Thursday, 13 December 2012

Principles of criminal liability

Characteristics of a crime

  • Harm
  • Brought about by Human Conduct
  • Sovereign state desires to prevent it
  • Measure for prevention includes threat of Punishment
  • Special proceedings employed to decide whether the accused has caused the harm and inflicting punishment

The place of Criminal Law in Criminal Science

Three branches of Criminal Science:
  • Criminology: It deals with the causes of Crime – both Biological and Social
  • Criminal Policy: Studies the measures to limit the harmful conduct, Takes measures by setting up social organizations to prevent harmful activities and lays down the principles by which harms are classed as crimes and how criminals are to be treated
  • Criminal law: What conduct is considered as tort and what is Crime, Prescribes the punishment. It is an instrument used to implement the Criminal policy

Principles of criminal liability

The period of Strict Liability

Strict liability crimes are those in which the defendant is held liable for a criminal offense he committed, even if mens rea is absent. Though the defendant did not intend any harm by his actions and was completely unaware that he was committing an illegal act, the doctrine of strict liability holds him liable for the criminal offenses committed.
Most cases of strict liaiblity are minor infractions and misdemeanors, not nearly as serious as felonies, but still warranting heavy fines and up to a year in jail. Examples of minor offenses for which violators are held strictly liable are parking violations, speeding unknowingly, selling alcohol to minors and, in some jurisdictions, employing people under the age of fourteen.

Mental Element in Criminal Liability

To constitute a crime and subject the offendor to a liability to punishment, i.e., to produce legal criminal “guilt”, a mental as well as a physical element is necessary. Thus, to use a maxim “Actus non facit reum mens sit rea“. The act does not make a person guilty unless the mind is also guilty.
It is a well known principle of natural justice meaning no person could be punished in a proceeding of criminal nature unless it can be shown that he had a guilty mind.
Accordingly, every crime involves:
  1. A particular physical condition – a vicious conduct
  2. A particular mental condition – a vicious intention

Actus Reus

Actus – A physical result of human conduct and Reus – criminal policy that prohibits and seek to prevent its occurrence by imposing penalty for its commission. Thus, Actus Reus means “such result of human conduct as the law seeks to prevent
For example, A repeatedly stabbed B and thereby caused serious injury to his heart and lungs because of this injury B died. A stabbed B with an intention to cause death of B. Here A’s act of repeated stabbing and injuring of B is conduct, the result of such conduct is the death of B
A mere injury caused by a conduct is not actus reus:
For example, when the court sentences a death penalty to a person and the execution takes place.
Results of Omission: In many cases, even the omission of action qualifies as actus reus.
Causation: Harm is an event and event is the product of plurality of factors. There are several causes of one event. So, it can be reasonably said that the event is caused by one of these factors if it would not have happened without that factor. For example, a man can be said to have caused the actus reus of a crime if that actus would not have occurred without his participation in what was done.
No physical participation and liability for actus reus
  • Principles
  • Accessories
  • Incitement
  • Conspirator
  • Circumstances where instigator is primarily liable and instigated is guiltless
Where another person intervened
  • R v. Lawe: Engineer deserting his work, leaving the engine in charge of an ignorant boy who declared himself incompetent to handle the engine.
  • R v. Jordon: A stabbed B, B subsequently died. Medical evidence showed that B died due to Broncho-Pneumonia due to mistaken administration of antibiotics and intravenous injection.
Victim’s Own Conduct has affected the result
  • R v. Horsey: A sets fire to a stack of straw. While the stack was burning, the victim was seen in flames and his body was found in the stack yard. No evidence as to how he came there. A tried to save the deceased.
Contributory Negligence
  • R v. Swindall and Osborne: Each person driving horse cart on a public road encouraging each other to drive it at dangerous place, killed a pedestrian. It was alleged that deceased is deaf, careless and negligent.

Mens Rea

One of the main characteristic of our legal system is that the individual’s liability to punishment for crimes depends, among other things, on certain mental conditions. The liability of conviction of an individual depends not only on his having done some outward acts which the law forbids, but on his having done them in a certain frame of mind or with a certain will. Mens Rea is the mental process of a person. At the time, when he was engaged in the activity which resulted in the deed. It is a legally reprehensible state of mind.
It means a mental state, in which a person deliberately violates a law. Thus, mens rea means intention to do the prohibited act.

Development of Mens Rea

In the earliest time it was the fundamental presumption that a man in every case
intended to do what he has done. The English criminal law began with strict criminal liability, and there was no clear distinction between the Tort and crime.
Therefore the mental attitude of a person was an irrelevant consideration in so far as trial and punishment was concerned.
But later on bodily punishment came as a substitute of the payment of damag
then the importance of mens rea or the mental attitude of a person, at the time of
commission of crime was realized. With the passage of time requirement of mens rea as an essential element of a crime has firmly taken in its roots.

Mens rea in its root

Now it is the combination of act ( actus rea) and intent mens rea which makes a crime. And the maxim – Actus non facit reum nisi mens sit rea means act alone does not make a man guilty unless his intentions were so. It is a well known principle of natural justice. There can be no crime large or small without any evil intent. The responsibility in crimes must depend on the doing of a willed or voluntary act and a particular intent behind that act. Most conscious and voluntary acts are directed towards result or consequence. When one acts to produce a particular consequence he is said to do that act with that intention.
Intention + Act + attempt = Offence

Exceptions to mens rea

Crime = Voluntary act + foresight of the consequences

Acts under compulsion

If the consequence not looked for the act may be voluntarily but not intentional. For any criminal liability there must be a voluntary act, this preposition drive from the maxim – Actus me invite factus non est mens actus which means and act done by me against my will is not my act. This maxim support the doctrine of Mens Rea – for no person can be held liable for an act done under the fear or compulsion.
For example:
A holds B and compels him at gun point to open the lock of C’s house. Here B’s act not a willed or intentional act.
The basic requirement of the principle of Mens Rea is that accused must have been aware of all those elements in his act which make it the crime with which he charged.
Desire + Will + Motive + Intention + Preparation + Attempt = Commission of an offence

Application of Mens Rea in Indian Penal Code

Technically, the application of mens rea is not applied to the offences under IPC. Every offence is very clear under IPC 1860. The definition not only states what accused might have done, that also states about 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 word Mens Rea are not used anywhere in IPC. However, the equivalent words to those of mens rea in the IPC Code used are: Dishonestly (s. 24), Fraudulently (s. 25), reason to believe (s. 26) and voluntarily (s. 39)
Case Laws:
Sankaran Sukumaran V/s Krishnan Saraswathi (1984 Cr Lj 317) SC held that mens rea is an essential ingredient of the offence under section 494 (bigamy), where the second marriage has been entered in a bonafide belief that the first marriage was not subsisting, no offence under this section committed.
C. Veerudu v. State of Andhra Pradesh, SC held that under section 498 A, cruelty means “willful conduct”. Willful conduct includes mens rea.


In modern statutory offenses, the maxim has no longer applicable and the statutes are to be regarded as themselves prescribing the mental element which is pre-requisite to a conviction. So mens rea is an essential element of crime, in every penal statue unless the same either expressly or by necessary implication is ruled out by the statues.

Voluntary Conduct

A man is guiltless if his movements which led to the harm were involuntary. For example: Nurse putting the child behind a large fire by thinking it as a log of wood.

Foresight of the consequences

An voluntary act resulted in the harm and the harm was not contemplated. Principle: A man should not be punished unless he had been aware that what he was doing might lead to mischievous result.


Direct appeal to your senses. Here the probability is very high (against to commit the act against Law). Exp. to purchase a stolen good. Theft –  To taking possession without the consent of the owner.

Intention, Recklessness and Negligence

Intention denotes the state of mind of a man who not only foresees but also desires the possible consequences of his conduct. There cannot be intention unless there is also foresight. For example, A man cannot intend to do a thing unless he desired to do it.
Intention is the most culpable form of mens rea, as it involves acting with the objective of bringing about a consequence or with the desire to bring about that consequence and foresight that your actions are virtually certain to do so. Presumption of Intention – Natural and probable consequences should be presumed.
Recklessness – Intention cannot exist without foresight but foresight can exist without intention. If a person foresees the possible consequences of his conduct, yet not desire them to occur but persists on his course. Thereby knowingly runs the risk of bringing about the unwished result. This state of mind is calledreckless. Some feature of recklessness: Man who is reckless may prefer that the contemplated event shall not happen or, he may not care whether it happens or not. In both these situations that person does not desire the event to happen.
Basic principle of fixing a criminal liability is the combination of : Foresight and Indifference. Doing something without the knowledge but the foresight.

Misnomer of recklessness

  • Wicked
  • Criminal negligence
  • Culpable negligence
  • Gross negligence
  • Complete negligence
Most of these misnomers create more confusion as to the true meaning recklessness instead of clarifying them

Only two state of mind which constitute mens rea:

  • Intention
  • Recklessness

Vicarious Liability at Common Law


A person is negligent when:
  1. he fails to foresee a risk that a reasonable person would have foreseen; or
  2. he does foresee the risk, but either does not take steps to avoid the risk or takes inadequate steps, thereby falling below the standard to be expected of the reasonable person.
  • In both intentional and reckless act – The person involved must necessarily foresee its possibility
  • Still he adverts to the result
  • If a man brings about an event without having adverted to it at all
  • for him the event is surprise
  • If the event is harmful then the question of his legal liability arises

Negligence & Criminal Liability

  • For negligence at common law tortious liability can be imposed if certain conditions are fulfilled
  • At common law there is no criminal liability caused by inadvertence

Difference between Negligence and Recklessness

  • The difference between recklessness and negligence is that of difference between advertence and inadvertence

Negligence and Neglect

  • Again negligence is Inadvertent and neglect is Advert

Statutory Offences

An offence is basically a violation of law. In legal parlance, the word “offence” is generally construed as a criminal wrong. Hence, offence means a wrong in penal law. The Code of Criminal Procedure, 1973 defines “offence”as “any act or omission made punishable by any law for the time being in force and includes any act in respect of which a complaint may be made under section 20 of the Cattle-trespass Act, 1871( 1 of 1871)”. This is a guideline for offences related to the Code. But, there are other types of offences too; the ones that are created by different statutes, like those related to taxation, national security, etc.. These are commonly referred to as Statutory offences.

Mens Rea in Statutory offence

Before a criminal is made liable, he should be proven to have some blameworthy mental condition (mens rea). For example, when someone attacks you, then, causing injury to him in private defence is not a crime but, causing injury with the intention of revenge is a crime. This is how the presence of a guilty mind changes the nature of the offence. But, the requirement of a guilty mind varies from crime to crime. An intention which would qualify as the required mens rea for one crime, may not for some other crime.
Presumption requiring mens rea
In statutory interpretation, certain presumptions are taken into account by the court while interpreting the statutes. The presumption relevant here is that a criminal act in general requires the presence of mens rea. Almost all crimes that exist independently of any statute require, for their commission, some blameworthy state of mind on the part of the actor.
Where a statute creates an offence, no matter how comprehensive and absolute the language of the statute is, it is usually understood to be silently requiring that the element of mens rea be imported into the definition of the crime (offence) so defined, unless a contrary intention is express or implied. Hence, the plain words of a statute are read subject to a presumption (of arguable weight), which may be rebutted, that the general rule of law that no crime can be committed unless there is mens rea has not been ousted by the particular enactment.
In determining whether a statutory provision does or does not create an offence of strict liability, the following considerations seem to be relevant, as given in the judgment of (M.H. George’s Case) :-
  1. Phraseology of the statutory provision creating an offence of strict liability, particularly expressions indicating or excluding the mental element required.
  2. Object of the Statute
  3. Nature of public purpose purportedly preserved by the statute
  4. Nature of the mischief at which the provision or statute is aimed, and whether the imposition of strict liability will tend to suppress the mischief, although strict liability should not be inferred simply because the offence is described as a grave social evil.

Illustration of statutory offences and mens rea

  • R v. Prince – Accused taking away a girl of 16 yrs old out of possession of her father
  • Brand v. Evans – Licensee charged with permitting illegal activities in the licensed premises
  • Possessing, for sale unsound meat
  • Selling of adulterated article of food
  • Un discharged Insolvent obtaining credit through agent

Variations in Criminal liability


Conditions to be fulfilled for availing mistake of fact as a defence – Sections 76 & 79 of IPC. The mistake must relate to FACT and not to LAW. The state of things believed to exist would, if true, have justified the act done. The mistake must be reasonable
Acts done under order of a superior authority – the accused believing himself to be bound by law was entitled to the protection under Sec 76 (State of West Bengal v. Shew Mangal Shah, 1981)
Charges of obscenity – Prior certification by the Censor board provides justification in law in exhibiting the film. (Raj Kapoor v. Laxman, 1980)


Involuntary intoxication under the IPC Section 85. Incapacity to know the nature of his act, Incapable of knowing that the thing he was doing was either wrong or contrary to law, Intoxication without knowledge or against will
Voluntary intoxication under the IPC Section 86 where there is a presumption of particular knowledge or intent
In the case of Jethuram Sukhra Nagbhansi v. State, 1960 – nature of intoxication n the basis of interpretation of ‘against the will’.


  • An act done by me against my will, is not my act
  • Defence of compulsion under Section 94 of IPC (except murder and offences against the State punishable with death)
  • Defence of necessity (Section 81 of IPC) is based on the maxim ‘necessitas vincit legem i.e., necessity overcomes law.
  • Necessity as a reason for homicide – R v Dudley and Stephens, 1884

Legally Abnormal Persons

Persons who are not invested with the same responsibility for their acts as are those whom the term as legally normal owing to some peculiarity in themselves. e.g.,
  • The Sovereign: Based on the doctrine that the sovereign or government cannot commit a legal wrong and is immune from civil suit or criminal prosecution
  • Infants: Incapacity to understand the nature and consequence of an act or omission – basis exempting a child below seven years from criminal liability (Section 82 of IPC)
  • Insane persons: A complete defence to criminal liability in offences involving mens rea. Insanity in IPC Sec. 84. Every type of insanity is not a legal insanity unless the cognivance faculty is destroyed as a result of unsoundness of mind. Baburam Mahali v. State of West Bengal, 2005

Possible parties to the crime

Classification of crimes for the purpose of determination of parties to Crime. They are: 1. Treasons 2. Felony 3. Misdemeanors


No legal distinction between the various recognized modes of taking part in the commission of such offences.
  • Slightest share in treason is regarded as heinous
  • No activity in a misdemeanor is considered as heinous and no formal distinction between it and any less prominent mode of taking part in the offence
  • All persons who are concerned in it in any way – whether by actually committing it or even by keeping near in order to assist while it is being committed or merely suggesting it are classed together


Notice will be taken of the gradations of participation in them
Four categories of guilty association with a felony:
Principal in the I degree
Actual offender: The person whose guilty mind is the latest blamable mental cause of the criminal act. In most of the cases the person who actually done the act.
  • Doctor asking nurse to administer poisonous substance as drug to kill a patient
  • Using child to commit felony
  • Using animal to commit any felony
More than one Principal of first degree:
  • Dishonest servant who unlocks the door of master’s house to commit burglary with others
  • Father and mother for allowing a child’s death due to starvation
  • A man holds the victim and the other person cuts his throat
Principal in the II degree (Aiders and Abettors)
The person who aided and abetted at the very time when the offence is committed.
  • Car owner sitting beside the driver who kills by over – fast driving
  • Bigamist second spouse
  • Receiver of stolen property
Accessories before the fact;
  • He knows the particular deed contemplated
  • He approved it
  • His views are expressed in such a form which encouraged the principal to perform the deed
  • The person is absent at the time when felony is committed
  • These things happened before the offence is committed
  • A person who procure, counsel, commend or abet the commission of offence
Accessories after the fact
  • He knows that the felony has been committed
  • He shelters or relieves any felons
  • Enable him to elude justice
  • Supplies the felons the means to escape
  • Helps the felons to get out of the prison
  • Active assistance to felons is necessary
  • Wife’s immunity for helping husband who is a felon


A misdemeanor, a criminal offense that is less serious than a felony. It is is generally punishable by a fine or incarceration in a local jail, or both. Many jurisdictions separate misdemeanors into three classes: high or gross misdemeanors, ordinary misdemeanors, and petty misdemeanors.
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