What is Crime?

There are lots of evil in our society, one among them is crime. An act or behaviour that harms others and society in general is crime. Some definition of crime is given by jurist are as follows:

Sir William Blackstone: A crime is an act committed or omitted in violation of a public law forbidding or commanding it.

Sergeant Stephen: A crime is a violation of a right, considered in reference to an evil tendency of such violations as regards the community at large.

Prof. SW Keeton: A crime would seem to be any undesirable act which the State finds it most convenient to correct by the institution of proceedings for the infliction of a penalty, instead of leaving the remedy to the discretion of some injured party.

Kenny: Crime is a wrong whose sanction is punitive and is in no way remissible by any private person, but is remissible by Crown alone if remissible at all.

Miller: Crime is commission or omission of an act which the law forbids or commands under pain of a punishment to be imposed by the State by a proceeding in its own name.

A crime may, therefore, be an act of disobedience to such a law forbidding or commanding it. But then disobedience of all laws may not be a crime, for instance, disobedience of civil laws or laws of inheritance or contracts. Therefore, a crime would mean something more than a mere disobedience to a law.

Elements of Crime:

There are four elements of crime namely; (1) Human Being (2) Mens rea / Guilty mind (3) Actus reus / Prohibited act, and (4) Injury to society or human being.

1. Human Being

The first element of a crime is a human being. Any wrongful act to be called a crime must be done by a human being. There must be a human being under a legal obligation to act in a particular way, and it must also be capable of being punished.

2. Mens Rea

The second essential element of a crime is mens rea or guilty mind or evil intent. Mens rea refers to the mental element that is necessary for a particular crime. Any wrongful act committed by a human being cannot be called a crime if committed without evil intent. There must be an evil intent while doing an act.

There is a well-known maxim– ‘Actus non facit reum nisi mens sit rea.’ It means ‘the act itself does not make a man guilty unless his intentions were so.’ From this maxim, there came another maxim- ‘actus me invito factus non est mens actus,’ which means ‘an act done by me against my will is not my act at all.’

If maxim applies – In case of application of this maxim, accused person would be benefited and there would be utmost probability of to win the case because prosecutor would be bound to prove prohibited act and guilty mind.

If maxim does not apply - It would be very easy for prosecutor to win the case because he would be bound to prove only one condition i.e. prohibited act. To prove guilt mind always very difficult. It in such case there would be a lot of harm for accused.

Case: R. v. Prince (1875) (Blackburn Justice)

Facts - Henry Prince was charged under section 5515 of the Offences Against the Persons Act, 1861.16 This section was related to abduction. There was no any category of offence like kidnapping under this Act. At that time unlawfully taking of a girl below the age of sixteen years without permission of lawful guardian was an offence. It was proved that the prisoner took the girl whose age was below the age of sixteen years from out of possession of lawful guardians without their permission.17 Real age of girl was 14 years. Actus reus was present but mens rea was absent. Accused proved that he took the girl who was looking age of 18 years and he took with consent and after her replying that her age was 18 years. He did in good faith.

Decision - Court denied these defences. This section had not mention about mens rea i.e. intention, knowledge, reason to believe etc. Justice Blackburn denied applying the maxim Actus non facit reum, nisi mens sit rea and held that the provision did not require guilty intention or knowledge so Court could not insert requirement of intention or knowledge only on the basis of maxim. 

The court drew a distinction between acts that were themselves innocent but were made punishable by statute (malum prohibitum) and acts that were intrinsically wrong (malum in se) 

• In a case of malum prohibitum it could be held that there can be no conviction in absence of mens rea.
• In cases of malum in se person can be convicted even in absence of mens rea unless the statute has made it otherwise.

So, Prince was convicted even without guilty mind.

Case: R. v. Tolson (1889) (Wills Justice)

Facts – Mrs. Tolson married in Sept 1880. Her husband went missing in December 1881. She was told that he had been on a ship that was lost at sea. She also inquired from elder brother of her husband. Six years later, believing her husband to be dead, she married another. All the circumstances were well known to second husband. Her husband returned after 11 months from the date of marriage. She was charged with the offence of bigamy under section 57 of Offences Against the Persons Act, 1861‘.19 Reason was that she had got second marriage within 7 years. She did in good faith. This section was silent regarding guilty mind.

Held: She was afforded the defence of mistake as it was reasonable in the circumstances to believe that her husband was dead. She was acquitted.

Reason- Honest and reasonable mistake stands in fact of the same footing as absence of the reasoning faculty, as in infancy ; preservation of that faculty , as in lunacy. These exceptions apply equally in case of statutory offences unless they are excluded expressly or be necessary implication. The Court applied the Actus non facit reum, nisi mens sit rea.

Case: Sherras v. De Rutzen (1895) (Wright Justice )

Fact-Section 16(2) of the Licensing Act, 1872, prohibited a licensed victualler (victualler means supplier of foods fit for human being) from supplying liquor to a police constable while on duty. 

It was held that section did not apply where a licensed victualler bona fide believed that the police officer was off duty.

Justice Wright said - (1) There is a presumption that mens rea, an evil intention, or knowledge of the wrongfulness of the act, is an essential ingredient in every offence.

(2) In every statute mens rea is to be implied unless contrary is shown.

(3) There is a presumption that mens rea, an evil intention, or a knowledge of the wrongfulness of the act, is an essential ingredient 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.

Case: Ranjit D.Udeshi v. State of Maharashtra (1964)

Selling of “Lady Chatterley‘s Lover” book was prohibited in India. Seller was convicted under section 292 of IPC for selling this book, although he had no knowledge of this book. Strict liability was imposed.

Case: State of Maharashtra v. M.H.George (1964)

Facts - Mayer Hans George, a German Smuggler, left Zurich (Famous city of Switzerland) by plane on 27th November 1962 with 34 kilos of gold concealed on his person to be delivered in Manila (Capital of Philippines). The plane arrived in Bombay on the 28th but the respondent did not come out of the plane. The customs authorities examined the manifest of the aircraft to see if any gold was consigned by any passenger, and not finding any entry they entered the plane, searched the respondent, recovered the gold and charged him with an offence under ss. 8(1) and 23(1-A) of the Foreign Exchange Regulation Act,1947 read with a notification dated 8^th November 1962 of the Reserve Bank of India which was published in the Gazette of India on 24th November.

Decision – Supreme Court examined several British and Indian Cases. All the cases have been discussed above. Purpose of FERA, 1947 was to prevent smuggling. This case is related to economic condition of country. So Supreme Court did not apply the maxim and applied the strict liability principle.

Majority Opinion - N. Ayyangar and J.R. Rajagopala Mudholkar convicted the accused.

Minority Opinion - Justice K. Subba Rao said that M.H. George had no intention to commit crime in India. So, he was not guilty.

Exception of mens rea (Strict Liability)

Sometimes offence is constituted even without guilty mind it is called strict liability. There are certain exceptions mens rea. These exceptions are following –

(1) Criminal Libel (2) Public Nuisance (Hicklin Test) (3) Contempt of Court (4) Abduction/Kidnapping (5) Bigamy (6) Waging war (7) Sexual Harrasment (8) Rape (9) Selling of obscene books (10) Essential Commodities Act, 1955 (11) Motor Vehicles Act, 1988.

3. Actus Reus

The third element of the crime is actus reus. The criminal intent to be punishable must be obvious in some voluntary act or omission. As per Kenny, ‘actus reus’ is such a result of human conduct as the law seeks to prevent. The act committed must be one that is forbidden or punished by the law.

An act also includes omissions. A man is also held liable if some duty is imposed upon him by law, and he omits to discharge that duty. An omission must be a breach of a legal duty.

4. Injury

Injury is the last important, or we can say the essential element of a crime. It must be caused illegally to another human being or a body of individuals or society at large. ‘Injury’ has been defined in section 44 of the Indian Penal Code as ‘any harm whatever illegally caused to any person in body, mind, reputation or property.’

Stages of Crime

If a person commits a crime voluntarily, it involves four important stages, viz. (1) Intention of Contemplation (2) Preparation; (3) Attempt; and (4) Commission of Crime or accomplishment/execution. 

(1) Intention - The intention is the first stage of any offense and is known as the mental or psycho stage. In this stage, the offender decides the motive and decides his course or direction towards the offense. Mere intention shall not constitute a crime, as it is almost impossible to know the intentions of a person. As the famous saying goes “the devil himself knoweth not the intention of a man”. Since it is hard to know the intentions of a man, a criminal liability at this stage cannot be drawn.

(2) Preparation – Generally preparation is also not punishable. But there are some exceptional cases when at the stage of preparation; offence is punishable, namely,

1. Preparation to wage war against the Government (Section 122)
2. Any one commits damages to the property and destruction of property within the territories of our country and the country which is with peace with our government (Sec. 126)
3. Preparation for counterfeiting of coins or Government Stamps (Sections 233 to 235), 255 and 257.
4. Possessing counterfeit coins, false weights or measurements and forged documents (Section 242, 243, 259, 266 and 474)
5. Making preparation to commit dacoity (Section 399).

(3) Attempt – There exists a very thin line of distinction between the preparation of a crime and an attempt to commit the same. It may be defined as an action in furtherance of the intention and preparation of a person to commit a crime. Thus, an attempt to commit a crime is often termed “preliminary crime”. An attempt to commit a crime is punishable under the Code. It has been provided under various provisions for specific crimes. However, in case of the absence of punishment for an attempt to commit a particular crime, Section 511 of the Code comes into the picture. "Attempt" in the Indian Penal Code

"Attempt in IPC can be divided broadly into two categories:

1. In the commission of an offence as well as the attempt to commit it: There are twenty-seven such sections in the Indian Penal Code, where the commission of an offence as well as the attempt to commit are made punishable, namely, sections 121, 124, 124, 125, 130, 131, 152, 153A, 161, 163, 165, 196, 198, 200 213, 239, 240, 241, 251, 385, 387, 389, 391, 397, 398 and 460.

2. In some cases where attempts are treated as separate offences: There are four such offences where attempts are treated as separate offences

1. Attempt to commit murder (section 307);

2. Attempt to commit culpable homicide (section 308);

3. Attempt to commit suicide (section 309); and

4. Attempt to commit robbery (section 393).

For example, A makes an attempt to steal some jewels, by breaking open a box, and finds that after opening the box, there are no jewels in it. He has done an act towards commission of theft and is therefore guilty of attempt.

Difference between Preparation and Attempt

The difference between preparation and attempt is rather fine and depends on the facts of each individual case Following are important distinctions between preparation and an attempt:

1. Preparation consists in devising or arranging the means or measures necessary for the commission of the offence; while an attempt is the direct movement towards the commission of the offence after preparations have been made. An attempt is manifested by the acts which would end in the consummation of the offence, but for the intervention of certain circumstances independent of the will of the party.

2. As a general rule 'preparation' is not punishable but attempt' is always punishable.

3. A mere preparation does not and cannot ordinarily affect the sense of security of the individual to be wronged, nor would-the society be disturbed or alarmed as to rouse its sense of vengeance.

4. In preparation, there is possibility of changing the mind whereas in attempt there is no possibility to change the mind by offender.

For example: A intends to kill B and with this motive, he purchases poison in order to mix it with B's food up to this stage, A's act is mere preparation. The moment A mixes poison in B's food and puts it before him to test he has committed an 'attempt."

(4) Execution of Offence – When an offender achieved his desired goal i.e. when the attempt to commit the offence is successful, then the crime is committed. Where it is not successful section 511 becomes applicable. Once the crime is committed, the consequences of the crime comes into play.

Conclusion:

Understanding the elements and stages of a crime is crucial for the legal system to ensure fair and just outcomes. The interplay between mens rea, actus reus, and the stages of crime helps determine liability and punishment. Legal systems worldwide grapple with defining and refining these concepts to balance individual rights and societal interests. The evolving nature of jurisprudence continues to shape our understanding of criminal liability.