This post was originally based on old criminal laws, which have now been revised under the new criminal laws, the 2023 Bhartiya Nyaya Sanhita (BNS), 2023 Bhartiya Nagrik Suraksha adhiniyam (BNSS), and 2023 Bhartiya Sakshya Adhiniyam (BSA). The new amendments in criminal laws mark a transformative shift in the Indian legal landscape, addressing emerging challenges and ensuring greater protection of rights. These changes include the introduction of more stringent provisions for cybercrimes, sexual offences, and crimes against vulnerable groups. In response, the law notes have been thoroughly revised to incorporate these updates, providing readers with detailed analyses and practical implications of the new laws. The updated notes aim to equip students and professionals with the knowledge to explore the evolving legal framework effectively.
Elements of Crime
To establish criminal liability, it is necessary to understand the elements of a crime. Crimes can be broken down into elements, which the prosecution must prove beyond a reasonable doubt. Criminal elements are set forth in criminal statutes or cases in jurisdictions that allow common-law crimes.
Fundamental Elements of Crime:
There are four elements which go to constitute a crime, these are:-
Human Being-
According to the first element, the wrongful act must be committed by a ‘human being’. Any non-living thing or animals are not considered in the ‘person/human being’ category. Whereas in ancient times, when the idea of the retributive theory largely dominated criminal law, punishments were inflicted on animals also for the injury caused by them. For instance, a pig was burnt in Paris for having devoured a child and a horse was killed for kicking a man.
Under the Indian Penal Code 1860, if an animal causes an injury, we do not hold the animal liable; rather, the owner is held liable for such injury. So, the first element of a crime is a ‘human being’, who must be under the legal obligation to act in a particular manner and should be a fit subject for awarding appropriate punishment.
Section 11 of the Indian Penal Code, now section 2(26) of Bhartiya Nyaya Sanhita, provides that the word ‘person’ includes a company or association or body of persons, whether incorporated or not. The word ‘person’ includes artificial or juridical persons.
Mens Rea
The second essential element of a crime is mens rea, or evil intent, or guilty mind, or a guilty or wrongful purpose; criminal intent; guilty knowledge, and willfulness.
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. It comes from the maxim that no person can be punished in a proceeding of a criminal nature unless it can be shown that he had a guilty mind. A fundamental principle of Criminal Law is that a crime consists of both a mental and a physical element. Mens rea, a person's awareness of the fact that his or her conduct is criminal, is the mental element and actus reus, the act itself, is the physical element.
The concept of mens rea developed in England during the latter part of the common-law era (about 1600) when judges observed that an act alone could not establish criminal liability unless it was accompanied by a guilty state of mind. The degree of mens rea required for a particular common-law crime varied. Murder, for example, required a malicious state of mind, whereas Larceny required a felonious state of mind.
Nowadays, almost every crime, mens rea plays a significant role in establishing criminal liability. Sometimes, a statute creates criminal liability for committing or omitting a particular act without designating a mens rea. These are called Strict Liability statutes. If such a statute is construed to omit criminal intent purposely, a person who commits the crime may be guilty even though he or she did not know that his or her act was criminal and had no thought of committing a crime. All required under such statutes is that the act itself is voluntary since involuntary acts are not criminal.
Elements of mens rea
Motive and intention are vital aspects in the field of law and justice. They are associated with a suspect to prove or disprove a particular case or crime. A wrong motive with guilty intention is necessary to establish criminal liability.
-Motive
Motive refers to the reason a crime was committed. It is often the background of the suspect in committing the alleged crime. As a background, motive comes before intent. Unlike intent, motive can be determined, but its existence doesn’t precisely prove guilt. It can be refuted by evidence or an alibi on a suspected person’s part (often referred to as “a person of interest” in criminal jargon). The motive is an initial factor but not a conclusive determinant to link a person to a crime.
Essential ingredients of motive:-
i. The ulterior object is called the motive.
ii. The motive may be good or bad.
iii. Motive refers to the reason a crime was committed.
iv. Motive, as a psychological term, is also known as the drive.
v. It is a general rule that a man’s motive is irrelevant in determining criminal liability.
vi. Criminal law is not concerned with good motives.
Sometimes, the motive is relevant in exceptional civil liability cases, such as defamation, malicious prosecution, cheque dishonour, etc.
Why Motive Matters
The motive is an indirect way to prove that something was done intentionally or knowingly. For instance, a defendant in an assault case may claim that he punched the victim by accident and thus did not have the necessary intent for an assault. Suppose the prosecution can demonstrate that the defendant and victim had been arguing shortly before the alleged assault. In that case, that motive can serve as circumstantial evidence that a defendant did intend to punch the victim. Alternatively, defendants can use the prosecution's lack of evidence of a motive as a "reasonable doubt" to avoid criminal liability.
To be specific, a scenario of intent in criminal law often involves the prosecutor in a court of law filing a charge of a crime against a suspect with absolute motive and intent. Since the intent is the final goal of the motive, it needs to be proven in order to prove that the suspect committed the crime. Compared to motive, the intent has more legal standing and weight in a court of law and is a requirement to make a case along with the means and opportunity.
-Intention
The intention is the supposed action or purpose of the crime. It is the result of the motive and has a higher level of culpability since a harmful action was committed. The intent is characterised as a deliberate action and conscious effort to break the law and commit the offence. Intent resides in the field of law, which is defined as the planning and longing to perform an act. It is present in both criminal law and tort law.
In finer terms, intention describes an individual's will or plan. So, when an action is performed intentionally, it implies the willingness or aim of a person to do so and not an accident or mistake, where he/she is completely aware of the consequences of the act. That is why intention is the primary element that affixes culpability.
No matter whether the act is committed with good intent or bad, if a person does something purposefully and consciously which is prohibited by the law, it will amount to criminal liability.
Motive v. Intention
Intention is the basic element for making a person liable for a crime, and it is commonly contrasted with motive. Though we often use the two terms interchangeably, they are different in the eyes of the law. While intention means the purpose of doing something, motive determines the reason for committing an act.
The primary difference between intention and motive is that intention specifically indicates the mental state of the accused, i.e. what is going on in his mind at the time of the commission of a crime. In contrast, motive implies motivation, i.e. what drives a person to do or refrain from doing something.
The key difference between motive and intention:
While intention determines whether the accused committed the crime purposely or accidentally, motive answers the question of why the accused committed the crime. Simply put, motive impels intention, so the latter arises out of the former.
In every criminal case, the defendant's intention is foremost because guilt or innocence can only be proved with it. On the other hand, motive does not play a significant role in determining guilt or innocence.
-Knowledge
In criminal law, knowledge is one of the degrees of mens rea that constitute part of a crime. For example, in English law, the offence of knowingly being a passenger in a vehicle taken without consent (TWOC) requires that the prosecution prove not only that the defendant was a passenger in a vehicle and that the driver took it without consent but also that the defendant knew that it was taken without consent.
Under the principle of ignorantia juris non excusat, ignorance of or mistake about the law is no defence. The mens rea of knowledge refers to knowledge about certain facts.
It is "a positive belief that a state of affairs exists."
This term applies if a person is aware that his or her actions will have certain results but does not seem to care. For example, if a person violently lashes out at someone, inflicting harm may not be her primary goal. However, if she was aware that harm would be a predictable result of her actions, then she is guilty of having criminal knowledge.
There are three types of knowledge:
1. Actual knowledge
A defendant does not have actual knowledge if he believes something to the contrary. The standard is subjective and the belief of the defendant need not be reasonable, only honest. For example, in R v. Williams, [1987] 3 All ER 411, CA (England), the defendant intervened in what he thought was a mugging but was, in fact, a citizen's arrest. His mistake was upheld as a defence against a charge of assault. In Beckford v. R, [1987] 3 All ER 425, (UK Privy Council), the defendant was a police officer who shot and killed V. Beckford claimed that he believed that V was shooting at him. It was found that the correct test was whether D "honestly believed" facts, which, if true, would establish a defence. The reasonableness of the belief would be evidential in finding whether it was truly believed.
2. Constructive knowledge
Knowledge is also found when a defendant suspects that circumstances exist and "deliberately decides not to make any further inquiries" if his suspicions prove well-founded. A typical example is a person who purchases significantly inexpensive and unprovenanced but desirable items from a stranger. Such a person is likely to be fixed with constructive knowledge that the items were stolen.
3. Imputed knowledge
This is relevant in strict liability offences and corporate crime. For example, suppose a bar manager delegates his duties to others, and those others know of unlawful activities on the premises. In that case, the manager can be fixed with imputed knowledge of the unlawful activities.
Levels of Knowledge
There are four levels of knowledge under criminal law which are necessary to understand clearly and separately to establish criminal liability.
Relevant cases of mens rea
“Actus non facit reum nisi mens sit rea” is the famous English maxim of criminal law. This maxim means, “The act itself does not constitute guilt unless done with a guilty mind.” It is applied to all common-law crimes in England without any reservations. Its application to statutory offences was, however, uncertain up to 1947. There were two prominent cases- laws leading the Doctrine of Mens Rea. One is R. vs. Prince, and another is R. vs. Tolson.
R. v. Prince (1875 LR 2 CCR 154)
Brief Facts: Henry Prince loved Annie Philips, an unmarried minor girl. He took away her with the intention to marry her. The father of the girl reported to the police against Henry Prince, alleging that Prince had illegally taken away his minor girl below the age of 16 years.
The Police arrested Henry Prince and filed criminal proceedings against him. Henry Prince was tried for having unlawfully taken away an unmarried girl below the age of 16 years out of lawful possession and against the will of her father/the natural guardian.
The accused contended that he believed she had completed 18 years. He also contended that the girl herself told him her age was more than 18 years. The accused also argued that he had no mens rea (ill intention).
Judgment: The jury found upon evidence that before the defendant took her away, the girl had told him that she was 18. However, Jury held that the accused’s belief about the age of the girl was no defence.
It was argued that the statute did not insist on the accused's knowledge that the girl was under 16 as necessary for conviction and that the Doctrine of Mens Rea should, nevertheless, be applied and conviction be set aside in the option of criminal intention. 16 Judges tried the case, and all but one unanimously held that Henry Prince was guilty of kidnapping.
Principles: A mixed question of fact and law was treated as a question of fact if the accused was misled into an awareness of the fact on account of an error of law. The jury formulated certain important rules while disposing of this case:
1. That when an act is in itself plainly criminal and is more severely punishable if certain circumstances co-exist, ignorance of the existence of such circumstances is no answer to a charge for the aggravated offence.
2. Where an act is prima facie innocent and proper unless certain circumstances co-exist, then ignorance of such circumstance answers the charge.
3. That the state of the defendant’s mind must amount to absolute ignorance of the existence of the circumstances which alters the character of the act or to a belief in its non-existence.
4. Where an act which is in itself wrong, under certain circumstances, a criminal/a person who does the wrong act cannot set up as a defence that he was ignorant of the facts which turned the wrong into a crime.
5. Where a statute makes it penal to do an act under certain circumstances, it is a question upon the wording and object of the particular statute whether the responsibility of ascertaining that the circumstances exist is thrown upon the person who does the act or not. In the former case, his knowledge is immaterial.
R. v. Tolson (1889 23 QBD 168)
Brief Facts: The accused was tried under Section 57 of the Offences against the Persons Act, 1861 (a similar provision in India is Section 82(1) of the Bhartiya Nyaya Sanhita, 2023) for having committed the offence of bigamy.
Under that Section, it was an offence for a married person to contract a second marriage during the lifetime of the husband or wife, as the case may be. In this case, Mrs. Tolson married in 1880.
In 1881, Mr. Tolson deserted her and went away. She made all possible enquiries about him and ultimately came to know that her husband, Mr. Tolson, had died in a ship accident in America.
Therefore, supposing to be a widow, she married another man in 1887. The second husband knew the whole story; the marriage was not secret.
In the meantime, Mr. Tolson suddenly re-appeared and prosecuted Mrs. Tolson for bigamy. In the trial Court, she was convicted for imprisonment on the ground that a belief in good faith and reasonable facts about the death of her husband was no defence to the charge of bigamy. She appealed to the Court of Appeal.
Before the Court of Appeal, the question was whether Mrs. Tolson had guilty intention (mens rea) in committing the offence of bigamy.
Judgment: The Court of Appeal by majority set aside the conviction on the ground that a bona fide belief about the death of the first husband at the time of the second marriage was a good defence in the offence of bigamy.
It also opined that the seven-year statutory limitation for the second marriage was completed at the time of her second marriage, and she informed the second husband of the real facts. Hence, it acquitted the accused.
R. v. Wheat and Stock (1921) 2 KB 119)
In this case, the accused, an uneducated man, handed over his case to his solicitor to obtain a divorce from his first wife. He believed that as soon as he handed over his case to his solicitor, he obtained a divorce from his first wife.
He married another lady, believing it in good faith. The first wife prosecuted him. He pleaded that he did not know the procedure of law and believed that he obtained the divorce with bona fide intention.
The Court did not accept his version and convicted him of the offence of bigamy on the ground that reasonable belief about the dissolution of marriage would be no defence to the charge of bigamy unless the divorce would be obtained from a Court of law.
Principles:
1. Two cases, i.e., Tolson and Wheat, are quite distinct. In Tolson’s case, it was a mistake of fact. In Wheat’s case, it was a mistake of law. Mr Wheat did an act forbidden by law, whereas Mrs Tolson had no such intention.
2. The Doctrine of Mens Rea was resurrected and made applicable not only to common-law offences but also to all statutory offences.
3. There is a presumption that mens rea or evil intention or knowledge of the wrongfulness of the act is an essential ingredient in every offence.
Mens Rea: the Indian perspective
Technically, the Doctrine of Mens Rea is not applied to the offences under the Indian Penal Code. Here, it is wholly out of place. In the Bhartiya Nyaya Sanhita 2023, every offence is clearly defined. The definition not only states what the accused might have done, but it also states the state of his mind with regard to the act when he was doing it.
Each definition of the offence is complete in itself. The words “mens rea” are not used anywhere in the Bhartiya Nyaya Sanhita 2023. However, the framers of the Code used words equivalent to those of mens rea in the Code very frequently.
Such expressions are:-
i. Fraudulently (Section 2 (9));
ii. Dishonestly (Section 2 (7));
iii. Reason to believe (Section 2 (29));
iv. Voluntarily (Section 2 (33));
v. Intentionally, etc.
Moreover, in the Bhartiya Nyaya Sanhita 2023, a separate Chapter (Chapter III) on General Exceptions is provided. Chapter III (Ss. 14 to 44) explains the circumstances where options of criminal intent may be presumed. Compared to English law, Mens Rea has been applied by the Indian courts, and it is now a firmly settled law that states that Mens Rea is an essential ingredient of the offence.
State of Maharashtra v Mayor Hans George, AIR 1965 SC 722:
Mens rea, by necessary implication, can be excluded from a statute only where it is absolutely clear that the implementation of the object of a statute would otherwise be defeated, and its exclusion enables those put under strict liability by their act or omission to assist the promotion of the law.
Kartar Singh v State of Punjab, 1994 (3) SCC 569:
The element of mens rea must be included in a statutory penal provision unless the statute expressly or by necessary implication rules it out.
The offences of abetment and conspiracy involve the most ingredient part of Mens Rea (guilty intention) or knowledge. The wrong-doer knowingly abets or conspires.
In the case of Dahya Bhai Chagganbhai Thakkar vs State of Gujarat (AIR 1964 SC 1763), the Supreme Court made observations and explained the law regarding the burden of proof in insanity cases. The court outlined the "Doctrine of Burden of Proof" in the context of the plea of insanity with the following propositions:-
1. The prosecution must prove beyond a reasonable doubt that the accused had committed the offence with the requisite Mens Rea, and the burden of proving that always rests on the prosecution from the beginning to the end of the trial.
2. There is a rebuttable presumption that the accused was not insane when he committed the crime, in the sense laid down by Section 22 of the BNS; the accused may rebut it by placing before the Court all the relevant evidence oral, documentary or circumstantial, but the burden of proof upon him is no higher than that rests upon a party to a civil proceeding.
3. Even if the accused was not able to establish conclusively that he was insane at the time he committed the offence and the evidence placed before the Court by the accused or by the prosecution may raise a reasonable doubt in the mind of the Court as regards one or more of the ingredients of the offence, including Mens Rea of the accused and in that case, the Court would be entitled to acquit the accused on the ground that the general burden of proof resting on the prosecution was not discharged.
4. To differentiate between Culpable Homicide (Section 100) and Murder (Section 101), the Court depends upon the Doctrine of Mens Rea.
5. Section 294 of the BNS prescribes the punishment for the sale of obscene books, etc. Possession of obscene literature, books, etc., includes ill intention. Section 100 connotes conscious possession and mens rea or guilty mind, which cannot be separated from the offence.”
In the case of modern statutory offences, the maxim has no general application, and the statutes are to be regarded as themselves, prescribing the mental element that is prerequisite to a conviction. So Mens Rea is an essential element of crime in every penal statute unless the same either expressly or by necessary implication is ruled out by the statutes.
Further, it is not entirely correct to say that the Doctrine of Mens Rea is inapplicable to an offence under the BNS. The BNS requires not a negation of Mens Rea but a specific kind of Mens Rea, which differs from offence to offence.
For every intention, there shall be one ‘motive’. Section 6 of the Bhartiya Sakshya Adhiniyam 2023 explains the motive's importance and evidentiary value.
3. Actus reus
Actus reus is the Latin term used to describe a criminal act. This is a third essential element of a crime. In other words, some overt act or illegal omission must take place in pursuance of the guilty intention. Actus reus is the manifestation of mens rea in the external world. Prof. Kenny was the first writer to use the term ‘actus reus’. He has defined the term thus- “such result of human conduct as the law seeks to prevent”.
Every crime must be considered in two parts: the physical act of the crime (actus reus) and the mental intent to do the crime (mens rea). To establish actus reus, a lawyer must prove that the accused party was responsible for a deed prohibited by criminal law.
Actus reus is commonly defined as a criminal act that results from voluntary bodily movement. It describes a physical activity that harms another person or damages property. Anything from a physical assault or murder to the destruction of public property would qualify as an actus reus.
Omission, as an act of criminal negligence, is another form of actus reus. It lies on the opposite side of the spectrum from assault or murder and involves not taking an action that would have prevented injury to another person. An omission could be failing to warn others that you’ve created a dangerous situation, not feeding an infant left in your care, or not properly completing a work-related task, resulting in an accident. In all of these cases, the perpetrator’s failure to complete a necessary activity caused harm to others.
The exception to actus reus is when the criminal actions are involuntary. This includes acts that occur as a result of a spasm or convulsion, any movement made. At the same time, a person is asleep or unconscious, or activities participated in while an individual is under a hypnotic trance. In these scenarios, a criminal deed may be committed, but it is not intentional, and the responsible person will not even know about it until after the fact.
Exceptions of mens rea and actus reus
The exception to mens rea and actus reus is when the criminal actions are involuntary. This includes acts that occur as a result of a spasm or convulsion, any movement made while a person is asleep or unconscious, or activities participated in while an individual is under a hypnotic trance. In these scenarios, a criminal deed may be committed, but it is not intentional, and the responsible person will not even know about it until after the fact. In Bhartiya Nyaya Sanhita, 2023, sections 14-44 explain the general exception of mens rea.
Sherras v. De Rutzen, (I.Q.B. 918):
It has been laid down that mens rea is an essential ingredient in every offence except in three cases:
(1) Cases not criminal in any real sense but which in the public interests are prohibited under a penalty;
(2) public nuisances; and
(3) cases criminal in form but which are really only a summary mode of enforcing a civil right.
4. Injury
The fourth requirement of a crime is an injury to another person or to society at large. The injury should be illegally caused to any person in body, mind, reputation, or property. According to Section 2(14) of BNS, 2023, injury denotes any harm whatever illegally caused to any person in body, mind, reputation, or property.
Conclusion
Elements of a crime are one of a set of facts that must all be proven to convict a defendant of a crime. Before a court finds a defendant guilty of a criminal offence, the prosecution must present evidence that, even when opposed by any evidence the defence may choose to present, is credible and sufficient to prove beyond a reasonable doubt that the defendant committed each element of the particular crime charged.
