Elements of Crime

To establish criminal liability it is necessary to understand 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 for
common-law crimes.

Fundamental Elements of Crime:

There are four elements which go to constitute a crime, these are:-

1. Human Being-

According to the first element, the wrongful act must be committed by ‘human being’. Any
non-living thing or animals are not considered in the category of ‘person/human being’.
Whereas in ancient times, when criminal law was largely dominated by the idea of the
retributive theory, 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.

But under the Indian Penal Code 1860, if an animal causes an injury we do not held the animal
liable but 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 provides that word ‘person’ includes a company or
association or body of persons whether incorporated or not. The word ‘person’ includes
artificial or juridical persons.

1. Mens Rea

The second important essential element of a crime is mens rea or evil intent or guilty mind or;
a guilty or wrongful purpose; a 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 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 the year 1600) when judges observed that an act alone could not establish criminal
liability unless it is 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 under every crime mens rea plays a significant role to establish criminal
liability. Sometimes a statute creates criminal liability for the commission or omission of a
particular act without designating a mens rea. These are called Strict Liability statutes. If such
a statute is construed to purposely omit criminal intent, a person who commits the crime may
be guilty even though he or she had no knowledge that his or her act was criminal and had no
thought of committing a crime. All that is 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 also associated
with a suspect with the purpose of proving or disproving a particular case or crime. A wrong
motive with guilty intention is necessary to prove criminal liability.

• Motive

Motive refers to the reason 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 exactly 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:-

• The ulterior object is called motive.

• The motive may be good or bad.
• Motive refers to the reason crime was committed.
• Motive, as a psychological term, is also known as the drive.
• It is a general rule; man’s motive is irrelevant in determining criminal liability.
• Criminal law does not concern with good motives.

In exceptional cases, in civil liability, sometimes motive is relevant, e.g. defamation; malicious
prosecution; cheque dishonor, 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. If the prosecution can demonstrate
that the defendant and victim had been arguing shortly before the alleged assault, that motive
can serve as circumstantial evidence that a defendant really 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
characterized as a deliberate action and conscious effort to break the law and commit the
offence. Intent resides in the field of law where it 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 the will or plan of an individual. 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 known about the consequences of the act. That
is why intention is the primary element to affix the culpability.

No matter whether the act is committed with good intent or a bad one, if a person does
something purposefully and consciously, which is prohibited by the law, it will amount to
criminal liability.

Motive v. Intention

The intention is the basic element for making a person liable for the crime, which is commonly
contrasted with motive. Though we often use the two terms interchangeably, these are different
in the eyes of 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, whereas motive implies the 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, why the accused committed the crime. Simply put,
motive impels intention, so, the latter arises out of the former.

In every criminal case, the intention of the defendant is foremost, because, the 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 proves, not only that the defendant was
a passenger in a vehicle and that it was taken by the driver without consent, the prosecution
must also prove 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
defense 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 where a defendant suspects that circumstances exist and "deliberately
decides not to make any further inquiries" in case his suspicions prove well-founded. A
common 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 in corporate crime. For example, if a bar manager
delegates his duties to others and those others know of unlawful activities on the premises, 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 case- laws
leading the Doctrine of Mens Rea. One is R. vs. Prince and another 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
an 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 the
lawful possession and against the will of her father/the natural guardian.

The accused contended that he was under the belief that she completed 18 years. He also
contended that the girl herself told him about her age was more than 18 years. The accused also
argued that he had no mens rea (ill intention).

Judgment: 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 knowledge of the accused 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. That where an act is prima facie innocent and proper unless certain circumstances co-exist,
then ignorance of such circumstance is an answer to 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, 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 Acts: The accused was tried under Section 57 of the Offences against the Persons Act,
1861 (similar provision in India is Section 494 of the Indian Penal Code, 1860) 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 died in a ship accident in America.

Therefore, supposing herself to be a widow, she married another man in 1887. The whole story
was known to the second husband and the marriage was not secrecy.

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 on reasonable facts about the death of husband was no defence to the charge of bigamy.
She appealed to the Court of Appeal.

The question before the Court of Appeal 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 second marriage was a good
defence in the offence of bigamy.

It also opined that the statutory limitation for the second marriage of seven years was completed
at the time of her second marriage and she informed the real facts to the second husband. 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 for obtaining
divorce from his first wife. He believed that as soon as he handed over his case to his solicitor,
he obtained divorce from his first wife.

Believing it in good faith, he married another lady. The first wife prosecuted him. He pleaded
that he did not know the procedure of law and he believed that he obtained the divorce and
with bona fide intention he married another lady.

The Court did not accept his version and convicted him for the offence for 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 cases are quite distinct from each other. 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 which
was forbidden by law, whereas Mrs. Tolson had no such intention.

2. The Doctrine of Mens Rea was re-surrected 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 Indian Penal Code, 1860, every offence is defined
very clearly. 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 words “mens rea” are not used
anywhere in the Indian Penal Code. However, the framers of the Code used the equivalent
words to those of mens rea in the Code very frequently.

Such expressions are:-

• Fraudulently (Section 25);

• Dishonestly (Section 24);
• Reason to believe (Section 26);
• Voluntarily (Section 39);
• Intentionally; etc.

Moreover, in the Indian Penal Code, a separate Chapter (Chapter-IV) on General Exceptions
is provided. Chapter-IV (Ss. 76 to 106) explains the circumstances, where options of criminal
intent may be presumed. Comparing with English Law, Mens Rea has been applied by the
Indian Courts, and it is now firmly settled law that Mens Rea is an essential ingredient of
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 read into a statutory penal provision unless a statute either
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.

While disposing of Dahya Bhai Chagganbhai Thakkar vs. State of Gujarat (AIR 1964 SC
1763),

the Supreme Court observed and explained the law of burden of proof in insanity cases as
follows: “The Doctrine of Burden of Proof" in the context of the plea of insanity may be stated
in 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 84 of the Penal Code; 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 299) and Murder (Section 300), the
Court depends upon the Doctrine of Mens Rea.

5. Section 292 of the Penal Code prescribes the punishment for the sale of obscene books, etc.
Possession of obscene literature, books, etc., includes ill intention. Section 299 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 which is pre-requisite 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 the
offence under the Indian Penal Code. What the Indian Penal Code requires is not a negation of
Mens Rea, but Mens Rea of a specific kind and this differs from offence to offence.

For every intention, there shall be one ‘motive’. Section 8 of the Indian Evidence Act, 1872
explains the importance and the evidentiary value of motive.

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 was the result of voluntary bodily
movement. This 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 who has been left in your care, or not
completing a work-related task properly which resulted 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 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 done, 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 done, but it is not intentional and
the responsible person will not even know about it until after the fact. In Indian Penal Code,
1980 sections 76-106 explains 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 the society at large. The
injury should be illegally caused to any person in body, mind, reputation or property as
according to Section 44 of IPC, 1860 the 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 offense, 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.