.

The word ‘actus reus’ connotes a ‘deed’, a physical result of human conduct. The word ‘reus’ means ‘forbidden by law’. The term ‘actus reum’, may therefore be defined as “such result of human conduct as the law seeks to prevent”.

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 and even of life, but it is not a crime unless the circumstances are such that it is legally prohibited. Accordingly no crime is committed by 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. Similarly no crime is committed and no criminal liability arises when hurt is inflicted by a properly skilled person in the course of a surgical or dental operation upon a patient.

Exception to mens rea

The general principle is that although the statute is silent on the point or requirement of mens rea is to be implied. “Act of Parliament are to be so construed, as no man that is innocent, or free from injury or wrong be by a literal construction punished or endangered. Some less complex and less guilty state of mind that the usual mens rea is sometimes by statutory enactment but hardly by the common law, made sufficient for the mental element in criminal guilt. These offences are known as crimes of strict liability. Such statutory offences are increasing both in number and importance. Yet they are rare.

The legislature is averse to create these offences except where (i) the penalty incurred is not great, but (ii) the damage caused to the public by the offence, in comparison with the penalty, very great, and (iii) where at the same time, the offence is such that there would usually be peculiarity and difficulty in obtaining adequate evidence of the ordinary mens rea, if that degree of guilt were to be required. There is a large body of municipal law almost in all civilized countries so framed as to make an act criminal whether there is an intention to break the law or not. These transgressions are not criminal in the strict sense of the term but are civil in their nature and for special reasons are termed as offence. Thus, in some of the exceptional crimes, less than the usual mens rea suffices.

 Sherras V. De Rutzen

Applicability of Mens Rea To Indian Penal Code

The common law doctrine of mens rea has no general application in India, for the law in India is codified and offences are carefully defined so as to indicate in the definition itself the precise requirement of mens rea which is essence of a particular offence. Notwithstanding that the offences in the Indian Penal Code are defined with great care and precision and the Chapter on General Exceptions is very comprehensive, the application of the doctrine may on occasions be found useful in remedying defective and incomplete definitions or at least interpreting them or where it is not expressly excluded by the terms of the statute itself. The Indian Penal Code gives effect to the doctrine of mens rea in two ways. First, the chapter dealing with General Exceptions which controls all the offences defined in the Code as well as the offence under special and local laws deals with the general conditions which negative mens rea, and thereby provide a sufficient ground for exemption from criminal liability. This is how the code negatively gives effect to the doctrine of mens rea because under these exceptions, a large number of cases have been excluded where there is an absence of evil intent in one form or another. Secondly, every offence in the Indian Penal Code is carefully defined so as to include the precise evil intent which is the essence of a particular offence. This has been done by using such words as denote the requirement of mens rea such as voluntarily, intentionally, knowingly, etc. These words qualify the consequences of the act and not the act itself.

There are some sections in the Indian Penal Code where the words indicating evil intent are not used. Such cases are of two kinds:-

  1. Where the acts with their consequences are so harmful to the society or the state that it had been thought just and expedient to punish those acts irrespective of the intention to cause those consequences, such as waging war against the government of India, seditious kidnapping and abduction.
  2. Where the acts themselves are of such a character that they raise a violent presumption that whoever willed the act must have intended the consequences; such as counterfeiting of coins and government stamps.

On a analysis the definition under the code are found to comprise of the following elements:-

  1. A human being;
  2. Evil intent: that is an intent on the part of such human being to cause a certain consequence considered injurious to individuals or to society.
  3. The act willed;
  4. The resultant evil consequence;
  5. A knowledge of the existence of such facts.

                                 This element is necessary only where the intended consequence is not injurious by itself, but is injurious in conjunction with certain other facts.

This second element i.e., the evil intent is indicated generally by the use of words- intentionally, knowingly, voluntarily, dishonestly, fraudulently, maliciously, malignantly, corruptly, recklessly, negligently, wantonly and so on.

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